Summary of Incident
Michael Elbery (then 40 and a C.P.A.) walked into the Winner's Circle Bar on Shrewsbury St., Worcester, Mass. on 9-29-92 at about 1:30 am, the bar would close at 2:00 am by state law. Elbery had not frequented the Winner's Circle because he and the bartender/manager, Jeff Schlener, no longer got along. Elbery lived a few blocks away from the Winner's Circle Bar and had previously frequented that bar over a period of years. Elbery had been told earlier in that day that Schlener no longer worked at the Winner's Circle Bar and that he should come back down. Unfortunately, it was Schlener's last day and he would no longer work there starting 9-30-92, or the next day.
Upon entering the bar, Schlener served Elbery and proceeded to publicly insult Elbery. The patrons in the bar were friends of Schlener's; Elbery was never asked to leave. When Elbery returned the insults Schlener got help from a patron and friend of Schlener's, Westboro police officer Tom King. King walked to the other side of the bar to fight Elbery and then backed down when the bar patrons started yelling for a "one on one" fight.
There was a re-grouping and after a short period of tension, and continued verbal attacks, King and about 6 of his friends pursued Elbery 100 yards down Shrewsbury St. King was the fattest (300 pounds and 43 years old) and slowest and last of the bar room gang, but he tried to take all credit for subduing Elbery on Shrewsbury St. It was actually younger bar friends that surrounded and grabbed Elbery around the legs in order to subdue him 100 yards down the street outside the bar on Shrewsbury St.
Tom King, would, later, claim he made a citizen's arrest. King was conscious of the fact that he had absolutely no standing as a cop because he was off-duty (Street clothes) and an out of jurisdiction Westboro cop. Westboro is about 15 miles from Worcester.
A few minutes later the Worcester police, Officer Perma, arrested Elbery for disorderly conduct at 1:47 a.m., see Ex. D of motion (WPD incident report). By 8:00am the charges were increased to include mayhem, assault by a dangerous weapon-beer bottle, assault and battery, disorderly conduct. See Ex.F motion new Trial.
Probable Cause Hearing
On 1-20-93 a probable cause hearing was held before Worcester District Judge-Milton Raphelson on the above four charges. Prior to the hearing starting, Raphaelson inquired about the cop (King) with the missing eye for the charge of mayhem, the prosecutor then reduced the charge to "assault with intent to maim", See Ex.M of motion (docket 93-0135), because King's eye was not missing and appeared fine at the probable cause hearing.
After a five-hour hearing of testimonies by King and his friends, and no testimony from the defendant, Raphaelson found there was no probable cause to charge the defendant, Elbery, on the three most serious charges. Judge Raphaelson stated that as a matter of Mass. law King had no right going after Elbery 100 yards down Shrewsbury St.. Raphaelson stated per his decision that Elbery had not committed a felony necessary to justify a "citizen's arrest" by King. See (Worcester. T&G 1-21-93) & Probable Cause hearing decision, 265-266.
See also Probable Cause Hearing Transcript.
In March of 1993 the Worcester D.A.'s Office rid themselves of all witnesses and exculpatory evidence produced at that probable cause hearing and indicted (see grand jury transcript) Elbery with the sole false
testimony of the alleged-victim and off-duty Westborough cop, Tom King. In doing so (concealing evidence and lying to the Grand Jury), John Conte's Worcester DA's Office impaired the grand jury process, motion claim VIII).
Trial & Conviction
After a five-day trial, starting on 6-28-93, the jury convicted the defendant, Elbery, of the three charges before them after the deliberating for less than an hour. The charge of assault dangerous weapon was directed not guilty by the trial judge. See Ex. M of motion.
10 (TEN)Year Prison Sentence & "Stay of Sentence"
On 7-15-93 Elbery was sentenced to 10 (TEN) years in state prison on the assault with intent to maim charge ("attempted mayhem") and 1 year probation, on and after, on the two misdemeanor charges, See Exhibit M (docket entry 13). The defendant was then allowed to walk out the front door of the courthouse on a "stay of sentence pending appeal", See Ex.M (docket entry 13). The stay was revoked 13 months later due to a false arrest for gun violations,(See Sheketoff and Shrewsbury Police Dept./"Who started E-z Fire" on Home Page) that resulted in a disposition of not guilty on all charges at a trial.
Statement of Facts Per Transcrips and Documented Evidence
(The defendant, Elbery, submitted this version of facts with his Appeal of his Motion for New Trial; the Motion for New Trial was denied by Superior Court Judge Timothy Hillman. Hillman's version of facts per his decision and denial of Elbery's motion for new trial are the same as Elbery's except where noted.)
The facts below are undisputed unless otherwise indicated.
The defendant (Elbery) entered the Winner's Circle Bar on 9-29-92 at 1:30am at last call and was served, and never asked to leave. TR 1081-12. The jury heard prosecution testimony that the defendant started and escalated an argument with the bartender, Schlener, and alleged victim, King, and that the defendant was the aggressor and caused all the trouble in the bar. However, these same witnesses testified just the opposite at the probable cause hearing. The testimonies at the probable cause hearing were that the defendant was minding his own business not bothering anyone and the bartender started insulting the defendant. The bartender apologized to the defendant at the probable cause hearing while testifying. The undisputed fact, via the probable cause testimonies, was that alleged victim, King, threatened the defendant inside the bar and had to be restrained by several people while the defendant remained in his seat. See (motion claims X & VIII-p.67-68). The jury was never alerted to these changes in trial witnesses' probable cause
testimonies, which were all substantive evidence. Com. v. Forte, 33 Mass. App. Ct. 181, 185 597 N.E. 2d 1056, 1058, 1059 ('92).
The jury heard evidence the defendant smashed a beer bottle, TR 191-4, 300-23, however, at the probable cause hearing these same witnesses admitted they did not know how the bottle broke. See (motion claim VIII p. 67-item 4). The jury was never alerted to this change in testimony.
The court (motion Judge Tillman) claims, p. 3 of memo, that half an hour passed between the bar argument and the bottle breaking in the bar, however, per trial transcript (see menu at left for trial transcripts), there was no such evidence given at trial.
The court claims, per memo p. 3, that 1 minute passed between the bottle breaking and the defendant exiting the bar. However, only King testified at trial the defendant was in the bar for 30 seconds threatening the whole bar with a broken beer bottle. TR 192-194. At the probable cause hearing all the witnesses, including King, admitted the defendant exited the bar immediately after the bottle broke, and never used a bottle as weapon, see motion claim VI p. 49 & motion claim VIII p.67-item 5. The trial jury was never alerted to these changes in testimonies of
the probable cause hearing, which is all substantive evidence. id.
Contrary to the court's memo, p. 3, there is no trial transcript testimony that King yelled at the defendant to stop and wait for the police because someone was hurt. Per (motion claim X-item C3), King testified, at trial, it was his understanding that "Jeff the bartender" was on the phone calling police. However, at the probable cause hearing, PC 55-11, he testified he presumed, because the bartender was near the phone, that he was calling police. The bartender, Schlener, testified at the probable cause hearing he never called the police prior to King exiting the bar in pursuit of the defendant. See PC 113-(1-24) & (motion claim VIII-p. 67 item 6).
It was undisputed at trial that King and his friends pursued the defendant down the street after the defendant fled the bar, see memo p. 3. Although the trial testimonies of all witnesses were substantially different, as to how and what happened when King actually reached the defendant, King testified and documented, motion Ex. H p.3 (Westboro PD report-last ¶) (trial Id. A), he made a citizen's arrest. King testified and documented he
prevented thedefendant from escaping. (motion claim V). King's citizen's arrest, as a matter of Mass. law, was actually a false arrest and a series of assaults followed by battery. See motion claim V and Appeal Argument III.
The prosecution presented two fabricated events inside the bar (Mann's injury & bottle assault), as justification to the jury for King's arrest of the defendant. See(motion claims IV & claim VI). There were no charges regarding Mann's alleged facial cutting and stitching and there never any hospital records to substantiate such claims.
The prosecution knowingly allowed King and most of the witnesses at trial to falsely testify that King suffered a list of bloody-brutal injuries to his eye after King's arrest of the defendant. See appeal argument II and motion claims I-III.
Although no other witness would corroborate, King also was allowed by the prosecution to falsely testify about the cause (defendant's repeated thumb gougings) and treatment of his eye injury. See motion claims I-III.
The independent third party documented hospital record evidence is that King sustained a superficial injury to his eyelid, and a small laceration to the conjunctiva causing a red eye (See also deciphering of that medical record). King admitted to his treating physician, a few minutes after the incident, his "injury" was caused by catching a finger in the eyeafter he chased a bar patron. See motion claims I-III.
The Worcester Police Dept. (W.P.D.) arrived at 1:47am, a few minutes after King made his "arrest" of the defendant, and found the defendant under 3-4 men in the middle of the street, (see motion claim VIII p. 67 item 11) & Officer Perma then arrested the defendant for disorderly person. See motion Ex. D (WPD incident report), (claim VIII p. 68 item 2). The police then brought the defendant to the hospital, See Ex. Q of motion new trial, (Central Mass. Medical Center documenting 9-29-92 at 2:25am).
BELOW IS JUDGE HILLMAN'S VERSION OF THE FACTS
Also See Judge Hillman's Decision
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss.SUPERIOR COURT
Motion Judge - Timothy Hillman's Version of Facts
(note: Hillman reviewed Elbery's Motion for New Trial but was not the trial judge. Trial Judge Dan Toomey recused himself from the case once Elbery had Toomey blackballed by Governor Cellucci for Toomey's part in Elbery's claim of conspiracy to frame him)
On July 2, 1993, after a five-day jury trial, the defendant, Michael Elbery, was
convicted of assault and battery (G.L. c. 265, §13A), assault with intent to
maim (G.L. c. 265, §15), and being a disorderly person (G.L. c. 272, §53).1 A
fourth count of assault with a dangerous weapon (G.L. c. 265, §15B(b)) was
dismissed at trial. The defendant's convictions were affirmed on appeal. 38 Mass.
App. Ct. 912.Representing himself pro Se, the defendant now moves for a new
trial pursuant to Mass. R. Crm. P. 30(b)2.In addition, the defendant seeks an
evidentiary hearing and further discovery as allowed by Mass. R. Crim. P. 30
regarding the injuries
1The defendant was sentenced to ten (10) years' imprisonment at M.C.I., Concord, on the maiming charge. At the sentencing the judge, Toomey, J., expressed his intention that the defendant serve one (1) year. The defendant was also sentenced to concurring one (1) year's probation for the other two convictions to be served after the maiming sentence.
2Despite a 60-page limit ordered by Judge Toomey, the defendant submitted a 115-page memorandum of fact and law and an eight-page amendment to the original memorandum in support of his motion for new trial. Specifically, Judge Toomey's February, 28, 1997 order stated that, "Defendant's memorandumshall not exceed 60 pages including items of appendix, addendumand copies of documents as to which Defendant makes reference in the memo."
The defendant filed a petition for relief to the Supreme Judicial Court from the Superior Court order limiting his memorandum in support of his motion for new trial to 60 pages. In a decision dated July 13, 2000, a single justice of the Supreme Judicial Court denied the petition, and the defendant appealed. The Supreme Judicial Court held that the defendant had another available remedy and, thus, was not entitled to extraordinary relief. Elbery v. Commonwealth, 432 Mass. 1007, 1007-1008 (2000).
he allegedly sustained by Thomas King. Following are the grounds upon which
the defendant primarily relies: ineffective assistance of trial counsel3 and
appellate counsel4, judicial misconduct5, prosecutorial misconduct6, that
the verdict was against the weight of the evidence (insufficient evidence)7,
inadequate jury instructions8, inadmissible evidence admitted during trial9, and
duplicative sentencing10. For the following reasons, it is hereby ORDERED that
the defendant's motion for a new trial and request for an evidentiary hearing are
The trial transcript indicates that the jury could have reasonably found the
At the time of the incident at issue, Michael Elbery was 42 years old. He had
previously owned a bar in the city of Worcester. On the evening of September 28,
1992, he stopped by the Winner's Circle bar located on Shrewsbury Street in
Worcester. Elbery was acquainted with the bartender of that evening, Jeff
Schlener. He did not know any of the other 10-15 patrons in the bar at the time.
The Winner's Circle is a small establishment and all of the patrons were
seated at the semi-circle shaped bar. Elbery was served two beers that evening,
finishing approximately one of them before the incident occurred. He was not
intoxicated. Among the other patrons in  the bar were two off-duty doormen
3See Counts I - XV, excluding III.
4See Counts XVIII.
5See Counts IX and Count I of the amended motion.
6See Counts II, IV, VI, VIII, X, XII, and XVI.
7See Counts VI and VIII.
8See Count XVII.
9See Count III.
10See Count XIV.
employed by the bar, two young women who had stopped by after working a
waitressing shift at the Ground Round, and Thomas King, an off-duty detective
for the Westborough Police Department. King had consumed approximately two
cocktails, but was not intoxicated.
An argument ensued between Elbery and Schlener. Schlener was poking fun at
the fact that Elbery had lost his bar establishment and was drinking cheap beer.
King, a friend of Schlener, came to the bartender's defense and told Elbery to
back off. Although voices rose, there was no physical confrontation at this point
and everyone returned to their seats. Approximately one half of an hour passed
and again an argument ensued. While it is not entirely clear from the record, the
jury could have reasonably found at this point that Elbery became quite upset
and smashed a beer bottle on the bar or a nearby pole. The bottle shattered and
Elbery was left holding the barrel of the bottle. A shard of glass flew and struck
Christina Mann, one of the waitresses, under her eye causing her to bleed. Mann
was assisted by another patron who happened to be a chiropractor, and was later
taken by a friend to a nearby hospital.
Within about a minute of the bottle breaking, Elbery left the bar. King yelled at
him to stop and wait for the Worcester Police to arrive as someone had been
injured inside. Elbery testified that he intended to get into his car and leave.
However, King testified that he did not see keys in Elbery's hands and did not
see Elbery reach for his pocket. Once outside the bar, King pursued Elbery down
the street. In addition to King, the two off-duty doormen and between one and
three other patrons of the bar also followed Elbery. It appears that King was in
the front of the group since he testified that he did not realize others had followed
him out of the bar. Although it is unclear exactly what happened at this point,
the jury reasonably could have found that King caught up to Elbery and an
altercation ensued. King testified that Elbery threw  multiple punches at him
and then, in response, King tackled him. As both of them were on the ground,
Elbery stuck his finger in King's eye doing serious damage. The group assisted
the injured King by holding Elbery on the ground thereby allowing King to free
himself from the altercation. Prior to the police arriving, King was brought to a
nearby hospital by two men in a passing car. The Worcester Police arrived shortly
thereafter and arrested Elbery.
Following his July 2,1993 jury trial, the defendant received a sentence of Ten
(10) year's imprisonment on the maiming charge and concurrent sentences of one
(1) year's probation for the other two convictions to be served after the maiming
sentence. The defendant's sentence was stayed on July 15, 1993, pending an
appeal of his convictions. With new counsel Robert C. Sheketoff, Esq.
representing him, the defendant appealed his convictions based on a prejudicial
statement made by the prosecutor during closing arguments and on improper
and incomplete jury instruction.11 On January 26, 1995, the Appeals Court
affirmed the convictions in a written decision. 12 Commonwealth v. Elberry (sic),
38 Mass. App. Ct. 912 (1995), rev, denied, 419 Mass. 1107 (1995).