DUVAL COUNTY, Fla. — More than a decade after an 8-year-old girl was kidnapped from a Jacksonville Walmart, raped, and murdered, her killer's death penalty case returned to a Duval County courtroom Tuesday morning.
The case of Cherish Perrywinkle rocked the Jacksonville community for months. The 8-year-old was found raped and murdered after she went missing from a Walmart on Lem Turner Road in Jacksonville in June 2013.
Donald Smith was convicted in 2018 of kidnapping, raping and killing Cherish Perrywinkle and was sentenced to death. 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.
Smith is currently being held at Union Correctional Institution in Raiford, Fla.
In July 2023, a judge agreed to grant a new evidentiary hearing after Smith's current lawyers claimed that Smith's original attorneys mishandled the trial.
They cited several trial mistakes including the fact that the initial trial attorney's elected not to cross-examine Cherish Perrywinkle’s mother right after prosecutors played her panicked 911 call. That meant relinquished their chance to challenge Rayne Perrywinkle's credibility, including alleged “prior false statements under oath.”
However, Sheila Loizos, director of the State Attorney’s Office’s legal division, argued that decision was made by Smith. He instructed his attorneys not to question Rayne Perrywinkle; they simply followed his instructions.
Smith’s postconviction attorney Maritere Taveras-Zohn also criticized Smith’s trial attorneys for calling forensic psychologist Dr. Heather Holmes as their first witness at the penalty phase of Smith’s trial. Not only did Holmes not present any mitigating evidence, Taveras-Zohn said putting her on the stand “opened the door to an avalanche of otherwise unavailable aggravating evidence,” including Smith's prior sex crimes.
However representatives from the State Attorney's Office called the evidence against Smith "overwhelming."
"This was an incredibly brutal crime. There was a lot of evidence. The only mitigation that had a chance was to show that Donald Smith was a horrible human being. And it's the state's fault that he was free. He should have been incarcerated, and that 'mistake' was the states fault that he was not incarcerated," Sheila Loizos, with the state attorney's office, said.
Ultimately, Senior Circuit Judge Mallory Cooper agreed that a full evidentiary hearing, including sworn testimony from Smith’s trial attorneys, should be held and granted a new hearing which is scheduled for December 4th in the Duval County Court House.
After Smith's attorneys filed for a new trial, Rayne Perrywinkle who is Cherish's mom, sent the following statement to First Coast News:
"I applaud all of the jurors and what they had to endure while contemplating the fate of Donald Smith. There was nothing biased in the finality of their decision to see that Donald Smith be put to death. Let the punishment fit the crime."
