320 So.3d 20
Fla.2021Background
- Eight-year-old Cherish Perrywinkle was abducted from a Jacksonville Walmart by Donald J. Smith, later found raped and strangled; Smith was arrested the next day in the same van seen on surveillance with items from the victim’s family.
- State evidence included surveillance footage of Smith leading Cherish to his van, DNA matching Smith found on and in the victim, autopsy photographs, witness testimony locating Smith’s van, and the mother’s 911 call.
- Pretrial publicity was extensive and statewide/national; Smith moved for a change of venue but the trial court reserved ruling and no final ruling was sought or obtained by defense (issue unpreserved).
- Defense moved to exclude autopsy photos under Fla. R. Evid. 90.403; court admitted 26 autopsy photos during the medical examiner’s testimony.
- During testimony the medical examiner paused and requested a break; defense moved for mistrial (denied). The prosecutor made contested emotional statements in opening and closing; one opening remark was objected to and overruled, a closing remark was not objected to.
- Jury convicted Smith of kidnapping, sexual battery of a child under 12, and first-degree murder (premeditated and felony murder); jury recommended death and the trial court imposed death.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Change of venue | Pretrial publicity infected community; impartial jury impossible | Questionnaire/voir dire showed jurors could be fair; delay since publicity and community size favor local trial | Issue unpreserved; reviewed for fundamental error and none found—evidence and voir dire showed no prejudice; court would not have abused discretion to deny venue change |
| Mistrial for ME pause | Medical examiner’s pause/break was an emotional breakdown that prejudiced jury; only cure was mistrial | Pause showed no outburst to jury; recess appropriate and cured any potential impact | Denial of mistrial not an abuse of discretion—no visible outburst, judge appropriately recessed, no curative instruction required |
| Exclusion of autopsy photos | Photos unduly prejudicial under §90.403; probative value outweighed by inflammatory effect | Photos were relevant to injuries, sexual battery, strangulation, premeditation, and HAC; corroborated ME testimony | Admission was within trial court’s discretion—photos relevant and not so inflammatory as to defeat probative value |
| Prosecutor’s emotional statements (opening/closing) | Opening/closing remarks were impermissible "golden rule"/inflammatory appeals that deprived Smith of fair trial | Comments were based on evidence to be/introduced at trial and within wide latitude afforded prosecutors; closing comment could have been rebutted but defense waived closing | Opening objection overruled was not an abuse of discretion; unobjected-to closing reviewed for fundamental error and none found—comments rooted in evidence and not so prejudicial as to require reversal |
| Cumulative error | Combined effect of errors deprived Smith of a fair trial | Individual errors were meritless and evidence overwhelmingly supported guilt; cumulative effect thus harmless | No cumulative error—because no individual error materially affected fairness and evidence was overwhelming |
Key Cases Cited
- Manning v. State, 378 So. 2d 274 (Fla. 1979) (venue change standard where community prejudice prevents fair trial)
- Rhodes v. State, 986 So. 2d 501 (Fla. 2008) (issue preservation requirement—trial court must rule for appellate review)
- Griffin v. State, 866 So. 2d 1 (Fla. 2003) (two‑prong venue analysis: publicity and difficulty seating jury)
- Rolling v. State, 695 So. 2d 278 (Fla. 1997) (factors for evaluating pretrial publicity)
- Thomas v. State, 748 So. 2d 970 (Fla. 1999) (deference to trial judge on witness outbursts and mistrial motions)
- Czubak v. State, 570 So. 2d 925 (Fla. 1990) (photograph admissibility—relevance vs. inflammatory prejudice)
- Pope v. State, 679 So. 2d 710 (Fla. 1996) (admissibility test for photos is relevance, not necessity)
- Miller v. State, 161 So. 3d 354 (Fla. 2015) (prosecutorial statements reviewed for deprivation of fair trial; wide latitude in argument)
- Spencer v. State, 645 So. 2d 377 (Fla. 1994) (standards for prosecutorial misconduct in capital cases)
- Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (factors for evaluating due process claims from prosecutor’s improper comments)
- Wainwright v. State, 2 So. 3d 948 (Fla. 2008) (strangulation as evidence supporting HAC/malice)
- Floyd v. State, 850 So. 2d 383 (Fla. 2002) (framework for evaluating cumulative error)