Crime Stories with Nancy Grace - 8-year-old girl kidnapped from Walmart superstore, murdered. New trial in the case?

Episode Date: December 9, 2020

Cherish Perrywinkle is kidnapped from a Walmart Superstore. She is brutally raped and murdered. Now, The Florida Supreme Court is scheduled to hear arguments this week about whether her killer, sentenced to death for the 2013 murder, should receive a new trial.Joining Nancy Grace today: Rayne Perrywinkle, Mother of Cherish Marc Klass, Victim's Advocate, Founder of Klaas Kids Foundation Sheryl McCollum, Forensics Expert & Cold Case Investigative Research Institute Founder  Ashley Wilcott, Judge John Lemley, CrimeOnline Reporter Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Crime Stories with Nancy Grace. I guess every three days, you know, to be fair, let's just say once a week. I am in a Target or a Kroger or a Publix or a Costco or a Walmart with my children, and it's just me and them. I've been on crowded New York streets many, many times, in museums, you name it. And I'm wondering about that moment when you realize within that crowd that you really are alone. Your child is gone. That is the story of a little girl named cherish perry winkle

crime stories with nancy grace An eight-year-old little girl. I'm Nancy Grace. This is Crime Stories. Thank you for being with us. Cherish Periwinkle was with her mother, and everybody starts a story at Walmart, but that is not where the story starts. The story does not start in Walmart.

The story actually starts in, I think it was a family dollar or a dollar general. And Cherish's mom had her there and they were buying some clothes for Cherish and her sister. And it's the mom and the two girls. And they try to go to checkout and the mom doesn't have enough money. And in steps a man. And he says, oh, man, you're having a problem. You know what? Let me cover that.

And you know what else? I'm about to meet my wife up the street at Walmart. Bring your girls up there. I've got some money. I'm going to buy you guys some clothes. So Rain, Periwinkle, and her three daughters, including Cherish, get together, and they go up to the Walmart. There you see a gray-haired man, looks like an old grandpa, Donald Smith, inside the Walmart. And it's a superstore. And they're in there shopping. And I've looked at the surveillance video very, very carefully.

And the guy says they've been shopping for a while, and they're waiting on his wife to get there. And he goes, hey, you know what? I don't want to make your kids wait anymore. Let's go up front to the McDonald's. Come on, Cherish. Let's go up there and get some deed. And the mom says, okay, I'll be right up there. It's within the same structure. It's, you know, what, 80 feet away. And she never sees Cherish again. Cherish is kidnapped, brutally raped and murdered, and there's no doubt about that. And her body is then submerged halfway down beneath a tree in a swampy, muddy, all I can say is a ditch. That's what happened to Cherish.

That fast. Before I go to John Limley, CrimeOnline.com investigative reporter, take a listen to Cherish's mother when she calls 911. 911, Robinson. I am at Walmart. I'm in turn of being taken.

What do you mean? Taken by a stranger. I can't find her. Okay, ma'am. How did... You say you had the Walmart on a limperner? Yes, I am. Okay, where did you last see her at?

Walmart. I met a man today at Dollar General. He saw that I was struggling to buy them some clothes. He drove us here to buy us some clothes, and the only reason I went with him because he said his wife was going to be here. Because I told him I don't take rides with strangers. Okay, ma'am. What's her last name? Can you spell that for me, please?

And is she a white female, black female? Excuse me? Is she a white or black female? What color is she wearing? I don't remember what color she's wearing because I'm panicking right now. I'm trying to look pathetic. Okay, and she was last seen with this man? Yes. He said he was going to McDonald's and he hasn't been there. In a stunning development in the last hours, the case is back on the hot seat.

What's the latest, Sean Limley? Nancy, more than eight years after her abduction, rape, and murder stunned Tallahassee and the entire country. Cherish Periwinkle's killer is getting a new hearing in his bid for a new trial. Donald Smith is on death row for his crimes, having been found guilty in 2018. The Florida Supreme Court has agreed to hear Smith's appeal this week. For more, let's turn to WJAX-TV's Janice Harris. During the trial,

Dr. Valerie Rao, the then chief medical examiner for District 4, explained to the jury Periwinkle's injuries caused by Smith, details that made the jury and Rao emotional. It's one of three reasons the defense claims Smith should get a new trial claiming bias. Smith's attorney, H. Kate Bedell, believes her client should have been given the proper opportunity to move the trial to a different county and there were improper opening and closing statements during the trial. Janice Harris there with WJAX-TV. And again, Nancy, the Florida Supreme Court will decide if the reasons Janice mentioned are enough proof for a new trial on a case that honestly has haunted the lives of many for the better part of a decade. Somehow and all the hullabaloo, the facts surrounding the murder have gotten somehow lost in the sauce.

Let's get back in touch with the facts. I want you to hear this. Rain, I want to start at the very beginning. What was it about him that made you trust him? First of all, Nancy, I wasn't allowed to say this in the courtroom during my testimony, but I had seen him before. I had seen him earlier that week in his van. Really? But I didn't piece it all together until after all these tragic events unfolded.

It's just like a jigsaw puzzle. You have to piece it all together, and you can't always piece it together on the same day. Sometimes it takes time. But looking back, I saw his van. Rain, that is incredible to me. Not in the sense of unbelievable, but I spoke to other women, another woman and her child, and they had seen his white van before, and then it approached them. I believe it was at a McDonald's, and he pretended to be a state child worker.

And that's what happened. And now I'm hearing for the very first time you had seen him before. When? What happened? It was earlier that week. It was probably either Monday or Tuesday of that week because Cherish was taken on Friday, June 21st. And it was just a regular day. I wasn't thinking anything different.

And I was just standing in my living room looking at the television. And then all of a sudden, out of the corner of my eye, I could see a white van moving so slowly down my street. And it caught my attention because of the way it moved, like a snail's pace. And I had never seen that before because, first of all, there was nothing on the road. There was no other vehicles. There were no children walking. So I ran out there, leaned over the rail, and I said, who the hell is that? And the van was moving so slow. And when it got to the corner, it made a left turn and it almost stopped

it moved that slow and it was a couple of days after Cherish was taken, one of our friends came over and she lives around the corner and she said, Rain, you know that van went down our street? And then I remembered that morning. Oh my stars. Cheryl, you know what that says to me?

Cheryl McCollum, director of the Cold Case Institute what that says to me? Cheryl McCollum, director of the Cold Case Institute. That says to me that I find that to be simpatico with the facts as we know them in other cases. So that means to me, Cheryl, he did not just meet them that day in Family Dollar. He had been watching them and likely followed them to Family Dollar. And the reason they probably didn't want to talk about it at trial is because she didn't see his face and can't prove that was him. And if you absolutely don't know a fact, don't bring it into trial because you can get attacked

on it later. You know, like he could have jumped up and said, oh, I had my van in the shop that day and ruined life, which of course would be a lie. But what does that say to you, Cheryl, what you're hearing right now? She was being stoned. He already made his mind up. He's a predator. Rain, it is not your fault.

It is not your fault. It is not your fault. Crime Stories with Nancy Grace. I'm looking right now as we're talking. I'm looking at this guy walking out the door of the Walmart Superstore with the little girl beside him. And I've reviewed the video over and over and over. And so there's the two other little girls and the mother. But even when they're all together, it's like he gets her off to the side. His focus is all on this one eight-year-old girl. It's very obvious. Then the surveillance video switches and you can see them

walking to his vehicle in the parking lot. John Limley, CrimeOnline.com investigative reporter. What more do you know? Nancy, the man convicted of killing eight-year-old Cherish Periwinkle is pushing for a new trial. This week, the Florida Supreme Court is hearing an appeal in the Donald Smith case as he sits on death row. WJAX-TV reporter Christy Turner has heard from Cherish Periwinkle's mother on the matter and brings us details. In an appeal, Smith's attorney argues the trial should have been moved out of Duval County because the case drew too much attention for a fair trial and gruesome autopsy pictures of the victim shouldn't have been shown to jurors. Rain Periwinkle, the mother of Cherish, says Smith is right where he deserves to be. She sent me this statement that says in part, I believe in the death penalty. I always

have. I always will. Death should mean death. And everybody's attacking the mom. Yeah, the mom made mistakes, but the mom isn't the killer here. Yes, the mom made mistakes, but she's not the killer. She described that he kept, they were looking for clothes and he kept wanting to get the little girls to like high heels. And she would say, no, no, that wouldn't be right. Listen. He says, you go in first and meet me in the little girls section. That's what he said. So I went to the shoes section.

And I was trying on all these shoes on my children. And I was trying not to get too excited because I thought, I hope he doesn't ditch us and leave me here with all this stuff. And then I have to put it all back and take a taxi home. And really, I didn't have enough money for a taxi because I was supposed to save that money for the next morning to go to the airport. So I was in a bind then. And I still kept wondering, when is his wife coming? So I left the shoe section and went to the little girl section,

and then he appears. And the first thing out of my mouth was, where's your wife? And he said, oh, she's coming. And so I thought, I'll wait, because he said she's coming. I mean, well, how far does she have to drive? So we looked around the clothes section, and it seems like he wanted chairs to have whatever clothes she wanted. And at that time, I didn't know he was grooming her.

But now I know the signs. Back then, some people say I was really stupid. I should have known. Well, maybe if they were in my shoes that night, they might not have known either. Because when someone approaches you with seemingly good intentions and pretends that they go to church and pretends they're a Christian, why would you not believe them? Christians are supposed to be perfect and walking in Christ and being generous and all this, which there was a facade. Well, I have to say as a Christian, Christians like myself and others are all pretty much sinners, and the whole reason we even try is because we need help.

I don't believe I've ever known but one perfect Christian. I agree with you, Rain. I agree that, for instance,. I agree that when, for instance, when I take the children to church, I assume that everybody has good intentions. I don't think something bad is going to happen to them. And, you know, maybe that's wrong. Well, it is wrong, but I agree with you. He portrayed himself that way. It seemed as if he was trying to do a good thing for you guys. You had no idea this guy had been stalking you for over a week. So you're in the little girl section. He's wanting to get everything for Cherish, but what about the other girls? Oh, I got them all clothes, and I was so excited. I was getting them

the same type of clothes, but in different colors. And I was putting Cher. I was getting them the same type of clothes but in different colors and I was putting Cherish's clothes on one side of the cart and Avea's clothes on the other side of the cart and Destiny's clothes on another side of the cart and then I had all the shoes in the middle. I recall that he kept he pointed out stiletto heels

high heels for the girls. He did. Cherish appeared to me on two different occasions with, it seemed like they were adult women's shoes, and at the time I didn't know that until later on I saw the shoes on the shelf. A few days later I returned to that store. I looked for the shoes, and I found them in the women's section, and I was highly, highly infuriated that he had the nerve to send Cherish over to me.

And she said, Mommy, can I get these? And maybe he could have been a man that didn't understand that they're women's shoes. But now I look back, he knew the hell what he was doing. He was grooming Cherish because Cherish knew full well there'd be no way I'd let her have shoes like that. But he was saying to her right in front of me she could have whatever she wants and now I know I was a target number one because I'm a single mother on foot with three little children number two he knew that I was struggling for money that day and he knew that there was no man around me. Even if my ex-boyfriend was with me, I believe this demon would have left us alone. He was looking for someone vulnerable and someone

with more than one child. Because when I saw those videos before I went to court, I was allowed to view them. And I realized now he was waiting for us the way he was walking around the store flipping through a magazine and I knew he wasn't going to buy it just by his demeanor but see at the time I didn't see that I was just focused on Cherish, Destiny and the Van let me ask you this after you

have been shopping for a period of time no wife has appeared yet the children are getting hungry how did you come to the decision to let Cherish go shopping for a period of time. No wife has appeared yet. The children are getting hungry. How did you come to the decision to let Cherish go with him to McDonald's, which I want to point out is not down the street. It's not on the other side of the town. It's there in the Superstore.

Nancy, may I say something really quick? There's a big misconception about the dressing room. A lot of people that are hating on me saying, you let him go to the dressing room with her. First of all, the dressing room was a clear shot from the children's section. And if you go to any Walmart, you'll see what I'm talking about. You can see a clear shot of just straight there. There's no other way to get there, you know. And there was one time that I looked up and they were returning from the dressing room and he said, here, you take her next time. And the shirts didn't fit her because they were way too big. And later on that night, when I was waiting for the police to arrive, I asked one of the attendants from the dressing room, I said, did he take her in there? She said,

no. So that cleared my mind. He did not go into the dressing room with Cherish. He walked her there, but he did not go in there. How did he bring up taking her to the McDonald's within the store? I was looking at all the clothes in the cart. And then I look up and Cherish comes over and stands by my left. And she said, he's got a $150 gift card. I said, is that what he told you? And he walks up and he's a few feet away from me. And he puts up his right hand like a puppet is what Mark Khalil, the prosecutor said. And that's exactly true. This is his gesture. He puts up his right hand very strangely and says, I'm going to McDonald's. What do you want to eat? And he never said we, he said I. And when Cherish went over to me, she asked me, what do you want to eat? And I said, cheeseburgers. And then she repeated cheeseburgers. And that was the last thing she said. I walked, I watched her walk away behind him. But because of how close she was to me, she would never have willingly

ran away from me. And I knew the McDonald's is inside Walmart. And I thought to myself, you can't hurt her in here. There's too many cameras. Crime stories with Nancy Grace. Cherish. Perry Winkle. An eight-year-old little girl is gone. Kidnapped, brutally raped and murdered. And John Limley, CrimeOnline.com investigative reporter. Tell me and all the listeners, what more do you know?

The facts of this case are horrifying. That's not just an opinion, that's the opening line of the written appeal for a retrial in, well, one of Jacksonville's most savage crimes, the killing, rape, and murder of eight-year-old Cherish Periwinkle. The man convicted of her murder has been on death row since 2018, and this week his case goes before the Florida Supreme Court as he seeks to have his conviction and death sentence overturned. Ann Schindler is with WTLV-TV and brings us more. The Florida Supreme Court will hear oral arguments this week, part of the automatic appeal process that follows any death sentence. Smith's attorney will argue that the trial judge

made several mistakes, including allowing graphic autopsy photos to be shown to jurors and her refusal to declare a mistrial when the medical examiner began to cry on the stand. I'm sorry, I have to take a break. Can I just have like five minutes? Attorneys will also argue it was a mistake for the judge to deny a request for a change of venue in light of the, quote, voracious nature of the media interest in the case. WTLV's Ann Schindler. Nancy, an immediate ruling is not expected. In fact, even if it's denied, the appeals process in the case of Cherish Periwinkle's killer could easily take another 10 years, possibly by what would have been Cherish Periwinkle's 26th birthday. With me, long time friend, Mark Klass is with me, founder of Klass Kids. After your little girl, Polly, went missing and was murdered, from that point on, your life has been about one thing, and that is

helping to find missing people, no matter what it takes. So many people fail this eight-year-old little girl because the response to the mom's devastating 911 call was delayed by police officers who didn't believe her. They thought she was lying because she was in the middle of a custody battle, fighting to keep her children. Then the media were not notified of the Amber Alert for hours, hours after the little girl disappeared, more officers were disciplined over that. I don't know what the failure was there. The vehicle that he had, I believe, had been used in other crimes. Listen to this. The same guy had been released from jail less than one month before, where he served only 438 days on felony child abuse and impersonation of an officer. a little over 400 days. He has been a registered sex offender since 1993 for trying to kidnap a little girl.

I mean, his arrests go back as far as 1977, where he was convicted of indecent assault on a little girl under 16. That was 1977. And it goes on and on. He went to prison again in 92 for attempted kidnapping. He was convicted on that charge in addition to two counts of showing obscene material to a child. I mean, it just goes on and on. And here he is wandering around Walmart. I don't get it. I don't get it. And what this child lived through before she was murdered is awful. There are blood stains on the carpet of his car, of his white van. And you know what? There's no telling how many children

he has raped and molested that we don't even know about, Mark. There's no telling how many children he has raped and molested that we don't even know about, Mark. There's no telling how many children really out there that may be dead. Do you think this is the first child he killed? I know it wasn't the first child he raped. That's very telling because what happens with these characters is that the nature of the crimes tend to escalate. And we're talking about a guy that had a 40-year history of escalating criminal activity. And they learn at a certain point, Nancy, that you don't leave the evidence behind, that you don't leave the child alive so that the

child can ultimately point you out or testify against you. That if you want to stay out of prison, the way you stay out of prison is you become a stealth predator. You take the children under the veil of darkness and you get rid of them. So you're exactly right. How many victims were there, victims that will never be able to tell their story, that you'll never be able to tell their story, kids that are missing and will continue to be missing probably forever and ever. This is what I know about Cherish Periwinkle, because I have reviewed the documents and

much of the evidence in her case, although it has not gone to trial yet. Cherish Periwinkle's Murder is nauseating. There are over 190 pages of documents, nearly 1,000 photos. We know that specifically this 8-year-old little girl's body was found partially clothed, submerged in about 6 inches of water in a tidal creek, like a ditch, hidden under a log and weighted down by asphalt. Chunks. An eight-year-old little girl. We learn that he was covered in scratches. We learn that his clothes were soaking wet. By putting her body in the water, Mark, you know it was in the hopes that she wouldn't be found

and that the water would wash away evidence. There's no doubt in my mind. What do you make of that? No, I think you're absolutely correct. I think that his flaw in this particular case was that he was so desperate for a new victim that he exposed himself. And I think that, you know, in retrospect, if you were to look back, he probably would play this out very differently. But, you know, it is what it is. This guy has been caught.

Thank goodness he will never have an opportunity to molest another child. You don't think so, Mark? Wouldn't you think that after his first conviction? Hey, they put him away. He'll never get out again. But he got out once, twice, three times, and now Cherish is dead. Well, has there ever been a better argument for the death penalty, Nancy? No.

I mean, seriously, has there? No, there has not. Because finally, you know, that's how you put a stop to these guys. And unfortunately, that's the only way you put a stop to these guys. No, there was not. Mark, I don't want to take you and me to a dark place, but I'm going to. This guy's body was covered in scratches. You know what that means. As this child was raped, as this child was murdered, she was fighting to live.

And she ended up dead, submerged in water. You know, that's 300 days more free he had than the guy that killed my daughter had. I mean, he was out 90 days before he finally decided he was going to take out Polly. I don't understand it either, Nancy. I mean, he was out 90 days before he finally decided he was going to take out Folly. I don't understand it either, Nancy. I don't understand why you get a serial

predator, somebody with a recidivist history that goes back decades and decades and decades, that escalates all along the line, and they continue to find reasons to allow these people back out onto the streets, knowing full well exactly what's going to happen. Not knowing who the victim's going to be, but knowing full well that they're going to kill, they're going to rape, and they'll probably do it multiple times unless they slip up like this character did. Crime Stories with Nancy Grace. Cherish is kidnapped, brutally raped and murdered, and there's no doubt about that.

But in a stunning development in the last hours, the case is back on the hot seat. John Lumley, explain. Nancy, Donald Smith, the man convicted of Cherish Perry Winkle's murder, has, as you know, been on death row since 2018. This week, his case is going before the Florida Supreme Court as he seeks to have his conviction and death sentence overturned. The appeal will be heard what is now just a few weeks before Periwinkle would have turned 16 years old. Smith's new legal team will present oral arguments before the Florida Supreme Court, part of the automatic appeals process that follows any death sentence.

Smith's attorneys will argue the trial judge made several mistakes, including allowing graphic autopsy photos to be shown to jurors and her refusal, the judge's refusal, to declare a mistrial when the medical examiner began to cry on the stand. They will also argue it was a mistake for the judge to deny a request for a change of venue in light of the, quote, voracious nature of the media interest in the case. Now, Nancy, an immediate ruling is not expected. And even if it's denied, the appeals process in the case of Perry Winkle's killer could easily take another decade to complete. Listen, I want to understand how you get through the day now.

What did you tell your other two girls about Cherish? Oh, we were sitting in Walmart that night and I told them an old man took Cherish out of the store and they were too little they didn't really understand too much back then. Have you felt that Cherish has tried to communicate with you? You know it's strange that you ask that because a lot of people that have been through this whether it be their fiance whether it whether it be a parent, a relative, or a child, they will say certain things that it could be taken as, well, she's just having a dream. No. There were at least two different incidences where I felt her. I touched her picture.

I think it was a day or two after she was taken. There was a picture of her on my wall. And I just touched her face and I said to her, Cherish, tell me where that man took you. And within a few seconds, I just was trying to be quiet. And I had a thought. He took me to a house with a dog, and the house was white. Well, after the stroller was found, I asked Mark Khalil a few days ago, was that house white? And he said, well, I said, come on, was it white or was it off white? And he said, yes.

So I take that information as that she was trying to tell me. And I can't prove it. It's just what I felt at the time. And a lot of little children like dogs, even though I don't like dogs around my children because they could get bitten by them. But I don't believe that he did this act in the van. I think that he had to have some elbow room. I think he had to have a lot of space, and he took time to think about it. Rain, what was the most painful part for you as you endured the trial of Donald Smith?

That's a good question. The worst day was the Tuesday, the following day. First of all, after my testimony, I went to an empty room and I watched Officer Wilkie. He had found Cherish and I fell on the floor screaming at his testimony. So that was extremely difficult. But you're asking me what was the worst day? It was on the Tuesday when Dr. Rao was talking about Cherish's injuries. And I was on the floor screaming for that.

I knew I couldn't sit in the courtroom. And her injuries were far worse than I thought. Rain, take a listen as the verdict is handed down. State of Florida, First Donald James Smith. Verdict count one. We have a jury found him to have been guilty of first-degree murder as charged in the indictment. We further find the killing was premeditated. We further find the killing was done during the commission or attempted commission of a felon who had been combating a sexual battery.

Verdict count two, we had jury-funded the defendant guilty of combating as charged in the indictment. We find the victim was under 13 years of age at the time of the offense. We find the defendant committed sexual battery on the victim during the commission of the offense. Verdict count three. We, the jury, find the defendant guilty of sexual battery upon a person less than 12 years of age as to receive the indictment. Associate, the Alden at Jacksonville, Dubois County, Florida. Signed, the

board of persons, February 14, 2018. Ashley Wilcott, final thought. Sure. First, all my thoughts and prayers to Rain and her family, the siblings, everyone. But we have got to be more diligent as people, as a system, to identify these perpetrators, to believe parents when they say, hey, something's happened to my child, to protect, to investigate, to arrest, to convict, and then not to release perpetrators and pedophiles who are so prolific like this man was. And we have to do all of that with crazy urgency. The second thing I would say is trust your gut, and others need to trust it too. All of us know deep in our gut when something's happened. And if others would trust that as well, it goes a long way to improving the system response that failed in this case.

Cheryl McCollum. When it comes to your children, don't trust anybody. Don't trust the family they want to go spend the night with because it's their best friend. Don't trust the preacher. Don't trust the Boy Scout leader. I don't care who it is. You make sure that you have, you know, the oversight of your child all the time. I mean, that's just a scary reality. Because I'm going to say again, this is not Rain's fault. This person

set their sight on Cherish Periwinkle. Period. Rain, my last question, final thought. I miss everything. She would sing a lot, and sometimes she would annoy me. Looking back now, I'm so sorry. Because children can be annoying, Nancy. Little children can be annoying, Nancy. Little children can be annoying.

Sometimes you'd have your days where you'd say, get away from me, go to bed. But looking back, I miss everything. I miss it when they scribbled on the wall in their bedroom. I miss it when they were running around the yard playing with all those cats we had. And I miss taking them to school. I miss diaper I miss breastfeeding I miss everything and for some people to say I wish my child would grow up and and I'm tired of this just please I hate saying the word cherish I only use it for her name, but just please revel in, if that's a good word, just appreciate what you have with your children now, because one day they may not be here. We wait as justice unfolds.

Nancy Grace, Crime Story, signing off. Goodbye, friend. This is an iHeart Podcast.