Supreme Court of the United States
COMMONWEALTH OF MASSACHUSETTS,
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?
TABLE OF CONTENTS
TABLE OF AUTHORITIES iv
TABLE OF ABBREVIATIONS vi
OPINION BELOW 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
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
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
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
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
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
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
Wright, Miller, Cooper, Federal Practice and Procedure, Ed. 2d, Vol. 16B, 1996...........................23
A.D.A. Assistant District Attorney
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.
SUPREME COURT OF THE UNITED STATES
Michael Elbery, petitioner
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.
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).
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.
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.
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.
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.
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
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).
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
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.
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).
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).
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.
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.
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
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.
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
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.
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).
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
"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.
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
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.
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.
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
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
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."
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.
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
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
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
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).
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.
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.
Michael Elbery, pro se
168 Fairfield St.
Needham, Mass. 02492
August 1, '03
Notice of Denial of F.A.R. -Massachusetts Supreme Judicial
Court, dated June 5, 2003.................la
Notice of Withdrawal Petition for
Rehearing -- Massachusetts
Appeals Court, dated May 1, 2003
Memorandum and Order Pursuant to
Rule 1:28 - Massachusetts
Appeals Court, dated March 10, 2003
Commonwealth's Appellee Brief - pages
20-44, dated October 2002.................5a
Memorandum and Decision on Motion
for New Trial - Superior Court
Motion Judge, dated December 21, 2001......................21a
Probable Cause Hearing Decision of
January 20, 1993 - Worcester
District Judge Milton Raphaelson ................................. 40a
Defendant's Appeal Arguments I, IV, VI,
and Reply #1..........................................41a
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
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.
Supreme Judicial Court for the Commonwealth of
1412 Courthouse, Boston, Massachusetts 02108
Michael G. Elbery
168 Fairfield Street
Needham, MA 02492
RE: Docket No. FAR-13357
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
Susan Mellen, Clerk
Dated: June 5, 2003
To: Harry D. Quick, III, A.D.A.
Michael G. Elbery
COMMONWEALTH OF MASSACHUSETT'S
1500 NEW COURT HOUSE
BOSTON, MASSACHUSETTS 02108
May 1, 2003
Michael G. Elbery
168 Fairfield Street
Needham, MA 02492
RE: No. 2002-P-0318
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
COMMONWEALTH OF MASSACHUSETTS
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.
1Although the defendant, in his pro se brief, spells his name "Elbery," we follow our editorial convention of adhering to the spelling in the indictment.
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
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
By the Court (Laurence, Gelinas &
Entered: March 10, 2003.
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
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,  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
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  reasons to circumvent the waiver
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 
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  these standards, the motion judge
4To 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).
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...
 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
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
constitutional right to due process of the law.5 
(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
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.  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
5Defendant'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.
41-43); 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.
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.  (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
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  bottle,
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 
ineffective assistance in this regard, defendant's
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.
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
 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 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
(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
identify himself as such because he was drinking on
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
when he opposed giving of a citizen's arrest
Instruction to the jury, where the evidence
did not warrant such an Instruction. 
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
6The 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
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. 
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  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).
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  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.
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
 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. 
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).
7The 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).
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  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  fluid coming from his
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. 
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
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  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.
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
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.
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. 
For the reasons set forth above, the denial of
defendant's motion for new trial should be affirmed.
JOHN J. CONTE,
For the Middle District,
ANNE S. KENNEDY,
Assistant District Attorney
Courthouse, Room 220,
Two Main Street,
Worcester, MA 01608
OCTOBER 2002 
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss. SUPERIOR COURT
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.
2Despite a 60-page limit ordered by Judge Toomey, the
defendant submitted a 115-page memorandum of fact and law
and an eight-page amendment to the original memorandum in
support of his motion for new trial. Specifically, Judge Toomey's
February, 28, 1997 order stated that, "Defendant's memorandum
shall not exceed 60 pages including items of appendix, addendum
and copies of documents as to which Defendant makes reference
in the memo."
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
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
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.
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  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
assisted by another patron who happened to be a
chiropractor, and was later taken by a friend to a
Within about a minute of the bottle breaking,
Elbery left the bar. King yelled at him to stop and
wait for the Worcester Police to arrive as someone had
been injured inside. Elbery testified that he intended
to get into his car and leave. However, King testified
that he did not see keys in Elbery's hands and did not
see Elbery reach for his pocket. Once outside the bar,
King pursued Elbery down the street. In addition to
King, the two off-duty doormen and between one and
three other patrons of the bar also followed Elbery. It
appears that King was in the front of the group since
he testified that he did not realize others had followed
him out of the bar. Although it is unclear exactly
what happened at this point, the jury reasonably
could have found that King caught up to Elbery and
an altercation ensued. King testified that Elbery
threw  multiple punches at him and then, in
response, King tackled him. As both of them were on
the ground, Elbery stuck his finger in King's eye doing
serious damage. The group assisted the injured King
by holding Elbery on the ground thereby allowing
King to free himself from the altercation. Prior to the
police arriving, King was brought to a nearby hospital
by two men in a passing car. The Worcester Police
arrived shortly thereafter and arrested Elbery.
Following his July 2,1993 jury trial, the defendant
received a sentence of 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
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).
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  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.
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
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
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  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
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.
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  trial counsel's effectiveness"); see also
Breese v. Commonwealth, 415 Mass. 249, 250 n. 1
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
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  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
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  ineffective assistance of
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
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  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.
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 
unnecessary for Aloise to file a motion to suppress
14Worcester District Court Proceedings, January 20, 1993,
15 Worcester District Court Proceedings, January 20, 1993,
evidence from the alleged illegal citizen's arrest of
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).
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).
Elbery claims that Aloise failed to object to
Assistant District Attorney Ball expressing  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.
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
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,  would not have affected jury verdict
and, therefore, there was no ineffective assistance of
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.
Elbery contends that Aloise used certain incorrect
terms and failed to object to certain terms that
allegedly confused the jury. Elbery claims that Aloise
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  "am I rights," especially with leading
questions during cross-examination, are typical trial
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
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
Commonwealth's witnesses and repeatedly called the
Commonwealth's rendition of the facts of the case
"patently absurd." (Tr. Vol. V/ 122 1-24). 
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
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  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.
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).  "[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. 
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.
Timothy S. Hillman
Justice of the Superior Court
DATED: December 21, 2001
DEC 26 2001
ATTEST: /s/ CLERK 
... THE COURT: Okay. All right. I find no
 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
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
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  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.)
Argument I-None of the defendant's motion claims arewaived 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 thedefendant'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
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
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
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
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
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.
1the 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.
2Sowell 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.
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
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.
PC 112-(9-14) Elbery went right out the
door after he looked at everybody.(see RA
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
PC 21-16 Q. Sir, were you placed in fear
by the beer bottle that Mr. Elbery had in
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
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
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
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 &
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.
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,
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.
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 &
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
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).
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
defendant's appellate attorney, Bobby Scheketoff,
failed to raise this claim on direct appeal making him
ineffective, again. id.
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
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.
Presented are conflicting changes in testimony by
King not appearing in other claims of the motion. See
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-
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.
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
"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,
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.
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
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
100 yards down the street, in order to justify King's
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
1Evidently, 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).
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
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
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?
As per motion RA 33, this fabrication about a girl
being cut in the face was like the fabricated bottle
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
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
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
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.
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.
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.
Constitution causing a trial that was not fair. Berger
v. U.S. 295 U.S. 78, 84-89 '35.
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.
Footnote 1 - Tom King's Injuries
Tom King's trial testimony
TR 20 1-17 He took his thumb and jammed it into my
TR 20 1-20 On the outside of my eye he jammed it in
almost behind the eye and kept pushing the thumb in
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
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
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.
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?
TR 204-13 How long did you have that patch?
-14 I had the patch on a couple of days, three day maybe.
TR 381-6 This eye totally blind this eye I could not
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
TR 432-5 Thumbnail.
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.
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,
(Aloise) - object, sustained (no cure)
-17 (Ball) But fortunately your eye was not taken out, right?
-19 (King) Yes.
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
-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
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
TR 500-20 When they went to the ground I advanced
that's when I saw Elbery put his finger in this (King's)
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
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
TR 552-1 King was on top of Elbery.
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
TR 573-19 Elbery was on his back with King on top of
him when Elbery finger went into King's eye and face?
John Hayes - Defense witness
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
TR 916-9 Did you see any fluid dripping out of his
A. No I didn't.
TR 916-11 Did you see any blood dripping out of his
TR 917-10 (King's right eye) it was open.
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~
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.
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
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
TR 1225-8 There is no doubt King had bloodshot eye
and maybe tearing burns severely, no doubt about
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).
TR 1234-18 Remember when he said he gouged King's
(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
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
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS. SUPERIOR COURT
CRIM. NOS. 93-01351,
93-0 1352, and 93-0 1354
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
opinion, one would expect to find more serious injuriesif 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.
Dr. Joe Hull
March 12, 1996
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
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