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Salley v. State

Supreme Court of Maine

August 8, 2017

HORACE W. SALLEY III
v.
STATE OF MAINE

          Argued: May 11, 2017

          David Paris, Esq. (orally), Bath, for appellant Horace W. Salley III.

          Todd R. Collins, District Attorney (orally), Prosecutorial District 8, Caribou, for appellee State of Maine.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] Horace W. Salley III appeals from a judgment entered by the court (Aroostook County, Hunter, J.) denying his petition for post-conviction relief. Because, contrary to the court's conclusion, Salley did not waive his challenge to counsel's effectiveness regarding a specific witness's testimony at trial, we vacate the judgment and remand the matter for further consideration of that post-conviction issue.

         I. BACKGROUND

         [¶2] In 2007, Salley was charged with gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2016); assault (Class D), 17-A M.R.S. § 2O7(1)(A) (2016); and tampering with a victim (Class B), 17-A M.R.S. § 454(1-B)(A)(1) (2016). The State alleged that Salley had committed gross sexual assault and assault against his wife in September, October, or November 2006. A jury trial was held over the course of three days in August 2008.

         [¶3] During the trial, Salley's wife testified that, at one point, she had recanted; that is, she told others that she was lying about her report of Salley's assault and gross sexual assault. She testified that her recantation was not the truth and that it was motivated by two considerations: (1) she had been offered money in exchange for her refusal to testify against Salley, and (2) she was afraid of Salley and had their young child in her care.

         [¶4] In the presentation of his defense, Salley's attorney called a Department of Health and Human Services caseworker as a witness. As the attorney later testified at the post-conviction hearing, his goal in calling this witness in Salley's defense was to demonstrate that only after the Department threatened Salley's wife with the termination of her parental rights did she "recant" her recantation and reassert her earlier statement that Salley had assaulted her. Salley's wife had testified that in January 2007, after she recanted her previous report of assault and sexual assault, the Department removed her infant child from her care pursuant to a preliminary protection order entered in a child protection proceeding. In examining the caseworker, Salley's trial counsel elicited testimony that a petition for termination of parental rights to her older child was also filed sometime after December 1, 2006. In developing this testimony, Salley's trial counsel intended to convince the jury that Salley's wife was not a credible witness and that she had reasserted her accusations against him only to appease the Department.

         [¶5] On cross-examination, the State inquired about the reasons for the Department's involvement with the mother as to the older child. The caseworker testified that the Department had alleged neglect on her part because she had allowed the child to have contact with Salley, who, due to his prior behavior and his criminal history, was considered to pose a risk to the child.

         [¶6] The court stopped the questioning at that point, brought counsel to sidebar, and inquired about the propriety of exploring Salley's criminal history. Salley's counsel then objected to any hearsay. The court did not formally rule on the objection that was made in response to the court's questions at sidebar; Salley's counsel did not request a curative instruction or move for a mistrial; and no further questions on the subject were posed to the caseworker.

         [¶7] The jury found Salley guilty of all three crimes, and a judgment of conviction was entered. With new counsel, Salley appealed from the judgment, but he did not raise an argument that the court had erred in its response to the caseworker's testimony on cross-examination regarding Salley's criminal history and involvement with the Department. We affirmed the judgment in a memorandum of decision. See State v. Salley, Mem-09-193 (Dec. 1, 2009).

         [¶8] On December 2, 2010, Salley filed a petition for post-conviction review. The petition, as later amended, challenged the effectiveness of both trial and appellate counsel. Pertinent to the matter before us, Salley argued that he had been deprived of the effective assistance of trial counsel because trial counsel "opened the ...


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