The Herald Banner, Greenville, TX

July 31, 2013

Court hears arguments in attack on newborn

By BRAD KELLAR
Herald-Banner Staff

GREENVILLE — The attorney for a Greenville woman, sentenced to prison last year for attempting to kill her newborn daughter in 2009, argued Tuesday the confession she gave concerning the case should never have been admitted.

Toby Wilkinson told the Sixth Court of Appeals that Lola Danielle Cherry was threatened with the loss of her child if she did not cooperate with authorities investigating the incident.

“It was not a voluntary confession, oral or written,” Wilkinson claimed. “That is worse than putting a gun to her head.”

Cherry was convicted in January 2012 on a charge of attempted capital murder.

One month later 354th District Court Judge Richard A. Beacom sentenced Cherry to 24 years in prison.

Assistant District Attorney Calvin Grogan, who also was the prosecutor in the case, said there was no evidence that the statements made by the defendant prior to her arrest were coerced and that Cherry was never in custody when she made them.

“She left on her own free will,” Grogan said. “There was no arrest.”

Prosecutors alleged Cherry pushed a diaper wipe down her 12 week-old daughter’s throat because she did not want her to grow up in an unstable household.

Police officers were reported to have responded to a call of a newborn choking and not breathing in the 2600 block of Jones Street on Oct. 31, 2009. The child was later taken by helicopter to Childrens Medical Center in Dallas where the baby wipe was removed. The child fully recovered.

Wilkinson argued that the statements Cherry made should be thrown out and that a new trial should be granted in the case.

“Without this lady’s confession, we don’t know who did this,” Wilkinson said.

Grogan maintained the evidence revealed the confession was made voluntarily and that Cherry was not being held in custody at the time. Grogan said if the confession is thrown out, the justices would have no choice but to dismiss the entire case.

“You can’t set apart the confession from the rest of the case,” Grogan said.

Wilkinson argued Cherry was held behind a locked door, with investigators from the Greenville Police Department and Child Protective Services on hand, as well as a Secret Service agent who had been brought in to administer a polygraph. Wilkinson said Cherry also had a limited education and may not have understood the extent of her statements.

Grogan countered that Cherry understood the proceedings, as she had had previous run-ins with the law, had her attorney present at the time, and that her statements met the standards of a voluntary confession.

Justice Bailey Moseley asked Wilkinson whether there was any evidence, other than Cherry’s testimony, that she was coerced into making the confession, in potential violation of her Miranda rights.

Wilkinson said there was nothing written down, but added, “If you are looking at whether non-arrest means non-custodial, you are going down a slippery slope.”

The appeals court did not immediately issue a ruling in the case.