10 years later, Cherish Perrywinkle's killer, Donald Smith, is granted new hearing

Nearly 10 years after an 8-year-old girl was kidnapped from a Jacksonville Walmart, raped and murdered, the case against her killer is returning to a Duval County courtroom. Monday a judge agreed to grant a hearing on Donald James Smith's post-conviction claims that his original trial attorneys were ineffective.

Cherish Perrywinkle would have been 19 had she lived. The man who took her life in 2013, the now-67-year-old Smith, didn't appear in court. However, attorneys handling his post-conviction process told Senior Circuit Judge Mallory Cooper the hearing was required.

“Defendants are entitled to a trial,” Smith’s attorney Ann Marie Mirialakis told Cooper, who presided over the 2018 death penalty trial. “You are entitled to something more than a licensed attorney sitting at a table.”

Mirialakis said Smith's lawyers failed in a variety of ways, including electing not to cross-examine Cherish’s mother right after prosecutors played her panicked 911 call. That meant relinquishing their chance to challenge Rayne Perrywinkle's credibility, including alleged “prior false statements under oath.”

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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.

“Donald Smith was convicted on video and DNA evidence, and not whether a fairly minor witness was not cross-examined at his request,” Loizos said. She called the evidence against Smith “overwhelming.”

"There was the video of the child being led out of the store," she said. "The DNA evidence was [found on the child’s various body parts]." A single witness' testimony "pales in comparison to that evidence of guilt."

Loizos continued, "A defendant is entitled to a fair trial — not a perfect trial. Donald Smith got a fair trial."

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.

When cross-examined by State Attorney Melissa Nelson, Holmes called Smith “a mentally disordered sex offender” from the time he was a teenager and said after evaluating Smith three times that she could find no mitigating evidence on his behalf.

“You testified that, based on your evaluation and your review of history that there is nothing mitigating to him?” Nelson asked. “That’s correct,” Holmes replied.

Not only was Holmes not helpful, Taveras-Zohn said she offered the “seemingly biased statement that [Smith] was the most dangerous pedophile she had ever met.”

Loizos dismissed that contention, saying Holmes’ testimony was key to his penalty phase strategy.

“They had to put on Dr. Holmes in order to show that the state 'failed' by releasing him from prison and not holding him under [the] Jimmy Ryce [Act].”

“This was an incredibly brutal crime,” Loizos continued. “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 state’s fault."

Monday’s status hearing was to determine whether a full evidentiary hearing, including sworn testimony from Smith’s trial attorneys, should be held at a later date. The judge agreed a hearing was required and set it for Dec. 4. That hearing is expected to last at least a day.

Smith is currently being held at Union Correctional Institution in Raiford.

According to court records, on June 21, 2013, when Cherish went missing, her mother told police she and her three daughters were shopping at a Dollar General when a man later identified as Smith offered to help them. He said his wife had a $100 Walmart gift card he was willing to give them. Perrywinkle didn't have a car, so he drove the family to the store. After shopping for awhile, he offered to buy them food at the McDonald's in the front of the store and took Cherish with him. Perrywinkle said that was the last time she saw her daughter.

She was then raped, strangled and dumped in a creek bed near a church.

Smith, whose image was captured on Walmart security video with Cherish, was arrested the next day after a tip from a resident who noticed his white van — and the girl's body was found.

Smith had been out of jail for three weeks. He has a criminal history of preying on children going back to the 1970s.

This article originally appeared on Florida Times-Union: Donald Smith gets hearing in Cherish Perrywinkle murder in Jacksonville