Donald Smith heads into the penalty phase of his trial Tuesday with the same jury that found him guilty in 12 minutes.
The panel of eight women and four men that convicted Smith of the kidnapping, rape and murder of 8-year-old Cherish Perrywinkle must now decide whether to sentence him to life in prison or to death.
It’s a decision they will be instructed to make based on statutory guidelines – known as aggravators and mitigators -- as well as their own gut feeling. A death verdict must be unanimous.
Last week, defense attorneys filed a notice of witnesses they plan to call, as well as a list of exhibits they want to present. The document gives a glimpse into Smith’s possible case for leniency. Witnesses include Smith’s son, Donald James Smith Jr., who was born the same year his father was arrested for the attempted kidnapping of three young girls. Smith’s son is now 25 years old.
The witness list also includes medical experts – pharmacologists, neuropsychologists – who may testify about Smith’s history of drug abuse and his mental condition. Listed exhibits include PET scans, often used to show some kind of physical brain damage – possibly a visible abnormality or atrophy.
Smith’s first brush with law enforcement came in 1974, when the then 17-year-old was charged with burning a stolen car. Three years later, he was arrested for masturbating in front of two girls, ages 5 and 8, who were selling Cokes by the side of the road. The attempted kidnapping charge in 1992 involved two different groups of girls, all under the age of 13. He also has a history of charges for drug possession, worthless check charges and an attempted escape from the Duval County Jail.
His most recent offense was for impersonating a DCF worker in order to have intimate conversations with a young girl. Smith was released according to the terms of a plea in that case 21 days before he kidnapped Cherish Perrywinkle.
The penalty phase of the trial will begin much like the guilt phase did, with opening statements from both sides. Last week’s guilty verdict already established two statutory aggravators – the age of the victim (under 12) and the commission of a separate felony during the commission of a murder (rape). But prosecutors will put on evidence they have of what they consider additional aggravating factors, including that the crime “was especially heinous, atrocious or cruel,” and that the homicide was committed “in a cold, calculated and premeditated manner.”
The State Attorney’s Office could also call Smith’s former victims to testify.
Smith’s defense filed its own list of mitigating factors, including Smith’s age at the time of the crime (56), the fact that the felony was committed “while the defendant was under the influence of extreme mental or emotional disturbance” and that Smith’s ability to appreciate the “criminality of his conduct” was “substantially impaired.”
The defense will also try to present any evidence of a defendant’s character that might be considered mitigating, including any history of childhood abuse or deprivations. As one local defense attorney noted, speaking on background, “it’s harder for a jury to kill something if they can understand it.”
Jurors will be instructed to determine if aggravators outweigh mitigators, and then decide based on their own moral calculus if they believe the death penalty is appropriate.
The trial’s penalty phase is expected to last about three days. First Coast News will live stream the proceedings when they begin at 9 a.m. Tuesday.
