Dozens of motions heard in Smith case

By Kent Justice, Anchor, reporter, kjustice@wjxt.com
Erica Rakow, General assignment reporter, erakow@wjxt.com
Christopher Yazbec, News editor, News4Jax.com, cyazbec@wjxt.com
Published On: Jan 09 2014 07:19:25 AM EST
Updated On: Jan 09 2014 07:25:24 PM EST

VIDEO: The court today held a hearing for Donald Smith, his council filed a motioned against the death penalty claiming Florida is the capitol for capitol punishment, but Donald has said he'd prefer to stay on death row.

JACKSONVILLE, Fla. -

A Jacksonville judge heard dozens of motions Thursday in the case of Donald Smith, who's awaiting trial in the killing of 8-year-old Cherish Perrywinkle last year.

Smith is accused with abducting the girl from a Walmart after befriending her mother and offering to buy her and her family food and clothes, then killing her.

Smith shuffled into court and sat behind his lawyer as Fred Gazaleh flipped page after page of motions he filed with the court.

Judge Mallory Cooper patiently walked through each request, while prosecutor Mark Caliel answered most of them with, "The state objects."

Several of the motions challenge the constitutionality of the death penalty and specific portions of the law. What seemed to get under the collar of the state attorney's office is when Gazallah called "Florida the death penalty capitol of the nation" and described the Fourth Judicial Circuit as tops in the state.

Caliel told the judge the state attorney's office follows state statute in determining when to pursue the death penalty.

"Those are standard motions filed in a capital case," Caliel said. "Across the board, the defense attorney preserves the right to appeal the constitutional nature of the death penalty, things of that nature. It's done in every death penalty case we do, they're pretty routine."

Gazaleh decided not to speak to reporters after the hearing, but during his reading of the motions, he asked that jurors be kept from seeing gruesome photographs.

Local defense attorney Rhonda Peoples-Waters, who's not involved in this case, said she can see both sides.

"I'm certain, even without pictures, the facts in this case, facts -- if they never saw any pictures, would still draw emotion of typical jurors, someones' mother, brother, father," she said.

"There's arguments that certain evidence may be prejudicial or inflame the passion of the jurors," Caliel said. "It's our position that evidence is required for us to prove our case."

The judge did not announce when she will rule on the motions. Caliel said he expects her written response in the next week or two.

While many of the motions were routine, what’s not routine is what Smith has said about being placed on death row.

In nearly 200 pages of discovery material Channel 4 obtained last month, Smith talked about wanting the death penalty. The reports highlight a jail visit he had with his mother.

Police listened to a recording of their conversation, and Smith 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.

“To suggest he would live a comfortable life on death row is chilling. It’s scary to think he has the mental issues and the problems that he does,” said attorney Gene Nichols, who's not affiliated with the case.

Nichols said Smith’s statements about wanting the death penalty may never be brought up in court.

“It surprises me that he would make statements such as this," he said. "Now whether or not it comes into evidence at a trial, that's a different story. Clearly this man has mental health issues. We know that by the crime he allegedly committed.”

In regard to the jury, the defense wants to prevent the prosecution from dismissing potential jury members without cause. The defense wants extra peremptory challenges when selecting the jury and also wants Cooper to limit pretrial exposure of the jury pool.

Meanwhile, as Smith awaits trial, lawmakers in Florida are using his case as an example of why the state needs tougher legislation for sex offenders.

A final pretrial hearing for Smith is expected in May. Jury selection for the trial is set for May 12.

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