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

defendant because King witnessed an assault and battery with a

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

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

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

-14a-

determined, the instruction was not warranted,

therefore, counsel was not ineffective for failure to

request the instruction.

A prerequisite to an instruction on citizen's arrest

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

See Model Jury Instructions for Use in Superior

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

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

evidence established that King used force to effectuate

an arrest. [33]

    The Commonwealth's evidence showed that

defendant threw at least one punch at King and then

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

that he was out of his jurisdiction, King never

intended to physically touch, arrest, or restrain

defendant but instead followed him in order to inform

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

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

anywhere until the Worcester Police arrived because

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

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

393). At this point, defendant threw several punches

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

then put his arms around defendant in an effort to

stop defendant from continuing his assault. (Tr.II

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

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

tackled defendant to the ground in an effort to stop

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

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

pulled defendant's thumb out and rolled away from

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

on defendant to [34] effectuate an arrest, the

instruction on citizen's arrest was not warranted.

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

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

identity and whereabouts were unknown until one month before

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

    15a

    By contrast, defendant testified that King decided

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

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

King, with two individuals "flanking" him, then

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

individuals then started wrestling with defendant,

who accidentally broke a beer bottle in the affray.

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

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

another then tackled defendant and a tussle ensued.

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

the ground, King went over to defendant and gouged

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

version of events does not establish that King was

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

simply established King as the initiator of combat.

Accordingly, the trial judge correctly labeled this a

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

arrest instruction not being warranted, counsel was

not ineffective for failure to ask for one. See

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

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

to request limiting instruction, where instruction

would have been inappropriate or the request for one

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

    Even if the evidence supported a citizen's arrest

instruction, defendant's cause would not have been

aided if the judge had given it. Defendant asserts that

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

because defendant had not in fact been convicted of a

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

    "A private citizen may lawfully arrest someone who

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

committed' element must be satisfied by a

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

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

requirement, however, is relaxed in the case of a

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

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

arrest. Id. The evidence clearly established that Mr.

-16a-

King, a Westboro Detective, had probable cause to

arrest defendant for the commission of a felony, either

assault and battery with a dangerous weapon or

assault with a dangerous weapon. See Model Jury

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

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

    Mr. King witnessed defendant smash a beer bottle

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

vicinity. Pieces of flying glass cut Ms. Mann above

and below her eye, causing her to bleed and receive

butterfly stitches in that area. After shattering the

base of the bottle, defendant held the bottle in a

jabbing manner toward the bartender and, other

patrons. This evidence "was 'sufficient to warrant a

person of reasonable caution in believing that the

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

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

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

established that probable cause existed for Mr. King

to arrest defendant, the omission of the citizen's

arrest instruction had a minimal effect, if any, upon

the jury, and counsel was not ineffective for failing to

seek the instruction. [37]

    Defendant also claims that his counsel was

ineffective for failure to move to suppress all the

evidence gained as a result of the purported unlawful

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

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

to arrest defendant, such a motion would not have

been, successful. See Commonwealth v. Harris, 11

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

(1981). Accordingly, counsel was not ineffective for

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

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

Commonwealth v. Elberry (sic), 38 Mass. App. Ct. 912

(1995), rev, denied, 419 Mass. 1107 (1995).

    "The trial judge upon motion in writing may grant a

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

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

standard is purposely broad as the disposition of a

"motion for new trial is addressed to the sound

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

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

procedures have run their course the presumption

tilts heavily toward finality." Commonwealth v.

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

should not be granted except for substantial reasons."

Id, quoting Commonwealth v. Tucceri, 412 Mass.

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

were redone, there might be a different outcome, or

that some lingering doubt about the first outcome

may remain, cannot be a sufficient reason to reopen

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

    As mentioned previously, this motion for a new trial

comes after the conviction has already been affirmed

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

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

trial.

¹² The Appeals Court found that the prosecutor's statement

was prejudicial but the corrective instruction used by the trial

judge was adequate. The Appeals Court also determined that the

trial judge's instructions concerning the elements of the crimes

were sufficient.

-26a-

finality demands that a defendant present every claim

and argument he might fairly have had available to

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

639. Therefore, "absent extraordinary circumstances

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

[an issue] may not belatedly invoke that right to

reopen a proceeding that has already run its course."

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

defendant] had an opportunity to invoke the right and

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

may not be raised for the first time on collateral

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

on which his argument is premised has been

sufficiently developed to put him on notice that the

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

addition, the doctrine of waiver "'applies equally to

constitutional claims which could have been raised,

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

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

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

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

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

to grant relief from such a waiver is limited if the

conviction has already received appellate review."

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

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

not consider it, unless in the exercise of discretion the

judge determines there is a substantial risk of a

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

judge's discretion in granting relief from waiver should

not be exercised lightly, and should only be exercised

if "upon sober reflection, it appears that a miscarriage

of justice might otherwise result." Commonwealth v.

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

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

judicial misconduct, prosecutorial misconduct, that

the verdict was against the weight of the evidence

(insufficient evidence), inadequate jury instructions,

inadmissible evidence admitted during trial, and

duplicative sentencing were all areas of the law that

-27a-

were sufficiently developed at the time of his appeal to

put the defendant on notice that these issues were

live issues. Consequently, all of the above claims

could have been raised on direct appeal but were not.

Therefore, the above issues are waived.

    The defendant's ineffective assistance of counsel

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

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

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

where the defendant has been represented by the

same attorney at trial and on direct appeal, that

defendant may seek review of the trial counsel's

performance, even though no ineffective assistance of

counsel claim was asserted on direct appeal. See

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

exception to the waiver rule is "that it would be

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

have raised a claim calling his own competence into

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

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

defendant has had new appellate counsel, the

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

trial counsel's ineffectiveness would be on direct

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

trial and appellate counsel were associates in the

practice of criminal law, the second attorney thus

furnished the defendant his 'first opportunity' to raise

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

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

(1993).

    In this case, the defendant's first opportunity to

raise an ineffective assistance of trial counsel was on

direct appeal since the defendant had different

representation at that time. Therefore, the

defendant's ineffective assistance of trial counsel

claim is waived. However, the defendant also claims

that his appellate counsel was ineffective because he

-28a-

failed to argue on appeal that his trial counsel

rendered ineffective assistance. This is the

defendant's first opportunity to raise an ineffective

assistance of appellate counsel. Therefore, the

question of whether the defendant's appellate counsel

was ineffective necessarily depends on whether he

actually received ineffective assistance at his trial.

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

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

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

transcript to determine whether the defendant

received ineffective assistance of counsel at trial

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

defendant's appellate counsel was ineffective by

failing to bring an ineffective assistance of trial

counsel claim on direct appeal.

    The defendant bears a heavy burden in

establishing ineffective assistance of counsel such

that a new trial is required. See Commonwealth v.

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

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

support a claim of ineffective assistance of counsel,

the defendant must show serious incompetency,

inefficiency, or inattention of counsel falling

"measurably below that which might be expected from

an ordinary fallible lawyer" and that such

inadequacies "likely deprived [the defendant] of an

otherwise available, substantial ground of defense."

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

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

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

assistance of counsel, the defendant must show that

better work by trial counsel might have accomplished

something material for the defense. See

Commonwealth v. Satterfield, 373 Mass. 109, 115

(1977). Counsel's tactical judgments must be

"manifestly unreasonable" to constitute ineffective

assistance. See Commonwealth v. White, 409 Mass.

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

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

29a

strong presumption that counsel's conduct falls

within the wide range of reasonable professional

assistance." Commonwealth v. Florentino, 396 Mass.

689, 690 (1986) (citation omitted).

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

performance was ineffective nor that it deprived the

defendant of an otherwise available substantial

ground of defense. The trial counsel's performance

fell well within the realm of what may be expected

from an ordinary fallible attorney. In his 115-page

memorandum of fact and law in support of his motion

for new trial, Elbery claims multiple instances of

ineffective assistance of counsel on the part of his

attorney at trial, Louis P. Aloise. The defendant

makes a series of allegations which either are not

grounded in the record or do not amount to ineffective

assistance of counsel. Generally, Elbery claims that

Aloise conspired with the prosecution to withhold the

truth about the evidence upon which he was

convicted. However, there is no evidence of any

conspiracy. Most of Elbery's contentions arise from

strategic decisions on the part of his trial counsel that

did not impact the strong case the Commonwealth

had against him. Commonwealth v. Rondeau, 378

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

constitute ineffective assistance of counsel unless

they are "manifestly unreasonable"). See also

Commonwealth v. Finstein, 426 Mass. 200, 203

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

(1996). The following issues are being raised solely

for the purpose of determining whether a new trial is

warranted based upon [8] ineffective assistance of

trial counsel.

    There is no evidence that Aloise conspired to

withhold pertinent information from the jury. Elbery

alleges that Aloise conspired with the prosecution to

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

-30a-

injuries. There is no evidence that this occurred.

Aloise described King's eye injury in a manner

advantageous to Elbery by noting that the injury was

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

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

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

V/ 1224. Elbery also alleges that his trial counsel

failed to highlight to the jury the fact that there was

no police investigation, and that he was attacked by a

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

opening statement, Aloise questioned whether an

adequate investigation had been conducted because it

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

addition, in his closing statement, Aloise stated that

Elbery was being chased by six or seven individuals.

Tr. Vol. V/1218.

    Elbery also claims that Aloise was ineffective

because he failed to call certain witnesses which

would have assisted his case. However, there is no

merit to this contention. There is no evidence that

calling Dr. Stephen Sawyer as a witness would have

provided Elbery with a substantial ground of defense

because he would not lie on the stand and thus upset

the alleged conspiracy between Aloise and the

prosecution. There is also no evidence that calling

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

Assistant District Attorney Michael Salloum as

witnesses would have provided a material defense for

Elbery. See Commonwealth v. Epsom, 422 Mass.

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

based on ineffective assistance of counsel where

lawyer failed to call witness providing evidence of self-

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

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

would have been sufficient to raise the issue of self-

defense; and (3) that testimony would likely have

made a material difference in the trial).

¹³ citations to the Trial Transcript references are indicated as

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

-31a-

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

page 9.

¹⁵ Worcester District Court Proceedings, January 20, 1993,

page 39.

-32a-

evidence from the alleged illegal citizen's arrest of

Elbery.

    Elbery claims that Aloise failed to subpoena Mann's

medical records which Elbery believes would show the

true nature of her injuries. However, the extent of

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

Elbery's convictions related to the injuries inflicted on

King. Elbery alleges that Aloise also failed to

subpoena evidence from the Westborough Police

Department regarding King's demotion and drinking

on duty which he believes created a motive for King to

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

lie nor that it deprived Elbery of a substantial ground

of defense. Compare Commonwealth v. Juzba, 46

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

counsel's failure to obtain police chemist's report

and/or police chemist's testimony regarding the

absence of sperm or seminal fluid in a rape case did

fall below what was expected from an ordinary fallible

lawyer, it did not deprive the defendant of a

substantial, available defense where it corroborated

the defendant's testimony).

    Elbery alleges that Aloise failed to object to certain

evidence which was prejudicial. However, there is no

evidence that Aloise's alleged failures to object

deprived Elbery of a material ground of defense.

Elbery contends that Aloise failed to object to the

admission of King's medical report which he asserts

was inadmissible due to its references to liability as

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

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

medical report suffered from this condition. Any

references to liability in the medical report do not

necessitate retrial because they do not add anything

to the testimonies at trial. See Commonwealth v.

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

-33a-

    Elbery claims that Aloise failed to object to

Assistant District Attorney Ball expressing [11] his

own opinion and misstating facts and testimony in his

opening and closing arguments. There is no evidence

that Assistant District Attorney Ball's opening and

closing arguments contained such errors. The

prosecutor may comment on evidence developed at

trial and draw inferences from such evidence. See

Commonwealth v. Bradshaw, 385 Mass. 244, 275

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

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

to an attack on the credibility of a government

witness. Chavis, 415 Mass. at 713, citing

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

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

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

instructions in stating that "[t]he opening statements

and the closing statements that we just heard from

counsel are not a substitute for evidence. They are

only intended to assist you in understanding the

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

V/ 1257-58.

    Elbery also states that Aloise failed to object to

various inappropriate instructions or to the fact that

certain instructions were absent. Again, there is no

evidence that the instructions were improper or

deficient. Among other things, the trial judge

instructed the jurors on their role as fact-finders and

the importance of focusing solely on the evidence, the

difference between direct and circumstantial evidence,

inferences, the Commonwealth's burden of proof

beyond a reasonable doubt, consciousness of guilt,

disorderly conduct, assault and battery, assault with

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

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

about the instructions to the jury. See

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

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

curative instruction concerning opinion testimony did

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

-34a-

object, Aloise's failure to object was justified.

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

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

Commonwealth on cross of defendant, although

improper, [12] would not have affected jury verdict

and, therefore, there was no ineffective assistance of

counsel).

    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

-35a-

adopted the prosecution's facts and theory of the case

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

expressions during cross-examination of the

Commonwealth's witnesses which misrepresented

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

These allegations are not valid since phrases such as

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

questions during cross-examination, are typical trial

practice techniques.

    Elbery also claims that the judge's use of the

phrase "moral certainty" in his jury instructions

obscured for the jurors the defendant's standard for

proving his case beyond a reasonable doubt.

However, case law has determined that use of the

phrase does not render the instructions improper. In

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

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

the Supreme Court decided that although "'moral

certainty,' standing alone, might not be recognized by

modern jurors as a synonym for 'proof beyond a

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

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

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

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

He was also not ineffective for failing to object to the

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

fact" in the jury instructions, because those terms are

also proper.

    Elbery also alleges various other instances of

ineffective assistance of counsel which are

unfounded. For instance, Elbery claims that Aloise

failed to impeach witnesses with perjurious prior

inconsistent statements and aided the prosecution

with false testimony. However, Aloise did point to

discrepancies in the testimonies of the

-36a-

Commonwealth's witnesses and repeatedly called the

Commonwealth's rendition of the facts of the case

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

    In addition, Elbery alleges that Aloise failed to

argue double jeopardy with Elbery's convictions of

assault and battery and assault with intent to maim.

Elbery believes that assault and assault and battery

are the lesser included offenses of assault with intent

to maim. There is no double jeopardy with regard to

Elbery's convictions. Double jeopardy refers to the

Fifth Amendment prohibition against a "being

prosecuted twice for substantially the same offense.

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

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

was convicted of three distinct charges with distinct

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

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

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

Whoever commits an assault or an assault and battery

upon another shall be punished by imprisonment for not

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

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

¹⁷ G.L. c. 265, §15 states:

Whoever assaults another with intent to commit murder, or

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

preceding section, shall be punished by imprisonment in

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

not more than one thousand dollars and imprisonment in

jail for not more than two and one half years.

¹⁸ G.L. c. 272, §53 states:

Common night walkers, common street walkers, both male

and female, common railers and brawlers, persons who with

offensive and disorderly acts or language accost or annoy

persons of the opposite sex, lewd, wanton and lascivious

persons in speech or behavior, idle and disorderly persons,

disturbers of the peace, keepers of noisy and disorderly

-37a-

Contrary to Elbery's allegations, assault and assault

and battery are not the lesser included offenses of

assault with intent to maim. Elbery also claims that

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

disorderly person when the maximum sentence is

only six months. However, Elbery was sentenced to

serve one year for the assault with intent to maim

charge and one year probation for the assault and

battery and disorderly conduct convictions which

were to run concurrently. His probation was to begin

after his release from jail. Thus, Elbery was not

sentenced for longer than his convictions mandated.

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

evidence that Aloise sponsored Assistant District

Attorney Ball to lie about the bottle assault, nor that

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

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

is also no evidence that the pictures admitted at trial

were falsified or duplicative. Nor did Aloise have the

responsibility, nor the capacity, to file criminal

charges against King for the injuries he allegedly

caused Elbery. There is also no evidence that Aloise

abandoned his client.

    For the aforementioned reasons, the defendant has

failed to show that trial counsel's representation was

seriously deficient and that he was deprived of an

otherwise available material ground of defense. Since

there was competent representation by the trial

attorney, appellate counsel was not ineffective for

failing to argue on appeal that the defendant's trial

counsel rendered ineffective assistance. See Breese,

415 Mass. at 252.

houses, and persons guilty of indecent exposure may be

punished by imprisonment in jail or house of correction for

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

hundred dollars, or by both such fine and imprisonment.

-38a-

    In addition to his request for a new trial, the

defendant requests an evidentiary hearing and further

discovery. A judge has broad discretion to deny a

motion for new trial upon review of the motion and

affidavits without conducting an evidentiary hearing.

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

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

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

motion based solely on affidavits; may discredit

untrustworthy affidavits; and need only proceed to

evidentiary hearing 'where a substantial issue is

raised [by the motion or affidavitsl and is supported

by a substantial evidentiary showing."' Lopez, 426

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

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

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

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

affidavits without further hearing if no substantial

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

need only hold an evidentiary hearing if a substantial

issue is raised by the motion and affidavits and is

supported by a substantial evidentiary showing. Id.

In determining whether the defendant has raised a

'substantial issue' meriting an evidentiary hearing

under Rule 30, the court looks at the seriousness of

the issue asserted and to the adequacy of the

defendant's showing on the issue raised.

Commonwealth v. DeVincent, 421 Mass. 64, 67

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

evidentiary hearing is necessary to provide the judge

with additional information not already contained in

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

demonstrated that substantial issue exists which

would require additional information not already

contained in the defendant's submission or the

record. Consequently, the defendant's request for an

evidentiary hearing is denied. [17]

-39a-

For the foregoing reasons, it is hereby ORDERED

that the Defendant's Motion for a New Trial and

Request for an Evidentiary Hearing are DENIED.

/s/

Timothy S. Hillman

Justice of the Superior Court

DATED: December 21, 2001

-40a-

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

[265] probable cause for the assault with intent to

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

disorderly person. Assault and battery with a

dangerous weapon, a beer bottle, I find no probable

cause.

Assault and battery is a troubling issue, and

troubling in the following manner: I believe that in

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

right to stop.

The disorderly person I find not outside but inside,

because when the officer came along and four or five

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

disorderly.

The assault and battery on Thomas King, I suggest

that Thomas King raced after him to stop him from

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

probable cause on that.

Probable cause on disorderly person only.

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

was no assault with the beer bottle. It was reckless

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

death ensued, that would be involuntarily

manslaughter. However, it's [266] malicious

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

police officer was a police officer in Westboro, not

Worcester. Everyone knew who he was, and they

could have called the police after.

Okay. That's it.

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

hearing was concluded.)

-41a-

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

the defendant raised his claim of ineffective assistance

of appellate counsel only to the extent of failure to

raise on direct appeal ineffective assistance of trial

defense counsel), the defendant raises a claim of

ineffective assistance of appellate counsel, claim

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

have been raised on direct appeal. There is a

constitutional right to effective assistance of appellate

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

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

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

right to appellate counsel to only claims of ineffective

assistance of trial counsel. Evitts id.

    None of the defendant's motion claims are waived

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

motion claims fit into one of 4 categories that, per

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

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

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

-42a-

than "newly discovered evidence" and "issue waiver

exceptions", as a matter of law.

1. The first category of claims raised by the

defendant are the numerous "Brady" violations that

must only be raised in the first instance via a motion

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

the defendant's motion are of the first category

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

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

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

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

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

factual evidence not of the trial record. The appellate

counsel is only able to raise issues on direct appeal

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

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

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

appeal).

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

no reason why a non-disclosure issue

could not be advanced by a motion for

new trial to which the regular principles

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

Even if an undisclosed evidence is not

"newly discovered", the failure of a

prosecutor to furnish exculpatory

evidence in his possession is a proper

basis for a new trial motion based on

common law or constitutional grounds".

2. The defendant also raised other motion claims

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

not appearing on the trial record. This category that

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

Rule 30b, includes ineffective assistance of trial

counsel claims based on facts not appearing on the

-43a-

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

motion that avoid waiver, via presentation in a motion

for new trial, are issues that should have been raised

by the appellate attorney on direct appeal or

ineffectiveness of appellate counsel. As above, the

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

    A recognized exception to the issue waiver rule is

when both the trial and direct appeal counsel are

-44a-

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.

45a

The trial was further infected with constitutional

"Brady" violations because the prosecution knowingly

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

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

Elbery held off the entire bar for 30

seconds with a broken jagged beer

bottle not only making jabbing

threatening gestures at Schlener but

the rest of us patrons in the bar. See

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

assault).

    This evidence was used to support the

prosecution's "assault by a dangerous weapon charge"

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

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

arrest before the assault dangerous weapon charge

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

entry 5.0) & RA 41.

    The bartender, Schlener, first fabricated to the

responding WPD officer-Perma that the defendant

used a broken bottle in a "threatening menacing

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

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

Schlener, the bartender, who originally fabricated the

beer bottle assault story to justify his friends beating

the defendant in the street, admitted under oath at

the probable cause hearing that the defendant did not

assault anybody with a beer bottle.

    PC 112-3, It was a random breaking of

    the bottle, it was pointed at nobody.

-46a-

    door after he looked at everybody.(see RA

    47-50).

    King, reluctantly, testified at the probable cause

hearing that the defendant never assaulted anyone

with a broken beer bottle. That the defendant threw

the bottle down immediately and left the bar after the

bottle broke,

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

by the beer bottle that Mr. Elbery had in

his hand?

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

had thrown it down.

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

broke the bottle on the side of the bar or

on the pole he stood up from his seat,

his stool and left via the front door?

A. (King) yes, sir.

PC 54-1 Q. Well he already was up

from his seat after smashing the

bottle and he immediately went out

the door didn't he?

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

    As above, the prosecution was put on alert that the

beer bottle assault was a fabrication; it never

happened.

    The original prosecutor, Salloum, who was

scheduled to handle the probable cause hearing,

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

the motion), that the beer bottle assault charge was

being dropped and no longer considered. See RA 47

& 48.

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

impairing the grand jury by allowing and sponsoring

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

-47a-

GJ 6-4 Elbery made jabbing motions at

Jeff and then me and the other patrons

with the broken beer bottle.

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

Office further encouraged and sponsored King to lie to

the trial jury about the defendant and the fabricated

charge of assault with the broken beer bottle. See TR

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

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

defendant as a mad man who would try to stab a

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

57.

    This fabricated bottle assault evidence is another

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

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

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

    The prosecutor compounded the effect on the jury

of this bottle assault perjury by using it as the

justification, felony committed, for King's alleged

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

motion claim V). The prosecutor also lead (used

leading questions) his own witnesses and DePasquale

at trial, soliciting them to testify that the defendant

used a jagged broken bottle to assault all the patrons

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

The prosecutor used this false/perjured evidence in

his opening statement,

TR. 111-20 (Ball) They saw the

defendant standing there with this

broken beer bottle and he is waiving this

broken beer bottle now, he is waving this

beer bottle at all the people in the bar.

TR 115-17 (Ball) He did swing the

broken beer bottle, not only at the girl,

-48a-

    King is named as a victim where it was

    swung at him.

    Where the prosecutor compounds falsifications

at trial, as above, by blatantly misrepresenting

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

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

violation of the Due Process Clause of the Fourteenth

Amendment, and causes a trial that was unfair.

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

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

    Trial defense attorney, Aloise, also represented the

defendant at the probable cause hearing. See PC

transcript. As above, Aloise knew from the probable

cause testimonies of King and Schlener, and

communications with ADA Salloum prior to the

probable cause hearing, that the defendant did not

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

53-58.

    As per RA 54, defense attorney Aloise, refused to

present to the jury the above testimonies that

proved the bottle assault charge (Assault dangerous

weapon) was a knowing fraud by the prosecution.

These testimonies at the probable cause hearing

would have been used as substantive evidence, not

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

    Additionally, Aloise refused to have that assault-

dangerous weapon indictment dismissed. The

defendant demanded Aloise motion to dismiss the

charge because, as above, the prosecution witnesses

already admitted the bottle assault never happened.

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

    Instead, Aloise allowed, unchallenged, the

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

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

Elbery held off the entire bar for 30

seconds with a broken jagged beer bottle

not only making jabbing threatening

gestures at Schlener and me but at all

the other patrons in the bar. See RA 52

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

    Further, Aloise allowed the prosecution to use this

fabricated bottle assault as the alleged felony

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

defendant look like the initiator and aggressor during

the incident; this helping the prosecution trick the

jury. This deficiency made the defendant falsely look

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

to more easily believe he attempted to dig King's

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

    Regardless that the bottle assault-dangerous

weapon charge was directed not guilty by the trial

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

that the defendant was a raging maniac with a

broken beer bottle assaulting everyone in the bar.

The alleged curative instruction by the trial judge,

TR 1274-5 don't draw any inferences

from the fact the indictment is no longer

in front of you.

had no curative effect on that highly prejudicial

evidence. Even the Mass. Appeals Court was

convinced, per their decision on the direct appeal of

this case, that the defendant used a bottle to menace

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

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

RA 58.

    Aloise by knowingly allowing this false evidence of a

bottle assault changed the entire evidentiary picture

of the trial and caused a breakdown of the adversarial

process at trial making him ineffective in his

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

-50a-

defendant's appellate attorney, Bobby Scheketoff,

failed to raise this claim on direct appeal making him

ineffective, again. id.

    In addition to the conflict and discrepancies

between trial and probable cause hearing testimonies,

(which is perjury), allowed by the prosecution

surrounding the bottle assault charge and Mann's

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

there were many more prior inconsistent statements

not brought to the attention of the jury resulting from

probable cause hearing testimonies of various trial

witnesses. All the changes in probable cause hearing

testimonies given at trial were to the prejudice of the

defendant, or falsely inculpatory.

    Note, DePasquale and Perma (arresting officer)

were, allegedly, defense witnesses, but DePasquale

testified during the prosecution's case, and like

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

had the effect of the prosecutor cross-examining his

own witnesses; at a minimum DePaspuale and Perma

were hostile witnesses.

    These changes in trial witnesses probable cause

testimonies (perjury) are highlighted and summarized

as follows: (see RA 74-89)

    1. Schlener, the bartender, at the probable cause

hearing, admitted he was at fault for insulting and

starting the exchange of "negative statements"

between the defendant and he. Schlener apologized

on the witness stand in open court to the defendant.

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

    2. At the probable cause hearing, Schlener and

DePasquale both said King came around the

horseshoe bar after the defendant, who remained

seated while King was restrained by many people in

-51a-

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

conversation ("barbs") between the defendant and

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

testified that they told King to mind his own business

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

defendant was minding his own business and not

bothering with any other customers in the bar. See

RA 74-75 & RA 83-84.

    However, at trial they said just the opposite,

testifying the defendant was the initiator and

aggressor, a "steaming big madman" that was also

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

76 & RA 84.

    3. Prosecution witness, Schlener, and DePasquale

admitted under oath at the probable cause hearing

that most of the bar emptied out after the

defendant, who immediately left the bar after the

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

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

RA 67-item 5.

    Yet, at trial the prosecution's witnesses tried to

convince the jury that King acted alone pursuing the

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

5,6, TR 199-1.

    4. All witnesses testified, including King, at the

probable cause hearing they had no idea how the

bottle broke. See RA 67-item 4.

However, at trial several prosecution witnesses,

including King and Schlener, testified the defendant

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

    5. Schlener testified at the probable cause hearing

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

However, at trial Schlener gave King the credit,

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

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

Schlener admitted no police were called before King

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

-52a-

    Presented are conflicting changes in testimony by

King not appearing in other claims of the motion. See

RA 84-88.

    6. King at the probable cause hearing testified he

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

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

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

    7. Street v. sidewalk incident

See RA 86 item 4, where at the probable cause

hearing King truthfully testifies the entire pursuit,

arrest and struggle with the defendant occurred in the

street. All witnesses at the probable cause hearing

testified the incident with King and the defendant

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

    However, after King was told to change his

testimony because no one would believe the

defendant would come to a sudden stop in the middle

of the street, King testified the entire incident was on

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

item 4.

    These changes in testimonies, as per claim X of the

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

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

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

under oath about same point is perjury). The above

conflicting changes in testimony, perjury, distorted

the evidentiary picture of the beginning stages, (bar

argument & confrontation, exit from bar and flight by

the defendant, and chase by King & his gang down

the street 100 yards), of the short alleged criminal

incident, to the defendant's prejudice. The prosecutor

had a duty to correct that perjury and not "knowingly

use the above perjury" to convict the defendant. New

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

-53a-

    Aloise, who also represented the defendant at the

probable cause hearing, failed to alert the jury to this

exculpatory evidence, via trial witnesses' probable

cause hearing testimonies. This was not just

credibility evidence but substantive evidence that

could have been used for its full probative value at

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

    In failing to alert the jury to these changes in

testimony Aloise missed an opportunity to impeach

the credibility of the above prosecution witnesses, and

caused the defendant to look like the initiator and

aggressor at the underlying barroom incident, instead

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

    These changes in testimonies that Aloise failed to

present to the jury changed the entire evidentiary

picture of the trial to the prejudice of the defendant

making Aloise constitutionally ineffective in his

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

was Sheketoff who failed to raise this claim on direct

appeal. id.

    The Appellee uses the falsified evidence of Mann's

cut face and facial stitching to justify King's illegal

pursuit, false arrest and assault of the defendant

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

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

Arg. B, p.37.

    The prosecution knowingly presented false

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

Mann, incurred facial lacerations from glass of a

broken beer bottle that the prosecution claimed the

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

-54a-

However, Mann slipped during trial examination and

contradicted her prior testimony of injury,

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

blood. But another guy came over and

said you know you are fine and

everything.

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

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

to let you know I was all right and no

glass is in my eye or whatever. See RA

31 (motion p. 31-item 10).

    The defendant's trial counsel failed to pursue,

explore or highlight this evidence he tripped on during

cross-examination. The jury was left believing the

prosecution's "best light fabricated evidence" of

Mann's face being cut by the defendant requiring two

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

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

Salloum, knew the truth. Salloum documents, per

RA 133, that the reason for King pursuing the

defendant was the defendant's alleged disorderly

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

Salloum says nothing on this document about a

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

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

the defendant prior to King's pursuit of the defendant

-55a-

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

citizen's arrest.¹

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).

As per motion RA 33, this fabrication about a girl

being cut in the face was like the fabricated bottle

-57a-

assault; both were originated by the bartender,

Schlener, to cover for his friends beating the

defendant on the street causing the defendant to be

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

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

9-29-92)).

    The various prosecution witnesses, and defense

witnesses-DePasquale and Perma (both friends of

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

fabricated Mann injury in the most prejudicial

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

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

trial,

TR 194-7 (King) Blood coming around

her hand, out her hands, through her

fingers down her face.

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

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

She was bleeding from the eye. (compare

this testimony to Schlener's probable

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

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

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

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

certainly, how badly the female was

hurt, whether or not it was just a cut on

the face that bled or something

more serious, Correct?

A. (King) Correct.

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

report indicates that Mr. Elbery struck a

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

true, do you, from your observations?

A. (King) Right.

    There is good reason why there was a void, as

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

-58a-

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.

-59a-

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.

-60a-

Footnote 1 - Tom King's Injuries

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

eye (indicating).

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

almost behind the eye and kept pushing the thumb in

real hard.

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

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

the thumb into my eye.

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

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

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

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

good.

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

hospital or I was going to lose my eye.

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

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

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

both eyes.

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

TR 204-1 Is that a cut? Yes.

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

well as you had in the past?

-5 No Sir.

-61a-

TR 204-6 Are you having any problems seeing?

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

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

Yes, sir.

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

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

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

                see.

TR 385-12 No. It was lacerated.

            -13 lacerated? Yes, sir.

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

                in there, sir.

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

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

went into your eye.

            -10 (King) The thumb.

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

eye. He kept pushing it harder and harder and

harder.

TR 432-5 Thumbnail.

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.

-62a-

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

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

up with water and fluid and blood and fluid from this

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

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

mayhem, correct? A. Yes.

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

appeared as if your eye was taken out that night,

didn't it?

(Aloise) - object, sustained (no cure)

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

        -19 (King) Yes.

TR 479-1 Medical records say "eye superficial

abrasion"? (Aloise questioning)

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

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

far as my eyeball.

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

                    superficial abrasion?

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

            -23 (Aloise) All right.

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

vitreous fluid, and blood from left cut eye.

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

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

saw the blood and started yelling for someone to get

an ambulance.

-63a-

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).

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.

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

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

eye.

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

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

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

his eye.

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

finger in this eye.

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

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

Shrewsbury St.?

A. Right

-64a-

TR 552-1 King was on top of Elbery.

where it was bleeding.

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

bleeding right?

    -9 Correct.

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

him when Elbery finger went into King's eye and face?

    A. Right.

TR 913-6 Did it (the right eye) appear to be bloodshot

or tearing at that point?

    A. No it wasn't.

TR 913-3 It was fine (right eye).

TR 913-16 He was doing like this and sticking his

finger inside his eye and rubbing it like he had

something in his eye.

TR 916-6 He (King) said all the fluids from his eye was

rushing out. He was going to lose all of the fluids in

his eye.

TR 916-9 Did you see any fluid dripping out of his

eye?

    A. No I didn't.

TR 916-11 Did you see any blood dripping out of his

eye?

    A. No.

TR 917-10 (King's right eye) it was open.

-65a-

TR 918-16 "I must have got poked in the eye". He said

"I think I got poked in the eye". (Hayes quoting King)

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.)

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

occasions.

TR 1224 You look at the medical records of Mr. King

you will see it was a superficial abrasion _ _ _ we are

now under oath exaggerating. He was in the hospital

one hour and twenty minutes not to suggest he didn't

get injured.

TR 1225-8 There is no doubt King had bloodshot eye

and maybe tearing burns severely, no doubt about

-66a-

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

eye?

(A.D.A. Ball citing evidence that never occurred at

trial and without objection from Aloise)

TR 1239-20 At that time is when the defendant gets

him one arm free, digs his finger into King's eye and

tries to put it out.

TR 1240-8 Consider the extent of the force that he

exercised to use that type of deadly force that is

called, it is not-it is likely to cause serious bodily

injury. And I think all of you sitting there would look

at the evidence and look at the facts someone trying

to poke someone's eye out could cause serious bodily

injury.

                                                   -67a-

"43 2/10 Police Officer states that he was working

this evening when he was at Winner's Circle off duty.

States someone came in and assaulted patron. Patient

chased person and got finger in left eye. Felt fluid

and blood come out of eye. Complained of blurred

vision." (Patient is the Police Officer Mr. King.)

Physical exam objective reveals the following:

"External examine revealed superficial abrasion

to his lids and two swelling left upper lids.

Conjunctival was plus 3, injected with

superficial Keroatin nasally and temporally.

Anterior chamber formed and quiet. Dialed

fundus revealed disc flat, sharp pink, cup to

disc. Disc point to commotio retina nasally and

temporally globe appears intact."

Diagnosis: Conjunctival laceration, long

discussion. Told of possible infection and

retinal damage. Given Erythromycin ointment

and pressure patch. To office in the AM.

Instructions: To office at 591 Lincoln Street in

AM.

-69a-

WORCESTER, SS.                             SUPERIOR COURT

                                                         CRIM. NOS. 93-01351,

                                                         93-0 1352, and 93-0 1354

COMMONWEALTH

v.

MICHAEL ELBERY

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

-70a-

5. In my opinion, the injury sustained here would

not have resulted in the leaking of any vitreous fluid

or noticeable blood loss from the eye.

SIGNED UNDER THE PAINS AND PENALTIES OF

PERJURY THIS 5th DAY OF JANUARY, 1996.

/s/

Dr. Joe Hull

-71a-

March 12, 1996

Dear Bob,

Here are the answers to your questions. Sorry it

has taken me so long to get back to you.

1. "Conjunctiva plus 3" means that there was

moderate inflammation of the conjunctival membrane,

i.e., the eye was red.

2. "Angio. #20" is a 20 guage intravenous needle

that was started in the arm.

3. Betadine prep. is a very clean, iodine

washing/preparation or cleansing of the skin to

remove bacteria.

4. Injected means red and inflamed. I think

keroaltin is a misspelling of keratin, the outer, most

superficial cell layer of the skin and eye.

5. The anterior chamber of the eye is normal

when it is formed and quiet (an odd term to mean not

inflamed or diseased).

6. The fundus is the back of the eye where the

retina is seen after the pupil is dilated and one looks

through the pupil with an ophthalmoscope. The optic

nerve head is the disc and it should be normally flat

and the cup should be sharp and pink when normal.

Let me know if you have any more questions.

/s/ Joe Hull