Saving Donald Smith from death row



JACKSONVILLE, Fla. -- Cherish Perrywinkle's short life came to a violent end last summer.  Prosecutors say the 8-year-old was kidnapped from a Northside Walmart, sexually abused and killed by Donald Smith, 57, a registered sex offender.  The crime could cost him his life.

Smith sat in the courtroom shackled Thursday as his attorney fought to save his life.  Public defender Fred Gazaleh argued the death penalty is unconstitutional, that lethal injection is cruel and unusual.

Assistant State Attorney Mark Caliel said, "Every death penalty case will handle those motions. So they're pretty routine."

Another motion prosecutors called routine was exactly how much evidence the jury will be allowed to see.  The defense wants any gruesome or inflammatory photos of Perrywinkle kept out of the jury's view.  

But Caliel argued the jury needs to see autopsy photos in order to understand exactly how badly Smith hurt the girl.

"It's our position that that evidence is required to prove our case," he said.

The judge didn't make any rulings on these issues Thursday. The hearing was procedural as Smith's trial creeps closer.

It's scheduled for May 12.