UPDATE: Jury returned verdict for death in Donald Smith case. Judge Cooper must still pronounce a formal sentence.
The jury previously found Donald Smith guilty of kidnapping, raping, and murdering 8-year-old Cherish Perrywinkle. The only question before them today was whether to grant him life imprisonment without the possibility of parole or the death penalty.
The day in court began with closing statements from the State and defense. Assistant State Attorney Mark Caliel gave his closing statement first.
“Mama, he’s got a one hundred and fifty dollar gift card and we’re going to McDonald's. Those were the last words of Cherish Perrywinkle to her mother. Innocent, trusting.”
Caliel walked the jury through the events that led to Donald Smith taking Cherish in his van and consequentially murdering her. Caliel brought the idea to the jury that impulse control due to brain injury, as addressed by health professionals turned expert witnesses, applies only to his pedophilia and not his conscious, cold, and calculated decision to murder Cherish Perrywinkle.
He took her for the purpose of satisfying his desire, his pleasures. He took her where no one would see, no one would hear, and then he viciously raped her, sodomized her. He destroyed her sexual anatomy.And when he was done pleasuring himself, he looked at that child and he knew she was a witness against him and he made the conscious choice to end her life and wrapped something around her neck and for over three minutes while she fought, while she struggled, while she suffered, he strangled the life from her body. And then he took her limp, lifeless body, trudged through the woods, waded through the water, and he tried to hide what he did. He stuffed that little girl’s body under a log, he buried her under a tree branch and debris and asphalt, he tried to hide what he did. But ladies and gentleman, today in this courtroom he cannot hide from you what he did, Caliel said to the jury.
Caliel spoke to Kerri-Anne Buck's previous testimony. Smith attempted to kidnap Buck in 1992 when she was just 13 years old.
"25 years ago he set out to kidnap a little girl and in 2013 he did," said Caliel. "He killed her to silence her so she could not sit up on this witness stand and say ‘that man raped me.'"
Caliel questioned the validity of the statements from some of the witnesses brought to the stand by the defense.
“They want to rely on what the defendant was telling them to reach conclusions so they can present that as mitigation to explain his actions. Without actually asking what he did ‘why did you do it?’" said Caliel.
“Garbage in, garbage out, if it was coming from him," Caliel said while pointing to #DonaldSmith about what Smith told witnesses, who testified to it specific to his drug use and psychiatric issues. "it couldn’t be trusted.” pic.twitter.com/bdWjOUpOzR
"Heinous atrocious and cruel?" Caliel continued, "I think those words do not give justice to what happened to that little girl when she was raped and when she was killed."
As Caliel ended his closing statement he held up the black and white photo of Cherish shown to the jury during jury selection. She is smiling and looking up at the camera in the photo. He then shows the jury crime scene and autopsy photos.
“These were the last photos taken of Cherish," he said. "That is what he [Smith] did."
He outlined the brutal injuries Cherish sustained in during her rape and murder.
"The death penalty is what he deserves for what he did to that little girl. It’s what he deserves," Caliel concluded.
"The death penalty is what he deserves for what he did to that little girl. It’s what he deserves," said Caliel before ending his closing argument. pic.twitter.com/4aqKTXjUFA
Julie Schlax gave the closing statement for the defense. She began by saying that the jury and legal teams were now at the time that she and her fellow defense attorney, Charles Fletcher, knew they would be at. They knew Smith would be found guilty for the crimes he committed against Cherish.
"You now are a the point where you hold the greatest power in your hands you’ll ever have. It is an awesome responsibility, and it is an incredible burden," she told the jury.
Her question was not one of guilt, the jury had already found Smith guilty, but her question was:
"Do we execute the mentally ill?"
The very last question you will be asked ladies and gentleman, even after finding the aggravating factors outweigh the mitigating circumstances, even after that" 'Do I personally want to impose the death penalty?' And that is an individual decision for each of you. You must make it for yourself in your own hearts and your own souls for that decision will be with you for the rest of your life, said Schlax.
Caliel said that his prior record wasn’t mitigation but Schlax contested that point. “Ladies and gentleman I beg to differ, for it shows a man who has struggled his entire life with an inability to function as an adult," she attributes this to his brain damage.
“Does killing Donald Smith make the world a better place? Would it make our human heart softer or will it make it harder? If our society is not kinder, more intelligent, more humane than the horrendous acts that Donald Smith Committed then I suggest we live in a difficult difficult world," said Schlax.
Smith began crying during Schlax's closing statement:
“Mercy is what you give even when someone doesn’t deserve it.” #DonaldSmith
"Vote for life in prison without the possibility of parole," said Schlax. "You will never regret it."
At just after 3 p.m. the decision was read by Judge Cooper that the jury recommends the death penalty for Smith. Judge Cooper will hand down the formal penalty at a later date.