Commonwealth v. Salyer (Lawyers Weekly No. 11-123-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑128 Appeals Court COMMONWEALTH vs. ANGELINA SALYER. No. 12‑P‑128. Middlesex. November 15, 2012. ‑ October 4, 2013. Present: Trainor, Agnes, & Sullivan, JJ. Criminal Harassment. Practice, Criminal, False report, Motion in limine, Required finding, Assistance of counsel. Evidence, Relevancy and materiality, Privileged communication, Admitted de bene, Authentication of document. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Husband and Wife. Privileged Communication. Complaint received and sworn to in the Ayer Division of the District Court Department on October 27, 2009. The case was tried before Peter J. Kilmartin, J. Barbara Munro for the defendant. Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth. AGNES, J. Following a trial by jury, the defendant, Angelina Salyer, was found guilty of making a false report of a crime in violation of G. L. c. 269, § 13A, and criminal harassment in violation of G. L. c. 265, § 43A(a). We conclude that because her attorney provided ineffective assistance of counsel in failing to object and move to strike certain inadmissible evidence, there must be a new trial on the charge of criminal harassment. Background. The jury could have found that beginning in 2001, the defendant and Richard Dicato were involved in a relationship and had two children together. At the end of their relationship, a dispute arose over custody of the children. A bitterly contested custody case ensued in the Probate Court and was ongoing in the fall of 2008. At some point in 2007, the defendant married Jeffrey Salyer (Jeffrey). During 2008, Jeffrey and the defendant lived in a home on Mason Road in Townsend. They remained married to each other at the time of the trial in the present case. Jeffrey frequently served as a babysitter for the defendant’s two children. In the fall of 2008, the defendant’s daughter accused Jeffrey of molesting her. Although the allegations were not supported and Jeffrey was promptly cleared, the Probate Court changed the schedule for the defendant’s visits with her children, who were living with Dicato. Prior to the accusations against Jeffrey, the defendant had had the right to unsupervised visits with her children twice a week, including whole weekends; after the allegations, she was only permitted to visit with her children one day per week, the visits had […]