JACKSONVILLE, Fla. — The man convicted in 2018 for the murder of an 8-year old girl, appeared in a Duval County courtroom Wednesday morning on day two of an evidentiary hearing.
Eight-year-old Cherish Perrywinkle went missing from the Walmart on Lem Turner Road in June 2013. Donald Smith is currently serving a death sentence after he was convicted of kidnapping, raping and killing Cherish. However, Smith was granted a hearing on claims that his original trial attorneys mishandled the case.
Rayne Perrywinkle watched as her daughter's killer Donald Smith entered the courtroom Tuesday morning.
One of Smith's former lawyers, Julie Schlax, spent the most time on the stand during the first day of the hearing Tuesday, taking questions on jury selection and why she didn’t advise Smith to take a plea deal instead of going to trial.
"We certainly knew, as Mr. Smith did, that we were not going to be successful in the guilt phase," Schlax said.
"But rather than expressing remorse and trying to take responsibility, his decision was go to trial?" Smith's defense asked.
"Yes," Schlax answered.
Smith’s defense argued that the original jury members weren’t thoroughly vetted. This is because during jury selection, one candidate in a questionnaire had answered 'yes' when asked if she formed her own opinion about Smith's guilt, but then she crossed the answer and put no.
"It looked like a simple mistake," said Charles Fletcher, another original defense attorney. "We never did ask."
During the initial trial, Schlax and Flether did not cross examine Cherish's mother, which Smith's defense argued was a missed opportunity to challenge her credibility. However, Schlax claims it was Smith who made that request.
"This was definitely a case that if we were going to be successful, we were going to have to get hopefully one or more jurors to believe in Mr. Smith," Schlax said. "Me fighting with Mrs. Perrywinkle was not going to move in that direction at all."
Another argument is whether a forensic psychologist should have been called upon during the original trial by the defense, because she made damaging statements that hurt the defense’s case. That forensic psychologist was called upon Wednesday, as Smith returned to court.
The hearing continued into a second day on Wednesday. On the stand was Dr. Heather Holmes, a forensic psychologist and the first witness called by the defense to take the stand during Smith's initial trial. She explained Smith’s original attorney’s called upon her to show the state knew about his past dangerous behavior, but did nothing.
"She wanted me to give my impressions of him, give the diagnosis," Holmes said. "If I didn't find anything in terms of the statutory mitigators say that, but really the focus of the testimony was, what I believed to me, an egregious mistake on DCF [Florida Department of Children and Families]."
Smith's attorneys argued that by putting Holmes on the stand, it allowed for the state to ask questions about his past mental and psychological evaluations. This is evidence they claim would not have been discussed had she not been called.
On Wednesday, Dr. Homes explained that the defense was well aware what she would say.
"Mrs. Schlax put you on the stand, exposed you to cross examination, and the risk that you would have testified that her client was a psychopath is that correct?" Holmes was asked by Smith's attorneys.
"Yes," Holmes said.
State Attorney's Office representatives do not expect Smith to return to court for the final ruling. The defense and state will file written closing arguments, and the judge will file a written ruling.