Jail house conversations take center stage in case against Cherish Perrywinkle's accused killer

JACKSONVILLE, Fla. — Donald Smith sat quietly in court Tuesday for yet another pretrial hearing in a case that’s been playing out for more than two years, and his trial hasn't even started yet.

Police say Smith kidnapped, raped and killed Cherish Perrywinkle, 8, back in June 2013.

Smith has entered not guilty pleas, and in court Tuesday, a new battle over jail house conversations he had with another inmate took center stage.

According to the state, the conversations took place through the jail vents when Smith and another inmate were in isolation, but a third inmate over heard them and told the State Attorney's Office. A microphone was put in a service space between the cells to capture the sound.

The defense argues the recordings are irrelevant, and if they're released, the media would further "demonize" him.

Action News Jax law & safety expert Dale Carson said the recordings are perfectly legal.

"When you're in custody, you're no longer free to say anything you want to anybody without fear of it being recorded," said Carson. "If you're in custody and you're talking about things, items, facts related to the offense, there's no reasonable expectation of privacy."

There are 72 hours worth of tape. The judge will have about 30 days to listen to the recordings to determine whether they should be protected.

Carson said it could no doubt cause a delay in the case.

"There might be other information about other child molestations, other murders connected with those tapes, and in which event, the court certainly should not release them," said Carson. "If that's not the case and they're related specifically to this murder, there will be a discovery process in which the prosecutor gives that information to the defense attorney for every one to review."

According to the state, the recordings have already been given to the defense to review.

The issue of the death penalty could also cause a delay in the case, because the legislature is still taking that issue up.

The state suggested it may be a good idea to wait until after the legislative session is over on March 11 to see what's decided after the Supreme Court ruled Florida's death penalty system is unconstitutional.

But the death penalty is not off the table.

"It just means that there's an additional phase that has to be activated, which involves every one of the jurors unanimously deciding if someone should suffer the most extreme penalty that our society has to offer," said Carson.

The next pretrial hearing in the case is scheduled for March 8.

Cox Media Group