Supreme Court of Florida ____________
No. SC18-822 ____________
DONALD JAMES SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.
April 22, 2021
PER CURIAM.
Donald James Smith appeals his judgment of conviction and
sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla.
Const. We affirm.
I
On June 21, 2013, Smith met eight-year-old Cherish
Perrywinkle, her sisters, and her mother, Rayne, at a Dollar General
store in Jacksonville. Smith overheard Rayne explain to an
employee that she could not afford to purchase a dress for Cherish,
and offered to drive the Perrywinkles to Walmart and buy clothes for the family. Smith explained to Rayne that his wife had a gift
card and would meet the group there. At Walmart, they shopped
together for hours. It got late and the Perrywinkles had not eaten,
so Smith said he would buy them all cheeseburgers at a McDonalds
inside the store. Instead, at 10:44 p.m., he vanished with Cherish.
Surveillance cameras caught Smith leading her to his van, as well
as the two of them driving away.
Cherish was not seen alive again. The next morning, with the
help of witnesses reporting the location of Smith’s van, police
located Cherish’s body in a creek behind a church, under a pile of
debris. Cherish had been brutally raped, then strangled to death.
An officer identified Smith, who was soaking wet, behind the wheel
of the same van that had left Walmart. It contained the things
Rayne had bought at Dollar General. Smith was arrested and
charged with kidnapping, sexual battery of a person under twelve,
and first-degree murder.
News outlets in Florida and the United States covered the
murder extensively. In Jacksonville, live broadcasts highlighted
Smith’s prior sex crime convictions in 1977, 1992, and 2009.
Outlets in Panama City, Tallahassee, Orlando, Tampa, and Miami -2- reported on the murder. Even CNN and Fox News picked up the
story. City news stations dedicated webpages to the case and many
blogs and social media posts discussed the murder.
Media outlets also covered the effect of the murder on the local
community, and the community’s outreach to Rayne. Hundreds of
people attended Cherish’s funeral, which was locally televised.
Eighteen to nineteen hundred people reportedly signed the guest
book at Cherish’s viewing. Families that had never met the
Perrywinkles stopped by their home with groceries.
Smith’s case progressed to trial, and in 2015, Smith’s defense
team filed a motion to change venue. They argued that widespread
media coverage had painted Smith as a monster who should be
executed, a sexual predator who was guilty beyond doubt. Smith
maintained that the media had adopted the State’s theory of the
case, and that the State’s themes persisted on social media two
years after Cherish’s death. The trial court held a hearing on the
motion for change of venue, but reserved ruling until after jury
selection. In light of the extensive pretrial publicity, the trial court
used a written juror questionnaire and individual voir dire
regarding exposure to press coverage as part of the jury selection -3- process. The questionnaire asked about jurors’ knowledge of the
case and witnesses, and about any opinions they had formed about
the case and the death penalty. Three hundred potential jurors
completed these questionnaires. The court ultimately empaneled
the jury without an objection from defense counsel or a request for
a final ruling on its motion to change venue.
Before trial began, Smith also filed a motion in limine to
prevent the State from offering autopsy photos of the victim.
Counsel argued that because Dr. Valerie Rao, the chief medical
examiner for Duval County and a trained pathologist, was to testify
to Cherish’s injuries, there was no need to introduce photographs of
those injuries. Smith’s team argued that the pictures’ unduly
prejudicial emotional effect would outweigh their probative value.
The trial court denied Smith’s motion.
In the State’s opening statement at trial, the prosecutor
described what took place at Walmart and stated, “Every mother’s
darkest nightmare became Rayne Perrywinkle’s reality.” Smith
objected to the comment on the grounds that it was argumentative,
and the court overruled the objection.
-4- Later in the proceedings, the State called Dr. Rao to testify to
the extent of Cherish’s injuries. Dr. Rao explained that she had
testified in hundreds of cases as an expert witness, providing her
opinion on various potential causes of death. Dr. Rao had
performed Cherish’s autopsy and had been present at the creek
when her body was recovered. As Dr. Rao testified, the State
introduced twenty-six pictures of Cherish’s autopsy into evidence.
Dr. Rao described injuries on Cherish’s scalp, chest, legs, arm,
neck, chin, lip, nose, eyes, genitals, and throat. When the
prosecutor asked Dr. Rao about Cherish’s throat, Dr. Rao
stammered slightly, and the following exchange occurred:
Prosecutor: I’m going to show you two more photographs of the dissection taken of Cherish Perrywinkle’s throat. Will you first tell the jury what you saw when you dissected her throat?
Dr. Rao: Yes. So what we do is – I’m sorry. I just need a break. Have [sic] about five minutes.
Court: You want a five-minute break? I think we’ll all take a break for ten minutes. Thank you.
The judge dismissed the jury and defense counsel moved for a
mistrial, arguing that Dr. Rao’s response was so prejudicial that it
could not be cured by any jury instruction. The court denied the
-5- motion. After the ten-minute recess, Dr. Rao resumed her
testimony without further interruption. The State later called a
crime laboratory analyst, who testified that Smith’s DNA was found
on and inside Cherish’s body. He put the odds at one in 35
quintillion that the DNA belonged to someone else. The State also
produced surveillance footage of Smith leading Cherish from
Walmart to his van.
During closing argument, the State at one point stated, “And
from the grave she’s crying out to you, [‘]Donald Smith raped me.
Donald Smith sodomized me. Donald Smith strangled me until
every last breath left my body.[’]” Counsel for Smith did not object
to this statement, and indeed presented no closing argument.
The jury deliberated for nineteen minutes before unanimously
finding Smith guilty of kidnapping, sexual battery of a person under
twelve years old, and first-degree murder. By special verdict, the
jury convicted Smith of both premeditated and felony murder with
kidnapping and sexual battery as the underlying felonies.
At the penalty phase of trial, Smith presented nine witnesses,
including a psychologist, a neurologist, and his son. The State
presented one witness, the victim of a 1992 attempted kidnapping -6- by Smith. Following these presentations, the jury unanimously
recommended that Smith be sentenced to death. 1 After conducting
a Spencer hearing, 2 the trial court entered a sentencing order
accepting the jury’s recommendation and imposing the death
penalty.
II
On appeal, Smith raises the following five claims: (a) the trial
court abused its discretion in denying Smith’s motion for change of
venue; (b) the trial court abused its discretion in denying Smith’s
motion for mistrial during the medical examiner’s testimony; (c) the
trial court abused its discretion by denying Smith’s motion to
exclude autopsy photos; (d) the trial court abused its discretion by
1. The jury unanimously found six aggravating factors: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant was engaged in a kidnapping and sexual battery during the capital felony; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the capital felony was especially heinous, atrocious, or cruel; (5) the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and (6) the victim of the capital felony was a person less than twelve years of age. See § 921.141(b), (d)-(e), (h)-(i), and (l), Fla. Stat. (2017).
2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
-7- overruling an objection to the prosecutor’s opening statement and
committed fundamental error by not granting a mistrial during the
prosecutor’s closing statement; and (e) the cumulative effect of the
errors in the case deprived Smith of a fair trial. We address each
claim in turn.
A
Smith argues that the trial court erroneously denied his
motion for change of venue. “[A] defendant may move for a change
of venue on the ground that a fair and impartial trial cannot be had
in the county where the case is pending for any reason other than
the interest and prejudice of the trial judge.” Fla. R. Crim. P.
3.240(a). A trial court should grant a change of venue if “the . . .
state of mind of the inhabitants of a community is so infected by
knowledge of the incident and accompanying prejudice, bias, and
preconceived opinions that jurors could not possibly put these
matters out of their minds and try the case solely on the evidence
presented in the courtroom.” Manning v. State, 378 So. 2d 274, 276
(Fla. 1979).
Generally, we review a trial court’s ruling on such a motion for
abuse of discretion. However, as is the case with most trial -8- objections, an objection to the trial court’s denial of a motion for a
change of venue must be preserved for appellate review. That is,
“the issue or legal argument must be raised and ruled on by the
trial court.” Rhodes v. State, 986 So. 2d 501, 513 (Fla. 2008). If an
issue is not preserved, it is reviewed only for fundamental error.
Such an error “reach[es] down into the validity of the trial itself to
the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.” Knight v. State, 286 So.
3d 147, 151 (Fla. 2019) (quoting Brown v. State, 124 So. 2d 481,
484 (Fla. 1960)). Defendants have no constitutional due process
right to correct an unpreserved error, and appellate courts should
“exercise . . . discretion under the doctrine of fundamental error
very guardedly.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).
The trial court never ruled upon Smith’s motion for change of
venue and Smith did not renew his objection, thus the issue was
not preserved for appellate review. Smith made the motion in 2015,
three years before trial commenced, and the court reserved ruling
on the motion until after the parties attempted to seat a jury in
Duval County. In 2018, at the beginning of jury selection, counsel
renewed Smith’s motion for change of venue, but the court again -9- deferred a ruling. At the end of jury selection, counsel stated that
they had no further objections. When the jury was sworn at the
beginning of trial, Smith’s team did not renew the objection or
request a final ruling on the motion for change of venue. Because
there was no ruling on the motion, the issue was not preserved and
the trial court’s failure to grant Smith’s motion is reviewed for
fundamental error. Rhodes, 986 So. 2d at 513; see also Jones v.
State, 998 So. 2d 573 (Fla. 2008) (finding appellant’s Brady [v.
Maryland, 373 U.S. 83 (1963)] claim was not preserved because it
was not ruled on by the trial court).
The trial court committed no fundamental error in failing to
grant Smith’s motion for change of venue. See e.g., Armstrong v.
State, 862 So. 2d 705, 719 (Fla. 2003) (finding a trial court
committed no fundamental error when it denied a motion for
change of venue where jurors explained they could set aside pretrial
knowledge and feelings about victims). Courts correct errors as
fundamental despite a party’s failure to conform to procedural rules
regarding preservation “to protect the interests of justice itself.”
Maddox v. State, 760 So. 2d 89, 98 (Fla. 2000). For example, this
Court has found fundamental error when appellants were denied - 10 - the right to counsel. Jackson v. State, 983 So. 2d 562, 566 (Fla.
2008) (“While a denial of counsel for an entire sentencing
proceeding would constitute fundamental error, the temporary
absence of counsel [during a victim impact statement] does not.”);
see also Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA
2003) (vacating an indigent appellant’s sentence and remanding for
further resentencing after appellant was denied counsel). We have
also found fundamental error when a court provided an inaccurate
definition of a disputed element of a crime in a jury instruction.
Reed v. State, 837 So. 2d 366, 369 (Fla. 2002) (quashing a district
court’s decision after the court provided a definition of “maliciously”
in conflict with a previous Florida Supreme Court decision).
Similarly, we found fundamental error when evaluating “a
conviction imposed upon a crime totally unsupported by evidence.”
Troedel v. State, 462 So. 2d 392, 399 (Fla. 1984); see also F.B. v.
State, 852 So. 2d 226, 230 (Fla. 2003) (“[A]n argument that the
evidence is totally insufficient as a matter of law to establish the
commission of a crime need not be preserved. Such complete
failure of the evidence meets the requirements of fundamental error
. . . .”). - 11 - Unlike the cases above, here, the interests of justice were not
jeopardized by counsel’s failure to obtain a ruling on Smith’s motion
for change of venue. Smith has advanced no specific allegations of
prejudice, and there is no evidence that the media exposure
actually tainted Smith’s trial. In capital cases, a fundamental error
is one that is “so significant that the sentence of death ‘could not
have been obtained without the assistance of the alleged error.’”
Poole v. State, 151 So. 3d 402, 415 (Fla. 2014) (quoting Snelgrove v.
State, 107 So. 3d 242, 257 (Fla. 2012)). Here, we find no basis
upon which to make that conclusion. For one thing, the evidence of
guilt is overwhelming. The jury in this case saw Cherish’s autopsy
photos, learned that Smith’s DNA was on and in Cherish’s body,
watched surveillance footage of Smith leading Cherish to his car,
heard witness testimony about his van’s location, and listened to
Rayne Perrywinkle’s 911 call. A jury anywhere in the state would
have given great weight to this evidence.
What is more, the court would not have abused its discretion
had it denied the motion. In exercising discretion regarding a
change of venue, “a trial court must make a two-pronged analysis,
evaluating: (1) the extent and nature of any pretrial publicity; and - 12 - (2) the difficulty encountered in actually selecting a jury.” Griffin v.
State, 866 So. 2d 1, 12 (Fla. 2003). This Court has previously
explained that “pretrial publicity is normal and expected in certain
kinds of cases, and that fact standing alone will not require a
change of venue.” Id. There are five factors to be considered when
evaluating pretrial publicity: (1) when the publicity occurred in
relation to the crime and the trial, (2) whether the publicity was
made up of factual or inflammatory stories, (3) whether the
publicity favored the State’s side of the story, (4) the size of the
community exposed to the publicity, and (5) whether the defendant
exhausted all of his peremptory challenges in seating the jury.
Rolling v. State, 695 So. 2d 278, 285 (Fla. 1997).
Here, on balance, the Rolling factors weigh in the State’s favor.
Much of the pretrial publicity in this matter occurred five years
before jury selection—in 2013, right after Cherish Periwinkle was
murdered. The court administered a jury questionnaire to screen
potential jurors for concerns arising from exposure to media
reports. Four of the jurors ultimately chosen for Smith’s trial had
not heard of the case at all. Seven jurors had seen some coverage
in years past but had minimal knowledge of the case. One juror - 13 - testified that she knew about Smith and the victims, but knew
nothing of their pasts, and could serve on the jury impartially
because she saw Smith as a human being. Thus, notwithstanding
substantial and negative media coverage about Smith and the facts
of the case, the size and diversity of the community from which the
venire was drawn, the long delay between the initial publicity and
trial, and the fact that Smith sought no additional peremptory
challenges all weigh in favor of concluding that the trial court would
not have abused its discretion had it denied the motion to change
venue. See Rolling, 695 So. 2d at 287 (denying motion for change of
venue in Gainesville after a defendant murdered five students
despite overwhelming media attention and the fact that “every
member of the venire had some extrinsic knowledge of the facts and
circumstances surrounding this case.”).
B
Next, Smith argues that the trial court erred in denying his
motion for a mistrial on account of the interruption to Dr. Rao’s
testimony. While testifying to the injuries that Cherish sustained,
Dr. Rao paused, took a breath, and asked to take a break. The trial
court promptly recessed. Smith contends that this pause was - 14 - tantamount to a breakdown and asserted the only way to cure the
disruption was to declare a mistrial. We disagree.
We review the denial of a motion for mistrial for abuse of
discretion, and “[a] mistrial is appropriate only where the error is so
prejudicial as to vitiate the entire trial.” Hamilton v. State, 703 So.
2d 1038, 1041 (Fla. 1997). When reviewing a motion for a mistrial
dealing with emotional outbursts from witnesses, “appellate courts
should defer to trial judges’ judgments and rulings when they
cannot glean from the record how intense a witness’s outburst
was.” Thomas v. State, 748 So. 2d 970, 980 (Fla. 1999) (finding no
abuse of discretion in failing to grant a mistrial after a friend of the
victim suffered an emotional breakdown when asked to identify an
accused while testifying in front of a jury).
The fact that Dr. Rao took a break during her testimony did
not affect the fairness of Smith’s trial. The jury saw no outburst of
emotion. From its vantage point, which was closer to Dr. Rao’s
reaction than ours, the trial court determined that a recess was
appropriate, and a mistrial was not. See Thomas, 748 So. 2d at
980. We cannot say this was an abuse of discretion.
- 15 - This case is not like the one cited by Smith, where a witness’s
outburst injected into the proceedings a concern for the emotional
distress of another sufficient to distract the jury from its work as
finders of fact. See Colon v. State, 191 So. 3d 985, 986 (Fla. 2d
DCA 2016) (reversing a trial court’s denial of motion for mistrial
after a witness-mother cried and threw up when photographs of her
dead child’s genitals were introduced through her testimony). Here,
Dr. Rao paused, caught her breath, and asked for a break. She did
not state why she was requesting a break, and when testimony
resumed, Dr. Rao spoke clearly and did not appear to the jury to be
in any emotional distress.
Smith objects that the trial court should have given a curative
instruction after Dr. Rao asked to pause. The response to a witness
outburst is also “better left to the discretion of trial judges who are
in the best position to assess the intensity of the outburst and its
potential effect on jurors.” Talley v. State, 260 So. 3d 562, 569 n.4
(Fla. 3d DCA 2019) (declining a defendant’s suggestion to adopt a
new standard requiring trial courts to poll a jury whenever there is
an outburst during trial proceedings); see also Arbelaez v. State,
626 So. 2d 169, 176 (Fla. 1993) (affirming a trial court’s use of a - 16 - curative instruction after a witness-mother, crying as she took the
witness stand, cursed the defendant). Here, we cannot say the trial
court abused its discretion in declining to give such an instruction.
C
Smith argues next that the trial court improperly denied his
motion to exclude autopsy photographs used during Dr. Rao’s
testimony. Smith’s motion argued that admitting these
photographs would violate section 90.403, Florida Statutes (2017)
(“Relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation of
cumulative evidence.”). The State ultimately introduced twenty-six
photos of Cherish’s various injuries, including pictures of her
exposed skull and trachea.
We evaluate rulings about the admissibility of evidence for
abuse of discretion, and “[t]his Court has long followed the rule that
photographs are admissible if they are relevant and not so shocking
in nature as to defeat the value of their relevance.” Czubak v. State,
570 So. 2d 925, 928 (Fla. 1990). A court “must determine whether
the gruesomeness of the portrayal is so inflammatory as to create - 17 - an undue prejudice in the minds of the jury and [distract] them
from a fair and unimpassioned consideration of the evidence.” Id.
(alteration in original) (quoting Leach v. State, 132 So. 2d 329, 332
(Fla. 1961)).
This Court has “consistently upheld the admission of allegedly
gruesome photographs where they were independently relevant or
corroborative of other evidence.” Id. at 928; see also Seibert v.
State, 64 So. 3d 67 (Fla. 2010) (upholding admission of
photographs of victim’s dismembered body to show premeditation
and consciousness of guilt); Jackson v. State, 545 So. 2d 260 (Fla.
1989) (upholding admission of photographs of victims’ charred
remains to prove identity, show circumstances surrounding
murder, and corroborate medical examiner’s testimony); Bush v.
State, 461 So. 2d 936 (Fla. 1984) (ruling photographs of blowup of
bloody gunshot wound to victim’s face admissible to corroborate
medical examiner’s testimony); Straight v. State, 397 So. 2d 903
(Fla. 1981) (holding photograph of victim’s decomposed body
admissible to corroborate testimony as to how death was inflicted).
Smith has argued that there was no need to publish the
autopsy photographs given the overwhelming evidence already - 18 - present in the case linking him to the victim, but “[t]he test for
admissibility of photographic evidence is relevancy rather than
necessity.” Pope v. State, 679 So. 2d 710, 713 (Fla. 1996); see also
Campbell v. State, 271 So. 3d 914, 934 (Fla. 2018) (“There is no
question that [the exhibit] is graphic, depicting a significant
chopping wound to the brain. However, the photograph was
relevant to illustrate the nature and extent of the victim’s injuries,
as well as the medical examiner’s testimony.”); see also Patrick v.
State, 104 So. 3d 1046, 1062 (Fla. 2012) (“[P]hotographs . . .
depict[ing] the skin of the victim’s head pulled back to reveal his
skull and the entire torso opened to reveal his upper chest . . . were
provided to demonstrate the internal injuries sustained since they
were not otherwise visible.”).
Cherish’s autopsy photos were relevant to the brutality of her
rape and the premeditation of her murder, as well as the heinous,
atrocious, and cruel nature of the crime. For example, as the State
argued, a picture showing the manner in which the skin had been
stripped from Cherish’s throat was relevant evidence that the cause
of her death had been strangulation. While not on its own sufficient
to establish premeditation, “evidence of strangulation, in - 19 - conjunction with one or more additional facts indicating that the
killer had time to reflect upon his actions and to form a conscious
purpose to kill, justifies submitting the question of premeditation to
the jury for its determination.” Berube v. State, 5 So. 3d 734, 744
(Fla. 2d DCA 2009); see also Wainwright v. State, 2 So. 3d 948, 952
(Fla. 2008) (“The trial court did not err in concluding that evidence
of strangulation alone may be sufficient to support the HAC
aggravator. ‘[T]his court has consistently upheld the HAC
aggravator in cases where a conscious[ 3] victim was strangled.’”)
(quoting Bowles v. State, 804 So. 2d 1173, 1178 (Fla. 2001));
Barnhill v. State, 834 So. 2d 836, 850 (Fla. 2002) (“Because
strangulation of a conscious victim involves foreknowledge and the
extreme anxiety of impending death, death by strangulation
constitutes prima facie evidence of HAC.”).
Context matters in evaluating a trial court’s exercise of
discretion in evidentiary rulings. While, absent such context, the
photographs at issue in this case seem numerous, the reality is that
most of the photos identified separate injuries on Cherish’s body.
3. Dr. Rao testified that evidence of a struggle showed Cherish was conscious when Smith strangled her. - 20 - There were multiple photographs of Cherish’s genitals and throat,
but these pictures were necessary to demonstrate the extent of the
damage done to her body during the sexual battery and to support
the medical examiner’s explanation of the time period and force
required to strangle her to death. Each photograph was relevant to
the brutality of Cherish’s death, and the brutality of the crime, in
turn, was relevant to support the State’s legal charge: a murder that
was both premediated and heinous, atrocious, and cruel.
D
Next, Smith argues that the State made inappropriate
comments in its opening statement and in closing argument. Smith
objected to the prosecutor’s opening statement (“[e]very mother’s
darkest nightmare became Rayne Perrywinkle’s reality”), so we
review the trial court’s overruling the objection for abuse of
discretion. Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007).
Smith did not object to the prosecutor’s closing statement (“from
the grave she’s crying out to you, Donald Smith raped me”), so we
review this statement for fundamental error. State v. Smith, 241 So.
3d 53, 55 (Fla. 2018).
- 21 - First, the trial court did not abuse its discretion in overruling
Smith’s objection to the statement at issue in the State’s opening.
The purpose of an opening statement is for parties to convey to the
jury what they expect the evidence produced at trial to establish.
Perez v. State, 919 So. 2d 347, 363 (Fla. 2005). In Florida, the trial
court gives parties “wide latitude” in presenting opening and closing
statements, and “comments by the prosecutor will merit a mistrial
only when they deprive the defendant of a fair and impartial trial,
materially contribute to the conviction, are so harmful or
fundamentally tainted as to require a new trial, or are so
inflammatory they might have influenced the jury to reach a more
severe verdict than it would have otherwise rendered.” Miller v.
State, 161 So. 3d 354, 382 (Fla. 2015) (citing Spencer v. State, 645
So. 2d 377, 383 (Fla. 1994). Here, Smith claims that the
prosecutors’ comments amounted to improper “golden rule”
arguments, which impermissibly persuade jurors to “place
themselves in the victim’s position during the crime and imagine
the victim’s suffering.” Mosley v. State, 46 So. 3d 510, 520 (Fla.
2009).
- 22 - The State’s opening comment was dramatic, but not untrue;
nor was it a mischaracterization of the evidence that would soon be
presented to the jury. At trial, the State may make comments that
“are based on evidence introduced at trial and are relevant to the
circumstances of [the crime].” Braddy v. State, 111 So. 3d 810, 843
(Fla. 2012) (alteration in original) (quoting Mosley, 46 So. 3d at
521). When the prosecutor made the statement at issue, she knew
that Rayne Perrywinkle was slated to testify and that Rayne’s
testimony and 911 call recording would attest to the terror she felt
when she realized Cherish was missing. Here, the State was not
making an impermissibly inflammatory statement; rather, the
prosecutor was previewing what Rayne herself would soon explain. 4
In Reese v. State, 694 So. 2d 678, 685 (Fla. 1997), this Court
found no error where a prosecutor made similar comments during
closing argument describing a victim’s rape and murder as “every
woman’s worst nightmare.” Reese v. Sec’y Fla., Dept of Corr., 675 F.
3d 1277, 1292 (11th Cir. 2012). Nor did the Eleventh Circuit find
4. In her testimony, Rayne explained that she “started to panic,” and her 911 call documented her asking, “Why on earth would he take my little girl?” - 23 - any part of that closing argument to be a due process violation. Id.
at 1278-88. The court explained that no golden rule violation had
occurred because “the prosecutor did not impermissibly invite ‘the
jury to place themselves in the victim’s shoes.’” Id. at 1292 (quoting
Reese, 694 So. 2d at 685 (Fla. 1997). Like the comment in Reese,
here, the State’s opening comment was a reasonable projection of
what the evidence would show to be Rayne Perrywinkle’s state of
mind when she found out her daughter was missing.
Second, the trial court did not commit fundamental error
when it allowed the State’s comment during summation to which
Smith objects. Summation is intended to review evidence and draw
inferences, but, like opening statement, “must not be used to
inflame the minds and passions of the jurors so that their verdict
reflects an emotional response to the crime or the defendant rather
than the logical analysis of the evidence in light of the applicable
law.” Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985).
Comments that “invit[e] the jury to imagine the victim’s final pain,
terror and defenselessness” are prohibited. Id. at 133. Yet a
prosecutor’s words may, indeed sometimes must, elicit an
emotional response from the jury. That fact of life, particularly in - 24 - matters of life and death, is not a basis for reversal. Here, by the
time of closing argument, the State had put forth evidence that
Smith raped and sodomized Cherish, and that he strangled her to
death. The prosecutor’s comments did more purposefully to elicit
an emotional reaction than is advisable, but they were moving in
substantial measure because of how they characterized the
disturbing facts in evidence. See Rogers v. State, 957 So. 2d 538,
549 (Fla. 2007) (holding that State’s comments describing victim’s
murder and last moments alive were not improper because they
were based upon facts in evidence); see also Mosley, 46 So. 3d at
520 (holding that State’s comments describing victim trying to
breathe as she was being suffocated and noting victim’s opportunity
to contemplate death were not improper because comments were
based on facts in evidence).5 Smith had an opportunity to rebut the
5. In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the Supreme Court relied on six factors in evaluating a due process claim arising from a prosecutor’s inappropriate comments: (1) whether the prosecutor manipulated or misstated the evidence, (2) whether the comments implicated other specific rights of the accused, (3) whether the comments were invited by or responsive to defense counsel’s arguments, (4) whether the trial court’s instructions ameliorated the harm, (5) whether the evidence weighed heavily against the defendant, and (6) whether the defendant had an opportunity to rebut the prosecutor’s comments. - 25 - prosecutor’s comments in closing argument, but waived closing
statement instead. See Darden, 477 U.S. at 181.
E
In the final point on appeal, Smith argues that the cumulative
effect of the errors in this case deprived him of a fair trial. Where
multiple errors are discovered, it is appropriate to review the
cumulative effect of those errors because even with competent,
substantial evidence to support a verdict, “and even though each of
the alleged errors, standing alone, could be considered harmless,
the cumulative effect of such errors [may be] such as to deny to
defendant the fair and impartial trial that is the inalienable right of
all litigants in this state and this nation.” McDuffie v. State, 970 So.
2d 312, 328 (Fla. 2007) (alteration in original) (quoting Brooks v.
State, 918 So. 2d 181, 202 (Fla. 2005)). But relief is not warranted
if there is “no reasonable probability that the cumulative effect of
these errors affected [a defendant’s] right to a fair trial.” Floyd v.
The comments at issue here did not manipulate or misstate the evidence, implicated no specific rights of the accused, and while they were neither invited by the accused nor the subject of an instruction from the court, were insignificant when compared to the weight of the evidence, and drew no response from the defendant. - 26 - State, 850 So. 2d 383, 408 (Fla. 2002). And where we find “no
individual error, no cumulative error can exist.” Smith v. State, 998
So. 2d 516, 530 (Fla. 2008); see also Bush v. State, 295 So. 3d 179,
214 (Fla. 2020) (finding an appellant entitled to no relief on his
cumulative error claim when each of his individual claims of error
was meritless).
That is the case here. Smith’s DNA was found in and on
Cherish’s body, he was caught on several different surveillance
cameras leading Cherish to his car, multiple witnesses spotted his
van by the water in which Cherish’s body was found, and his pants
were soaking wet as he was arrested. It is the evidence in this case,
not error, that is cumulative.
CONCLUSION
We affirm Smith’s judgment of conviction and sentence of
death.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., concurs in result with an opinion. MUÑIZ, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. - 27 - LABARGA, J., concurring in result.
In light of this Court’s decision in Lawrence v. State, 308 So.
3d 544 (Fla. 2020) (receding from proportionality review
requirement in death penalty direct appeal cases), and for the
reasons expressed in my dissent in Lawrence, id. at 552-58, I can
only concur in the result.
An Appeal from the Circuit Court in and for Duval County, Mallory Durden Cooper, Judge – 162013CF005781AXXXMA
H. Kate Bedell and Richard Randall Kuritz of Law Offices of Bedell & Kuritz, Jacksonville, Florida,
for Appellant
Ashley Moody, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida,
for Appellee
- 28 -