JACKSONVILLE, Fla. -- Donald Smith walked into the courtroom wearing his orange jail suit, with shackles on his feet and hands Thursday. Smith was quiet when his lawyer argued 52 motions before the court, including whether he would be executed if convicted of the murder of Cherish Perrywinkle.
Last June 8-year-old Perrywinkle was abducted from a Northside Walmart. According to police, she was sexually assaulted and strangled to death.
Smith now faces the death penalty for the alleged crime.
Fred Gazelah, Smith's lawyer, talked with First Coast News and said he believed the death penalty should be removed from this case because it is unconstitutional.
"All pretty standard motions, that we were expecting," said Prosecutor Mark Caliel.
Caliel said the death penalty is the right way to go.
"We filed a notice seeking the death penalty. In doing so we asked for any mental mitigation which the defense intends to introduce," Caliel said.
In this discovery, Smith in a jailhouse conversation, told his mother he couldn't go to prison because he knew he would be raped and murdered there.
He talked about how if he was on Death Row his death would be simple, happy and peaceful.
His attorney was doing everything to keep him off of Death Row if convicted. Gazelahhe also asked the court to exclude the pictures calling them gruesome and inflammatory.
Former prosecutor and now defense attorney Richard Kuritz said the tactic is pretty common in death penalty cases.
The judge is expected to rule on the motions later on.
Caliel made a strong objection against excluding the pictures of the autopsy and the condition of Perrywinkle, but said he would be willing to have the courts review them before hand to make sure they are relevant to the trial.
The next pre-trial hearing is scheduled for February 12 and the trial is set for May.
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First Coast News