Supreme Court of Florida

____________

No. SC18-822
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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.

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

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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

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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.

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 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

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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

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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).

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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.

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

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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
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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

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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

. . . .”).
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 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
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(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
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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.”).

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

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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.

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 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
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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.

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

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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

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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

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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.
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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.

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).

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 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).

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 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?”
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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

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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.
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prosecutor’s comments in closing argument, but waived closing

statement instead. See Darden, 477 U.S. at 181.

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.
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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.
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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

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