Donald Smith seeks new trial

Jacksonville, FL — The man convicted of the 2013 kidnapping, rape, and murder of 8-year-old Cherish Perrywinkle is now asking for a new trial.

Donald Smith was convicted last month, and the jury subsequently recommended he face the death penalty for the murder charge. A judge is scheduled to hear any final arguments and impose a sentence later this month, but Smith's attorney is arguing there should be a new trial outright.

FULL COVERAGE: The trial of Donald Smith

Among the claims that attorney Charles Fletcher cites as grounds for a new trial, are multiple instances relating to the autopsy photos of Cherish. Fletcher argues that the court erred in allowing those photos to be shown to the jury, saying the photos were "too gruesome and would cause the jury to decide the case based on emotion rather than the law". He further noted that several jurors cried while seeing the photos, and the Medical Examiner also fought back tears and asked the court for a break.

After the Medical Examiner requested that break, the defense moved for a mistrial- which this new motion says was improperly denied.

The motion further argues that the court should not have allowed testimony about a bundle of rope that Smith picked up while walking around Walmart with Cherish and her family, because the rope was never purchased. Fletcher says allowing that testimony led the jury to "speculate about its intended purpose". Fletcher says the court should also have not admitted jail recordings of Smith and another inmate talking, during which he says a young teen is in his "target area" and that he wished he had "run in to her at Walmart".

Another claim is that the State "clearly intended to invoke anger" among the jury when, during the opening statement, State Attorney Melissa Nelson said "this was a mother's worst nightmare". The defense objected in the moment, but the judge overruled that, and Nelson said it again, louder. This was another attempt- according to the defense- to have the jury decide the case on emotion, instead of an analysis of the facts and law.

Fletcher also says the court was wrong to deny a change in venue.

The motion additionally cites some standard legal arguments, including that the defense’s motions for judgement of acquittal were denied and that the verdict is contrary to the law.

As a result, the defense is asking the court for a new trial. There is no response from the State at this time.

The defense didn't present any witnesses or make a closing argument during the trial phase. In fact, they noted during the penalty phase that they would not have been able to present a case claiming Smith was innocent, because of the overwhelming evidence. Instead, they argued in the penalty phase that Smith was not able to control his impulses because of brain trauma and areas of over- and under-development. With the jury's convictions and sentence, they showed that they sided with the State, determining that- even if Smith's impulses led him to attack the girl- he murdered her to eliminate a witness and to try to escape capture.