Jacksonville, FL - “He made the conscious choice to end her life,” argued Assistant State Attorney Mark Caliel.
“Do we execute the mentally ill,” asked Defense Attorney Julie Schlax.
They’re the recurring themes laid out during Thursday’s closing arguments in the penalty phase of the trial of Donald Smith. Smith was convicted last week of the 2013 kidnapping, rape, and murder of 8-year-old Cherish Perrywinkle, and he could be sentenced to death for the murder charge.
FULL COVERAGE: The trial of Donald Smith
Defense attorney Julie Schlax delivering the closing: You have "the greatest power in your hands you'll ever have", this is likely "one of the most critical decisions you will make in your life" #DonaldSmith #CherishPerrywinkle pic.twitter.com/Ik2JDjiiU4— Stephanie Brown (@SBrownReports) February 22, 2018
While the State only presented one witness in this phase- a former victim of Smith- Caliel reminded the jury that all the evidence that led to Smith’s conviction is still in play, from the testimony of the Chief Medical Examiner and autopsy photos of Cherish, to her mother’s account of how Smith befriended and deceived her.
He recounted a lot of that while explaining for the jury what aggravating factors they’re presenting in this case. The jury must determine if these aggravators exist, if they’re sufficient to impose the death penalty, and if they outweigh mitigating circumstances.
Two aggravators which Caliel believes have already been proven inherent in the convictions, are that the murder happened in the commission of another felony and that the victim was under 12-years-old. He said the testimony of their witness- who described Smith’s attempted kidnapping and later reappearance outside of her home- showed the third aggravator, that Smith has at least one prior violent felony.
Another aggravator, according to Caliel, is that Smith committed the murder to avoid his own arrest. Smith would have faced life in prison just for the capital sexual battery charge. Caliel said Smith killed Cherish because he needed to eliminate a witness.
“He made the conscious choice to end her life,” he said.
This relates to another aggravator, that the crime was “cold, calculated, and premeditated”. The defense has built a case that Smith could not control his impulses because of brain trauma and abnormalities, exacerbated by severe drug abuse. Caliel said the impulse control may relate to Smith’s pedophilia, but the murder was intentional. He said there were many times over the night that he could have acted on an impulse and attacked Cherish, but instead he spent hours building the trust of her mother, plotting his actions, and lying.
“This was hours of reflection and planning to get what he wanted,” he said.
The final aggravator is the “heinous, atrocious, and cruel” nature of the crime. Caliel recounted the details of Cherish’s death, injuries she suffered, and how Smith tried to hide her body under some debris.
“Heinous, atrocious, and cruel- I think those words do not give justice to what happened to that little girl,” Caliel said.
He said any one of those aggravating circumstances could lead to the death penalty, but the jury will consider all six. He further told the jury they will have a long list of facts to consider as mitigation- or factors that should be weighed to determine if Smith should face the death penalty- but it is up to them to determine what weight, if any, these factual statements hold. The statements include everything from the age of Smith’s mom at the time of his birth to his report of a prior molestation.
Schlax says, even if the jury finds all of the aggravating factors and none of the mitigators, they still have the moral ability to not impose death.
“Would killing Donald Smith make this world a better place,” Schlax asked.
#DonaldSmith appears to have shed a few tears as his defense attorney describes the "torment" in his mind- "Would killing Donald Smith make this world a better place?" #CherishPerrywinkle pic.twitter.com/3rcY9iVfz8— Stephanie Brown (@SBrownReports) February 22, 2018
Smith appeared to shed several tears as Schlax went back through the expert testimony that had been presented regarding damage to his brain. The defense called nine witnesses in this penalty phase, many of whom testified to Smith’s brain function.
“Instead of photographs of him living life, we have photographs that clearly show when he wasn’t in a literal jail cell, when he wasn’t confined, he was living with the torment of imprisonment of his own mind,” she said.
GALLERY: Donald Smith through the years
Schlax said he hasn’t been able to form meaningful relationships, has been frequently incarcerated, and has previously sought help.
“He’s someone that can’t have normal human relations, he’s someone that can’t have empathy. He didn’t ask to be that way, he was born this way,” Schlax said.
She told the jury they’ve already delivered justice for Cherish Perrywinkle, by convicting Smith last week.
“The only time Mr. Smith will ever leave the custody of the Department of Corrections is in a pine box. The question is, will that be as the result of a call from a higher power, or a call from our Governor,” Schlax said.
Caliel qualified the expert testimony presented by the defense during this sentencing phase, though. He said it is up to the jury to decide if they believe the witness had an expertise in what they specifically testified to, if the witness had anything to gain from the proceedings, and what weight they should ultimately give the testimony. He questioned whether some of the experts who testified about the brain scans of Smith wanted the jury to see something, and how any of them could determine what was driving Smith’s actions, despite never asking him specifically about what happened the night of the murder.
Schlax said it’s clear what led up to Smith’s actions.
“You don’t turn mental illness off,” she said.
She pleaded for mercy, saying it’s sometimes given to those who don’t deserve it. She said Smith’s mental illness is an “inherent flaw” over which he had no control, and that justifies the jury sentencing him to life in prison.
“You will never regret it,” Schlax said.
Caliel said, in any case, it’s certainly the right of the jury to show mercy.
“Donald Smith is not deserving of your mercy,” Caliel said.
He said the jury can acknowledge that imposing the death penalty would mean Smith’s son, Donald Smith Jr- who testified that he’s built a relationship with his father since Smith has been incarcerated- loses his father. But he said that shouldn’t be considered, just like they shouldn’t consider any sorrow for Cherish’s mother, Rayne Perrywinkle. Caliel said this is a legal decision.
“The death penalty is appropriate, the death penalty is just, and the death penalty is what he deserves for what he did to that little girl. It’s what he deserves,” Caliel concluded.
WOKV and Action News Jax will have full coverage of the jury’s decision as soon as it’s in.
Caliel: The decision to impose the death penalty could mean #DonaldSmith's son would lose his father, but you shouldn't consider that, just like you shouldn't consider your sorrow for #CherishPerrywinkle's mom. It's a legal decision. pic.twitter.com/upHxYfu9ly— Stephanie Brown (@SBrownReports) February 22, 2018