Jacksonville, FL — Donald Smith's defense says they were intentional in their decision last week to not deliver a closing argument at the end of the guilt phase.
“What can I say? How can I stand up in here and say ‘Find Donald Smith not guilty’?” said Defense Attorney Charles Fletcher, adding the evidence presented was “insurmountable”.
But this penalty phase is not about that, according to Fletcher.
“Last week, it was about what he did. This week, we’re going to explain how it happened. We’re going to talk to you about mental illness, because that’s what this is about. And it’s not going to be a pretty picture,” Fletcher said.
Prosecutors, meanwhile, continue to argue the case is so “heinous” that there’s no option but the death penalty.
FULL TRIAL: The trial of Donald Smith
Smith was convicted last week of the 2013 kidnapping, rape, and murder of 8-year-old Cherish Perrywinkle. That same jury is now sitting in the penalty phase, where they will decide whether Smith should be sentenced to death. That decision must be unanimous, with the alternative being life in prison without parole. This phase comes down to jurors determining if there were "aggravating factors" in this murder, and if those outweigh any "mitigating factors".
The State clearly outlined what they see as the aggravating factors in this case, during the opening statement by State Attorney Melissa Nelson.
“Two weeks ago, when we first met, the defendant Donald Smith was unknown to each of you and presumed by every one of you to be innocent, but that’s all changed,” Nelson told the jury.
They’re arguing six aggravators- that the murder was committed during other felony crimes, that the victim was under 12-years-old, that the murder was committed to avoid arrest, that the murder was cold and calculated and premeditated, that the murder was heinous and atrocious and cruel, and that Smith had a prior violent felony.
Nelson says the jury has already agreed to the first two aggravating factors, as shown through their convictions of Smith. The nature of the crime, Nelson says, was made clear through the testimony of the Chief Medical Examiner, photos of the autopsy of Cherish, and evidence that was presented. They're planning to call a witness to speak to the final area- a woman who Smith tried to kidnap when she was 13-years-old back in 1992.
“The question before you is whether the aggravation in this case, once fully proven, whether it’s sufficient to warrant this most ultimate penalty. And ladies and gentlemen, on behalf of the state of Florida, I submit to you that it is,” Nelson said.
After not presenting any witnesses during trial and holding only limited cross examination of the prosecution’s witnesses, Smith’s defense team gave their longest presentation of the proceeding so far in the form of their opening statement for the penalty phase. They’re arguing Smith suffered brain damage and could not control his impulses.
Fletcher says this was a “tough case” from the perspective of the defense, but that there were signs from a young age that Smith had problems.
“The train has been coming down the tracks for years,” Fletcher said.
Fletcher says “the pull” Smith felt was so strong that he ignored cameras, used his real name, and offered up his driver’s license when he met the Perrywinkles. He says the jury will learn that two weeks prior to that encounter, Smith went on a cocaine binge, which included having violent thoughts about killing his drug dealer. Fletcher says Smith sought to be admitted to a facility, but was turned away.
Fletcher further spoke about warning signs shown by Smith from a young age, saying that at 5-years-old, he was “sexually aware”; at 10-years-old, he was doing things that could have him classified as a voyeur; and in his early 20s, he masturbated in front of a young girl.
“All signs of a pedophile. Something, a sickness up here. Something he didn’t choose,” Fletcher said.
He says the defense will further show medical scans that specifically show brain damage that, combined with drug abuse, created a “perfect storm”.
“We are not saying that he’s insane. He knows right from wrong. That’s not what the doctors are saying. they’re saying he is so sick up here, has physical problems up here, damage to his brain, that when he has an impulse, he acts on it, without regard to consequences,” Fletcher said.
Smith is dressed in jailhouse orange clothing for this phase, although he wore dress clothes during the guilt phase. Before the jury was brought in, that was briefly discussed, and the Judge said it’s part of the defense strategy. Fletcher hinted at that in his opening statement, pointing to Smith and saying that, even if he was sentenced to life in prison, he would spend the rest of his days in that outfit and leave in a pine box.
Fletcher says they’re not going to paint a “pretty picture”, but the jury needs to get a full understanding of Smith’s background and mental state.
“You still don’t have to vote for death. You can choose to show mercy. And sometimes mercy is given to someone who might not even deserve it,” Fletcher says.
Witness testimony comes next, and WOKV and Action News Jax will have full coverage through the proceedings.