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Jury recommends Donald Smith for death for the 2013 murder of Cherish Perrywinkle

Jacksonville, FL — A jury has voted to sentence Donald Smith to death for the 2013 murder of 8-year-old Cherish Perrywinkle.

Smith was convicted last week for kidnapping and sexual battery on the girl, in addition to murder. The murder conviction is what brought the death penalty proceedings. The jury made the unanimous decision following a little more than two hours of deliberations, after hearing closing arguments to start the third day of these penalty phase proceedings, where the defense pleaded for mercy and the state saying Smith is not deserving of that.

FULL COVERAGE: The trial of Donald Smith

The judge has set a hearing for late next month, when she will hear any final legal arguments and victim impact statements before formally imposing the final sentence. Prosecutors are confident the jury’s decision will be upheld.

"What he did to Cherish is horrific," says State Attorney Melissa Nelson, meeting with press after the decision was read.

She and Assistant State Attorney Mark Caliel say they will call Cherish's mother, Rayne Perrywinkle, to make a victim impact statement at next month's hearing. She was in the courtroom, visibly sobbing, as the judge read the jury's decision.

“This will never bring her daughter back, it will never restore her life or give her back what she lost, but in some small measure, it it can bring her some peace, than I’m very happy to have been a part of that,” Nelson says.

She says they never considered pleading out this case, and knew the death penalty was the only option.

“Life in prison was not an appropriate penalty for this crime. And if not for this murder, than for what,” she says.

Caliel says their entire office and the community at large was affected by this case, but they felt it was important to stand up for Cherish.

“It’s hard work, but in the end, we do it for our victims. We do it to support those who do not have a voice any longer, and that makes it easy,” he says.

The defense called nine witnesses to try to show why they believe Smith should be spared from the death penalty, with their case built around their claim that Smith can't control his impulses, even though he knows what's right and wrong. They argued that areas of brain trauma and abnormal development severely impaired his impulse control, which was exacerbated by his intense addiction to crack cocaine. Despite their case, the jury did not find his brain injury to be a mitigating factor in their decision.

GALLERY: Donald Smith through the years

The defense further had a mitigation specialist detail the struggles Smith faced growing up, including physical and verbal abuse by one stepfather, emotional neglect by one stepfather, a mother concerned with appearances who also enabled his drug habit, a prior incident where he was molested, and three suicide attempts, among other things. Smith's son, Donald Smith Jr., then testified about his restored relationship with his father because Smith is no longer on drugs- a relationship which Smith Jr. says has been a benefit to his life. The jury found few of these to be mitigating factors either.

Prosecutors called only one witness, a woman who Smith tried to kidnap when she was 13-years-old. They argued Smith's actions show premeditation and intentional deception- all choices he actively made. They argued that, even if Smith had trouble controlling his pedophilic impulses, his decision to murder Cherish was driven by not wanting to leave a witness to his crimes.

The jury voted in favor of all of the aggravating factors that were put forward by the prosecution- Cherish’s young age, that her murder was during the commission of other felonies, that Smith has a prior violent felony, that the crime was “cold, calculating, and premeditated”, that the that the crime was “heinous, atrocious, and cruel”, and that the crime was committed in an attempt to avoid arrest.

Smith first approached Cherish’s mother at a Northside Dollar General, telling her his wife was bringing a Walmart giftcard, which he would let her use to buy clothing for her children. He then drove Cherish, her mother, and the girl’s two young sisters to that Walmart, where they walked around and Cherish’s mother filled the cart with items for the girls. Smith then said he was going to the McDonald’s at the front of the store to get food, and Cherish followed. Instead, he walked outside, while she followed. Her body was ultimately found under debris in brackish water near a Northside church.

This is the first death penalty case that's been tried in this Circuit since Florida's law was overhauled. A jury must now be unanimous to impose a death sentence. According to WOKV Legal Analyst Mark Rubin, a judge is allowed to lower a death sentence to a life sentence if- at the hearing that follows these proceedings- there are legal arguments and victim impact statements that compel such a decision, however a judge can not impose a death sentence if the jury did not recommend it.

WATCH LIVE: State Attorney Melissa Nelson is meeting the media after the Cherish Perrywinkle trial:

Posted by Action News Jax on Thursday, February 22, 2018

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