No.- 03-296


In the

Supreme Court of the United States

______________

MICHAEL ELBERY 

                                                  Petitioner

v.

 

COMMONWEALTH OF MASSACHUSETTS,

                                                             Respondent

___________

On Petition for a Writ of Certiorari

to the Massachusetts Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

 

 

 

Michael Elbery, pro se

 

 

 

 


 

 

Questions Presented for Review

 

1. Where the U.S. Constitution guarantees the defendant effective assistance of appellate counsel were the Massachusetts courts in conflict with the Due Process Clause of the 14th Amendment of the U.S. Constitution and the Supreme Court of the United States by waiving the defendant's "motion for new trial" claims based on the state procedural "Mass. issue waiver rule"?

 

 

2. Whether the state courts may arbitrarily apply Massachusetts law in order to evade Constitutional issues raised by the defendant and escape a miscarriage of justice?

 

 

 

3. Where the Commonwealth admits the evidence the prosecution used at trial to convict the defendant was perjury, but claims it was permissible to allow the jury to sort out that perjury, were the state courts in conflict with the 14th Amendment Due Process Clause of the U.S. Constitution and the Supreme Court of the United States by not deciding the prosecution had a duty to correct the perjury they knowingly used at trial?

 


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TABLE OF CONTENTS

TABLE OF AUTHORITIES                                                          iv

 

TABLE OF ABBREVIATIONS                                                      vi

 

OPINION BELOW                                                                        1

 

JURISDICTION                                                                            1

 

CONSTITUTIONAL AND STATUTORY PROVISIONS                      2

 

STATEMENT OF CASE                                                                 4

A. Undisputed Background Facts                                                                                            4

B. The prosecution admits the evidence of the extent and cause of the alleged victim's eye injury, which was the evidence used to convict the defendant of "assault with intent to maim" and "assault  and battery", was perjury.                                                              7

C. The defendant raised claims the prosecution fabricated three events in order to justify the alleged victim's, King's, "citizen's arrest".                                                                                          13

D. The Mass. Appeals Court's arbitrary decision on Mass. "citizen's arrest" law in order to evade Constitutional issues raised by the defendant.                                                                                     14

 


 

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REASONS FOR GRANTING THE PETITION                                      18

 

I. The "Mass. issue waiver rule" is in conflict with the Supreme Court, Evitts, and the Due Process Clause of the Fourteenth Amendment. 18

 

 

II. The state courts violated their own laws in order to evade the defendant's claims that his Constitutional Rights under the Due Process Clause of the 14th Amendment of the U.S. Constitution had been violated.                                                                                   22

 

III. There has been a gross miscarriage of justice.                             26

 

CONCLUSION                                                                                   27

 

APPENDIX

 

-iv-

TABLE OF AUTHORITIES

 

CASES:

Federal

Brady v. Maryland, 373 U.S. 83 (1963)...............10, 26

Barr v. City of Columbia, 378 U.S. 146 (1964)......... 23

Coleman v. Thompson, 501 U.S. 722, (1991)........... 25

Evitts v. Lucey, 469 U.S. 387 (1985)...7, 18, 19, 20, 21

Giglio v. United States, 405 U.S. 150 (1972)......11, 14, 17, 26

Gray v. Greer, 800 F2d 644, (1985)..........................19

Howlett v. Rose, 496 U.S. 356 (1990).......................25

In Memphis Natural Gas Co. v. Beeler, 315 U.S. 649,(1942)......................................................................25

Lawrence v. State Tax Commission, 286 U.S. 276, (1932)......................................................................25

Michigan v. Long, 463 U.S. 1041 (1983)...................24

Mullaney v. Wilbur, 421 U.S. 684 (1975)..................11

Murch v. Mottram, 409 U.S. 41 (1972).....................18

Napue v. Illinois, 360 U.S. 264, (1959).....................17

Staub v. City of Baxley, 355 U.S. 313, (1958)...........25

Strickland v. Washington, 466 U.S. 668 (1984).......10, 20, 25

Thompson v. City of Louisville, 362 U.S. 199 (1960).26

U.S. v. Agurs, 427 U.S. 97 (1976).................10, 21, 26

U.S. v. Bagley, 473 U.S. 667 (1985).........................19

Ward v. Board Cty. Commrs. of Love County, 253 U.S. 17, (1920)................................................................25

Mass:

Broussard v. Great A&P Teas Co., 324 Mass. 323, 86 NE2d 439 (1949)....................................................17

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 639 NE2d 1092 (1994)......................................21, 23

Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 509 NE2d 4, (1987)..................................................8

Commonwealth v. Chase, 433 Mass. 293, 741 NE2d 59, 65 (2001)......................................................7, 18

 

                                            -v-

 

Commonwealth v. Clairborne, 423 Mass. 275, (1996) .....................................................................14,15, 16

Commonwealth v. Elbery, 9462-JC-3067...................6

Commonwealth v. Elbery 02-P-318 (2002).............1, 6

Commonwealth v. Elbery 38 Mass. App. Ct. 912, 645 NE2d 41, (1995).....................................................1,6

Commonwealth v. Ennis, 2 Mass. App. Ct. 864, 314 NE2d 922 (1974).......................................................8

Commonwealth v. Harris, 11 Mass. App. Ct. 165, 415 NE2d 216 (1981)................................................15, 24

Commonwealth v. Hoppin, 387 Mass. 25, 438 N.E.2d 820 (1982)...............................................................10

Commonwealth v. Kerr, 409 Mass. 284, 565 NE2d 1201 (1991).............................................................16

Commonwealth v. Juvenile, 409 Mass. 49, 564 N.E.2d 574 (1991) 

Commonwealth v. LeBlanc, 407 Mass. 70, 551 NE2d 906 (1990)...............................................................26

Commonwealth v. McLaughlin, 364 Mass. 211, 303 NE2d 338 (1973)......................................................21

Commonwealth v. Moreira, 388 Mass. 596, 447 NE2d 1224 (1983).............................................................16

Commonwealth v. Stokes, 374 Mass. 583, 374 NE 2d 87 (1987).................................................................11

Commonwealth v. Tucceri, 412 Mass. 401, 589 NE2d 1216 (1992).......................................................10, 23

Gibney v. Comm. 375 Mass. 146, 375 NE2 714 (1978) ...............................................................................22

White v. White, 40 Mass. App. Ct. 132, 662 NE2 230 (1996)..................................................................... 22

CONSTITUTION AND FEDERAL STATUTES:

Fourteenth Amendment of the United States Constitution....... 2, 4, 11, 12, 14, 17, 18, 19, 20, 21, 25

Sixth Amendment of the United States Constitution.                2, 20

28 U.S.C. s. 1257a ....................................................2

 

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STATE PROCEDURAL RULES:

Rule 8 of Mass. Rules of Appellate Procedure...........22

Rule 28c of Mass. Rules of Criminal Procedure........19

Rule 30b of Mass. Rules of Criminal Procedure..12, 22

 

STATE STATUTES:

M.G.L. C. 265 s. 13A..............................................3, 5

M.G.L. C. 265 s. 14................................................3, 4

M.G.L. C. 265 s. 15................................................2, 5

M.G.L. C. 265 s. 15Bb...........................................3, 5

M.G.L. C. 272 s. 53................................................3, 4

 

 

 

OTHER AUTHORITIES:

Wright, Miller, Cooper, Federal Practice and Procedure, Ed. 2d, Vol. 16B, 1996...........................23

 

 

 

TABLE OF ABBREVIATIONS

A.D.A.      Assistant District Attorney

App.        Appendix

Arg.         Argument

CBr.        Commonwealth's Appeal Brief (02-P-318)

DBr.       Defendant's Appeal Brief (02-P-318)

DRb.      Defendant's Reply Brief (02-P-318)

D.A.       District Attorney/Commonwealth on appeal

PC         Probable Cause Hearing Transcript

PD         Police Dept.

RA         Record Appendix (motion for new trial)

T&G      Telegram and Gazette

TR         Trial Transcript

WPD     Worcester Police Dept.

 

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SUPREME COURT OF THE UNITED STATES

____________

Michael Elbery, petitioner

v.

Commonwealth of Massachusetts

_____________

PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS APPEALS COURT

_____________

 

The Petitioner, Michael Elbery, (hereinafter defendant) respectfully petitions for a writ of certiorari to review the judgment of the Massachusetts Appeals Court in the case Commonwealth v. Elbery 02-P-318.

 

OPINION BELOW

The judgment of the Mass. Appeals Court, App. C, on the appeal of the denial of the defendant's motion for new trial was not reported. The decision of the Mass. Superior Court motion judge, App. E, on the defendant's motion for new trial was not reported. The decision of the Mass. Appeals Court on the defendant's direct appeal is reported in 38 Mass. App. Ct. 912, rev. denied, 419 Mass. 1107 (1995).

JURISDICTION

The decision of affirmation by the Mass. Appeals Court on the defendant's appeal of the denial of his motion for new trial was entered on March 10, 2003, App. C. The defendant on 3-31-03 filed a timely Application for Further Appellate Review to the Mass. SJC.

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The Mass. SJC exercised their discretion not to review the defendant's appeal, application was denied on June 5, 2003. App. A. The defendant waived his optional Petition for Rehearing before the Mass. Appeals Court. App. B.

The jurisdiction of the Supreme Court of the United States is invoked under 28 U.S.C. s. 1257a.

 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

 

Fourteenth Amendment - Due Process;

The Due Process Clause of the Fourteenth Amendment provides in relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor any State deprive any person of life, liberty, or property, without due process of law." U.S. Constitution Amendment XIV Section 1.

Sixth Amendment - Right to Counsel;

In all criminal prosecutions, the accused shall enjoy the right......., and to have the Assistance of Counsel for his defence. U.S. Constitution Amendment VI.

M.G.L. C. 265 s. 15. Assault; intent to murder or maim;

Whoever assaults another with intent to commit murder, or to maim or disfigure his person in any way described in the preceding section, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and one half years.

 

                                               -3-

 

M.G.L. C. 265 s. 14. Mayhem;

Whoever, with malicious intent to maim or disfigure, cuts out or maims the tongue, puts out or destroys an eye, cuts or tears off an ear, cuts slits or mutilates the nose or lip, or cuts off or disables a limb or member, of another person, and whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person, and whoever is privy to such intent, or is present and aids in the commission of such crime, shall be punished by not more than 20 years in state prison, or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and half years.

M.G.L. C.265 s.15Bb. Assault with dangerous weapon;

Whoever, by means of a dangerous weapon, commits an assault upon another shall be punished by imprisonment in the state prison for not more than five years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one-half years.

 

M.G.L. C. 265 s. 13A. Assault and Battery;

Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than two and one half years in a house of correction or by a fine of not more than five hundred dollars.

M.G.L C. 272 s. 53. Penalty for Certain Offenses - "Disorderly Person";

......idle and disorderly persons, disturbers of the peace....may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars or both.

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STATEMENT OF THE CASE

    This case is about how the Massachusetts Courts used the unconstitutional "Mass. issue waiver rule" to avoid the defendant's "motion for new trial" claims that proved to a medically documented certainty that the evidence used to convict the defendant was perjury. In so doing, the Mass. Courts violated the defendant's right under the 14th Amendment to Due Process of Law.

A. Undisputed Background Facts

1. The citizen's arrest-initial criminal charges. The defendant entered a bar in Worcester on 9-29-92 at 1:30am at last call and was served, and never asked to leave. TR 1081-12. A verbal argument between the bartender and the defendant ensued shortly after. App. 23a. An off-duty out of jurisdiction Westboro police officer, Tom King, took the side of his friend the bartender. App. 23a. It is undisputed that King and his friends pursued the defendant down the street after the defendant fled the bar. App. 24a. 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, RA 139 (Westboro PD report-last ), he made a citizen's arrest. App. 31a. King testified and documented he prevented the defendant from escaping, RA 39. It was undisputed at trial that no contact occurred between King and the defendant until after King pursued the defendant 100 yards down the street. DBr. 25 & App. 24a.

    The Worcester Police arrived and charged the defendant with "disorderly conduct" (M.G.L. C. 272 s. 53) at about 1:47a.m. on 9-29-92 while the defendant was laying face down in the street outside the Winner's Circle Bar under the weight of three men, RA 129 (WPD incident report) and PC 162-23, PC 159-7. By 8:00am the charges were increased to include "mayhem" (M.G.L. C. 265 s.14) (taking out King' s eye), "assault dangerous weapon" (M.G.L. C. 265

                                                     -5-

 s. 15Bb) (broken beer bottle), "assault and battery" (M.G.L. C. 265 s. 13A)(a punch). RA 134. The prosecution would claim the defendant committed these crimes after King's citizen's arrest. App. 14a & 24a.

2. No Probable Cause Found by Worcester District Judge. A probable cause hearing was held regarding those charges in Worcester District Court before Judge Milton Raphelson on 1-20-93. The prosecutor reduced the charge of "mayhem" to "assault with intent to maim" (hereinafter -"attempted mayhem") (M.G.L. C. 265 s. 15) (attempting to take out King's eye) before the start of that probable cause hearing, RA 159 (docket 93-0135), PC 3. After five hours of testimony from five witnesses and none by the defendant, Judge Raphelson found there was no probable cause to arrest the defendant for the four charges before him. Raphelson explained that the off-duty Westboro police officer and alleged victim, Tom King, had no right under Mass. law to pursue and stop the defendant because the defendant had committed no felony in the bar or prior to King's alleged "citizen's arrest" of the defendant 100 yards from the Winner's Circle Bar. RA 135 (Worcester T&G 1-21-93) & PC 265-266. See App. 40a.

3. Indictment. In March of 1993 the Worcester D.A.'s Office rid themselves of all witnesses and exculpatory evidence produced at the probable cause hearing and indicted the defendant with the sole testimony of the alleged-victim and off-duty, out of jurisdiction Westborough police officer, Tom King. King's testimony before the Grand Jury was substantially the same as at trial, infra. RA 65. The defendant raised an issue in his motion for new trial that the Worcester DA's Office impaired the grand jury process. RA 65 (motion claim VIII).

                                                    -6-

4. Trial & Conviction. After a five-day trial, starting on 6-28-93, the jury convicted the defendant 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. RA 159 (docket 93-0135).

5. 10 (TEN)Year Prison Sentence & "Stay of Sentence". On 7-15-93 the defendant 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. RA 160 (docket entry 13). The defendant was then allowed to walk out the front door of the courthouse on a "stay of sentence pending appeal". RA 160 (docket entry 13). The stay was revoked 13 months later due to a false arrest that resulted in a disposition of not guilty on all charges at a trial. See Com. v. Elbery 9462-JC-3067 Worcester District Court.

6. Post Conviction. There was a direct appeal filed by the defendant's appellate attorney in July 1994. See Com. v. Elbery 38 Mass. App. Ct. 912. The defendant raised a claim in his "motion for new trial", RA 114, and its appeal, that his appellate attorney was ineffective in his assistance of counsel. On July 6, 1999 the defendant filed his Pro-se "motion for new trial" in Worcester Superior Court. The Worcester D.A.'s Office filed no response. That motion was denied by the motion judge, without evidentiary hearing, on 12-26-01, 2 1/2 years later. App. 39a. The defendant timely filed an appeal brief, docket 02-P-318, and reply brief with the Mass. Appeals Court regarding that denial. The trial judge had recused himself from the case.

The defendant was released from prison April 2002.

7. "Waiver" of motion claims. Both the motion judge, App. 25a, and the Mass. Appeals Court, App. 3a-4a, waived the defendant's claims

 

                                                      -7-

 

of prosecutorial misconduct and ineffectiveness of trial attorney due to a violation of a state procedural rule called the "Mass. issue waiver rule" also referred to as the "waiver doctrine". The "Mass. issue waiver rule" (hereinafter - "Mass. waiver rule") requires that those constitutional claims be raised on direct appeal or forever lost. Com. v. Chase, 433 Mass. 293, 297-299 (2001). See App. 26a & App. 5a-6a. Both did however, review the defendants claims of ineffective assistance of appellate counsel only to the extent the defendant claimed that the appellate counsel failed to raise ineffectiveness of trial counsel. App. 4a, & App. 27a, respectively.

The defendant alerted both the motion judge RA 114 and the Appeals Court, App. 41a, that none of his motion claims were waived because the defendant had a right to effective assistance of appellate counsel via the 14th Amendment. Evitts v. Lucey, 469 U.S. 387, 395-398 ('85).

 

B. The Prosecution admits the evidence of the extent and cause of the alleged victim's eye injury, which was the evidence used to convict the defendant of "assault with intent to maim" and "assault and battery", was perjury. DBr.- Arg. II & DRb. - Reply #3-#4-#5-#6 - RA 1-30.

    The alleged victim and prosecution's witness-in-chief, Tom King, testified at trial as to the cause and extent of his eye injury. This evidence caused the defendant convictions for "attempted mayhem" (attempting to take out King's eye) and "assault and battery" and a 10 (TEN)-year prison sentence.

Tom King, alleged victim, testified he suffered these serious injuries to his eye. RA 2 (p. 2 of motion).

        1. a cut eyeball, TR 204-1, 468-9.

        2. a lacerated eyeball, TR 203-24, 385-12 440-15, 479-3.

                                 

                                                     -8-

 

3. bleeding from his eyeball, blood coming out of his eye, TR 202-24, 203-1, 468-14.

4. vitreous fluid was leaking out of his eye, TR 202-24, 203-1,  468-14, 486 - 14.

5. King claimed permanent eye damage, TR 204-3, 204-10.

6. Repeated testimony by King that he almost lost his eye, TR 203-9                       

7. Eye blind, TR 203-3, 426-9, 468-11, 381-5, 202-2, 383-23, 437-10.

    Five trial witnesses, all friends of King's, confirmed and enlarged this testimony by King about King's eye injury. RA 142-146, See App. 60a-66a.

    As per RA 4, King claimed that these serious eye injuries were caused by repeated thumb gougings by the defendant, King testified,

    TR 201-17 - TR 202-14 "He (Elbery) took his thumb and jammed it into my eye. On the outside of my eye he jammed it in almost behind the eye and kept pushing the thumb in real hard. He (second thumbing) jammed that thumb back into my eye on the inside of my eye and kept pushing the thumb into my eye, TR 431-22, harder and harder and harder with his thumb nail, TR 432-5.

    It is undisputed that King went to the hospital 10 minutes after the incident. RA 120 & App. 67a. King's treating physician, Dr. Arinella, authored an unreadable medical record, App. 67a, that undisputedly shows that the evidence produced at trial about the cause and extent of King's eye injury was a fabrication, i.e., perjury. That illegible and unintelligible medical record, App. 67a, was an exhibit at trial. Illegible medical records are inadmissible, Com. v. Baldwin, 24 Mass. App. 200, 203 ('87) and so are records containing unintelligible medical jargon. Com. v. Ennis, 2 Mass. App. 864, 865 ('74).

                                                 -9-

    A year after trial, the defendant's appellate attorney had King's medical record, App. 67a, deciphered by Dr. Arinella's office through an investigator, RA 123 & App. 68a, and, in 1996, interpreted by a physician, Dr. Hull, RA 126-128 & App. 69a-71a. That appellate attorney would never present the resulting evidence he discovered, see below, either on direct appeal or the motion for new trial he was paid for in advance.

    Upon review of the deciphering, App. 68a, of King's medical report, App. 67a, medical expert, Dr. Hull, disclosed that King sustained a superficial abrasion to his eyelid and a small conjunctiva (outmost mucous membrane covering the eye) laceration causing a "red eye" or inflammation. See App. 69a-71a. Dr. Hull discloses per affidavit, App. 69a-71a, that King's medical record reveals King's eye was not bleeding, not leaking vitreous fluid, and that King's eyeball was not cut or lacerated. Hull states, App. 69a-71a, that King's superficial injury was consistent with being poked in the eye, not repeated thumb gougings. But the jury never knew this was true extent of King's "injury". RA 1-30.

    Per the readable deciphering of King's medical record, App. 68a, Dr. Arinella documented that King claimed that his "eye injury" was caused by "catching a finger in the eye". See interview sections of App. 67a and its deciphering, App. 68a. But the jury was never alerted that King had told his physician that was the real cause of injury. RA 1-30.

    The defendant's trial attorney never challenged the perjury as to the cause and extent of King's eye injury nor did he present the true content of King's medical record to the jury. RA 1-30. No medical expert was at trial. RA 1-30. The defendant's trial attorney did make some comments in his closing argument, TR 1224, TR 1225, that showed he knew the real content of King's medical record without presenting that evidence to the jury. See App. 30a & 10a. Closing argument is not evidence at trial. Com. v. Hoppin, 387 Mass. 25, 30, (1982).

                                                   -10-

    The jury never knew that King only had a "red eye" from, as he admitted to his doctor, "catching a finger in the eye". RA 1-30. The defendant's trial attorney was ineffective, Strickland v. Washington, 466 U.S. 668 '84.

    The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury. Brady v. Maryland, 473 U.S. 83, 86 ('63). It is presumed the prosecutor knew the perjury was presented at trial because he had possession of King's medical record. U.S. v. Agurs, 427 U.S. 97, 103-110.

"A new trial is required if there is any reasonable likelihood that the prosecution's knowing use of false evidence could have affected the judgment of the jury". Com. v. Tucceri, 412 Mass. 401, 405, ftnt. 3. RA 16-20.

1. Prosecution admits the evidence was perjury but

    claims the jury could sort it out from the truth.

    The D.A., per Commonwealth's brief, does not deny that the eye injury evidence at trial was perjury. App. 5a-20a. The D.A. never addressed the 4 pages of perjury by prosecution witnesses, App. 60a-66a. The D.A. agrees, CBr.-41(lines 1-9)/App. 18a, with Dr. Hull's affidavit showing that King only had a "red eye", caused from, as King told Dr. Arinella, "catching a finger in the eye". The D.A. agrees that Dr. Hull's affidavit accurately reflects the content of King's medical record and King's "injury" as produced by Dr. Arinella. CBr. 41 (1-9)/App. 18a. The D.A. never denies that Dr. Hull's affidavit reflects the true content of King's medical record. The D.A. instead claims that Dr. Hull's affidavit is cumulative evidence of King's medical record, CBr. 40 (18-23)/App. 18a & CBr. 41/App.

                                                  -11-

19a, because the jury had the medical record and the D.A. claims it was legible. CBr. 40/App. 18a. In effect, the D.A. agrees King's eye evidence at trial was perjury, since Hull's affidavit and the medical record are the opposite of the prosecution's evidence at trial. The D.A. claims, CBr. 27-28 (line 13-21) /App. 9a-10a & CBr. 40-41/App. 18a-19a, that the jury should be "left to its fact finding function" to sort out "any discrepancy in the evidence as to the extent of King's eye injury" at trial because they had King's medical record. Thus admitting that King's medical record and the trial evidence were in opposite.

    Because the jury could not read or understand King's medical record, App. 67a, although it, App. 67a, was an exhibit at trial, Dr. Hull's affidavit, App. 69a-71a, cannot be cumulative evidence.

2. Prosecutor admits he knew the content of medical

    record

        Outrageously, the Commonwealth insists that the prosecutor, and defense counsel could read and understand King's medical records, CBr p.39-40/App. 17a-18a. The question is, how? This is another admission by the prosecution that they knowingly presented perjury to the jury, as King's medical report and the testimony at trial, App. 60a-66a, are opposite.

The prosecution had a duty to correct the perjury.

        The Due Process Clause of the 14th Amendment mandates the prosecutor had a duty to correct the perjury at trial, App. 60a-66a, regarding King's injury, regardless of the readability of King's medical record. Giglio v. United States, 405 U.S. 150, 153 ('72). DBr-Arg. II p.19 & DRb p.16.

        The prosecution has a duty to prove beyond a reasonable doubt every fact necessary to constitute the crime charged and facts that would otherwise mitigate criminal culpability. Mullaney v. Wilbur, 421 U.S. 684, 697-98 ('75), Com. v. Stokes, 374 Mass. 583, 590 ('87). RA 8 & 14. The prosecution used this false evidence to prove excessive force, specific intent, and deadly force by the defendant and falsely defeat the defendant's claim of self-defense. Again, the prosecution violated the defendant's 14th Amendment Right to Due Process.

                                               -12-

Where federal question was raised & passed state courts.

        As above indexed, the defendant raised this claim of knowing use of perjury by the prosecution and related ineffective assistance of trial counsel in his motion claim I, II, III at Worcester Superior Court, RA 1-30. The motion court waived those claims, via the "Mass. waiver rule," ruling they should have been raised in the direct appeal. See App. 25a-27a.

        The defendant appealed to the Mass. Appeals Court and first raised a claim, Argument I of his appeal brief, App. 41a, that he had a Constitutional Right under the Due Process Clause of the 14th Amendment to effective assistance of appellate counsel and that if this claim, or any claim, was missed by his appellate counsel then he, the defendant, had a right to raise all issues missed by the appellate counsel on a motion for new trial under Rule 30b of M.R.C.P.; in that same appeal argument the defendant reminded the court that factual issues not of the trial record could not be raised on direct appeal. In that appeal argument-I, App. 41a-43a, the defendant reminded the Appeals Court the evidence, App. 68a-71a, discovered by his appellate attorney a year after trial, proving that the evidence of King's injury, that convicted him, was perjury could not be raised on direct appeal because those facts did not appear on the trial record.

        The defendant raised the claim that the prosecution knowingly used perjured evidence at trial as to the cause and extent of King's eye injury and that his trial attorney was ineffective, regarding the same evidence, in Argument II of his appellant's brief and in

                                                -13-

 Arguments III, IV, V, VI of his reply brief. The Appeals Court held that all claims of prosecutorial misconduct and ineffectiveness of trial counsel were waived, due to the "Mass. waiver rule", and should have been raised on direct appeal. App. 3a-4a.

C. The defendant raised claims the prosecution fabricated three events in order to justify the alleged victim's, King's, "citizen's arrest".

1. Prosecution witnesses change their testimonies. The defendant raised a motion claim X, RA 73-89, that the prosecution knowingly allowed their witnesses to change their probable cause hearing testimonies to inculpate the defendant at trial. At the PC hearing various witnesses testified the defendant was minding his business not bothering anyone, that it was the bartender that started the argument in the bar. The bartender apologized to the defendant on the witness stand for starting the argument. PC 111-3. These same witnesses testified it was the prosecution's alleged victim, King, who picked the fight with the defendant inside the bar and that it was King that had to be restrained while the defendant remained seated.

        However, at trial these same witnesses testified the opposite (perjury). On appeal this claim was raised in DBr.-Arg. VI, see App. 50a-53a.

2. The bottle assault. In order to justify King's citizen's arrest, the prosecutor knowingly presented false evidence to the jury that the defendant used a bottle as a weapon inside the bar, motion claim VI-RA 46-58, & DBr. Arg. IV, see App. 45a-50a. The prosecution witnesses admitted at the probable cause hearing that the defendant did not use a bottle as a weapon. DBr. 35-36, See App. 45a-46a.

3. A "girl" was injured. The prosecution claimed the plaintiff injured a "girl," causing her to be stitched in the face after being cut by glass from a broken beer bottle. There was never a criminal charge for this.

                                                 -14-

 The defendant raised a motion claim IV-RA 30-39, DRb. Reply #1, that this was another fabrication. See App. 53a-59a.

4. Prosecutor lead witnesses. The defendant claimed that the prosecutor lead his witnesses, without objection, in order to produce testimonies causing these various fabrications of evidence at trial. RA 21-24, RA 142-158.

        Knowing use by the prosecution to obtain a conviction is a violation of the 14th Amendment's Due Process Clause. The prosecutor had a duty under the Due Process Clause of the 14th Amendment to correct that perjury at trial. Giglio, 405 U.S. 150, 153.

        Both the motion judge, App. 26a-27a, and Appeals Court, App. 3a, decided that these claims of knowing use of perjury by the prosecution were waived due to the "Mass. waiver rule".

 

D. The Mass. Appeals Court's arbitrary decision on Mass. "citizen's arrest" law in order to evade Constitutional issues raised by the defendant.

1. Trial. At trial it was undisputed by the prosecutor, judge, and defense attorney that King acted as a citizen while pursing and stopping the defendant with no powers or jurisdiction of a police officer. DBr. p.28. It was also undisputed at trial that King never identified himself as a police officer. DRb. p.8 & App. 12a.

2. Motion New Trial. The defendant raised an issue in his motion for new trial, RA 39-46,motion claim V, that King had no right pursuing and stopping the defendant; that King's citizen's arrest was illegal. It is undisputed the defendant did not commit a felony prior to King's arrest of the defendant. App. 31a. In order to justify a citizen's arrest the citizen must point to a felony committed by the arrestee prior to the citizen's arrest. Com. v. Clairborne, 423 Mass. 275, 280 ('96).

                                                 -15-

Further, Mass. law requires that the "in fact test" be passed to have a valid citizen's arrest. Com. v. Harris, 11 Mass. App. 165, 170 ('81). The "in fact test" requires that the felony allegedly justifying the citizen's arrest results in a felony conviction in a court of law. id. The defendant further argued that King's undisputed pursuit and stop of the defendant was a crime, not a citizen's arrest, and that the defendant was the victim. id.

        The defendant raised constitutional issues in that claim V of his motion for new trial that both his trial and appellate counsels were ineffective for not raising this issue and that the prosecution deceived the jury to believe King's pursuit, stop, and assault of the defendant was perfectly legal instead of telling the jury King had no right under Mass. law doing so.

        There was no citizen's arrest instruction at trial. App. 13a.

        The motion judge decided that any claim of prosecutorial misconduct was waived, due to the "Mass. waiver rule," and should have been raised on the defendant's direct appeal, App. 25a-26a. The motion judge relieved the defense attorneys of ineffectiveness by deciding King did act legally as a citizen without giving any further explanation. App. 31a.

3. Appeal. The defendant appealed this issue, DBr.-Argument III, raising the same undisputed facts and the same law while also claiming that both his defense counsels were ineffective and the prosecution deceived the jury that King's citizen's arrest was legal.

        Reversing their position at trial, the Commonwealth, via appellee brief, App. 13a-16a, argued that King was a police officer while he was drinking in the bar and during the underlying incident not a citizen. The prosecution argued that as an out of jurisdiction police officer King was entitled to the "relaxed standard" of the "in fact test" under Mass. law. Clairborne, 423 Mass. 275, 280. The

                                              -16-

 "relaxed standard" requires an out of jurisdiction police officer only have probable cause of a felony to make an arrest. id.

    The Commonwealth argued that probable cause existed for King's "arrest" due to a "girl's" injury and an alleged bottle assault by the defendant inside the bar. App. 16a.

    The defendant argued in reply, per Reply #2 - DRb. 7-8, that King could not be considered a police officer as a matter of Mass. law because it was undisputed he did not identify himself as an officer. App. 12a. Com. v. Moreira, 388 Mass. 596, 601, '83; that an out-of-jurisdiction, off-duty police officer is only a citizen with no police powers. Com. v. Kerr, 409 Mass. 284, 287, '91. And that because King was drinking in a bar, and concealed his identify as a police officer, he did not comply with the "responsible action of legitimate law enforcement" required for the "relaxed standard". Clairborne, 423 Mass. at 280. That the "relaxed standard" in Clairborne applies only to out of jurisdiction police while on duty. id.

The defendant, DRb. 9-11, further argued that even if you consider King a police officer, although he did not identify himself as such and was off-duty and out of jurisdiction, there was found to be No Probable Cause, PC 265-266 & App. 40a, of a felony for any of the conduct by the defendant before King's citizen's arrest. A probable cause finding is not appealable. Com. v. Juvenile, 409 Mass. 49, 51('91).

The D.A. documented in an 11-30-92 letter there was no probable cause of felony - "....reason for King's pursuit was defendant's alleged disorderly conduct in bar". DRb. p. 2 & RA 133.

It is undisputed that there were never any criminal charges brought regarding a girl being injured in the bar. King admitted at the probable cause hearing he did not know a girl was injured. PC 53-6, DRb. 10. The prosecutor admitted no probable cause of a felony, TR 133 -A.D.A. Ball-"there isn't a crime for that, not a felony for girl's cutting". DRb. 11.

                                              -17-

    The defendant replied, DRb. p. 10, that the indictment for "assault dangerous weapon" yielded no probable cause because King testified at trial that the defendant did not assault anyone with a bottle, App. 46a, and then told the grand jury the opposite. App. 47a. Thus the prosecution gained that indictment by fraud. Broussard v. Great A&P Teas Co., 324 Mass. 323, '49.

Federal Issues. As in his motion claim V, the defendant also claimed, DBr. 31, that the prosecutor violated the defendant's Due Process Rights under the Fourteenth Amendment because he deceived the jury to believe that King acted legally by pursuing and stopping the defendant; that the prosecutor had a duty to alert the jury that under Mass. law King had no right pursuing and "arresting" the defendant. "A lie is a lie and if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth". Napue v. Illinois, 360 U.S. 264, 270 ('59). Deliberately deceiving a jury by presentation of known false evidence is incompatible with the rudimentary demands of justice. Giglio, 405 U.S. at 153. The defendant's defense at trial was self-dense.

    First, the Mass. Appeals Court ruled that all claims of prosecutorial misconduct were waived, due to the "Mass. waiver rule," and should have been raised on direct appeal. App. 3a. This would include the prosecutor's misconduct relating to citizen's arrest.

    The Mass. Appeals Court, App. 4a, addressed the citizen's arrest issue only to the extent of addressing ineffectiveness of the defendant's appellate attorney. The Mass. Appeals Court, App. 4a, simply agreed with the motion judge's decision on citizen's arrest, App. 31a, when they agreed with the motion judge's determination that the appellate attorney, to the extent of raising claims of trial attorney's effectiveness, was not ineffective. App. 37a. However, the motion judge found that King acted only as a private citizen and

                                                 -18-

 made a legal citizen's arrest. App. 31a. The motion judge did not address the requirement under Mass. law that a citizen's arrest pass the "in fact test". As above, the D.A. argued that King acted as a police officer not a citizen, App. 13a-16a, the opposite of the motion judge. See II-B- "decision citizen's arrest", infra.

 

 

REASONS FOR GRANTING PETITION

 

I. The "Mass. issue waiver rule" is in direct conflict with the Supreme Court, Evitts, and the Due Process Clause of the Fourteenth Amendment.

    The decisions of the Mass. Courts, supra, to waive, via the "Mass. issue waiver rule," the defendant's "motion for new trial" claims and their appeal are in direct conflict with the decisions of the Supreme Court of the United States, and the Due Process Clause of the 14th Amendment of the U.S. Constitution which holds the defendant has a right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396-98, ('85).

    The state courts decided, App. 3a-4a & App. 25a-27a, that most of the defendant's claims and all of the defendant's claims of prosecutorial misconduct and ineffective assistance of trial counsel claims, as raised on the defendant's "motion for new trial" and its appeal, were waived and forever lost, due to a state procedural law called the "Mass. issue waiver rule", and should have been raised by the defendant's appellate attorney in the defendant's direct appeal. Com. v. Chase, 433 Mass. 293, 297-299 ('01) (citing Murch v. Mottram, 409 U.S. 41, 45, '72, to support the "Mass. waiver rule"). However, the Supreme Court of the United States held there is a Constitutional right under the 14th Amendment Due Process Clause to effective assistance of appellate counsel. Evitts, 469 U.S. at 396.

                                                               -19-

Failure to comply with state appellate procedures causes an appellate attorney to be ineffective in his assistance of counsel. Evitts, 469 U.S. at 392.

    This waiver decision by the state courts resulted in no review of over a dozen motion claims the defendant raised on his motion for new trial that the state courts have decided should have been raised by the defendant's appellate attorney on direct appeal. All those dozen motion claims raised violations of the defendant's rights under the U.S. Constitution. Six of those waived motion claims that raised an issue that the prosecutor knowingly used perjury at trial to gain the conviction were also presented in the defendant's appeal of the denial of his motion for new trial. See Statement of Case, supra, for those six claims of prosecutorial misconduct also raised on the defendant's appeal of the denial of his motion for new trial.

    An appellate attorney is ineffective when he fails to raise issues that would have resulted in a reversal of the criminal conviction. Gray v. Greer, 800 F2d 644, '85. Each of those waived motion claims would have resulted in a new trial, due to their meritorious showing that the defendant's Constitutional Rights to Due Process of Law were violated, and more specifically that the prosecutor knowingly used perjury at trial to obtain the conviction of the defendant. The best example of merit is that the prosecution knowingly used perjury as to the cause and extent of the victim's eye injury, see Statement of Case-B. A conviction must be set aside if there is any reasonable likelihood that perjury knowingly used by the prosecutor could have affected the jury verdict. U.S. v. Bagley, 473 U.S. 667, 678, ('85).

    In Mass. there is a guaranteed right to a direct appeal of a criminal conviction. Rule 28c-MRCP. A direct appeal as of right must comport with the Due Process Clause of the 14th Amendment. Evitts, 469

                                              -20-

U.S. 393. The defendant had a Due Process right under the 14th Amendment to effective appellate counsel regarding his direct appeal. Evitts, 469 U.S. 396. If, as the state courts claim, his appellate attorney, on direct appeal, should have raised many the defendant's motion claims, then the defendant's appellate attorney was ineffective. The only place for the defendant to raise those claims missed by the appellate attorney, and raise a claim that the defendant's appellate attorney was ineffective in his assistance of counsel, is on a motion for new trial.

    The defendant claimed his appellate attorney was ineffective in motion claim XVIII, RA 114. The defendant raised a claim that his appellate attorney was ineffective with each appeal argument that should or could have been raised on direct appeal. The state courts were reminded by the defendant, per motion claim XVIII, RA 114, and appeal argument-I, App. 41a, that there was no waiver of his motion claims due to Evitts.

    By waiving the prosecutorial misconduct and ineffective assistance of trial counsel claims the state courts never addressed the defendant's most potent claim; that King's eye injury evidence at trial was knowing prosecutorial perjury. And that defendant's trial counsel was ineffective regarding that same eye evidence in violation of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 ('84). The state courts reviewed the performance of the defendant's appellate counsel to the extent that the defendant's trial attorney was ineffective, but the defendant never raised a claim that his appellate attorney was ineffective regarding King's eye injury evidence. The appellate attorney could not be held responsible for that claim on direct appeal because the evidence, App. 68a-71a, through his investigation came more than a year after the trial. Factual claims not appearing on the trial record must be raised on a motion for new

                                                     -21- 

 trial. Com. v. Adamides, 37 Mass. App. Ct. 339, 344 ('94).

    The state's decision to waive the defendant's motion claims based on Mass. procedural law, the "Mass. issue waiver rule," is in conflict with Evitts and the defendant's Constitutional Rights to Due Process per the 14th Amendment that guarantees the defendant effective assistance of appellate counsel. Evitts, at 396. Per Evitts, none of the defendant's 18 motion claims, which were all constitutionally grounded, should have been waived. RA 1-115 & App. 41a. Because the Mass. "waiver rule" is unconstitutional those waived motion claims should be reviewed resulting in a reversal of the jury's verdict and a new trial because of ineffective assistance of trial counsel and prosecutorial misconduct.

    The "Mass. waiver rule" causes a defendant to lose, forever, constitutionally grounded claims that the appellate counsel fails to raise on direct appeal. As per App. 25a-27a & App. 5a-6a, the "Mass. waiver rule" has been used for decades in Massachusetts causing an injustice to criminal defendants , whereby, their right under the 14th Amendment's Due Process Clause to effective assistance of appellate counsel is ignored. See Com. v. McLaughlin, 364 Mass. 211, 229 (1973)(citing cases back to the 1920's that used the "Mass. waiver rule" or "waiver doctrine"). See also App. 6a, the Commonwealth citing U.S. v. Agurs, 427 U.S. 97, as legal support for the "Mass. waiver rule."

 

 

 

                                                 -22-

II. The state courts violated their own laws in order to evade the defendant's claims that his Constitutional Rights under the Due Process Clause of the 14th Amendment U.S. Constitution had been violated.

A. Factual claims not on the trial record not treated "even handedly."

    The state courts violated their own procedural law by waiving, via the "Mass. waiver rule," the defendant's motion claims. App. 3a-4a. Some of those motion claims waived by the state courts presented factual claims of prosecutorial misconduct and ineffectiveness of trial attorney that were grounded on facts not appearing on the trial record making it impossible to raise those claims on direct appeal. Those claims include motion claims I, II, III, RA 1-30, argument II on appeal, see Statement of Case - B, supra, showing that the prosecution knowingly presented perjury at trial regarding the victim's cause and extent of eye injury and that the defendant's trial attorney was ineffective regarding this same eye injury evidence.

1. Raising Factual claims not on trial record. In Mass., a direct appeal of a criminal conviction may only raise factual issues that appear on the trial record. White v. White, 662 NE2 230, 232, 40 Mass. App. Ct. 132, 133 ('96) & MRAP-Rule 8 (record of lower court is record for appeal). "Constitutional arguments raised by the petitioner that are based on factual questions are best left for resolution in the first instance by a trial judge on a motion for new trial". Gibney v. Comm., 375 Mass. 146, 148, 375 NE2 714 ('78). This Massachusetts law is not surprising since an appeals court is a court of review. DBr. Arg. I. See App. 42a-43a.

 

                                                 -23-

2. Knowing use of Perjury by Prosecutor. Mass. law further requires that factual claims, specifically relating to non-disclosure type prosecutorial misconduct claims, should be raised on a motion for new trial via Rule 30b of the MRCP. There is no reason why claims of prosecutorial misconduct (non-disclosure type claim) could not be advanced by a motion for new trial to which the regular principles of MRCP 30b apply. "Even if an undisclosed evidence is not "newly discovered", the failure of a prosecutor to furnish exculpatory evidence in his possession is a proper basis for a new trial motion based on common law or constitutional grounds". Tucceri 412 Mass. 408-409. DBr. Arg. I. See App. 42a.

3. Ineffective Assistance of Counsel. "When the trial record provides an insufficient factual basis for appellate review, the claim of ineffective assistance of trial counsel is best left for resolution in the first instance by the trial judge in a motion for new trial." Com. v. Adamides, 37 Mass. App. Ct. 339, 344 ('94). See App. 43a.

    Regardless of its unconstitutionality, the "Mass. issue waiver rule" has never been used by the Mass. courts to exclude "factual claims" that did not appear on the trial record from being reviewed on a motion for new trial.

    State procedural requirements, which are not strictly or regularly followed, cannot deprive the Supreme Court of the right to review. Barr v. City of Columbia, 378 U.S. 146, 149 (1964). State procedural requirements not applied evenly do not constitute an adequate state ground barring Supreme Court review of the federal issue. id.

    The state courts cannot violate their own law in order to evade the defendant's Constitutional Rights and deny Due Process of Law. "Due Process includes enforcement of state rights, as well as, federal rights- state procedure can never be independent of the requirements of Due Process". Wright, Miller, Cooper, Federal

                                                   -24-

  Practice and Procedure, Vol. 16B, 2d Ed. 1996, 16B p. 375.

    The defendant's factual claims that could not be raised until a motion for new trial should be reviewed. This would include all motion claims appealed by the defendant with the exception of "citizen's arrest" which was a strictly legal issue.

B. Decision - "Citizen's Arrest"

The decision of the Appeals Court on citizen's arrest, App. 4a, was arbitrary and ambiguous and provided no adequate and independent state-law ground for its decision on the defendant's claim that King did not act legally via his arrest. Although lacking much discussion, per App. 4a, it appears that the Appeals Court agrees with the motion judge's finding that King acted only as a citizen and that King's citizen's arrest was legal. App. 31a. That finding by the motion judge is in conflict with the D.A. who claims King acted as a police officer and was entitled under Mass. law to be treated as such. App. 15a-16a.

    Regardless, the Appeals Court, App. 4a, found against the defendant's citizen's arrest argument, which also claimed that King acted only as a citizen as a matter of Mass. law, see Statement of Case - D. Since the Appeals Court is agreeing with the defendant that King acted as a citizen, and it is undisputed King failed the "in fact" test required by Mass. law, that makes King's arrest and the conviction of the defendant illegal. Com. v. Harris, 11 Mass. App. 170. Ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by the Supreme Court of the validity under the federal constitution of state action. Michigan v. Long, 463 U.S. 1032, 1041, '83.

    By denying the defendant's citizen's arrest claim the Appeals Court has changed the law of citizen's arrest for the purpose of the defendant's appeal via that unpublished decision. Mass. citizen arrest law remains as it was, per published opinions, for decisions of future cases. That makes it an arbitrary decision of state law that

                                                    -25-

resulted in evading the defendant's federal claim that the prosecutor had deceived the jury that King's arrest of the plaintiff was perfectly legal rather than an assault on the defendant, and that the defendant's attorneys were ineffective regarding citizen's arrest. The Appeals Court decision on citizen's arrest lacks fair or substantial support via precedent state law or reason causing it to be inadequate resulting in a violation of Due Process, Ward v. Board Cty. Commrs. of Love Cty, 253 U.S. 17, 22-23, 1920; and in effect an evasion of federal law. In Memphis Nat. Gas Co. v. Beeler, 315 U.S. 649, 653-654, 1942.

    The requirement of adequacy applies to substantive as well as procedural state law. Coleman v. Thompson, 501 U.S. 722, 729 ('91). The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which the Supreme Court may review de novo. Howlett v. Rose, 496 U.S. 356, 366 ('90). The state ground, to be adequate, must also be a tenable one. In other words Supreme Court review cannot be evaded by reliance on a state ground "so certainly unfounded that it properly may be regarded as essentially arbitrary, or a mere device to prevent a review of the decision upon the federal question". Lawrence v. State Tax Commission, 286 U.S. 276, 282 (1932). The Mass. Appeals Court's arbitrary and irregular application of citizen's arrest law cannot prevent review by the Supreme Court of the underlying federal issue that the prosecutor deceived the jury that King's pursuit and stop (arrest) of the defendant was perfectly legal. Staub v. City of Baxley, 355 U.S. 313, 318-319 ('58). (Supreme Court will review nonfederal ground, which defeats the enforcement of federal rights).

    The defendant's claim that King's citizen's arrest was actually a false arrest and assault and battery on the defendant and the related

                                                       -26-

constitutional issues, see Statement of Case - D, should be reviewed resulting in a new trial. Since King had committed a false arrest the alleged evidence of assault by the defendant should have been suppressed. Com. v. LeBlanc 407 Mass. 70, 75 (1990). The suppression would result in no evidence of a crime; this causing the conviction to be a violation of the 14th Amendment's Due Process Clause. Thompson v. City of Louisville, 362 U.S. 199, 200 (1960).

 

 

III. There has been a gross miscarriage of justice.

        The Mass. Appeals Court referred to page 20-43 of the Commonwealth's brief, in making their decision. See App. 3a-4a.

    As per Statement of Case-B, supra, the Commonwealth, per appeal brief, agreed that the evidence of King's injury, used to convict the defendant was medically documented perjury, and the prosecutor knew it. The perjury regarding King's injury was huge not slight. The Commonwealth, per that appeal brief-App. 10a, claim it was permissible to leave the perjury (D.A. calls perjury a discrepancy) presented at trial to the jury's fact-finding function and have the jury sort out the perjury.

    The jury was never presented any evidence or testimony at trial that allowed them to know the content of King's medical record. They were only presented the prosecution's perjury. RA 1-30.

    Had the jury not been deceived about Mass. citizen's arrest law they would have learned that the defendant was the victim. Supporting the defendant's defense of self-defense.

                                              -27-

The Mass. Appeals Court was alerted to this miscarriage of justice.

That decision by the Mass. Appeals Court violates Brady and progeny that holds that knowing use of perjury by the prosecution at trial is a violation of the Due Process Clause of the Fourteenth Amendment. U.S. v. Agurs, 427 U.S. 97, 103. The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury. id. The prosecutor has a duty to correct all perjury known to them at trial. Giglio v. United States, 405 U.S. at 153.

Conclusion: The writ of certiorari should be granted.

There has been a miscarriage of justice - the conviction of Michael Elbery should never have happened in a U.S. courtroom. The Massachusetts courts arbitrarily used state law to evade the defendant's post-conviction constitutional issues. The Massachusetts courts for decades have used the state procedural "Mass. issue waiver rule" to eliminate criminal appellant's Due Process Right to effective assistance of appellate counsel, in direct conflict with Supreme Court law, resulting in years of mass injustice. In Massachusetts, due to the use of the "Mass. issue waiver rule," the criminal appeal procedure continues to be a meaningless ritual not protected by Due Process of Law.

In view of the conflict of the decision below with past decisions of this Court, the Court may wish to consider a summary reversal.

Respectfully submitted,

 

Michael Elbery, pro se

168 Fairfield St.

Needham, Mass. 02492

781-444-7324

August 1, '03


 

-i-

APPENDIX TABLE OF CONTENTS

APPENDIX A

Notice of Denial of F.A.R. -Massachusetts Supreme Judicial

                                          Court, dated June 5, 2003.................la

APPENDIX B

    Notice of Withdrawal Petition for

            Rehearing -- Massachusetts

            Appeals Court, dated May 1, 2003

                                            .........................................................2a 

APPENDIX C

    Memorandum and Order Pursuant to

            Rule 1:28 - Massachusetts

            Appeals Court, dated March 10, 2003

                                         ..................................................3a

APPENDIX D

Commonwealth's Appellee Brief - pages

                                   20-44, dated October 2002.................5a

APPENDIX E

    Memorandum and Decision on Motion

        for New Trial - Superior Court 

        Motion Judge, dated December 21, 2001......................21a

 

APPENDIX F

Probable Cause Hearing Decision of

        January 20, 1993 - Worcester

        District Judge Milton Raphaelson ................................. 40a

 

                                                                     -ii-

 

APPENDIX G

Defendant's Appeal Arguments I, IV, VI,

                               and Reply #1..........................................41a

APPENDIX H

    Exhibit J of defendant's motion for new

                        trial - Trial transcript cites of

                        evidence presented to trial jury

                        regarding Tom King's eye injury....................60a

APPENDIX I

Dr. Arinella's Medical Report - Tom King ............................. 67a

Deciphering of Dr. Arinella's Medical

        Report - AIDS Investigation.............................................68a

Dr. Hull's Affidavit - Interpretation of Dr.

        Arinella's Report...............................................................69a

 


-1a-

APPENDIX A

Supreme Judicial Court for the Commonwealth of

Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Michael G. Elbery

168 Fairfield Street

Needham, MA 02492

 

RE: Docket No. FAR-13357

COMMONWEALTH

          vs.

MICHAEL G. ELBERY

Worcester Superior Court No. W0CR1993-00 135

A.C. No. 2002-P-0318

               NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on 06/05/03, the above-

captioned Application for Further Appellate Review

was denied.

 

 

                                                                             Susan Mellen, Clerk

Dated: June 5, 2003

To: Harry D. Quick, III, A.D.A.

Michael G. Elbery

 

 

 


 

-2a-

 

APPENDIX B

COMMONWEALTH OF MASSACHUSETT'S

APPEALS COURT

CLERK'S OFFICE

1500 NEW COURT HOUSE

BOSTON, MASSACHUSETTS 02108

(617) 725-8106

May 1, 2003

Michael G. Elbery

168 Fairfield Street

Needham, MA 02492

RE: No. 2002-P-0318

COMMONWEALTH

vs.

MICHAEL G. ELBERY

NOTICE OF DOCKET ENTRY

Please take note that, with respect to the Notice of

withdrawal of petition for rehearing, filed by Michael

G. Elbery. (Paper #31),

on May 1, 2003, the following order was entered on

the docket of the above-referenced case:

RE#31 Noted. As the petition has been withdrawn, no

further action will be taken on the petition. (Laurence,

Gelinas, Mills, JJ.) Notice.

Very truly yours,

The Clerk's Office

Dated: May 1, 2003

To: Harry D. Quick, III, A.D.A.

Michael G. Elbery


-3a-

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

02-P-318

COMMONWEALTH

vs.

MICHAEL G. ELBERRY.1

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

    We affirm the motion judge's denial of Elberry's

motion for a new trial and request for an evidentiary

hearing. The facts in this case are set forth in

succinct manner in our decision affirming the

defendant's conviction on direct appeal.

Commonwealth v. Elberry, 38 Mass. App. Ct. 912

(1995). The motion judge determined that certain of

the defendant's claims, (claims of judicial misconduct,

prosecutorial misconduct, inadequate jury

instructions, errors in the admission of evidence,

errors in sentencing, and claim that the verdicts were

against the weight of the evidence), were waived, as

they had not been raised in his direct appeal. For the

reasons and upon the authorities set forth in the

motion judge's memorandum of decision, and in the

Commonwealth's brief, especially at pages twenty

through twenty-three, we agree that the defendant's

claims were waived by his failing to raise them in his direct appeal.

    In his motion, Elberry also claimed ineffective

assistance of both his trial and appellate counsel.

1 Although the defendant, in his pro se brief, spells his name "Elbery," we follow our editorial convention of adhering to the spelling in the indictment.


-4a-

The motion judge found that he had waived any claim to ineffective assistance of trial counsel, again, because that claim was not raised in his direct appeal. We agree. See Commonwealth v. Chase, 433 Mass. 293, 298-299 (2001).

With regard to the defendant's claim of ineffective assistance of appellate counsel, the motion judge

appropriately reviewed the trial record to determine

whether trial counsel was in fact ineffective and thus

appellate counsel would have been ineffective if he

failed to raise trial counsels ineffectiveness on appeal.

Our review of the trial record leads us the same

conclusion as that reached by the motion judge: that

trial counsel was not ineffective, and therefore

appellate counsel had no reason to raise the issue on

direct appeal.

For the reasons and upon the authorities set forth

in the motion judge's memorandum of decision, and

for those set forth in the Commonwealth's brief,

especially at pages twenty-three through forty-three,

we affirm the motion judge's denial of the defendant's

motion in this regard. We further conclude that there

was no abuse of discretion in the motion judge's

refusal to grant an evidentiary hearing, as the

defendant raised no substantial issue. See

Mass. R.Crim.P. 30(c)(3), 378 Mass. 901 (1979).

Order denying motion for new

trial affirmed.

By the Court (Laurence, Gelinas &

Mills, JJ.),

 

Clerk

Entered: March 10, 2003.


5a

 

                      APPENDIX D

                        Argument.

The Motion Judge Properly Denied Defendant's

Motion for New Trial Without a Hearing, Where

Defendant Did Not Raise a Substantial Issue With

an Adequate Factual Basis to Show that a

Substantial Risk of a Miscarriage of Justice

Occurred.

Proceeding pro se, defendant moved for a new trial

under Mass. R. Crim. P. 30(b). In his motion

defendant asserted, inter alia, that the trial

prosecutor engaged in misconduct, that the jury

charge was inadequate, and his trial and appellate

counsel were ineffective. (R.A. 1-115). The motion

judge denied this motion, ruling that defendant's

claims of prosecutorial misconduct and inadequate

jury instructions were waived and that defendant did

not present adequate evidence entitling him to a

hearing on his ineffective assistance of counsel

claims. (Def. Addendum 1- 18). On appeal, defendant

claims that the motion judge erroneously denied his

motion without a hearing because his claims were not

waived and they evinced a substantial risk of a

miscarriage of justice. Because defendant's claims

could have been raised in his direct appeal, the

motion judge correctly determined that they were

waived. Because defendant provided no factual basis

to show that a substantial risk of a miscarriage of

justice occurred, [20] the motion judge properly

denied defendant's motion without a hearing.

    "'A motion for new trial may not be used as a

vehicle to compel . . . review and [consideration of]

questions of law,' on which a defendant has had his

day in an appellate court, or [on which he has]

foregone that opportunity." Commonwealth v.

Gagliardi, 418 Mass. 562, 565 (1994), cert. denied ___

U.S. __, 115 S.Ct. 753 (1995) (quoting

 

-6a-

 

Commonwealth v. Watson, 409 Mass. 110, 114

(1991)). This rule of waiver "applies equally to

constitutional claims which could have been raised

but were not raised on direct appeal . ."

Commonwealth v. Amirault, 424 Mass. 618, 641

(1997) (citations omitted). Where, as here, "there has

been appellate review of a conviction . . a judge

considering a motion for new trial should first exercise

discretion to deal with the substance of any issue

presented." Commonwealth v. Curtis, 417 Mass. 619,

634 n.14 (1994). "The trial judge's discretionary

power to give relief. . . should be exercised only in

those extraordinary cases where, upon sober

reflection, it appears that a miscarriage of justice

might otherwise result." Id. at 626. Defendant has

advanced no [21] reasons to circumvent the waiver

rule.

    First, the motion judge properly determined that

defendant's claim of prosecutorial misconduct was

waived. Defendant's assertions that the prosecutor

withheld information and allowed perjury rest on

defendant's comparison of the trial testimony with the

probable cause and grand jury testimony and the

medical records submitted into evidence. (D.Br. 15-

49). Because this evidence was clearly available to

defendant and the law in this regard had been clearly

established, see United Stated v. Agurs, 427 U.S. 97

(1976) and its progeny, this claim should have been

raised on direct appeal. See Amirault, 424 Mass. at

642. Failure to do so constitutes waiver and, as

discussed below, see part A. infra, defendant has not

demonstrated a miscarriage of justice, which would

justify relief from the waiver doctrine.

    Second, defendant asserts errors in the trial judge's

instructions on consciousness of guilt and assault

with intent to maim. (D.Br.. 32). Defendant raised the

adequacy of these instructions in his direct appeal

and this Court correctly determined that these

unobjected-to instructions were not erroneous and

did not create a substantial risk of a miscarriage [22]

 

-7a-

 

of justice. Commonwealth v. Elberry, 38 Mass. App.

Ct. 912, 912 (1995) Thus, the motion judge correctly

exercised his discretion to decline to consider these

claims. See Gagliardi, 418 Mass. 562, 565-67 (1994).

    Third, in his motion for new trial, defendant

asserted that his appellate counsel was ineffective for

failure to raise certain claims of ineffective assistance

of trial counsel. The motion judge did not deem these

claims waived and assessed whether appellate

counsels decisions not to make certain arguments

amounted to ineffective assistance of counsel. (Def.

Addendum 6-18). Regardless of whether these

ineffective assistance claims are waived, the same

standard effectively applies, "because, if an omission

of counsel does not present a substantial risk of a

miscarriage of justice . . . there is no basis for an

ineffective assistance of counsel claim under either

the Federal or the State Constitution.'"

Commonwealth v. Young, 56 Mass. App. Ct. 60, 62

(2002) (quoting Curtis, 417 Mass. at 624 n.4

Based on [23] these standards, the motion judge

4 To prevail on a motion for a new trial which alleges ineffective

assistance of counsel, a defendant bears the burden of

demonstrating that his trial attorneys conduct fell "measurably

below that which might be expected from an ordinary fallible

lawyer--and, if that is found, [that] it has deprived [him] of an...

otherwise available, substantial defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). Such proof requires the

defendant to show that "better work might have accomplished

something material for the defense." Commonwealth v. Satterfield,

373 Mass. 109, 115 (1977). "Where the defendant challenges

counsels tactical or strategic decisions, he must establish that

such decisions are not merely unreasonable, but manifestly

unreasonable.'" Commonwealth v. Adams, 374 Mass. 722, 728

(1978) (citation omitted). The 'defendant bears a heavy burden in

establishing ineffective assistance of such magnitude as to entitle

him to a new trial," Commonwealth v. Brookins, 33 Mass. App. Ct.

626, 631 (1992), rev'd on other grounds, 416 Mass. 97 (1993), and

will not be permitted to "characterize as unreasonable a defense

that was merely unsuccessful." Commonwealth v. Monotones, 410

Mass. 290, 295 (1991). See also Commonwealth v. White, 409

Mass. 266, 272 (1991).

 

-8a-

properly denied defendant's new trial motion without

a hearing because defendant did not show that a

substantial risk of a miscarriage of justice occurred.

    "Whether to hold a hearing on a motion for post-

conviction relief or to consider it solely on the basis of

affidavits and other supporting material is a decision

which rests in the sound discretion of the judge,

based on a determination whether the motion and

affidavits raise a substantial issue." Commonwealth v.

McGann, 20 Mass. App. Ct. 59, 62, rev, denied, 395

Mass. 1102 (1985) '"In determining whether a

'substantial issue' meriting an evidentiary hearing...

[24] has been raised, [appellate courts] look not only

to the seriousness of the issue asserted, but also to

the adequacy of the defendant's showing on the issue

raised." Commonwealth v. Devincent, 421 Mass. 64,

68 (1995). The motion judge exercised proper

discretion when he declined defendant's request for a

hearing because defendant did not meet his burden of

establishing an adequate factual basis to support his

allegations.

A. The motion judge properly denied

defendant's motion for new trial without a

hearing, where defendant did not present

any evidence to show that the prosecutor

deliberately deceived the jury in any manner

or that trial counsel was ineffective.

    Citing to discrepancies between the trial

testimony of the victim and the other witnesses, as

well as to the victim's and witnesses' trial testimony

as compared to their probable cause and grand jury

testimonies and statements in medical records,

defendant asserts that the prosecutor knowingly and

deliberately allowed the introduction of false

testimony at trial, thereby violating defendant's

-9a-

 

constitutional right to due process of the law.5 [25]

(D.Br. 15-25, 35-49). He further asserts that his trial

counsel was ineffective for failure to address these

issues at trial. (Id.). Because defendant provided no

evidence to demonstrate that the prosecutor

deliberately withheld evidence and knowingly allowed

perjured testimony/ the motion judge properly denied

defendant's motion for new trial without a hearing on

this matter.

It is true that where the prosecutor intentionally

introduces false testimony or remains silent when he

or she should have known of the perjured testimony

that a defendant's constitutional rights to due process

are violated. Agurs, 427 U.S. [26] at 103; Napue v.

Illinois, 360 U.S. 264 (1959); Commonwealth v.

Collins, 386 Mass. 1, (1982). Nevertheless, that

discrepancies exist between the witnesses'

testimonies, without more, does not demonstrate

such prosecutorial misconduct. Commonwealth v.

Sullivan, 410 Mass. 521, 532 (1991). Particularly,

where as here, the alleged discrepancies were placed

before the jury by both the prosecutor and defense

 

5 Defendant's claims are numerous in this, regard: by

comparing the victim's trial testimony to that of the other

witnesses and the medical records, which were admitted into

evidence by the prosecutor, defendant asserts that the prosecutor

allowed the victim to falsely testify regarding the extent of his eye

injury (D.Br. 15-25); by comparing the victim's trial testimony and

probable cause testimony, defendant argues that the prosecutor

knowingly allowed the victim to falsely testify that defendant had

waved the jagged bottle at the bartender and the rest of the

patrons (D.Br. 35-40); by taking the prosecutor's statement out of

context, defendant states that the prosecutor knew King was

drinking on duty and allowed King to testify to the contrary (D.Br.

4 1-43); by comparing various witnesses' testimony at the probable the prosecutor knowingly 

allowed perjury (D.Br. 44-49); and defendant asserts that knowing that King's purported citizen's

arrest of defendant was unlawful, the prosecutor improperly

introduced evidence that there was a valid citizen's arrest (D.Br.

25-35).

 

10a

 

counsel, defendant did not meet his burden to show

that there was any deception on the part of the

prosecutor. See Sullivan, 410 Mass. at 521 ("'simply

because a witness alters some portion of his

testimony at the time of trial is not sufficient reason

to conclude that the new testimony was false, or that

the Commonwealth knew or had reason to know that

it was false."') (quoting Commonwealth v. McLeod, 394

Mass. 727, 743, cert. denied, 474 U.S. 919 (1985)).

    First, there is no evidence that the prosecutor acted

improperly. With respect to King's eye injury, King

testified at trial that he felt blood and vitreous fluid

coming from his left eye after defendant had twice

jammed his thumbnail into King's eye. (TR.II 201-03).

King testified that as a result he received a laceration

or cut on his eyeball. [27] (Tr.II 203-04). The

prosecutor introduced into evidence King's medical

records, which show that King did suffer a laceration.

(R.A. 120). Thus, the records validate King's

testimony.

    Second, at trial, defendant's counsel argues that

that the medical records indicated that King suffered

from a "superficial abrasion," (Tr.V 1224-25), and that

if defendant had gouged at King's eye in the way he

claimed, then King would not have an eye. (Id.). Thus,

any discrepancy in the evidence as to the extent of

King's eye injury was before the jury; the prosecutor

did not deceive them, and trial counsel did not sit by

passively. Rather, the jury was left to its fact-finding

function to determine whether defendant did commit

assault with intent to maim by trying to gouge out Mr.

King's eye. See Sullivan, 410 Mass. at 532 ("a

prosecutor may marshal the evidence for or against

the credibility of the witness, and allow the jury to

determine whether the witness is telling the truth.").

There is no evidence that the prosecutor acted

improperly in this regard.

    Similarly, the prosecutor did not improperly elicit

false testimony that defendant assaulted King and the

other bar patrons with the jagged edge of a [28] bottle,

 

-11a-

 

and counsel was not ineffective for failure to bring

this matter to the jury's attention. At trial, Mr. King

testified that after smashing the bottle, defendant

waved the jagged edge of it at the bartender and the

other patrons. (Tr.I 192). Any discrepancies between

this and other testimony were highlighted by both the

prosecutor and defense counsel. (See e.g. Tr.I 301-03,

308-10). Defendant presented no evidence to show

that the prosecutor knew King's trial testimony was

false and the prosecutor was not required to

independently assess King's credibility on that score.

Sullivan, 410 Mass. at 532; Commonwealth v.

Zuluaga, 43 Mass. App. Ct. 629, 646 (1997) ("[that a

prosecution witness contradicted herself is

insufficient to show that the Commonwealth

knowingly used perjured testimony."). Furthermore,

defense counsel also elicited testimony from King that

he was not placed in fear by defendant's display of the

bottle because defendant could not have reached him.

(Tr.lI 310). Counsel's examination was so successful

that the trial judge directed a verdict of not guilty on

the assault with a dangerous weapon charge. (Tr.IV

850). There being no prosecutorial misconduct or [29]

ineffective assistance in this regard, defendant's

claims fail.

    Likewise, defendant's comparison of every

miniscule discrepancy between the various witnesses,

trial and probable cause testimony (D.Br. 15-25, 35-

49), does not show that the prosecutor elicited false

trial testimony from them or deliberately presented an

incorrect theory of the case. Sullivan, 410 Mass. at

532; Zuluaga, supra.

    Next, by taking a passage of the trial transcript out

of context, defendant asserts that the prosecutor

deliberately deceived the jury by allowing Thomas

King to testify that he was not drinking on duty.

(D.Br. 41-43). He further asserts that his trial

counsel was ineffective as he sat by passively during

this conduct. (Id.). Because defendant's version of

events simply did not occur, his claim fails.

 

-12a-

    The prosecutor did not state that he believed

Thomas King was drinking on duty. Rather he stated,

in essence, that defense counsel was making this

allegation and he wanted to rebut it. Through cross-

examination, trial counsel attempted to imply that the

reason King had not identified himself as a police

officer that night was because he was inebriated and

[30] drinking on duty. (Tr.II 235-237, 285-86, 395,

406-09). To rebut this claim, the prosecutor sought to

introduce King's statement contained in the medical

records to hospital personnel that he was a police

officer. (Tr.II 448-452). Trial counsel opposed this and

the following transpired at side bar:

The Court: I don't understand how the

identification of himself as a police

officer is corroboration or that the

memorial hospital [record] is pertinent to

this at all.

[The Prosecutor]: Because of the

allegation that was made by -

The Court: He didn't identify himself at

the scene.

[The prosecutor): Reason he didn't do

that is because he was drinking on duty.

The Court: He already said that he told

them at the hospital that he was [a

police officer].

 

(Tr.II 452). As is evident from the transcript, the judge

interrupted the prosecutor midstatement; after this

interruption, the prosecutor continued his assertion

that he wanted in evidence King's statement to

hospital personnel that he was a police officer in order

to rebut trial counsel's implication that King did not

 

-13a-

 

identify himself as such because he was drinking on

duty. [31]

    Furthermore, trial counsel vigorously pursued the

idea that Mr. King was drinking on duty and

inebriated. Counsel cross-examined Mr. King at

length on this point, (Tr.II 234-38, 386, 406-09), and

called John Hayes who testified that Mr. King was

intoxicated when he entered the car to go to the

hospital. (Tr.IV 917). Trial counsel also argued in

summation that King was drinking on duty and that

he did not reveal his position because he was

inebriated. (Tr.V 1208-12 11). Thus, contrary to

defendant's arguments, the prosecutor never stated

that Mr. King was on duty when he was drinking at

the bar, and trial counsel did pursue this point.

In sum, defendant did not raise a substantial issue

with an adequate factual basis to show that the

prosecutor engaged in deliberate deception or that

trial counsel was ineffective for allowing this

deception. Accordingly, the motion judge properly

denied defendant's motion without an evidentiary

hearing.

B. Counsel rendered effective assistance

when he opposed giving of a citizen's arrest

Instruction to the jury, where the evidence

did not warrant such an Instruction. [32]

Defendant next argues that his counsel was

ineffective for failure to request a so-called "citizen's

arrest" instruction, on the theory that Mr. King, an

off-duty police officer out of his jurisdiction, used

force to effectuate an arrest of defendant. (D.Br. 25-

35).6 As the trial judge and defense counsel

6 The prosecutor did pursue this theory at trial on the basis

that King could have effectuated a valid citizen's arrest of

defendant because King witnessed an assault and battery with a

dangerous weapon on Ms. Mann, and defendant assaulted Mr.

King and the other people in the bar with a dangerous weapon.

The trial judge directed a verdict on the assault with a dangerous

 

-14a-

 

determined, the instruction was not warranted,

therefore, counsel was not ineffective for failure to

request the instruction.

A prerequisite to an instruction on citizen's arrest

is that the "citizen" use force to effectuate the arrest.

See Model Jury Instructions for Use in Superior

Court, 3.16.2 (1999) (citing Commonwealth v. Klein,

372 Mass. 823, 830-31 (1977)). No view of the

evidence established that King used force to effectuate

an arrest. [33]

    The Commonwealth's evidence showed that

defendant threw at least one punch at King and then

King wrestled with defendant. (Tr.II 200-01). Knowing

that he was out of his jurisdiction, King never

intended to physically touch, arrest, or restrain

defendant but instead followed him in order to inform

the police of defendant's whereabouts. (Tr.II 213, 386-

93). King simply told defendant that he was not going

anywhere until the Worcester Police arrived because

defendant had hurt a woman in a bar. (Tr.II 199, 219).

King used no force on defendant. (Tr.II 200-01, 213,

393). At this point, defendant threw several punches

at King, one of which connected. (Tr.II 200). King

then put his arms around defendant in an effort to

stop defendant from continuing his assault. (Tr.II

201). Defendant jammed his thumb into King's eye.

(Id.). Mr. King eventually pulled the thumb out and

tackled defendant to the ground in an effort to stop

the assault. (Tr.II 20 1-02). Defendant then stuck his

thumb back into Mr. King's eye. (Tr.II 202). Mr. King

pulled defendant's thumb out and rolled away from

defendant. (Tr.II 202) Because King did not use force

on defendant to [34] effectuate an arrest, the

instruction on citizen's arrest was not warranted.

 

weapon charge. (Tr.IV 850). Defendant was not indicted for

assault and battery with a dangerous weapon as Ms. Mann's

identity and whereabouts were unknown until one month before

the trial of this matter. (Tr.I 248-254).

    15a

 

    By contrast, defendant testified that King decided

he was going to give defendant "a whooping" when he

saw defendant yell at Jeff Schlener. (Tr.IV 1035).

King, with two individuals "flanking" him, then

approached defendant. (Tr.IV 1036-37). One of the

individuals then started wrestling with defendant,

who accidentally broke a beer bottle in the affray.

(Tr.IV 1039-40). Defendant then ran out of the bar

with a "gang" pursuing him. (Tr.IV 1044-45). King and

another then tackled defendant and a tussle ensued.

(Tr.IV 1048). When defendant was subdued and on

the ground, King went over to defendant and gouged

him in the eye. (Tr.IV 1056). Thus, defendant's

version of events does not establish that King was

trying to make a citizen's arrest, but, if believed,

simply established King as the initiator of combat.

Accordingly, the trial judge correctly labeled this a

"classic self-defense" case. (Tr.II 216). A citizen's

arrest instruction not being warranted, counsel was

not ineffective for failure to ask for one. See

Commonwealth v. McCormick, 48 Mass. App. Ct. 106,

109-10 (1999) (counsel not ineffective for [35] failure

to request limiting instruction, where instruction

would have been inappropriate or the request for one

denied), rev. denied, 430 Mass. 1113 (2000).

    Even if the evidence supported a citizen's arrest

instruction, defendant's cause would not have been

aided if the judge had given it. Defendant asserts that

as a matter of law, King's citizen's arrest was unlawful

because defendant had not in fact been convicted of a

felony. (D.Br. 25-35). Defendant is incorrect.

    "A private citizen may lawfully arrest someone who

has in fact committed a felony. (Generally the 'in fact

committed' element must be satisfied by a

conviction.)" Commonwealth v. Claiborne, 423 Mass.

275, 280 (1996) (parenthetical in original). This

requirement, however, is relaxed in the case of a

police officer acting out of his jurisdiction. Id. at 280-

81. In that case, only probable cause is required to

arrest. Id. The evidence clearly established that Mr.

 

-16a-

 

King, a Westboro Detective, had probable cause to

arrest defendant for the commission of a felony, either

assault and battery with a dangerous weapon or

assault with a dangerous weapon. See Model Jury

[36] Instructions for Use in Superior Court, (1999),

2.20, 2.22.2 (outlining the elements of these offenses).

    Mr. King witnessed defendant smash a beer bottle

up against a pole or on the bar with patrons in the

vicinity. Pieces of flying glass cut Ms. Mann above

and below her eye, causing her to bleed and receive

butterfly stitches in that area. After shattering the

base of the bottle, defendant held the bottle in a

jabbing manner toward the bartender and, other

patrons. This evidence "was 'sufficient to warrant a

person of reasonable caution in believing that the

defendant had committed . . . a crime.'"7 Claiborne,

423 Mass. at 281 (quoting Commonwealth v. Gullick,

386 Mass. 278, 283 (1982)). Because the evidence

established that probable cause existed for Mr. King

to arrest defendant, the omission of the citizen's

arrest instruction had a minimal effect, if any, upon

the jury, and counsel was not ineffective for failing to

seek the instruction. [37]

    Defendant also claims that his counsel was

ineffective for failure to move to suppress all the

evidence gained as a result of the purported unlawful

citizen's arrest. Because a citizen's arrest did not

occur and, in any event, Mr. King had probable cause

to arrest defendant, such a motion would not have

been, successful. See Commonwealth v. Harris, 11

Mass. App. Ct. 165, 172 rev denied, 383 Mass. 890

(1981). Accordingly, counsel was not ineffective for

failure to file such a motion. Commonwealth v. Pike,

52 Mass. App. Ct. 650, 656 (2001).

 

7 The jury's verdict makes clear that they rejected defendant's

version of events that he did not commit any crime in the bar and

was attacked by Mr. King and his alleged cohorts. See

Commonwealth v. Sirois, 437 Mass. 845, - - - n.13 (2002) (verdict

showed that jury rejected defendants version of events).

 

-17a-

 

C. Counsel rendered effective assistance

when he permitted the introduction of the

victim's medical records in lieu of eliciting

expert opinion Interpreting the records and

attempted to use the records to show that

the victim exaggerated his injuries.

    

    In one breath defendant claims that his counsel was

ineffective for failure to call a medical expert to

decipher the purportedly illegible medical records

because they assisted his claim that the victim

exaggerated his eye injury to the jury. (D.Br. 21). In

the next breath, defendant claims that his counsel

was ineffective for failure to oppose the admissibility

of these medical records. (D.Br. 16-20). Because

there is no evidence that the medical [38] records

were illegible and no indication that there were

inadmissible, and counsel's decision to agree to their

admission was strategically sound, defendant has not

shown that counsels assistance was ineffective.

    First, the victim's medical records were admissible.

While it is true that illegible portions of medical

records (either due to abbreviations and technical

jargon or indecipherability) should be redacted,

"[i]llegibility is a relative matter and there must be

broad discretion in the trial judge to determine in a

particular case whether writing in a hospital record

can be read and decoded." Commonwealth v. Baldwin,

24 Mass. App. Ct. 200, 203, rev. denied, 400 Mass.

1102 (1987). The judge did not abuse his discretion

when he admitted the records into evidence, because

they were legible.

    During the victim's testimony the prosecutor

sought to introduce the victim's medical records. (Tr.II

446-53). During the lengthy sidebar on this matter, it

is clear that the prosecutor, trial counsel, and the

judge had no problems deciphering the records. (Id.).

Counsel succeeded in convincing the judge to redact

certain portions of the records, including the victim's

report that he had vitreous [39] fluid coming from his

 

-18a-

 

eye. (Tr.II 450, 452). While looking at the records, the

judge also redacted other portions that were hearsay

not falling within any exception that would render

them admissible. (Tr.II 450-52). Implicit in this

discussion about the content of the records is the

judge's opinion that the records were legible. As the

motion judge found, defendant forwarded no evidence

in his motion for new trial that they were otherwise.

(Def. Addendum 11). Accordingly, the trial judge did

not abuse his discretion when he admitted the

medical records into evidence and trial counsel was

not ineffective for failure to object to their

admissibility. See Commonwealth v. McLeod, 39

Mass. App. Ct. 461, 463-64 (1995) (counsel not

ineffective for failure to object to admission of

evidence that was not "clearly objectionable"), rev.

denied, 422 Mass. 1101 (1996).

    Similarly, counsel was not ineffective for failure to

call an expert witness to interpret the medical

records, as any information to which he would have

testified was cumulative of that before the jury, and

his testimony would not have been dispositive of

whether defendant had the intent to gouge out Mr.

King's eye. [40]

    In his motion for new trial, defendant provided the

affidavit of Dr. Joseph Hull. (R.A. 126-27). Dr. Hull

averred that King's medical records revealed that King

suffered from a superficial abrasion to the lids and a

small laceration to the conjunctiva and that there was

no bleeding and the injuries were consistent with

being poked in the eye. (R A. 126-27). The laceration

and abrasion information, however, was contained in

the medical records' before the jury. Trial counsel

also presented John Hayes, who, unlike Dr. Hull, saw

Mr. King right after the incident, and testified that he

did not see any blood or fluid coming from King's eye

and that his injury did not look serious. (Tr.IV 916-

18). He further testified that Mr. King stated that he

must have gotten "poked in the eye." (Tr.IV 918).

Based on this information trial counsel argued that

 

-19a-

 

King greatly exaggerated his eye injury. (Tr.V 1224-

25). Because the additional testimony would have

been cumulative of the evidence counsel had already

presented at trial and not as convincing given the Dr.

Hull did not see King after the incident, defendant has

not shown how his counsels performance was

deficient or deprived him of a substantial ground of

defense. See [41] Commonwealth v. Sarmanian, 426

Mass. 405, 407 (1998) (counsel not ineffective for

failure to present additional witnesses that would

have been cumulative of evidence already presented

at trial). Accordingly, defendant's assertion that his

counsel was ineffective for failure to object to the

admission of the medical records or call an expert to

interpret the records for the jury, fails.

D. The prosecutor properly commented on

the evidence in his summation.

 

    Lastly, defendant asserts that the motion judge

erroneously denied his motion for new trial because

the prosecutor's opening statement and closing

argument were purportedly rife with every type of

prosecutorial error. (D.Br. 49-50). Defendant's claim

is frivolous.

    First, defendant attempts to incorporate into his

brief those portions of his motion for new trial alleging

prosecutorial error in this regard. (D.Br. 49-50).

Those issues not directly addressed in his brief are

waived and should not be addressed by this Court.

Mass. R. App. P. 16(a)(4).

    Second, in his brief, defendant addresses one

claim, namely, that the prosecutor referred to facts

not in evidence when he stated in his closing

argument that defendant admitted/testified that he

gouged Mr. King in the eye. (D.Br. 50). Viewing the

closing argument in its entirety, Commonwealth v.

Degro, 432 Mass. 319, 325-26 (2000), the prosecutor

did not misstate the evidence.

 

-20a-

 

The prosecutor stated as follows:

 

And then [defendant] takes the stand

and he tells you this story. Remember

when he said he gouged King's eye?

Did that make sense to anybody? I'm

sorry, he said, King gouged his eye.

Does that make sense to anybody? That

King came over to him while he was on

the ground and gouged his eye. Those

were his words, 'He gouged my eye.'

 

(Tr.V 1234 (emphasis added)). As is demonstrated

above, the prosecutor immediately recognized his

misstatement, apologized for it and corrected it. This

correction, in conjunction with the judge's repeated

instructions that closing arguments and statements of

counsel are not evidence, ensured that the

prosecutor's argument did not create a substantial

risk of a miscarriage of justice. Commonwealth v.

Maynard, 436 Mass. 558, 570-7 1 (2002). Accordingly,

the motion judge correctly rejected this claim. [43]

Conclusion.

    For the reasons set forth above, the denial of

defendant's motion for new trial should be affirmed.

Respectfully Submitted,

 

JOHN J. CONTE,

District Attorney

For the Middle District,

ANNE S. KENNEDY,

Assistant District Attorney

BBO #635653

Courthouse, Room 220,

Two Main Street,

Worcester, MA 01608

(508) 757-2786

OCTOBER 2002 [44]

-21a-

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

WORCESTER, ss.                        SUPERIOR COURT

                                                     CRIMINAL ACTION

                                                     NO. 93-0135

COMMONWEALTH

vs.

MICHAEL ELBERY

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANT'S MOTION FOR A NEW TRIAL AND

REQUEST FOR AN EVIDENTIARY HEARING

    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.

 

1 The 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.

2 Despite 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 memorandum

shall not exceed 60 pages including items of appendix, addendum

and copies of documents as to which Defendant makes reference

in the memo."

 

-22a-

In addition, the defendant seeks an evidentiary

hearing and further discovery as allowed by Mass. R.

Crim. P. 30 regarding the injuries 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

DENIED.

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).

3 See Counts I - XV, excluding III.

4 See Counts XVIII.

5 See Counts IX and Count I of the amended motion.

6 See Counts II, IV, VI, VIII, X, XII, and XVI.

7 See Counts VI and VIII.

8 See Count XVII.

9 See Count III.

10 See Count XIV.

 

-23a-

 

BACKGROUND

    The trial transcript indicates that the jury could

have reasonably found the following facts:

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 [21] the bar

were two off-duty doormen 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

 

-24a-

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 [3] 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 one (1) 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

 

-25a-

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).

DISCUSSION

I. Motion for a New Trial Standard

    "The trial judge upon motion in writing may grant a

new trial at any time if it appears that justice may not

have been done." Mass. R. Crim. P. 30(b). The

standard is purposely broad as the disposition of a

"motion for new trial is addressed to the sound

discretion of the judge." Commonwealth v. Moore, 408

Mass. 117, 125 (1990). "[O]nce the regular

procedures have run their course the presumption

tilts heavily toward finality." Commonwealth v.

Amirault, 424 [4] Mass. 618, 637 (1997). "New trials

should not be granted except for substantial reasons."

Id, quoting Commonwealth v. Tucceri, 412 Mass.

401, 406 (1992). "The mere fact that, if the process

were redone, there might be a different outcome, or

that some lingering doubt about the first outcome

may remain, cannot be a sufficient reason to reopen

what society has a right to consider closed." Id.

II. Waiver of Claims

    As mentioned previously, this motion for a new trial

comes after the conviction has already been affirmed

on direct appeal. Consequently, "[t]he concern for

11 The defendant was represented by Louis P. Aloise, Esq. at

trial.

12 The Appeals Court found that the prosecutor's statement

was prejudicial but the corrective instruction used by the trial

judge was adequate. The Appeals Court also determined that the

trial judge's instructions concerning the elements of the crimes

were sufficient.

 

-26a-

 

finality demands that a defendant present every claim

and argument he might fairly have had available to

him the first time around." Amirault, 424 Mass. at

639. Therefore, "absent extraordinary circumstances

... the defendant who had a fair opportunity to raise

[an issue] may not belatedly invoke that right to

reopen a proceeding that has already run its course."

Id. (citations omitted). Furthermore, "if [the

defendant] had an opportunity to invoke the right and

failed to avail himself of it, the claim is waived and

may not be raised for the first time on collateral

attack." Id. "The test for waiver is whether the 'theory

on which his argument is premised has been

sufficiently developed to put him on notice that the

issue is a live issue."' Id. (citations omitted). In

addition, the doctrine of waiver "'applies equally to

constitutional claims which could have been raised,

but were not raised' on direct appeal or in a prior

motion for a new trial." Commonwealth v. Watson,

409 Mass. 110, 112 (1991), quoting Commonwealth v.

Deeran, 397 Mass. 136, 139 (1986).

    The "motion judge's discretion under Rule 30(c)(2)

to grant relief from such a waiver is limited if the

conviction has already received appellate review."

Commonwealth v. LeFave, 430 Mass. 169, 174 n.5

(1999). If the issue has been waived, the judge may

not consider it, unless in the exercise of discretion the

judge determines there is a substantial risk of a

miscarriage of [5] justice. See id. at 173-174. The

judge's discretion in granting relief from waiver should

not be exercised lightly, and should only be exercised

if "upon sober reflection, it appears that a miscarriage

of justice might otherwise result." Commonwealth v.

Gagliardi, 418 Mass. 562, 565 (1994), cert. denied,

513 U.S. 1091 (1995). Here, the defendant's claims of

judicial misconduct, prosecutorial misconduct, that

the verdict was against the weight of the evidence

(insufficient evidence), inadequate jury instructions,

inadmissible evidence admitted during trial, and

duplicative sentencing were all areas of the law that

 

-27a-

 

were sufficiently developed at the time of his appeal to

put the defendant on notice that these issues were

live issues. Consequently, all of the above claims

could have been raised on direct appeal but were not.

Therefore, the above issues are waived.

III. Ineffective Assistance of Appellate Counsel

    The defendant's ineffective assistance of counsel

claims are also subject to the waiver rule. See Lefave,

430 Mass. at 17 1-173; see also Commonwealth v.

Evardo, 426 Mass. 48, 49,50 (1997). In situations

where the defendant has been represented by the

same attorney at trial and on direct appeal, that

defendant may seek review of the trial counsel's

performance, even though no ineffective assistance of

counsel claim was asserted on direct appeal. See

Egardo, 426 Mass. at 49. The reasoning behind this

exception to the waiver rule is "that it would be

'unrealistic to expect [the defendant's] first attorney to

have raised a claim calling his own competence into

question."' Id., quoting Commonwealth v. Lanoue, 409

Mass. 1, 3-4 (1990). In situations where the

defendant has had new appellate counsel, the

defendant's "first opportunity" to raise the issue of

trial counsel's ineffectiveness would be on direct

appeal. See Egardo, 426 Mass. at 49-50 ("[b]ecause

trial and appellate counsel were associates in the

practice of criminal law, the second attorney thus

furnished the defendant his 'first opportunity' to raise

the issue of [6] trial counsel's effectiveness"); see also

Breese v. Commonwealth, 415 Mass. 249, 250 n. 1

(1993).

    In this case, the defendant's first opportunity to

raise an ineffective assistance of trial counsel was on

direct appeal since the defendant had different

representation at that time. Therefore, the

defendant's ineffective assistance of trial counsel

claim is waived. However, the defendant also claims

that his appellate counsel was ineffective because he

 

-28a-

 

failed to argue on appeal that his trial counsel

rendered ineffective assistance. This is the

defendant's first opportunity to raise an ineffective

assistance of appellate counsel. Therefore, the

question of whether the defendant's appellate counsel

was ineffective necessarily depends on whether he

actually received ineffective assistance at his trial.

See Breese, 415 Mass. at 252; Commonwealth v. Van

Zant, 1999 WL 823745 n.6 (Super. Ct. 1999) (Neel,

J.). Consequently, this Court has reviewed the trial

transcript to determine whether the defendant

received ineffective assistance of counsel at trial

which, in turn, would also answer whether or not the

defendant's appellate counsel was ineffective by

failing to bring an ineffective assistance of trial

counsel claim on direct appeal.

    The defendant bears a heavy burden in

establishing ineffective assistance of counsel such

that a new trial is required. See Commonwealth v.

Brookins, 33 Mass. App. Ct. 626, 631 (1992), rev'd on

other grounds, 416 Mass. 97 (1993). In order to

support a claim of ineffective assistance of counsel,

the defendant must show serious incompetency,

inefficiency, or inattention of counsel falling

"measurably below that which might be expected from

an ordinary fallible lawyer" and that such

inadequacies "likely deprived [the defendant] of an

otherwise available, substantial ground of defense."

Commonwealth v. Clark, 44 Mass. App. Ct. 502, 512

(1998), quoting Commonwealth v. Saferian, 366 Mass.

89, 96 (1974). To succeed on a claim of [7] ineffective

assistance of counsel, the defendant must show that

better work by trial counsel might have accomplished

something material for the defense. See

Commonwealth v. Satterfield, 373 Mass. 109, 115

(1977). Counsel's tactical judgments must be

"manifestly unreasonable" to constitute ineffective

assistance. See Commonwealth v. White, 409 Mass.

266, 273 (1991). "Judicial scrutiny of counsel's

performance must be highly deferential, 'indulg[ing] a

 

29a

 

strong presumption that counsel's conduct falls

within the wide range of reasonable professional

assistance." Commonwealth v. Florentino, 396 Mass.

689, 690 (1986) (citation omitted).

    At bar, there is no evidence that trial counsel's

performance was ineffective nor that it deprived the

defendant of an otherwise available substantial

ground of defense. The trial counsel's performance

fell well within the realm of what may be expected

from an ordinary fallible attorney. In his 115-page

memorandum of fact and law in support of his motion

for new trial, Elbery claims multiple instances of

ineffective assistance of counsel on the part of his

attorney at trial, Louis P. Aloise. The defendant

makes a series of allegations which either are not

grounded in the record or do not amount to ineffective

assistance of counsel. Generally, Elbery claims that

Aloise conspired with the prosecution to withhold the

truth about the evidence upon which he was

convicted. However, there is no evidence of any

conspiracy. Most of Elbery's contentions arise from

strategic decisions on the part of his trial counsel that

did not impact the strong case the Commonwealth

had against him. Commonwealth v. Rondeau, 378

Mass. 408, 413 (1979) (strategic trial decisions do not

constitute ineffective assistance of counsel unless

they are "manifestly unreasonable"). See also

Commonwealth v. Finstein, 426 Mass. 200, 203

(1997); Commonwealth v. Roberts, 423 Mass. 17, 20

(1996). The following issues are being raised solely

for the purpose of determining whether a new trial is

warranted based upon [8] ineffective assistance of

trial counsel.

A. Failure to Introduce Evidence

    There is no evidence that Aloise conspired to

withhold pertinent information from the jury. Elbery

alleges that Aloise conspired with the prosecution to

withhold from the jury the true cause of King's eye

 

-30a-

 

injuries. There is no evidence that this occurred.

Aloise described King's eye injury in a manner

advantageous to Elbery by noting that the injury was

a "superficial abrasion" (Tr. Vol. V/ 122513) and that if

the facts occurred as King described them, "Mr. King

would not have his eye in the head today." Tr. Vol.

V/ 1224. Elbery also alleges that his trial counsel

failed to highlight to the jury the fact that there was

no police investigation, and that he was attacked by a

"gang of six." Contrary to this contention, in his

opening statement, Aloise questioned whether an

adequate investigation had been conducted because it

essentially consisted of a dispatch. Tr. Vol. 1/127. In

addition, in his closing statement, Aloise stated that

Elbery was being chased by six or seven individuals.

Tr. Vol. V/1218.

    Elbery also claims that Aloise was ineffective

because he failed to call certain witnesses which

would have assisted his case. However, there is no

merit to this contention. There is no evidence that

calling Dr. Stephen Sawyer as a witness would have

provided Elbery with a substantial ground of defense

because he would not lie on the stand and thus upset

the alleged conspiracy between Aloise and the

prosecution. There is also no evidence that calling

Alice Arsenault (a friend of Mann), Don Wynne, or

Assistant District Attorney Michael Salloum as

witnesses would have provided a material defense for

Elbery. See Commonwealth v. Epsom, 422 Mass.

1002, 1003 (1996) (at hearing on motion for new trial

based on ineffective assistance of counsel where

lawyer failed to call witness providing evidence of self-

defense, court required [9] defendant to show: (1)

witness was available at time of trial; (2) the testimony

would have been sufficient to raise the issue of self-

defense; and (3) that testimony would likely have

made a material difference in the trial).

13 citations to the Trial Transcript references are indicated as

"Tr. vol," followed by the volume and page number.

 

-31a-

 

    Elbery alleges that King testified at the probable

cause hearing at the Worcester District Court on

January 20, 1993, that there was no assault with a

beer bottle and that Aloise failed to introduce this

evidence to the jury. However, King did in fact testify

during the proceedings that there was an assault with

a beer bottle. In response to Assistant District

Attorney Todd Mathieson's direct examination of King,

King stated that "Mr. Elbery was holding the neck of

the bottle in a threatening gesture, yelling."14

Moreover, Aloise did raise doubt during the trial as to

whether there was a breaking of a beer bottle at all

("Mr. Taraskiewicz didn't see the bottle break. Nobody

saw the bottle break" (Tr. Vol. V/ 1217); "Mr. Schlener

said that he didn't see the bottle break, he heard it...

he said he lied to the police in that he was assaulted

with that beer bottle" (Tr. Vol. V/12 19)).

    Elbery claims that Aloise was also ineffective

because he failed to admit Elbery's medical records

regarding his injuries and evidence regarding the

clothing he wore during the incident. However, Aloise

did admit Elbery's medical records from Hahnemann

Hospital as Exhibit 23. Tr. Vol. V/1196. Further,

Aloise introduced photographs B, C, D, and E for

identification which pictured Elbery's alleged injuries

on the event in question. Tr. Vol. IV/812-816. Elbery

also claims Aloise was ineffective because there was

an illegal citizen's arrest by King which Aloise failed to

make clear to the jury. However, there was not an

illegal citizen's arrest. Aloise did, in his cross-

examination of King, elucidate the fact that King was

off-duty and acting in the capacity of a private citizen

that night.15 For these reasons, it was also [10]

unnecessary for Aloise to file a motion to suppress

14 Worcester District Court Proceedings, January 20, 1993,

page 9.

15 Worcester District Court Proceedings, January 20, 1993,

page 39.

 

-32a-

evidence from the alleged illegal citizen's arrest of

Elbery.

    Elbery claims that Aloise failed to subpoena Mann's

medical records which Elbery believes would show the

true nature of her injuries. However, the extent of

Mann's injuries were not at issue in this case since

Elbery's convictions related to the injuries inflicted on

King. Elbery alleges that Aloise also failed to

subpoena evidence from the Westborough Police

Department regarding King's demotion and drinking

on duty which he believes created a motive for King to

lie. There is no evidence that this created a motive to

lie nor that it deprived Elbery of a substantial ground

of defense. Compare Commonwealth v. Juzba, 46

Mass. App. Ct. 319, 322-323 (1999) (although

counsel's failure to obtain police chemist's report

and/or police chemist's testimony regarding the

absence of sperm or seminal fluid in a rape case did

fall below what was expected from an ordinary fallible

lawyer, it did not deprive the defendant of a

substantial, available defense where it corroborated

the defendant's testimony).

B. Failure to Object

    Elbery alleges that Aloise failed to object to certain

evidence which was prejudicial. However, there is no

evidence that Aloise's alleged failures to object

deprived Elbery of a material ground of defense.

Elbery contends that Aloise failed to object to the

admission of King's medical report which he asserts

was inadmissible due to its references to liability as

well as illegible and hyper-technical content. See G.L.

c. 233, 79. However, there is no evidence that the

medical report suffered from this condition. Any

references to liability in the medical report do not

necessitate retrial because they do not add anything

to the testimonies at trial. See Commonwealth v.

Brattman, 10 Mass. App. Ct. 579, 586 (1980).

 

-33a-

    Elbery claims that Aloise failed to object to

Assistant District Attorney Ball expressing [11] his

own opinion and misstating facts and testimony in his

opening and closing arguments. There is no evidence

that Assistant District Attorney Ball's opening and

closing arguments contained such errors. The

prosecutor may comment on evidence developed at

trial and draw inferences from such evidence. See

Commonwealth v. Bradshaw, 385 Mass. 244, 275

(1982); Commonwealth v. Chavis, 415 Mass. 703, 713

(1993). The prosecutor may also make a fair response

to an attack on the credibility of a government

witness. Chavis, 415 Mass. at 713, citing

Commonwealth v. Simmons, 20 Mass. App. Ct. 366,

371 (1985); see Commonwealth v. Smith, 404 Mass.

1, 7 (1989). The judge also provided curative

instructions in stating that "[t]he opening statements

and the closing statements that we just heard from

counsel are not a substitute for evidence. They are

only intended to assist you in understanding the

evidence and the contentions of the parties." Tr. Vol.

V/ 1257-58.

    Elbery also states that Aloise failed to object to

various inappropriate instructions or to the fact that

certain instructions were absent. Again, there is no

evidence that the instructions were improper or

deficient. Among other things, the trial judge

instructed the jurors on their role as fact-finders and

the importance of focusing solely on the evidence, the

difference between direct and circumstantial evidence,

inferences, the Commonwealth's burden of proof

beyond a reasonable doubt, consciousness of guilt,

disorderly conduct, assault and battery, assault with

intent to maim, intoxication, and self-defense. (Tr.

Vol. V/ 1251-1294). There was nothing improper

about the instructions to the jury. See

Commonwealth v. Melton, 47 Mass. App. Ct. 904, 905

(1999) (counsel's failure to request a more forceful

curative instruction concerning opinion testimony did

not amount to error). Since there was no reason to

 

-34a-

 

object, Aloise's failure to object was justified.

Compare Commonwealth v. Nunes, 430 Mass. 1, 7

(1999) (failure to object to three infractions by the

Commonwealth on cross of defendant, although

improper, [12] would not have affected jury verdict

and, therefore, there was no ineffective assistance of

counsel).

C. Conflicts of Interest

    Although Elbery alleges that there are various

conflicts of interest which deprived him of a fair trial,

there is no substantiation on the record for his

allegations. For instance, he alleges that Aloise's

secretary is "best friends" with bartender Schlener 's

wife and that Aloise was ineffective because he failed

to stop Aloise 's secretary from passing along

confidential information to her friend's husband,

Schlener. However, there is no evidence on the record

that any such conflict of interest existed nor that any

such acts occurred. Elbery also alleges that because

Aloise asked Elbery to take a lie detector test it shows

that Aloise had a conflict of interest because he was

repeatedly reinforcing the prosecution's arguments.

Again, there is no such evidence. Aloise represented

Elbery effectively and countered the prosecution's

version of the facts in terms of describing the events

as a mere "barroom fight" (Tr. Vol. V/ 1229),

downplaying King's injuries as a "superficial abrasion"

(Tr. Vol. V/ 1225), and arguing that Elbery was acting

in self-defense (Tr. Vol. V/ 1221-22). There is also no

conflict of interest merely because the prosecuting

Assistant District Attorney Ball may have been a

former police officer.

D. Misleading Use of Terms

Elbery contends that Aloise used certain incorrect

terms and failed to object to certain terms that

allegedly confused the jury. Elbery claims that Aloise

 

-35a-

 

adopted the prosecution's facts and theory of the case

by using terms such as "right, "am I right," and other

expressions during cross-examination of the

Commonwealth's witnesses which misrepresented

Elbery and made the jury put Elbery in a bad light.

These allegations are not valid since phrases such as

"right" and [13] "am I rights," especially with leading

questions during cross-examination, are typical trial

practice techniques.

    Elbery also claims that the judge's use of the

phrase "moral certainty" in his jury instructions

obscured for the jurors the defendant's standard for

proving his case beyond a reasonable doubt.

However, case law has determined that use of the

phrase does not render the instructions improper. In

Victor v. Nebraska, 511 U.S. 1, 14 (1994), cert.

denied, Calderon v. Sandoval, 122 S.Ct. 322 (2001),

the Supreme Court decided that although "'moral

certainty,' standing alone, might not be recognized by

modern jurors as a synonym for 'proof beyond a

reasonable doubt'.. .it does not necessarily follow that

the...instruction is unconstitutional." Id. The Supreme Court reasoned that the "moral certainty language [could] not be sequestered from its surroundings." Id.

at 16. Thus, Aloise was not ineffective for failing to

object to the judge's use of the term "moral certainty."

He was also not ineffective for failing to object to the

judge's use of the phrases "whether or not" and "basic

fact" in the jury instructions, because those terms are

also proper.

E. Miscellaneous

    Elbery also alleges various other instances of

ineffective assistance of counsel which are

unfounded. For instance, Elbery claims that Aloise

failed to impeach witnesses with perjurious prior

inconsistent statements and aided the prosecution

with false testimony. However, Aloise did point to

discrepancies in the testimonies of the

 

-36a-

 

Commonwealth's witnesses and repeatedly called the

Commonwealth's rendition of the facts of the case

"patently absurd." (Tr. Vol. V/ 122 1-24). [14]

    In addition, Elbery alleges that Aloise failed to

argue double jeopardy with Elbery's convictions of

assault and battery and assault with intent to maim.

Elbery believes that assault and assault and battery

are the lesser included offenses of assault with intent

to maim. There is no double jeopardy with regard to

Elbery's convictions. Double jeopardy refers to the

Fifth Amendment prohibition against a "being

prosecuted twice for substantially the same offense.

Black's Law Dictionary 506 (7th ed. 1999); see Breed

v. Jones, 421 U.S. 519. In the instant case, Elbery

was convicted of three distinct charges with distinct

elements: assault and battery (G.L. c. 265, 13A)16,

assault with intent to maim (G.L. c. 265, 15)17, and

being a disorderly person (G.L. c. 272, 53) 18.

 

16 G.L. c. 265, 13A states:

Whoever commits an assault or an assault and battery

upon another shall be punished by imprisonment for not

more than two and one half years in a house of correction

or by a fine of not more than five hundred dollars.

17 G.L. c. 265, 15 states:

Whoever assaults another with intent to commit murder, or

to maim or disfigure his person in any way described in the

preceding section, shall be punished by imprisonment in

the state prison for not more than ten years or by a fine of

not more than one thousand dollars and imprisonment in

jail for not more than two and one half years.

18 G.L. c. 272, 53 states:

Common night walkers, common street walkers, both male

and female, common railers and brawlers, persons who with

offensive and disorderly acts or language accost or annoy

persons of the opposite sex, lewd, wanton and lascivious

persons in speech or behavior, idle and disorderly persons,

disturbers of the peace, keepers of noisy and disorderly

 

-37a-

 

Contrary to Elbery's allegations, assault and assault

and battery are not the lesser included offenses of

assault with intent to maim. Elbery also claims that

he was sentenced [15] to one year for being a

disorderly person when the maximum sentence is

only six months. However, Elbery was sentenced to

serve one year for the assault with intent to maim

charge and one year probation for the assault and

battery and disorderly conduct convictions which

were to run concurrently. His probation was to begin

after his release from jail. Thus, Elbery was not

sentenced for longer than his convictions mandated.

    Also, contrary to Elbery's contentions, there is no

evidence that Aloise sponsored Assistant District

Attorney Ball to lie about the bottle assault, nor that

Perma (a fellow cop), De Pasquale (an acquaintance of

King) or Mann lied on the stand as witnesses. There

is also no evidence that the pictures admitted at trial

were falsified or duplicative. Nor did Aloise have the

responsibility, nor the capacity, to file criminal

charges against King for the injuries he allegedly

caused Elbery. There is also no evidence that Aloise

abandoned his client.

    For the aforementioned reasons, the defendant has

failed to show that trial counsel's representation was

seriously deficient and that he was deprived of an

otherwise available material ground of defense. Since

there was competent representation by the trial

attorney, appellate counsel was not ineffective for

failing to argue on appeal that the defendant's trial

counsel rendered ineffective assistance. See Breese,

415 Mass. at 252.

 

houses, and persons guilty of indecent exposure may be

punished by imprisonment in jail or house of correction for

not more than six months, or by a fine of not more than two

hundred dollars, or by both such fine and imprisonment.

 

-38a-

 

 

IV. Evidentiary Hearing Not Warranted

    In addition to his request for a new trial, the

defendant requests an evidentiary hearing and further

discovery. A judge has broad discretion to deny a

motion for new trial upon review of the motion and

affidavits without conducting an evidentiary hearing.

Commonwealth v. Rice, 427 Mass. 203, 207 (1998);

see also Commonwealth v. Lopez, 426 Mass. 657, 663

(1998). [16] "[T]he judge may decide a rule 30(b)

motion based solely on affidavits; may discredit

untrustworthy affidavits; and need only proceed to

evidentiary hearing 'where a substantial issue is

raised [by the motion or affidavitsl and is supported

by a substantial evidentiary showing."' Lopez, 426

Mass. at 663, citing Commonwealth v. Stewart, 383

Mass. 253, 260 (1981); Mass. R. Crim. P. 30(c)(3)

("[the judge may rule on the issue or issues presented

by such motion on the basis of the facts alleged in the

affidavits without further hearing if no substantial

issue is raised by the motion or affidavits"). The court

need only hold an evidentiary hearing if a substantial

issue is raised by the motion and affidavits and is

supported by a substantial evidentiary showing. Id.

In determining whether the defendant has raised a

'substantial issue' meriting an evidentiary hearing

under Rule 30, the court looks at the seriousness of

the issue asserted and to the adequacy of the

defendant's showing on the issue raised.

Commonwealth v. DeVincent, 421 Mass. 64, 67

(1995). Further, the defendant must show that an

evidentiary hearing is necessary to provide the judge

with additional information not already contained in

affidavits. See id. at 68. Here, the defendant has not

demonstrated that substantial issue exists which

would require additional information not already

contained in the defendant's submission or the

record. Consequently, the defendant's request for an

evidentiary hearing is denied. [17]

 

-39a-

 

ORDER

For the foregoing reasons, it is hereby ORDERED

that the Defendant's Motion for a New Trial and

Request for an Evidentiary Hearing are DENIED.

 

/s/

Timothy S. Hillman

Justice of the Superior Court

 

DATED: December 21, 2001

 

FILED

DEC 26 2001

ATTEST: /s/ CLERK [18]

 

 

-40a-

 

APPENDIX F

[264]... THE COURT: Okay. All right. I find no

[265] probable cause for the assault with intent to

maim, that's for sure. I find probable cause on a

disorderly person. Assault and battery with a

dangerous weapon, a beer bottle, I find no probable

cause.

Assault and battery is a troubling issue, and

troubling in the following manner: I believe that in

fact Mr. King went to stop a person who he had no

right to stop.

The disorderly person I find not outside but inside,

because when the officer came along and four or five

people were standing there, I don't see how he can be

disorderly.

The assault and battery on Thomas King, I suggest

that Thomas King raced after him to stop him from

going, and he had no right to stop him, so I find no

probable cause on that.

Probable cause on disorderly person only.

I tried to explain earlier that I - I'm concerned there

was no assault with the beer bottle. It was reckless

misconduct when he hit the bottle on the post. If a

death ensued, that would be involuntarily

manslaughter. However, it's [266] malicious

destruction of property. It's not a felony, and the

police officer was a police officer in Westboro, not

Worcester. Everyone knew who he was, and they

could have called the police after.

Okay. That's it.

(Whereupon, at 4:30 p.m., the

hearing was concluded.)

 

-41a-

APPENDIX G

Argument I-None of the defendant's motion claims are waived because they are either "Brady Violations", or factual issues not appearing on the trial record, or claims that should have been raised by the defendant's appellate counsel, or claims of miscarriage of justice.

    The court per memo has found that all the defendant's motion claims are waived for review under Rule 30b, except for the trial attorney's ineffective assistance claims not raised by appellate counsel, see p. 7 of memo. The defendant agrees that claims of ineffective assistance of trial counsel that could have been raised by the defendant's appellate counsel are a "waiver exception" and properly included in a motion for new trial. Com. v. Miranda, 490 NE2 1195, 1200, 22 Mass. App. 10, 17-18 ('86), Com. v. Sowell, 609 NE2 492, 494 ('93), 34 Mass. App. Ct. 229, 231.

    Contrary to the court's memo p. 7, (court claims

the defendant raised his claim of ineffective assistance

of appellate counsel only to the extent of failure to

raise on direct appeal ineffective assistance of trial

defense counsel), the defendant raises a claim of

ineffective assistance of appellate counsel, claim

XVII-RA 114, to the extent that motion claims should

have been raised on direct appeal. There is a

constitutional right to effective assistance of appellate

counsel. Evitts v. Lucey, 469 U.S. 387,396-97 105

S.Ct. 830, 837 ('85), Gray v. Greer, 800 F2 644, 646

(7th Cir. '85). Constitutional law does not limit the

right to appellate counsel to only claims of ineffective

assistance of trial counsel. Evitts id.

    None of the defendant's motion claims are waived

for review, via Rule 30b, because all the defendant's

motion claims fit into one of 4 categories that, per

Mass. law, can only be raised in the first instance on

a motion for new trial, or are a recognized "issue

waiver exception". Rule 30b is properly used for more

 

-42a-

 

than "newly discovered evidence" and "issue waiver

exceptions", as a matter of law.

1. The first category of claims raised by the

defendant are the numerous "Brady" violations that

must only be raised in the first instance via a motion

for new trial under 30b. All the "Brady" violations in

the defendant's motion are of the first category

mentioned in United States v. Agurs, 427 U.S. 97,103

96 S.Ct. 2392, 2397 ('76), "knowing use by the

prosecution of perjured/false evidence". Com. v.

Tucceri, 412 Mass. 401, 405, 589 NE2 1216, 1219

('92)-ftnt. 3. These type of claims, obviously, raise

factual evidence not of the trial record. The appellate

counsel is only able to raise issues on direct appeal

that appear on the trial record. White v. White, 662

NE2 230, 232, 40 Mass. App. Ct. 132, 133 ('96) &

MRAP-Rule 8 (record of lower court is record for

appeal).

Per Tucceri 412 Mass. 408-409, "there is

no reason why a non-disclosure issue

could not be advanced by a motion for

new trial to which the regular principles

of MRCP 30b, 378 Mass. 900 ('79) apply.

Even if an undisclosed evidence is not

"newly discovered", the failure of a

prosecutor to furnish exculpatory

evidence in his possession is a proper

basis for a new trial motion based on

common law or constitutional grounds".

2. The defendant also raised other motion claims

that, like "Brady" claims, are based on factual issues

not appearing on the trial record. This category that

can only be raised on a motion for new trial, under

Rule 30b, includes ineffective assistance of trial

counsel claims based on facts not appearing on the

trial record.

-43a-

Per the Mass. SJC in Gibney v. Comm.,

375 Mass. 146, 148 375 NE2 714 ('78),

"constitutional arguments raised by the

petitioner that are based on factual

questions are best left for resolution in

the first instance by a trial judge on a

motion for new trial".

"Moving for a new trial is the customary

practice in situations involving

ineffective assistance of counsel". Com.

v. Frisino, 488 NE2 51, 55, 21 Mass.

App. Ct. 551, 556 ('86). "A claim of

ineffective assistance of counsel may be

resolved on direct appeal of the

defendant's conviction when the factual

basis of the claim appears undisputedly

on the trial record. But when the trial

record provides an insufficient factual

basis for appellate review, the claim of

ineffective assistance of trial counsel is

best left for resolution in the first

instance by the trial judge on a motion

for new trial." Com. v. Adamides, 37

Mass. App. Ct. 339, 344 639 NE2 1092,

1076 ('94), Com. v. Cross, 4 Mass. App.

Ct. 54,57, 340 NE2 923 ('76).

3. The third category of claims in the defendant's

motion that avoid waiver, via presentation in a motion

for new trial, are issues that should have been raised

by the appellate attorney on direct appeal or

ineffectiveness of appellate counsel. As above, the

court agrees, per p. 7 of memo, on this point.

    A recognized exception to the issue waiver rule is

when both the trial and direct appeal counsel are

-44a-

 

ineffective. Miranda1, 22 Mass. App. Ct. at 17, Sowell2

34 Mass. App. Ct. at 231. A claim of ineffectiveness of

appellate counsel must be raised in the first motion

for new trial. Com. v. LeFave, 430 Mass. 169, 172

('99), 714 NE2 805, 808 (recognizing right to raise

ineffective assistance of appellate counsel on first

motion for new trial). See above for constitutional law

to right to appellate attorney.

4. Another recognized exception to the waiver rule

is a claim of "miscarriage of justice" under the

"Freeman standard". Miranda, 22 Mass. App. Ct. at

16. The federal standard of ineffective assistance of

counsel and "miscarriage of justice" are the same.

Com. v. Curtis, 417 Mass. 619, 625, 632 NE2 821,

826 ftnt. 4 ('94). The claims raised in the defendant's

motion, whether individually or collectively, rise to a

level of a miscarriage of justice. RA 115, motion

conclusion.

    As a result of the above, the court's memo, p.5 (II

Waiver of Claims), concluding the defendant's motion

claims are waived is an error of law. Particularly

disturbing is the court's reliance on Rule 30c2 which

pertains only to second and successive new trial

motion filings; this is undisputedly the defendant's

first motion for new trial.

1 the Mass. SJC in Miranda recognized an exception to the "waiver

rule" where the trial defense attorney fails to object at trial and the

appellate attorney fails to raise the issue on direct appeal amounts

to ineffective assistance of counsel.

2 Sowell also recognizes that failure of the appellate counsel to

argue errors of the trial counsel is an exception to the "waiver

rule". Per footnote #4 of Sowell there should be a showing that

these errors create a substantial risk of a miscarriage of justice.

 

45a

 

 

 

Argument IV - The prosecution Knowingly allowed

their witness-in-chief, Tom King, to falsely testify that

the defendant used a broken beer bottle to assault the

entire bar and the defense attorneys knowingly

allowed it. Count VI of motion - RA 46-58.

The trial was further infected with constitutional

"Brady" violations because the prosecution knowingly

allowed witness-in-chief, King, to testify falsely that,

TR 192 (11-23), TR 194-21, TR 195-3,

Elbery held off the entire bar for 30

seconds with a broken jagged beer

bottle not only making jabbing

threatening gestures at Schlener but

the rest of us patrons in the bar. See

RA 52 & RA 151 (Ex. L-ftnt.4-botfle

assault).

    This evidence was used to support the

prosecution's "assault by a dangerous weapon charge"

(beer bottle). Also, the prosecution used this false

evidence at trial to justify King's fabricated citizen's

arrest before the assault dangerous weapon charge

was directed not guilty. See RA 160 (Ex. M-docket

entry 5.0) & RA 41.

    The bartender, Schlener, first fabricated to the

responding WPD officer-Perma that the defendant

used a broken bottle in a "threatening menacing

gesture" at him and the other patrons in the bar. See

RA 129 (Ex.D-WPD incident report) & RA 49-50.

Schlener, the bartender, who originally fabricated the

beer bottle assault story to justify his friends beating

the defendant in the street, admitted under oath at

the probable cause hearing that the defendant did not

assault anybody with a beer bottle.

    PC 112-3, It was a random breaking of

    the bottle, it was pointed at nobody.

 

-46a-

    PC 112-(9-14) Elbery went right out the

    door after he looked at everybody.(see RA

    47-50).

    King, reluctantly, testified at the probable cause

hearing that the defendant never assaulted anyone

with a broken beer bottle. That the defendant threw

the bottle down immediately and left the bar after the

bottle broke,

PC 21-16 Q. Sir, were you placed in fear

by the beer bottle that Mr. Elbery had in

his hand?

A. (King) The distance between us, NO. He

had thrown it down.

PC 53-11 Q. Now after Mr. Elbery either

broke the bottle on the side of the bar or

on the pole he stood up from his seat,

his stool and left via the front door?

A. (King) yes, sir.

PC 54-1 Q. Well he already was up

from his seat after smashing the

bottle and he immediately went out

the door didn't he?

A. (King) Yes. (See RA 48-49).

    As above, the prosecution was put on alert that the

beer bottle assault was a fabrication; it never

happened.

    The original prosecutor, Salloum, who was

scheduled to handle the probable cause hearing,

knew the truth. He documented, per RA 133 (Ex. E of

the motion), that the beer bottle assault charge was

being dropped and no longer considered. See RA 47

& 48.

    That didn't stop the Worcester D.A.'s Office from

impairing the grand jury by allowing and sponsoring

King to testify to a brand new fabricated story. RA 50

 

-47a-

 

GJ 6-4 Elbery made jabbing motions at

Jeff and then me and the other patrons

with the broken beer bottle.

    And as above, the prosecution/Worcester D.A.'s

Office further encouraged and sponsored King to lie to

the trial jury about the defendant and the fabricated

charge of assault with the broken beer bottle. See TR

192-(11-23), TR 194-21, TR 195-(3-ll). The jury was

left, due to King's perjury, with an image of the

defendant as a mad man who would try to stab a

group of people he had no controversy with. RA 53 &

57.

    This fabricated bottle assault evidence is another

count of "knowing use of perjury by the prosecution",

requiring a new trial. Tucceri 412 Mass 405; U.S. v.

Agurs, 427 U.S. 103. See RA 53.

Prosecutor Used False Bottle Assault to Bolster Case

    The prosecutor compounded the effect on the jury

of this bottle assault perjury by using it as the

justification, felony committed, for King's alleged

"citizen's arrest" of the defendant. (See RA 41 -

motion claim V). The prosecutor also lead (used

leading questions) his own witnesses and DePasquale

at trial, soliciting them to testify that the defendant

used a jagged broken bottle to assault all the patrons

in the bar. (See RA 150-157, Ex.L *items of motion).

The prosecutor used this false/perjured evidence in

his opening statement,

TR. 111-20 (Ball) They saw the

defendant standing there with this

broken beer bottle and he is waiving this

broken beer bottle now, he is waving this

beer bottle at all the people in the bar.

TR 115-17 (Ball) He did swing the

broken beer bottle, not only at the girl,

 

-48a-

    King is named as a victim where it was

    swung at him.

    Where the prosecutor compounds falsifications

at trial, as above, by blatantly misrepresenting

evidence to the jury, the Mass. SJC held a new trial is

required. Collins, 386 Mass. at 14. This is also a

violation of the Due Process Clause of the Fourteenth

Amendment, and causes a trial that was unfair.

Berger v. United States, 295 U.S. 78, 84-89 ('35),

Giglio 405 U.S. 153,RA 111 &53.

Ineffective Assistance of Counsel RA 52-58

 

    Trial defense attorney, Aloise, also represented the

defendant at the probable cause hearing. See PC

transcript. As above, Aloise knew from the probable

cause testimonies of King and Schlener, and

communications with ADA Salloum prior to the

probable cause hearing, that the defendant did not

assault anyone with a broken beer bottle. RA 47-48 &

53-58.

    As per RA 54, defense attorney Aloise, refused to

present to the jury the above testimonies that

proved the bottle assault charge (Assault dangerous

weapon) was a knowing fraud by the prosecution.

These testimonies at the probable cause hearing

would have been used as substantive evidence, not

just for credibility. Forte, 33 Mass. App. Ct. at 185.

    Additionally, Aloise refused to have that assault-

dangerous weapon indictment dismissed. The

defendant demanded Aloise motion to dismiss the

charge because, as above, the prosecution witnesses

already admitted the bottle assault never happened.

See RA 51 and motion claim VIII, RA 65-70.

    Instead, Aloise allowed, unchallenged, the

prosecution's alleged victim and witness-in-chief to

testify,

 

-49a-

TR 192 (11-23), TR 194-21, TR 195-3,

Elbery held off the entire bar for 30

seconds with a broken jagged beer bottle

not only making jabbing threatening

gestures at Schlener and me but at all

the other patrons in the bar. See RA 52

& RA 151 (Ex. L-p.2.).

    Further, Aloise allowed the prosecution to use this

fabricated bottle assault as the alleged felony

justifying King's "citizen's arrest", and to make the

defendant look like the initiator and aggressor during

the incident; this helping the prosecution trick the

jury. This deficiency made the defendant falsely look

like a violent out-of-control maniac causing the jury

to more easily believe he attempted to dig King's

eye out of his head. TR 936-21. RA 57-58.

    Regardless that the bottle assault-dangerous

weapon charge was directed not guilty by the trial

judge, the jury was left with King's false testimony

that the defendant was a raging maniac with a

broken beer bottle assaulting everyone in the bar.

The alleged curative instruction by the trial judge,

TR 1274-5 don't draw any inferences

from the fact the indictment is no longer

in front of you.

had no curative effect on that highly prejudicial

evidence. Even the Mass. Appeals Court was

convinced, per their decision on the direct appeal of

this case, that the defendant used a bottle to menace

the other people in the bar for half a minute. Com. v.

Elbery, 38 Mass. App. Ct. 912, 645 NE2 41, 42 ('95).

RA 58.

    Aloise by knowingly allowing this false evidence of a

bottle assault changed the entire evidentiary picture

of the trial and caused a breakdown of the adversarial

process at trial making him ineffective in his

assistance of counsel. Strickland 466 U.S. 696. The

 

-50a-

 

defendant's appellate attorney, Bobby Scheketoff,

failed to raise this claim on direct appeal making him

ineffective, again. id.

Argument VI- The prosecutor knowingly allowed trial

witnesses to change their prior probable cause

hearing testimony, perjury, and the defense counsels

allowed it. Count X of motion - RA 73-89.

    In addition to the conflict and discrepancies

between trial and probable cause hearing testimonies,

(which is perjury), allowed by the prosecution

surrounding the bottle assault charge and Mann's

injuries, (see motion claims IV, VI-RA 30 & RA 46),

there were many more prior inconsistent statements

not brought to the attention of the jury resulting from

probable cause hearing testimonies of various trial

witnesses. All the changes in probable cause hearing

testimonies given at trial were to the prejudice of the

defendant, or falsely inculpatory.

    Note, DePasquale and Perma (arresting officer)

were, allegedly, defense witnesses, but DePasquale

testified during the prosecution's case, and like

Officer Perma, was a friend of King's.TR-242- 18. This

had the effect of the prosecutor cross-examining his

own witnesses; at a minimum DePaspuale and Perma

were hostile witnesses.

    These changes in trial witnesses probable cause

testimonies (perjury) are highlighted and summarized

as follows: (see RA 74-89)

    1. Schlener, the bartender, at the probable cause

hearing, admitted he was at fault for insulting and

starting the exchange of "negative statements"

between the defendant and he. Schlener apologized

on the witness stand in open court to the defendant.

See RA 74-75. At trial he said the opposite, RA 75-76.

    2. At the probable cause hearing, Schlener and

DePasquale both said King came around the

horseshoe bar after the defendant, who remained

seated while King was restrained by many people in

 

-51a-

 

the bar. They both testified King stuck his nose in the

conversation ("barbs") between the defendant and

Schlener that was none of King's business. They both

testified that they told King to mind his own business

and go back to his seat. They both testified that the

defendant was minding his own business and not

bothering with any other customers in the bar. See

RA 74-75 & RA 83-84.

    However, at trial they said just the opposite,

testifying the defendant was the initiator and

aggressor, a "steaming big madman" that was also

first arguing with other patrons in the bar. See RA 75-

76 & RA 84.

    3. Prosecution witness, Schlener, and DePasquale

admitted under oath at the probable cause hearing

that most of the bar emptied out after the

defendant, who immediately left the bar after the

bottle broke, (minimum of 5 men). PC 113, PC 114-19

through PC 118, PC 199-(6-9), PC 234-23. See also

RA 67-item 5.

    Yet, at trial the prosecution's witnesses tried to

convince the jury that King acted alone pursuing the

defendant to make his "arrest". TR 371-19, TR 402-

5,6, TR 199-1.

    4. All witnesses testified, including King, at the

probable cause hearing they had no idea how the

bottle broke. See RA 67-item 4.

However, at trial several prosecution witnesses,

including King and Schlener, testified the defendant

smashed the bottle. TR 19 1-4, TR 300-23.

    5. Schlener testified at the probable cause hearing

that somebody yelled, "call the police", PC 113-8.

However, at trial Schlener gave King the credit,

testifying, TR 588-14 Tom King yelled, "call the

police". At the probable cause hearing, PC 1 13-(1-24),

Schlener admitted no police were called before King

exited the bar to chase the defendant. RA 67-item 6.

 

-52a-

 

 

Prosecution witness-in-chief, Tom King. alleged victim

    Presented are conflicting changes in testimony by

King not appearing in other claims of the motion. See

RA 84-88.

    6. King at the probable cause hearing testified he

only presumed the police had been called, PC 55-15.

However, at trial King testified, TR 195-18, I yelled

to somebody to call the police. RA 86-item 3.

    7. Street v. sidewalk incident

See RA 86 item 4, where at the probable cause

hearing King truthfully testifies the entire pursuit,

arrest and struggle with the defendant occurred in the

street. All witnesses at the probable cause hearing

testified the incident with King and the defendant

took place only in the street. See RA 67-item 7.

    However, after King was told to change his

testimony because no one would believe the

defendant would come to a sudden stop in the middle

of the street, King testified the entire incident was on

the sidewalk, TR 198-(5-7), TR 380-12. See RA 87-

item 4.

    These changes in testimonies, as per claim X of the

motion, RA 73-89, are all perjury that helped the

prosecution falsely convict the defendant. 70 C.J.S.,

Perjury S. 40 p. 287, ('87). (Contradictory statements

under oath about same point is perjury). The above

conflicting changes in testimony, perjury, distorted

the evidentiary picture of the beginning stages, (bar

argument & confrontation, exit from bar and flight by

the defendant, and chase by King & his gang down

the street 100 yards), of the short alleged criminal

incident, to the defendant's prejudice. The prosecutor

had a duty to correct that perjury and not "knowingly

use the above perjury" to convict the defendant. New

trial required. Giglio, 405 U.S. 153.

-53a-

 

 

 

Ineffective Assistance of Counsel

    Aloise, who also represented the defendant at the

probable cause hearing, failed to alert the jury to this

exculpatory evidence, via trial witnesses' probable

cause hearing testimonies. This was not just

credibility evidence but substantive evidence that

could have been used for its full probative value at

trial. Forte, 33 Mass. App. Ct. 185-186.

    In failing to alert the jury to these changes in

testimony Aloise missed an opportunity to impeach

the credibility of the above prosecution witnesses, and

caused the defendant to look like the initiator and

aggressor at the underlying barroom incident, instead

of, as at the probable cause hearing, the victim.

    These changes in testimonies that Aloise failed to

present to the jury changed the entire evidentiary

picture of the trial to the prejudice of the defendant

making Aloise constitutionally ineffective in his

assistance of Counsel. Strickland. 466 U.S. at 696. As

was Sheketoff who failed to raise this claim on direct

appeal. id.

Reply #1 -Contrary to the Appellee, trial evidence of

"Christiana Mann's Cut Face" was perjury. - RA 30-39

Reply CBr.- Arg. B & CBr. - p. 37

    The Appellee uses the falsified evidence of Mann's

cut face and facial stitching to justify King's illegal

pursuit, false arrest and assault of the defendant

during the underlying incident on 9-29-92 and to

support many of the Appellee's arguments. See CBr. -

Arg. B, p.37.

    The prosecution knowingly presented false

evidence at trial that an 18-year-old girl, Christiana

Mann, incurred facial lacerations from glass of a

broken beer bottle that the prosecution claimed the

defendant broke. Mann testified, initially, at trial that,

-54a-

 

she was standing 3 seats away from the

defendant, TR 166-24, when the bottle

broke and a little bit of glass flew and

cut her, TR 144-6. Mann testified she

went to U. Mass. Hospital and a

physician put stitches above and

below her eye due to cuts from the

flying glass. TR 147-16 thru TR 148-2.

RA 30.

However, Mann slipped during trial examination and

contradicted her prior testimony of injury,

TR 144-13 I thought I saw a little bit of

blood. But another guy came over and

said you know you are fine and

everything.

TR 174-18 I said I was at the hospital. I

don't know if I said U. Mass. I just called

to let you know I was all right and no

glass is in my eye or whatever. See RA

31 (motion p. 31-item 10).

    The defendant's trial counsel failed to pursue,

explore or highlight this evidence he tripped on during

cross-examination. The jury was left believing the

prosecution's "best light fabricated evidence" of

Mann's face being cut by the defendant requiring two

sets of stitches on her face. RA 37-39.

    The original prosecutor on the case, A.D.A. Michael

Salloum, knew the truth. Salloum documents, per

RA 133, that the reason for King pursuing the

defendant was the defendant's alleged disorderly

conduct (a minor misdemeanor if true) in the bar.

Salloum says nothing on this document about a

"girl" being cut/Injured or a bottle assault or even a

"felony", (No felony P.C.-see p.11), being committed by

the defendant prior to King's pursuit of the defendant

-55a-

 

100 yards down the street, in order to justify King's

citizen's arrest.1

 

      As per RA 30 & 31 (p. 30 & 31 of motion), the

prosecutor was put on alert by other evidence that

Mann's cut face was a fabrication as follows:

1. There were no criminal charges

brought against the defendant for

Mann's alleged injury. Com. v. Hawkins,

157 Mass. 551, 553 (1883)(defendant

would be responsible for alleged battery

due to reckless acts).

2. There was no scarring to Mann's face

that should have resulted from glass

cuts requiring stitches. RA 179-Aff#3.

3. The prosecutor never pointed to or

highlighted as inculpatory evidence any

scars on Mann's face, although he was

enthusiastic about fabricating all the

other evidence at trial. The defense

attorney never pointed to any absence of

scarring. See TR all. The trial was only 9

months after the alleged facial cutting

and stitching.

 

1 Evidently, Salloum's investigation yielded the same evidence as the W.P.D., per their incident 

 

report, RA 129-130, regarding the bartender's fabricated claim to the responding police that a "girl" was cut. See RA 129-130. The W.P.D. incident report states, "the Worcester police searched "all area hospitals" and that no girl went to the area hospitals for treatment for a glass cut". It's undisputed that U. Mass. Hospital is about 1 mile from the Winner's circle Bar. The prosecutor has a duty to learn of any favorable evidence known to others acting on the government's case including the police, regardless of good or bad faith. Kyles v. Whitley, 514 U.S. 419, 438 '95. Imputed to the police is evidence they knew or should have known. Com. v. Lam Hue To 461 NE2776, 779 ('84).

56a

 

4. There was no medical/hospital

records produced at trial or discovery to

corroborate Mann's alleged injuries.

(Can't cite a negative-See TR all).

5. After being alerted falsely by the

bartender, Schlener, that "glass from the

bottle struck a girl in the eye - cutting

victim", the W.P.D. document, RA 130,

(p. 2 of incident report - Ex. D of

motion), "we were unable to locate

female victim who left scene prior to

arrival and did not go to area hospitals

for treatment". See RA 68 (motion p. 68

"Perma-Investigating Worcester Police

Officer" - item 1), & PC 154-(4-17) thru

PC 155-1.

6. Responding and investigating W.P.D.

officer - Perma asked Schlener and his

friends at the bar to come forward with

information as to who this girl was and

nobody did, PC 154-(5-16). RA 68-item

#1.

King claimed the prosecution found the

"girl", Mann, January '93, 6 months

before trial TR 246-7.See the PC hearing

transcript, no girl testified.

7. Schlener, the bartender, admitted

under oath at the probable cause

hearing that the girl was not hurt or

injured by glass, PC 114-2 Q. And

during that time is when you determined

that the young lady who was injured

actually did not have glass in her eye?

A.Right.

As per motion RA 33, this fabrication about a girl

being cut in the face was like the fabricated bottle

 

-57a-

 

assault; both were originated by the bartender,

Schlener, to cover for his friends beating the

defendant on the street causing the defendant to be

hospitalized, see RA 169 (Ex. Q - p. 3 of motion

(defendant brought to hospital by police at 2:25 am on

9-29-92)).

    The various prosecution witnesses, and defense

witnesses-DePasquale and Perma (both friends of

King's) were allowed by the prosecution to use this

fabricated Mann injury in the most prejudicial

manner possible at trial, see RA 147-149 (motion Ex.

K). This included King's and Schlener's perjury at

trial,

TR 194-7 (King) Blood coming around

her hand, out her hands, through her

fingers down her face.

TR 588-7 (Schlener) One of the girl's

yelled, "my eye it's cut", she had a cut.

She was bleeding from the eye. (compare

this testimony to Schlener's probable

cause testimony above, PC 1 14-(2-4).

King testified at the P.C. hearing the opposite,

PC 52-1 (Aloise)Q. Isn't it fair to say you

don't know and didn't know at the time,

certainly, how badly the female was

hurt, whether or not it was just a cut on

the face that bled or something

more serious, Correct?

A. (King) Correct.

PC 53-6 Q. Now when Officer Perma's

report indicates that Mr. Elbery struck a

girl in the eye you don't know that to be

true, do you, from your observations?

A. (King) Right.

    There is good reason why there was a void, as

above, of real evidence of Mann's cutting, but only

 

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say-so and finger pointing at trial. The evidence is

Mann's facial cutting and stitching was more

fabrication to cover for and help King get out of

trouble, and the prosecution knew and should have

known it was false.

Prejudice to the defendant

    This facial cutting and stitching to Mann was

falsely used as an excuse, like the fabricated bottle

assault, for King's illegal citizen's arrest of the

defendant. Like the fabricated bottle assault, this false

evidence that the defendant cut a girl in the face

caused the defendant to, once again, be falsely put in

the worst status possible before the jury. Making it all

the more likely they would convict the defendant on

the other false evidence at trial. The prosecutor is

responsible for all evidence at trial that he knew or

should have known to be perjury. U.S. v. Agurs, 427

U.s. 97, 103

    New trial is required due to this knowing use by the

prosecution of perjury. Giglio v. U.S.,405 U.S. 150,

154, Com. v. Tucceri, 412 Mass. 405. See RA 34-36.

A.D.A. Mike Ball Bolsters his case with Mann

Perjury

    The prosecutor then compounded this knowing

false evidence by using it at trial to justify King's

citizen's arrest, tricking the jury. See RA 35 and RA

41-42. Per RA 35, the prosecutor also used this

fabricated "Mann injury" in his opening statement, TR

115-16, TR 111-(8-22)(see also RA 109-p. 109 of

motion-claim XVI), and closing argument, TR 1237 -

21, (see RA 149 - Ex. K of motion). Per the Mass.

S.J.C. this blatant misrepresentation of evidence to

the jury and abuse requires a new trial. Com. v.

Collins, 386 Mass. 1, 13. RA 35. This also violates the

Due Process Clause -14th Amendment - U.S.

 

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Constitution causing a trial that was not fair. Berger

v. U.S. 295 U.S. 78, 84-89 '35.

Ineffective Assistance of Counsel - RA 37-39

    Defense Attorney, Louise P. Aloise, refused to

challenge Mann's claim of facial cutting and stitching.

The above evidence, that Mann was never

injured/stitched, was available to Aloise at trial but

he refused to alert the jury. Instead, Aloise

confirmed/stipulated, in his opening statement, the

prosecution's fabricated evidence of Mann and her

facial cutting, TR 129-3,RA 38. Further, Aloise

refused the defendant's demands that Aloise

subpoena Mann's hospital records, RA 37. This is

another count of ineffective assistance of counsel by

Aloise that causes need for a new trial because there

was no adversarial process at the trial, and that

caused the defendant a 10-year prison sentence.

Strickland v. Washington, 466 U.S. 668, 690 '84.

 

 

 

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APPENDIX H

EXHIBIT J

Footnote 1 - Tom King's Injuries

Tom King's trial testimony

Direct Exam-Ball

TR 20 1-17 He took his thumb and jammed it into my

eye (indicating).

TR 20 1-20 On the outside of my eye he jammed it in

almost behind the eye and kept pushing the thumb in

real hard.

TR 202-12 He... jammed that hand, that thumb back

into my eye on the inside of my eye and kept pushing

the thumb into my eye.

TR 202-24 I put my hand to my eye and I had the

sticky fluid, vitreous fluid from my eye, and blood on

my hand coming out of my eye. I was blinded in the

eye. My other eye was watering. I couldn't see very

good.

TR 203-9 I told somebody they have to get me to the

hospital or I was going to lose my eye.

TR 203-18 They put some type of solution in my eye

to clean it out. But also a solution under my eye to

numb the eye, to freeze the eye, they put patches over

both eyes.

TR 203-24 I got a laceration on the eyeball.

TR 204-1 Is that a cut? Yes.

TR 204-3 As a result of that, were you able to see as

well as you had in the past?

-5 No Sir.

 

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TR 204-6 Are you having any problems seeing?

    -7 Yes, I am having a problem with the eye.

    -8 You are still having difficulty; is that right?

Yes, sir.

TR 204-13 How long did you have that patch?

            -14 I had the patch on a couple of days, three day maybe.

Cross-Exam-Aloise

TR 381-6 This eye totally blind this eye I could not

                see.

TR 385-12 No. It was lacerated.

            -13 lacerated? Yes, sir.

TR 425-8 I don't know exactly how long the finger was

                in there, sir.

TR 426-9 I didn't see anything because I was blind.

TR 431-8 (Aloise) Obviously whatever hand or finger

went into your eye.

            -10 (King) The thumb.

TR 431-22 I was trying to get his thumb out of my

eye. He kept pushing it harder and harder and

harder.

TR 432-5 Thumbnail.

 

Re-direct-Ball

TR 440-13 And it shows a laceration in your eye?

            -15 Yes, sir.

TR 468-9 (Q. Ball) Both your eyes you had _ _ _ one

was cut and the other one had __

                A. One eye was totally blind. In my left eye

                    was totally blind.

 

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TR 468-14 It was opened but it was_ _ _ I was totally

blinded. Right eye was watering, and it was so filled

up with water and fluid and blood and fluid from this

eye was into that eye that I couldn't see.

TR 468-24 Q.(Ball) Taking out eye, indication

mayhem, correct? A. Yes.

TR 469-8 (Ball) But it is fair to say, isn't it, that it

appeared as if your eye was taken out that night,

didn't it?

(Aloise) - object, sustained (no cure)

        -17 (Ball) But fortunately your eye was not taken out, right?

        -19 (King) Yes.

Re-Cross-Aloise

TR 479-1 Medical records say "eye superficial

abrasion"? (Aloise questioning)

            -3 I was told laceration, I can't read that (medical report).

TR 479-14 Doctor Arinella told me I had laceration, as

far as my eyeball.

            -19 (Aloise) Does Arinella's medical record say

                    superficial abrasion?

            -22 I can't read it. (medical evidence).

            -23 (Aloise) All right.

TR 486-14 Both eyes blind because my right eye had

vitreous fluid, and blood from left cut eye.

De Pascuale - Description of King's eye injury.

TR 715-22 And I looked up and blood was pouring

from his eye.

TR 717-8 King told me he thought he was hurt, and I

saw the blood and started yelling for someone to get

an ambulance.

 

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O'Connor - Description of King's eye injury

TR 756-14 The lower auricle of this eye was full of

blood, and there was blood coming out of the eye

itself. (auricle means ear lobe).

Schlener - Description of King's eve injury

TR 595-10 I don't know. His eye hurt, his lost - his

eye is out, you know.

TR 595-23 And could you have said the he lost his eye 

or and eye is out or something like that?

TR 598-5 I thought his eye was popped out.

TR 640-19 No I just remember the heap and then

you know 30-45 seconds after that the guy came

screaming that his eye is out.

Richard Traskiewicz - Description of King's injuries

Direct Exam-Ball

TR 500-20 When they went to the ground I advanced

that's when I saw Elbery put his finger in this (King's)

eye.

TR 501-6 This is when the fight turned around King

was on top of him then when the finger went into his

eye we jumped in to stop it. I saw blood coming out of

his eye.

Cross-Exam Aloise

TR 544-10 That's when I observed him putting his

finger in this eye.

TR 549-12 When you observed Elbery put his finger in

his eye, King has Elbery on his back in the middle of

Shrewsbury St.?

A. Right

 

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TR 552-1 King was on top of Elbery.

Redirect-Ball

TR 571-5 He stuck his finger in his eye to the point

where it was bleeding.

TR 571-7 When Mr. King came back that eye was

bleeding right?

    -9 Correct.

Recross-Aloise

TR 573-19 Elbery was on his back with King on top of

him when Elbery finger went into King's eye and face?

    A. Right.

John Hayes - Defense witness

Direct Exam-Aloise

TR 913-6 Did it (the right eye) appear to be bloodshot

or tearing at that point?

    A. No it wasn't.

TR 913-3 It was fine (right eye).

TR 913-16 He was doing like this and sticking his

finger inside his eye and rubbing it like he had

something in his eye.

TR 916-6 He (King) said all the fluids from his eye was

rushing out. He was going to lose all of the fluids in

his eye.

TR 916-9 Did you see any fluid dripping out of his

eye?

    A. No I didn't.

TR 916-11 Did you see any blood dripping out of his

eye?

    A. No.

TR 917-10 (King's right eye) it was open.

 

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TR 918-16 "I must have got poked in the eye". He said

"I think I got poked in the eye". (Hayes quoting King)

 

Cross- Exam - Ball

TR 938-6 Just looked bloodshot (left eye)

TR 954-20 It wasn't that dark (red). (referring to the

pictures of King's eye that were developed by King's

Co-workers at the Westboro Police Dept.)

Perma (Worcester cop and defense witness- saw King

in E/R 30 minutes after incident~

Cross-Exam Ball

TR 995-24 His eye was bleeding.

TR 996-1 Which eye was bleeding? A. Left eye.

TR 202-18 Yet, King claimed he had 2 patches over his eyes.

Ball Opening

TR 113-16 King's eye is bleeding terribly. The

defendant reached up a second time and grabbed his

eyeball again, and he is trying to dig out the eye.

TR 115-20 tried to take out King's eye on two separate

occasions.

Aloise Closing

TR 1224 You look at the medical records of Mr. King

you will see it was a superficial abrasion _ _ _ we are

now under oath exaggerating. He was in the hospital

one hour and twenty minutes not to suggest he didn't

get injured.

TR 1225-8 There is no doubt King had bloodshot eye

and maybe tearing burns severely, no doubt about

 

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that either. That is usually what happens when you

get poked the eye. What was he to do? Was he not in

reasonable fear of bodily harm?

 

(Although he made no effort to present this evidence

at trial, it is clear or documented Aloise knew that

King was lying about his injuries)(argument is not

evidence at trial-well settled law).

Ball Closing

TR 1234-18 Remember when he said he gouged King's

eye?

(A.D.A. Ball citing evidence that never occurred at

trial and without objection from Aloise)

TR 1239-20 At that time is when the defendant gets

him one arm free, digs his finger into King's eye and

tries to put it out.

TR 1240-8 Consider the extent of the force that he

exercised to use that type of deadly force that is

called, it is not-it is likely to cause serious bodily

injury. And I think all of you sitting there would look

at the evidence and look at the facts someone trying

to poke someone's eye out could cause serious bodily

injury.

 

 

 

                                                   -67a-

APPENDIX I

 

 

 

 

 

-68a-

July 22, 1994 American Investigative Services

A I S Inc.

"43 2/10 Police Officer states that he was working

this evening when he was at Winner's Circle off duty.

States someone came in and assaulted patron. Patient

chased person and got finger in left eye. Felt fluid

and blood come out of eye. Complained of blurred

vision." (Patient is the Police Officer Mr. King.)

Physical exam objective reveals the following:

"External examine revealed superficial abrasion

to his lids and two swelling left upper lids.

Conjunctival was plus 3, injected with

superficial Keroatin nasally and temporally.

Anterior chamber formed and quiet. Dialed

fundus revealed disc flat, sharp pink, cup to

disc. Disc point to commotio retina nasally and

temporally globe appears intact."

Diagnosis: Conjunctival laceration, long

discussion. Told of possible infection and

retinal damage. Given Erythromycin ointment

and pressure patch. To office in the AM.

Instructions: To office at 591 Lincoln Street in

AM.

 

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                    COMMONWEALTH OF MASSACHUSETTS

WORCESTER, SS.                             SUPERIOR COURT

                                                         CRIM. NOS. 93-01351,

                                                         93-0 1352, and 93-0 1354

COMMONWEALTH

v.

MICHAEL ELBERY

AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION

FOR NEW TRIAL

Dr. Joe Hull being duly sworn deposes and says:

1. That I am a licensed physician in the

Commonwealth of Massachusetts. I am board

certified in emergency and internal medicine. I am

presently Medical Director of the Emergency

Department of Anna Jaques Hospital in Newburyport.

2. I have reviewed the hospital record of Thomas

King attached hereto and marked Exhibit One.

3. The record reveals that the injury to the left eye

consisted of superficial abrasions to the lids and a

small laceration of the conjunctiva which did not

require suturing. The globe (eyeball) was not

penetrated and there was no bleeding into any part of

the eye or impairment of vision. Treatment was

conservative with application of antibiotic ointment

and a patch which is typical for minor injuries to the-

superficial covering of the eye.

4. In my opinion, these injuries are superficial

and are consistent with being poked in the eye. In my

 

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opinion, one would expect to find more serious injuries if someone had jammed his thumb into that eye on the inside of the eye and kept pushing his thumb into the eye.

5. In my opinion, the injury sustained here would

not have resulted in the leaking of any vitreous fluid

or noticeable blood loss from the eye.

SIGNED UNDER THE PAINS AND PENALTIES OF

PERJURY THIS 5th DAY OF JANUARY, 1996.

 

/s/

Dr. Joe Hull

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March 12, 1996

 

Dear Bob,

Here are the answers to your questions. Sorry it

has taken me so long to get back to you.

1. "Conjunctiva plus 3" means that there was

moderate inflammation of the conjunctival membrane,

i.e., the eye was red.

2. "Angio. #20" is a 20 guage intravenous needle

that was started in the arm.

3. Betadine prep. is a very clean, iodine

washing/preparation or cleansing of the skin to

remove bacteria.

4. Injected means red and inflamed. I think

keroaltin is a misspelling of keratin, the outer, most

superficial cell layer of the skin and eye.

5. The anterior chamber of the eye is normal

when it is formed and quiet (an odd term to mean not

inflamed or diseased).

6. The fundus is the back of the eye where the

retina is seen after the pupil is dilated and one looks

through the pupil with an ophthalmoscope. The optic

nerve head is the disc and it should be normally flat

and the cup should be sharp and pink when normal.

Let me know if you have any more questions.

/s/ Joe Hull