JACKSONVILLE, Fla. — A Jacksonville man sentenced to die for the brutal murder of 8-year-old Cherish Perrywinkle in 2013 is seeking a new trial.
A lengthy motion filed in the 2018 conviction cites 12 reasons Donald Smith is entitled to a new trial, including an allegedly biased juror, comments made by prosecutors and his attorney’s decision to call a psychologist who offered damaging testimony about Smith’s criminal tendencies.
"We all went in the back and debated, deliberated over it and came up with a unanimous decision of what the right decision was to be made," Paul Hinson, one of the jurors, said.
Hinson said its Smith's right to ask for a new trial, but believes Smith wants it for the publicity.
"I think that's his main objective is trying to get everyone to relive this again," Hinson said.
At trial, Dr. Heather Holmes testified that Smith was “the most dangerous sex offender I've ever evaluated.”
The motion says Smith's consent to using the doctor was immaterial because he is "a mentally ill, brain damaged individual." It continues, "Trial counsel should never have called Dr. Holmes even if Mr. Smith insisted upon it."
At trial, Smith chose not to testify or present any defense in the 2013 kidnapping, rape and murder. At the time of the crime, he was a convicted child predator with multiple prior convictions.
A 2019 First Coast News investigation found a series of missteps and missed opportunities to permanently confine Smith in the years following his first sex offense in 1977. Among them:
- A 2002 letter from Smith’s doctor warning of the “clear present” danger he posed. The letter came within a month of Smith’s release from prison on the condition that he undergo chemical castration and sex offender therapy, something his doctor said he refused. In his letter to the State Attorney’s Office, the doctor called the situation “terribly troublesome and dangerous” and a “direct disregard for the safety and welfare of children.” He added that Smith posed “a clear present and future danger to children and the community” – a warning that had zero effect.
- A document from the State Attorney’s Office “voluntarily dismissing” the agency’s 1999 effort to have Smith permanently confined. The document explains the decision to drop the case, citing “numerous weaknesses with the case” including the fact that Smith -- despite having been convicted of two separate lewd and lascivious assaults, as well as attempted kidnapping -- “never committed a violent offense.” Prosecutors also note they've been unable to locate Smith's kidnapping victim to testify at the confinement hearing. That victim was “easily” located by prosecutors in the 2013 case, and willingly testified.
- An annotated version of the same document, marked up by prosecutors in the Perrywinkle case as they pick apart its reasoning. The notes call the decision “terrible” and critique the legal analysis with comments like “What is that?” “So what?” and “Try!”
- A disturbing police report that even lawyers familiar with Smith’s case didn’t know about: In 1998, Smith was found in his car with semen on his chest and KY Jelly on his hands, along with a bottle of vodka, a bottle of warm urine and a note that read “I want to see you hang by your neck.” The report was never brought up during discussions about whether to permanently confine Smith.
First Coast News reached out to Cherish Perrywinkle's mother, Rayne. She said she wasn't aware of the motion and would need a few days to process it before making any comment.
The state has not yet responded to Smith's motion and has asked for an extension of time to respond. Smith is due back in court June 5.