ZALAIYA McCLOE - 1 yo (2009) - Wilkes-Barre PA

A Wilkes-Barre man was charged Thursday with the beating death of a
one-year-old child. Lamont Cherry could face the death penalty if he is
convicted.

Investigators in Luzerne County charged Cherry with homicide. They say
he is to blame for the death of his girlfriend's baby, one-year-old
Zalaiya McCloe.

Police in Wilkes-Barre say the child was home with Cherry, her mother's
boyfriend, on Carlisle Street back in May. The baby began to cry and,
at some point, investigators say Cherry beat her.

"It's hard enough for the prosecutors to deal with the death of an
adult, but the death of a child is just something that's
incomprehensible," said District Attorney Jackie Musto Carroll on
Thursday.

Test results show baby McCloe died of blunt force trauma to the head.
She had a fractured skull. The girl's family is pleased by the new
charges against Cherry.

"I'm glad he's charged with homicide," said Annie Wiggins, the child's grandmother. "I hope he gets the death penalty."

Great aunt Mary Wiggins added, "He took away something precious, and he
had no right because he had nothing to do with it. He had no right to
take that away from us."

Cherry is behind bars in Luzerne County. Prosecutors say they will seek
the death penalty if Cherry is found guilty of Zalaiya McCloe's death.

Sparkul Lott testified on Tuesday that she believed 1-year-old
Zalayia McCloe was sleeping on Lamont Cherry’s shoulder in a
Wilkes-Barre house on May 29.




Minutes later, Lott said, Zalayia was not breathing and turning a different color.
Zalayia was flown to Geisinger Medical Center in Danville, where she died.
Investigators allege Cherry struck the child hard enough to fracture her skull in two places.
After more than an hour of testimony during Cherry’s preliminary
hearing in Wilkes-Barre Central Court, District Judge William Amesbury
determined prosecutors established a case, sending an open count of
criminal homicide to Luzerne County Court of Common Pleas.
Lott testified she arrived at her cousin’s Carlisle Street house to
help Zalayia’s mother, Christa Smith, pick up job applications. She
said she fed the child breakfast, and the toddler was doing fine when
they left the home.
When they returned, Lott said, “it looked like (Zalayia) was sleeping on (Cherry’s) shoulders.”
She testified Cherry carried Zalayia upstairs and called Smith. Smith quickly called Lott, who found the child not breathing.
“(Zalayia) was changing colors and she was foaming at the mouth,”
Lott testified. “I grabbed the child and walked downstairs where I gave
her mouth-to-mouth, and she started breathing.” Lott said she and Smith
at first believed Zalayia was choking.
Zalayia was transported to Geisinger Wyoming Valley Medical Center,
Plains Township, and then flown to Geisinger in Danville, where she
died.
Forensic pathologist Dr. Sam Land testified an autopsy determined
Zalayia died from blunt force trauma to the head. He said there were
numerous injuries to the toddler’s head, including two fractures on the
skull and the buttocks.
He added that “significant force” caused the head injuries.
City police Detective Brent Sevison said he questioned Cherry at
Geisinger in Danville and learned that Cherry and the toddler were the
only two people in the residence.
“He didn’t know what happened. Only he and the child were together, no one left and no one came in (to the home).”
Attorneys William Ruzzo, Christopher O’Donnell and Michael Kostelaba represent Cherry.
Cherry remains jailed at the county prison without bail.

Mother of dead infant testifies at capital murder trial
By Michael R. Sisak (Staff Writer)Published: January 11, 2011

Trial begins in baby girl's death

Between the tears, the screams and the panic, Christa Smith suspected the worst.

Her 12-month-old daughter, Zalayia McCloe, lay unresponsive in the arms of her live-in boyfriend, Lamont Cherry.

The girl's limbs were limp. Her eyes were vacant. Foam bubbled from her mouth.

"I was shaking and I was jumping and I was scared," Ms. Smith said Monday, the first day of testimony in Mr. Cherry's capital murder trial.

"I just panicked. I had never seen anybody like that," Ms. Smith continued, her thoughts shifting from the trial in Luzerne County Court to that harrowing day 19 months ago. "I had never seen a child like that."

Mr. Cherry appeared subdued and evasive, Ms. Smith said.

Mr. Cherry, 37, had been home alone with Zalayia on May 29, 2009, caring for her while Ms. Smith ran errands, but could not explain what had sent the girl - happy and healthy an hour before - into a coma-like state.

"I had no idea what was wrong with her," Ms. Smith testified. "I knew something was wrong. She just looked like she was already gone."

Detective Brent Sevison of the Wilkes-Barre Police Department said Mr. Cherry told him that he had left Zalayia alone for a "few seconds" while putting away laundry and, when he returned, found her "sleeping" at the
bottom of the stairway in their Wilkes-Barre home.

Mr. Cherry theorized that Zalayia may have choked on cereal and could have fallen from the third or fourth step on the stairway, crashing into a set of dumbbells at the foot of the stairs, Detective Sevison said.

Mr. Cherry said little to the police officer who responded minutes after the 911 call.

"He was evasive," Officer Christopher Hardy testified. "He did not provide information, did not say much, was overly quiet."

Contact the writer: msisak@citizensvoice.com

http://thetimes-tribune.com/news/mother-of-dead-infant-testifies-at-capital-murder-trial-1.1088664#ixzz1AkIqrVcK

When they returned, Lott said, “it looked like (Zalayia) was sleeping on (Cherry’s) shoulders.”

This guy is truely EVIL! He beats this poor baby to death and then just pretends that nothing has happened! He lets the mother discover her lifeless baby- beyond tragic!

babyluv wrote:When they returned, Lott said, “it looked like (Zalayia) was sleeping on (Cherry’s) shoulders.”

This guy is truely EVIL! He beats this poor baby to death and then just pretends that nothing has happened! He lets the mother discover her lifeless baby- beyond tragic!

It sure is tragic babyluv, but I look at these tragedies not as "evil" at work but more like "human nature" at work.
If we look at how this came about, it begins with a child born into an unstable situation. Only 12 months later the mother is with another man who is not the baby's father but she expects him to just step into a father's shoes and love her baby as though it were his own. On top of that, the mother leaves her baby for him to care for instead of taking her baby with her. The tragedy happened for 3 reasons IMO.
1. She wasn't his child.
2. He's a man who like many men are ill equipped to care for babies and toddlers. It can be stressful if you don't know what you're doing.
3. The mother left him alone as the babies primary caregiver.

If mothers went back to caring for their babies, which is the role of the female, instead of leaving them with boyfriends left right and centre every time they need to go out, this would not happen as often as it does.
So no. He's not evil. He's just part of an epidemic of boyfriends left holding the baby who couldn't cope and lost it.

A jury hearing the case of an accused child killer in Luzerne County
will return Friday morning to continue deliberations. Jurors deliberated
Lamont Cherry's fate for seven hours Thursday, twice telling a judge
they were deadlocked.

About two hours into deliberations the jury had a question for the
judge. Jurors requested the definitions of first and third-degree murder
and involuntary manslaughter.

Jurors began deliberating the case against Lamont Cherry about 1 p.m.
Thursday. At 5 p.m. they told the judge they could not reach a unanimous
decision. The judge told them to return to continue to deliberate. At
7:45 p.m., they told the judge they could not reach a verdict. The judge
told them to rgo home, then return Friday morning to continue.

Cherry is on trial for allegedly beating his girlfriend's one-year-old daughter, Zalayia McCloe, to death in 2009.

Cherry and his attorney's say the child was not beaten, but may have fallen on the stairs of her Wilkes-Barre home.


Before deliberations began both sides had one last chance to convince
the jury that either Cherry killed Zalayia or that her death was an
accident.

Cherry, 37, of Wilkes-Barre is standing by his word he had no idea what
happened to Zalayia McCloe in 2009. Police said Cherry severely beat the
child at a home they shared with her mother on Carlisle Street in
Wilkes-Barre.

Defense attorney Bill Ruzzo told the jury in his closing agruments that Cherry is an innocent man.

Police said Cherry was left alone with the baby while her mother and a
friend ran some errands. Ruzzo said the child could have fallen down a
steep flight of stairs causing the injuries.

Ruzzo told the jury, "you would have to believe in the space of one hour he turned into a monster."(not hard to believe if you read all the other cases we have here!!!!)

The prosecution disagrees. Assistant District Attorney Michael Vough
repeated the baby's injuries to the jury which included a fractured
skull, damaged and detatched retinas, and a bruised buttocks. Vough
said his experts already concluded the death was a homicide and those
injuries were not from a fall down the steps. Vough told the jury
several times actions speak louder than words and reminded them of how
witnesses described Cherry's demeanor.

He said, "She's being life flighted and what's he doing? Taking a nap."

The deliberations could go for several more hours. Cherry could be found
guilty of first-degree murder, third-degree murder or involuntary
manslaughter. A first-degree murder conviction could carry a death
sentence.

Prosecutors in Luzerne County have the next 120 days to retry an accused child killer.

Lamont Cherry was acquitted of first-degree murder Friday when the judge
ruled a mistrial after one of the jurors went on the internet during
deliberations.

Court rules do not allow that. It's becoming known as mistrial by internet.

"Jury trials have been with us since the early 1700s, even before the American Revolution," said Luzerne County President Judge Thomas Burke Jr.

Judge Burke spoke about the responsibilities jurors have when they sit
in a jury box. He said jurors must listen to every word of the judge's
instructions.

"Instruct the jury very emphatically on the outset of the case they must
base their deliberations on the evidence that comes in on the witness
stand," explained Judge Burke.

He said it is common practice inside the Luzerne County courts for a
judge to instruct the jurors at least once a day throughout the trial
that they are prohibited from accessing outside sources of information
and the judge will also ask the jurors if anyone has violated the order.

"If the court finds sufficient taint, if it means the dismissal of a
particular juror, unless both sides agree, the court will declare a
mistrial," the judge said.

That's exactly what happened last week in the Cherry trial. The judge
announced a juror went on the internet and did outside research.

"We can't criticize her, can't criticize jurors. She made a mistake, but
we all make mistakes. We have to get past this and need people to serve
and if we start criticizing one person we're never going to get jurors
to serve in this county," defense attorney Al Flora said after the
mistrial was declared.

Luzerne County District Attorney Jackie Musto Carroll said Tuesday the
investigation into the alleged misconduct is still ongoing with that
juror.

Judge Burke said the most important thing jurors can do is simply follow
instructions and do exactly what they are told in the court room.

http://www.wnep.com/news/countybycounty/wnep-luz-president-judge-burke-cherry-mistrial,0,1088104.story

Stupid jury woman! Mind you, it could be a blessing as these jurors couldn't come to a conclusion about his guilt or not!

Al Flora's tone intensified Friday evening as the subject of the
reporters' questions turned from his client, Lamont Cherry, to the juror
whose curiosity precipitated a partial verdict on one count and a
mistrial on two others.
Juror No. 11 Gretchen Black, at home after six hours of deliberations
Thursday evening, used the Internet to research retinal detachment, one
of the injuries prosecutors say Cherry caused as he beat his
girlfriend's 12-month-old daughter to death.
Black, according to jury forewoman Leeanne Lloyd, printed copies of
her research and attempted to share them with other jurors before they
continued deliberations Friday morning.
Judge Tina Polachek Gartley, told of the research in a note from
Lloyd, considered Black's actions misconduct and, after an extraordinary
day of legal research and courtroom debate, removed her and declared a
mistrial on two counts that had not been decided.
"Outside information from the Internet on facts pertaining to this
case was brought into the jury room, not just verbally, but copies were
made," Gartley told the jury, as if admonishing an insolent child.
"Everything that you decided in this case had to come from this witness
chair. How many times did I pat this chair this week?"
Prosecutors, who must retry Cherry within four months on the
undecided third-degree murder and involuntary manslaughter charges, said
they considered Black's research a potential crime and are
investigating a contempt charge.

Flora, his passion intensifying with each inquiry, defended Black's
research as "a mistake" and said a criminal charge would have a chilling
effect on the criminal process and undermine the ability for jurors to
serve freely.
"As far as I'm concerned, I think it would be ludicrous to charge
this woman with anything," Flora said. "In my view she has done nothing
wrong other than to fulfill her oath under the law. Simply
misunderstanding a judge's instruction is nothing unusual."
Assistant District Attorney Michael Vough, speaking in the courthouse
rotunda after Gartley declared the mistrial, offered a theory for
Black's misconduct.
Three hours into deliberations Thursday night, jurors returned to
Gartley's courtroom and told her they were deadlocked. Jurors, Vough
theorized, were sharply divided on one of the lesser counts against
Cherry, and Black, adamant about the side she chose, went to the
Internet for research to bolster her argument.
"Looking at the jurors and looking at what happened today, I think
there was a big fraction for one side or the other and they weren't
going to move off that," Vough said. "Obviously if a juror went to the
lengths of going on the Internet to bring in information, I'm assuming
to bolster her argument or attack the other side's argument, they were
probably well divided early in the process."
Mark Bufalino, the attorney appointed by Gartley to represent the
rule-bending juror, lent a shade of credence to Vough's theory with his
observation Friday evening that Black's research had been inspired by a
passion for her duty as a juror.
"I think she was upset by the fact that people thought something
which wasn't necessarily true, that she was doing something for an
improper purpose," Bufalino said. "That couldn't be further from the
truth. Her sole intent was being the most conscientious juror that she
could be. It just happened to get sidetracked a little."
Black, a teacher in the Northwest Area School District and mother of
four, left the courthouse Friday on the verge of tears. She remained
silent as Bufalino and two sheriff's deputies escorted her to her car.
"I can tell you, from the selection process, she is a very fine
woman," Flora said. "She should not be deemed as somebody who had any
ill will to deliberately try to do anything to set aside this case. She
is a fine woman. She is a respected member of the community. I know
where she lives, I know people that know her and we can't criticize her.
We can't criticize jurors. She made a mistake, but we all make
mistakes."

Mistrial by Internet,” an issue locally and nationally, reason for possible change.


WILKES-BARRE – Luzerne County is among numerous courts
nationwide considering altering jury instructions and/or placing
restrictions on jurors in hopes of stemming problems caused by panelists
who access the Internet while a trial is going on.


Attorneys for the defendant Chris
O'Donnell, Al Flora and William Ruzzo leave court after the mistrial
decision. AIMEE DILGER Photos/The Times Leader 1/14/2011

click image to enlarge
Jurror #11 in the Lamont Cherry trial is escorted from the Luzerne County Courthouse by two sheriffs and
her attorney Mark Buffalino after the case was declared a mistrial
because the juror did some research at home. AIMEE DILGER Photos/The
Times Leader 1/14/2011
The issue, commonly referred to as “mistrial by Internet,”
has become a growing concern across the country as courts are
discovering an increasing number of jurors are ignoring admonishments to
avoid any outside influences.
Mistrials have been declared in several cases during the past few
years. In March 2009, a federal judge in Florida declared a mistrial in a
drug case after a juror admitted he accessed the Internet to do
research, including evidence the judge had specifically excluded.
In Pennsylvania, attorneys for former state Sen. Vincent Fumo have
appealed his 2009 conviction on federal corruption charges, arguing the
judge erred when he declined to declare a mistrial after it was learned a
juror posted messages on his Facebook account while the panel was
deliberating.
The controversy hit Luzerne County on Friday, when Judge Tina
Polachek Gartley was forced to declare a mistrial in the capital murder
trial of Lamont Cherry after learning a juror had used the Internet to
research information on injuries the child victim had suffered.
Cherry is charged with killing his girlfriend’s 1-year-old daughter,
Zalayia McCloe, in May 2009. The jury determined Cherry was not guilty
of first degree murder before the revelation that juror Gretchen Black
had accessed the Internet. Cherry will be retried within 120 days on
charges of third-degree murder and involuntary manslaughter.
The judge and county prosecutors were exasperated by the juror’s
conduct. But Nathaniel Burney, a defense attorney from New York, said he
can understand why the juror acted as she did.
“Nowadays everyone is a researcher. You have questions, it’s
perfectly natural to go look it up on Google,” said Burney, who has
written extensively about the Internet’s impact on trials. “It’s
something the courts really have not caught up with. … In the old days
if you wanted to look up something you had to find a library. Now
everyone has the Internet on their cell phone.”
President Judge Thomas Burke said he believes judges in Luzerne
County make it clear that jurors are not to conduct outside research. He
said he plans to discuss what, if any, further steps can be taken to
ensure jurors more clearly understand those restrictions.
“In this technological age, there are developments and situations
which are somewhat novel,” Burke said. “It’s a matter that needs to be
studied very closely, not only by our courts, but presumably all
courts.”
District Attorney Jacqueline Musto Carroll said she believes the
courts might need to give closer consideration to sequestering jurors in
capital cases, which would reduce the likelihood they could be exposed
to any outside influence.
“To say it has to be done on every case, I don’t see how that would
be humanly possible,” Musto Carroll said. “Obviously, in a capital case
the stakes are higher. They are much more expensive and prolonged. We
don’t want to see a case go for weeks and end in a mistrial because a
juror did research.”

June 10
Retrial of Lamont Cherry delayed until August
WILKES-BARRE – The retrial of a city man scheduled to be held later this month on homicide charges in the death of a 1-year-old girl will now begin in August, a Luzerne County judge said.
Judge Tina Polachek Gartley, who originally scheduled a June 27 trial for Lamont Cherry, continued the trial at the request of Cherry’s attorneys, William Ruzzo and Christopher O’Donnell.

Ruzzo and O’Donnell said an expert they intend to call at the trial cannot appear during the week of June 27.

Polachek Gartley said Cherry will now stand trial on Aug. 22.

Cherry, 37, who is charged with the May 2009 death of his girlfriend’s 1-year-old daughter, Zalayia McCloe, originally stood trial on the charge in January.

After a two-week trial, including jury selection, a mistrial was declared due to a juror’s misconduct after the jury decided Cherry was not guilty of first-degree murder.

Juror Gretchen Black had conducted research after the jury had gone home for the day about retinal detachment – a complication of shaken baby syndrome McCloe allegedly suffered before her death.

An investigation was conducted and Black was not charged with any wrongdoing.

Cherry will now face lesser charges of third-degree murder and involuntary manslaughter.

Had Cherry been convicted of first-degree murder, he would have faced the death penalty or life in prison.

Polachek Gartley said Friday her biggest concern is publicity of the case because Black’s misconduct was widely reported by local media outlets.

“Jurors need to be asked questions specific to that,” Polachek Gartley said, adding that is her main concern followed by whether jurors have heard anything about the case.

Polachek Gartley said a pre-trial hearing on any outstanding motions will be held on Aug. 16. Attorneys have said the trial is expected to last four days.

http://www.timesleader.com/news/Retrial-of-Lamont-Cherry-delayed-until-August.html

August 17
Retrial of Lamont Cherry is delayed
Judge Tina Polachek Gartley warns attorneys that no more continuances will be granted.
By Sheena Delazio


WILKES-BARRE – The retrial of a city man scheduled to begin next week on charges relating to the death of his former girlfriend’s 1-year-old daughter has been continued to October.

Lamont Cherry, 37, appeared Tuesday in Luzerne County Court for a hearing in the May 2009 death of Zalayia McCloe. Assistant District Attorney Michael Vough said he had received a report within the last 24 hours from defense attorneys regarding a neurologist they intend to call to testify.
Vough said because he had just received the report, a week was not sufficient time to have an expert look over it and prepare a rebuttal.
Judge Tina Polachek Gartley said she was prepared to try the case next week, but due to Tuesday’s revelations, continued the trial to Oct. 17.
“No more surprises, gentlemen,” Polachek Gartley warned Vough and Cherry’s attorneys, William Ruzzo, Christopher O’Donnell and Michael Kostelaba.
“No more continuances will be granted.”
Cherry faces charges of third-degree murder and involuntary manslaughter after a mistrial was declared at his first trial in January.
He was found not guilty of first-degree murder in McCloe’s death, thereby avoiding the death penalty or life in prison.
The mistrial was called after a two-week trial, including jury selection, when a juror conducted research about retinal detachment – a complication of shaken baby syndrome that McCloe allegedly suffered before her death.
The juror’s misconduct was brought to Polachek Gartley’s attention by other jurors, and a mistrial was declared, but only after the jury had also found Cherry not guilty of the most serious charge.
An investigation was conducted, and the juror, Gretchen Black, was not charged with any wrongdoing.
Polachek Gartley reiterated Tuesday that her biggest concern is publicity of the case because Black’s misconduct was widely reported by local media outlets.
The judge said details will be worked out closer to the time of the trial, but jurors likely will be asked specifically about what they know or have heard about the case.


Read more: http://www.timesleader.com/news/Retrial_of_Lamont_Cherry_is_delayed_08-17-2011.html#ixzz1VyWxaWh8

Posted: October 18
Updated: Today at 1:04 PM
Homicide trial jurors are warned
Juror used web for research during previous trial of Cherry in death of 1-year-old girl.
By Edward Lewis elewis@timesleader.com


WILKES-BARRE – Jurors selected Monday in the Luzerne County retrial of Lamont Cherry were given a stern warning by the judge in an attempt to avoid another blunder.

Judge Tina Polachek Gartley during her instructions warned the six men and six women picked to serve on the jury not to use social media websites or use Internet search engines to conduct their own inquiry about the case.
“The only information you should hear about this case is from this witness chair,” Gartley said, referring to the witness stand in front of the jury box.
Cherry, 37, is facing his second trial on charges he caused the death of 1-year-old Zalayia McCloe in May 2009.
He was acquitted by a jury in January of first-degree murder, which eliminated the death penalty, before Polachek Gartley declared a mistrial on other charges after a juror, Gretchen Black, admitted to using the Internet to conduct research about retinal detachment, an injury that may occur when an infant is violently shaken.
Black’s misconduct was brought to Polachek Gartley’s attention by other jurors after the jury had reached a verdict acquitting Cherry of first-degree murder. Black was not charged with any wrongdoing.
Assistant District Attorneys Michael T. Vough and Maureen K. Collins are hoping to convince the jury selected Monday to convict Cherry of third-degree murder, a first-degree felony, or involuntary manslaughter, a second-degree felony.
A third-degree murder conviction carries a prison sentence of not more than 40 years, while an involuntary manslaughter conviction is not more than 10 years in prison.
Attorneys William Ruzzo, Christopher O’Donnell and Michael Kostelaba are defending Cherry on the two charges.
Wilkes-Barre police and county detectives allege Cherry caused fatal injuries to McCloe while he was babysitting her inside a Carlisle Street home on May 29, 2009.
Cherry denied he caused the injuries to McCloe, stating he fed the girl and cleaned the house while her mother, Christa Smith, was out.
Opening statements are expected to begin this morning.


Read more: http://www.timesleader.com/news/Homicide_trial_jurors_are_warned_10-17-2011.html#ixzz1bBo44FNK

Ten months after mistrial, Cherry faces baby death case again

BY MICHAEL R. SISAK (STAFF WRITER)Published: October 18, 2011

Lamont Cherry had been here before: same courtroom, same attorneys, same baby death case.

Ten months ago, on a blustery January afternoon, a Luzerne County jury spared Cherry from the death penalty and, in a bizarre turn, subjected him to a certain retrial on two lesser charges.

A juror, curious after a long night of deliberations that ended with a 12-0 vote for not guilty on a first-degree murder charge, used the Internet to perform research on the injuries prosecutors said Cherry inflicted on his girlfriend's 1-year-old daughter.

The juror, Gretchen Black, printed copies of her research and attempted to share them with other jurors the next morning, before they continued pondering two of the three charges against Cherry.

Judge Tina Polachek Gartley, told of the research in a note from the forewoman, considered Black's actions misconduct and, after an extraordinary day of legal research and courtroom debate, dismissed her from the jury and declared a mistrial on the two undecided counts.

The retrial, on charges of third-degree murder and involuntary manslaughter, started Monday with the selection of jurors - seven women and five men - and four alternates. Opening statements are scheduled for this morning, Gartley said.

If convicted, Cherry faces a maximum 40 years in state prison.

"I just hope it'll be fair like last time, that's all," Cherry said as sheriff's deputies escorted him from the courthouse, his arms and legs free from the handcuffs and shackles normally used to bind incarcerated defendants.

According to prosecutors, Cherry, 38, violently shook and beat 12-month-old Zalayia McCloe while he babysat for her in Wilkes-Barre on May 29, 2009, fracturing her skull and severely damaging her brain. The infant died two days later. Cherry testified at the first trial that McCloe may have been injured in an accidental fall.

John Lenox, a biomechanical engineer and physician called by the defense, said at the first trial that medical evidence and the laws of physics showed Zalayia McCloe sustained severe brain trauma from a fall, not the physical assault alleged by prosecutors.

Two prosecution experts who testified at the trial - Frank Maffei, the physician who treated Zalayia at Geisinger Medical Center in Danville, and Samuel Land, the forensic pathologist who performed her autopsy - said the injuries were indicative of "shaken baby syndrome."

Prosecutors, following a similar script from the first trial, plan to call McCloe's mother, Christa Smith, and another relative to the witness stand this afternoon.

Smith testified at the first trial about how she returned home from running errands and saw McCloe laying unresponsive in Cherry's arms. The girl's limbs were limp, her eyes vacant and foam bubbling from her mouth.

"I was shaking and I was jumping and I was scared," Smith testified. "I just panicked. I had never seen anybody like that. I had never seen a child like that."



Read more: http://citizensvoice.com/news/ten-months-after-mistrial-cherry-faces-baby-death-case-again-1.1219411#ixzz1bBoxdb62

Medical experts: Fall would not have killed 1-year-old

BY MICHAEL R. SISAK (STAFF WRITER)
Published: October 19, 2011

KRISTEN MULLEN / THE CITIZENS' VOICE Lamont Cherry is led from the Luzerne County Courthouse following the second day of his retrial in the baby death case of Zalayia McCloe.

The defense's theory on the cause of little Zalayia McCloe's death wilted Tuesday in the face of science.

No fall from a step or two up a carpeted staircase could have caused the brain trauma that killed the 1-year-old Wilkes-Barre girl, a pair of medical experts testified in Luzerne County court.

No collision with a set of barbells kept at the base of the stairs could have caused the skull fractures, intense bleeding and retinal detachment McCloe sustained, either, the experts said.

McCloe's injuries, according to the pediatric critical care physician who treated her, were telltale signs of "abusive head trauma."

According to prosecutors, Lamont Cherry, the only person home with McCloe when she sustained the injuries, inflicted the abuse. Cherry, charged with third-degree murder and involuntary manslaughter, faces up to 40 years in prison if convicted.

"A two-step fall would not have been sufficient to cause those," the physician, Frank Maffei, testified.

Dr. Samuel Land, the forensic pathologist who performed an autopsy on McCloe, said a fall into the barbells would have caused lacerations and abrasions on her skin. None were found, Land said.

"I don't believe she hit her head on the dumbbell," Land testified. "The injury patterns do not match up to a tumble down several steps."

Police inspected the barbells for blood, tissue and hair and found none, State Trooper James Shubzda testified.

Each of Zalayia's optic nerves was encased in blood and her brain was "extremely swollen." An autopsy revealed thin layers of blood on Zalayia's brain and bleeding in the soft tissue of the muscles connecting the neck and the head, Land said.

Land, who has performed more than 6,000 autopsies, including hundreds on children younger than 18 months old, said he never had one with a child who died from falling down a set of stairs.

Maffei, who treated McCloe in the intensive care unit at the Janet Weis Children's Hospital in Danville, said one type of injury McCloe sustained - retinal detachment - is almost always linked in infants to abusive head trauma.

"We have never seen this injury in children outside of abusive head trauma except in three documented cases," Maffei said. Those exceptions: a fall from a height of three stories, an infant who was crushed under heavy weight, and a motor vehicle accident.

Cherry, on trial for the second time after a juror's curiosity and internet research short-circuited his first trial, left court Tuesday expecting to again testify.

"I testified last time, so I'm going to testify tomorrow," Cherry told reporters as sheriff's deputies escorted him from the courthouse. "I just want a fair trial like last time. That's it. They go by the law, I should be all right. The only way I probably lose is if they stack the deck on me."

Cherry's attorneys should not count on him to corroborate their theory they offered Tuesday that McCloe climbed up a step or two, then fell and collided with the dumbbells.

Cherry told police he left Zalayia alone for a "few seconds" while putting away laundry and, when he returned, found her "sleeping" at the bottom of the stairway."

"I don't know what happened, you know what I'm saying?" Cherry told reporters Tuesday. "I'll see you all tomorrow."



Read more: http://citizensvoice.com/news/medical-experts-fall-would-not-have-killed-1-year-old-1.1220012#ixzz1bF04NIvc

Posted: October 19
Updated: Today at 1:30 AM
Attorney says suspect will testify at trial
By Edward Lewis elewis@timesleader.com
Staff Writer
WILKES-BARRE – A man accused of causing fatal injuries to a 1-year-old girl in May 2009 will testify before a Luzerne County jury this week, attorney William Ruzzo said.

Ruzzo, in his opening statement to jurors on Tuesday said his client, Lamont Cherry, 37, will say he has no idea how Zalayia McCloe suffered severe head injuries that left her brain dead on May 27, 2009. McCloe died at the Janet Weiss Children’s Hospital in Danville two days later.
Cherry is being tried on charges of third-degree murder, or involuntary manslaughter.
Cherry, residing with McCloe and her mother, Christa Smith, was cleaning their Carlisle Street, Wilkes-Barre, residence two days after he helped plan and celebrate the toddler’s first birthday party, Ruzzo said.
Ruzzo said Cherry had finished putting clothes away and used a vacuum when he found McCloe on a stair landing, next to barbells that were on the same landing.
Ruzzo said it is possible McCloe climbed the stairs and had fallen, striking her head on the barbell weights. “Children fall, crazy things happen,” Ruzzo told jurors.
Assistant District Attorneys Michael T. Vough and Maureen K. Collins allege Cherry violently shook McCloe, causing several skull fractures and retinal detachment in her eyes.
“It’s a clear sign of trauma by being shaken violently,” Vough said about McCloe’s eye injuries during his opening statement. “Enough force was used to separate a piece of bone from her skull. This child was the victim of a homicide.”
Vough said Cherry was alone in the residence with McCloe. Smith was out submitting job applications.
When McCloe and her aunt arrived home, Vough said, Cherry was holding McCloe telling Smith the toddler was tired. McCloe stopped breathing and was rushed to the hospital, Vough said.


Read more: http://www.timesleader.com/news/Attorney_says_suspect_will_testify_at_trial_10-19-2011.html#ixzz1bHSknIdT

Posted: 3:48 PM
Updated: 5:01 PM
Cherry guilty of third-degree murder in infant death
A Luzerne County jury convicted Lamont Cherry of third-degree murder charges Thursday afternoon in causing fatal injuries to 1-year old Zalayia McCoe on May 29, 2009.

The jury returned it's verdict after a four-day trial before judge Tian Polachek Gartley.
Check back with timesleader.com for more information.


Read more: http://www.timesleader.com/news/Cherry-in-infant-death-.html#ixzz1bMKZWevM

October 21
Cherry guilty in death of 1-year-old
The Wilkes-Barre man could face 20-40 years in jail, an assistant D.A. says.
By Edward Lewis elewis@timesleader.com
Staff Writer

Lamont Cherry is taken back to prison after Thursday’s verdict amid television reporters asking for his comments about his trial.

WILKES-BARRE – Lamont Cherry did not move when a Luzerne County jury on Thursday found him guilty of causing fatal injuries to 1-year-old Zalayia McCloe.

Sheriff deputies quickly handcuffed and shackled Cherry in the courtroom minutes later.
“I still maintain my innocence,” Cherry said while being escorted from the courthouse.
McCloe’s mother, Christa Smith, breathed a loud cry in the courtroom when the verdict was read.
County detectives and Wilkes-Barre police alleged Cherry violently shook McCloe while she was in his care inside a Carlisle Street residence where he lived with Smith on May 29, 2009.
McCloe was flown to the Janet Weiss Children’s Hospital in Danville, where she died two days later.
Cherry testified he did not know how McCloe was injured. He said he was putting clothes away in a bedroom and found her lying on a stair landing next to barbell weights.
His defense team, William Ruzzo, Christopher O’Donnell and Michael Kostelaba, believe McCloe fell down two steps and struck her head on the barbells.
Assistant District Attorney Michael T. Vough, who along with Assistant District Attorney Maureen K. Collins, prosecuted Cherry, said the guilty verdict shows the jury did not believe McCloe died from a fall.
“Twelve people from Luzerne County disagreed with Mr. Cherry,” Vough said. “We stand by our investigation. From day one, we felt this wasn’t an accident. This was inflicted by Mr. Cherry.”
A family representative to McCloe declined comment, saying they want to wait until after Cherry is sentenced.
Judge Tina Polachek Gartley said Cherry will be sentenced on Dec. 29. Vough said Cherry faces 20 to 40 years in prison.
“Obviously, the jury looked at the medical evidence of the case and the overwhelming injuries this child suffered, and really rejected the defense claim of a fall. There was no evidence of a fall ever in this case,” Vough said.
During his closing argument to jurors, Ruzzo said the police investigation found no evidence that McCloe was abused in the residence.
“There were no marks on her arms or rib cage to suggest she was violently shaken,” the attorney told jurors.
Cherry was acquitted by a jury in January of first-degree murder, which eliminated the death penalty, before Polachek Gartley declared a mistrial on other charges due to misconduct by a juror.


Read more: http://www.timesleader.com/news/Cherry_guilty_in_death_of_1-year-old_10-21-2011.html#ixzz1bcL7qbNI

December 21
Cherry sentenced to 20-40 years for toddler's death
By Sheena Delazio sdelazio@timesleader.com
Times Leader Staff Writer

WILKES-BARRE - Luzerne County Judge Tina Polachek Gartley sentenced Lamont Cherry to 20 to 40 years in state prison Wednesday morning.

A jury in October convicted Cherry, 37, of third-degree murder in causing fatal injuries to 1-year-old Zalayia McCloe on May 29, 2009.
Cherry maintained his innocence, claiming a defense that McCloe may have fallen inside the Carlisle Street, Wilkes-Barre, apartment where he lived with the toddler's mother.

Read more: http://www.timesleader.com/news/Cherry-sentenced-to-20-40-years-for-toddlers-death-.html#ixzz1hzYvvtON