AUGUSTA, Maine — A Smyrna man sentenced to more than 19 years in prison for gross sexual assault and gun charges in 2008 has successfully had his case returned to a lower court for further consideration.
Horace W. Salley III, 47, also was convicted of tampering with a witness and assault, a misdemeanor during a jury trial before Superior Court Justice E. Allen Hunter seven years ago Salley has a history of domestic violence, including abuse inflicted on four women and two of their children between 1992 and 2006, according to court documents. The witness tampering charge stems from an incident in which he tried to get the victim to change her allegations against him and told her if she did not, he “would come after her and the baby,” court documents stated.
Salley based his May appeal to the state’s highest court on the argument that his then attorney was ineffective for failing to object to hearsay testimony from a state social worker at an earlier trial.
Aroostook County District Attorney Todd Collins, who prosecuted the case, said Wednesday that the ruling essentially means Hunter will have to issue a new ruling on the ineffective assistance of counsel claim.
“The judgment has not been overturned or anything, and Salley remains incarcerated,” Collins said. “I expect it will happen in about 21 days.”
According to court documents, the victim testified during the trial that at one point, she had recanted, or 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 money offered in exchange for her refusal to testify against Salley, and her fear of Salley. The victim had a child with Salley.
In the presentation of his defense, Salley’s attorney called a Department of Health and Human Services caseworker as a witness, according to court documents. 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 the victim with the termination of her parental rights did she “recant” her testimony and reassert her earlier statement that Salley had assaulted her.
In developing this testimony, Salley’s trial counsel intended to convince the jury that she was not a credible witness and that she had reasserted her accusations against him only to appease the department.
During cross-examination, the state inquired about the reasons for the department’s involvement with the mother. The caseworker testified that the department had alleged neglect on the mother’s part because she had allowed the child to have contact with Salley, who, due to to his prior behavior and his criminal history, was considered a risk to the child.
The court stopped questioning at this point in the trial and Salley’s attorney objected to the line of questioning regarding his criminal history, calling it hearsay. The court did not formally rule on the objection. Salley’s attorney did not move for a mistrial, and no further questions were asked of the caseworker. The jury later found him guilty.
Then in 2010, Salley petitioned the lower court for a post-conviction review, arguing that his trial counsel had been ineffective for not objecting to certain hearsay admitted at the trial and that his appellate counsel had been ineffective for not arguing that the admission of the hearsay was an error.
After that court denied the petition, Salley appealed to the Maine Supreme Judicial Court.
The justices wrote in their decision released on Aug. 8 that since the trial court did not reach Salley’s argument regarding the trial attorney’s ineffectiveness in responding to the testimony of the department caseworker, the Law Court was required to remand the case for reconsideration of that claim.
“It was for the post-conviction trial court to determine whether trial counsel’s actions and strategic decisions fell below an objective standard of reasonableness and resulted in prejudice to Salley,” they wrote in their decision.
“Accordingly, we vacate the judgment and remand the matter for the court to consider the claim that trial counsel provided ineffective assistance with respect to the caseworker’s testimony by determining whether trial counsel’s performance was deficient, resulting in prejudice to Salley,” the justices continued.
