Lydia Salce - Perjury / False Accusation
Salce, Lydia; attempted murder, assault; NRE: perjury/false accusation, no crime
1 N.Y.S.3d 417; 3rd Dept. 1/8/15; reversed, due to jury instruction error and improper exclusion of expert testimony
"In the early morning hours of August 11, 2011, [Salce] and her husband, Michael Mckee, engaged in a violent physical altercation during which...[Salce] was punched in the face and McKee was repeateldy stabbed...[Salce] claimed that an intoxicated McKee instigated the altercation by beating her and holding a knife to her throat..."
"[Salce] argues that County Court erred in not allowing her expert, a police officer with expertise in assault and knives, to testify...Significantly, here, as part of their proof, the [prosecution] elicited testimony from police indicating that they relied on the extensive nature of McKee's wounds in believing his version [of events; i.e., that, as soon as he arrived home, Salce stabbed him in the back] and decided to charge [Salce]. [Salce] stated that her expert would have testified that the nature of [her] injuries and McKee's wounds were not inconsistent with defensive action by [Salce]...[Salce] should have been permitted to have her expert testify."
[In Nickel's case, Judge Paul Czajkla improperly refused to allow expert testimony by the defense's photography expert. ]
from Records and Briefs:
[23] "The evidence in favor of [Salce] described how [she], having humiliated her estranged husband...in front of his motorcycle club mentor, was later attacked that night by McKee in a drunken rage."
"The evidence supporting [Salce] consisted of:
- photographs of herself which showed the beating she received...
- photographs of a broken glass mason jar which corroborated her testimony...
- her call to 911 for help a week before the domestic fight...
- her call to 911 for help right after the domestic fight...
- the testimony and/or records of others who heard and recounted [Salce's] version of the events, namely Deputy Kaplan...the EMT, Kyle Haak... [and] the treating physician Dr. Daley...
- the testimony of her friend Jill who stayed on the telephone continuously with [Salce] in the hours leading up to the domestic fight...
- the telephone and text records which corroborated the timeline of events in the hours leading up to the domestic fight as testified to by [Salce] and her friend Jill...
- the medical records and evidence regarding McKee, which indicated he received a series of shallow cuts and wounds, none of which were life-threatening...
- the medical records of [Salce], which indicated she received a thorough beating...
- the inconsistency and contradictions of the testimony of McKee, starting with his first written statement...and next his grand jury testimony, to his testimony at the criminal trials, and finally at the civil trial in the Court of Claims...
- the consistency of the statements and testimony of [Salce], from her 911 call...to her initial outcry to Deputy Kaplan...to her written statement to NY State Police Investigator Kirsopp...to her testimony at trial...
- the evidence that Mckee was drinking heavily all day leading up to the incident and was drunk during the attack."
[26] "In his written statement...McKee described the incident as follows:
'. . .my wife...stabbed me with a big kitchen knife in our residence.' (McKee later contradicted this portion of the statement, when he testified at trial that [she] used a 'Ka-Bar' knife...)
- 'We were in the kitchen face-to-face, the next thing I know she had a knife in her hand and stabbed me directly in my chest.' (McKee later contradicted this portion of his statement, when he testified at the trial that he was first stabbed in the back...
- 'I just tried to push Lydia away from me, I didn't hit her or anything.'...(McKee later contradicted this portion of his statement, when he testified at the trial that he hit her in self-defense..."
"At trial in the Court of Claims, McKee alternated between saying that he could not recall a fact on direct examination... [27] or on cross-examination...or that he could not recall his contradictory prior sworn testimony...and affirmatively claiming he did not make such prior statements...By the time he was done testifying at trial, he disputed not only his initial sworn statement...but also his own grand jury testimony and his own testimony at the 2015 criminal trial."
"Under the legal maxim falsus in uno, falsus in omnibus, a witness who willfully falsifies one matter may not be credible in any matter.
"Common sense would indicate that when McKee, a convicted felon, gave his written statement to Investigator Britten...he contrived to put himself in the best light to avoid incriminating himself..."
[28] "The evidence gathered by the NY State Police, such as their photographs of the shattered glass mason jar...the location of the Ka-Bar's knife's empty sheath next to McKee's vest... [and] the photographs of [Salce's] hair on the floor [from when McKee pulled her by the ponytail] are inconsistent with McKee's version of events." [Latter emphasis original.]
[29] "In his initial sworn statement McKee said he was first stabbed in the front...Then he changed his story at the grand jury to say that he was first stabbed in the back, turned around and was stabbed in the chest...Then he changed his story at trial to say that he was first stabbed twice in the back..."
[34] "[Salce] had no motive to ambush McKee with a knife in the early morning hours of August 11, 2001. She had resigned herself to get a divorce. She had obtained the paperwork for a divorce...She was five feet, four inches tall and perhaps 115 pounds...McKee was six feet tall and about 165 pounds... He was wearing his motorcycle boots and, as always, carried a knife and a box-cutter...She was wearing flip-flops...It would have been suicide for [Salce] to attack under these circumstances."
[35] "Once the beating began, she would have been justified under [the law] to use deadly force in self-defense. Instead, she only wounded McKee, and as soon as the beating stopped, she ended her defensive actions and called for help." [Latter emphasis original.]
[It is patently obvious that Salce should never have even been charged with attempted murder -- or any other crime, for that matter. The fact that she was could only be attributed to sexism, the possibility that one of the 'detectives' was affiliated with this motorcycle gang, or some combination of the two.]
m) In the Darryl Austin and Alvena Jennette NYS wrongful conviction, please add 'AND Robert Hill' to those two names at the top of that entry; and please add the following at the very bottom: 'Separately, Hill received $3.85 million in compensation from the New York Court of Claims.'
NRE synopsis (by Maurice Possley):
"She went to trial in Saratoga County...Court in July 2012. McKee said he came home after a night out with members of the Prisoners of Fate motorcyle club in which he was seeking membership. He told the jury that Salce asked him to choose between her and the gang. McKee said she came up behind him, said, 'You're done,' and stabbed him in the back.
"McKee said he grabbed Salce and threw her against a kitchen counter and punched her to defend himself. He said she contined to stab him and that he passed out. Friends and co-workers of Salce testified that she had complained repeatedly about the deterioration of the marriage because McKee was spending too much time with the motorcycle club.
"One co-worker testified that on August 10, 2011 -- the morning of the day of the incident -- Salce said that she had made an appointment with a psychiatrist and if she did not speak to someone soon, she was going to kill McKee.
"The prosecution presented a statement Salce made to police after she called 911 to report the incident. In the statement, Salce said McKee came home drunk and threw a glass jar at her. He then grabbed her hair, jerked her head back and held a knife to her throat. She said that when he started punching her, McKee dropped the knife and she managed to pick it up and began swininging wildly, stabbing him. Salce said in the statement that she was acting in self-defense after McKee attacked her.
"Salce's defense lawyer, Andrew Blumenberg, attempted to call an expert witness who was prepared to testify that the stab wounds McKee suffered were shallow and superficial and were consistent with Salce acting in self-defense, but the prosecution objected and the trial judge barred the testimony. Salce did not testify in her own defense.
"Salce was convicted of all charges on July 6, 2012 and was sentenced to 16 years in prison.
"In January 2015, the...Appellate Division reversed the conviction and ordered a new trial. The appeals court held that the judge gave erroneous jury instructions on self-defense and that the defense expert should have been allowed to testify."
"In May 2015, Salce went on trial a second time. The defense expert testified that McKee's wounds wee consistent with Salce acting in self-defense instead of attempting to kill McKee. When the prosecution declined to present Salce's statement to police in evidence, Salce took the witness stand and described how she acted in self-defense.
