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Worcester ss                                                                                                    Criminal Action

                                                                                                                         Worcester Superior Court

                                                                                                                           #93-0135

Commonwealth of Massachusetts

                     v.

Michael G. Elbery

 

Amended Claim #2 To Defendant, Elbery's, Motion For New Trial

 

 

Dr. Dennis Arinella's Testimony - Alleged Victim, Tom King's, Real Cause and Extent of Eye Injuries

The Testimony that Attorney Louis P. Aloise Concealed from the Jury

 

This Amended Claim #2 was not available at the original filing of Defendant's Motion For New Trial on July of 1999 Due to the alleged victim's treating physician, Dr. Dennis Arinella, not being called as a witness at the trial that convicted the Defendant of "Attempted Mayhem" and caused him a 10 year State Prison Sentence. Under Mass. Law the evidence produced in this Amended Claim #2 is not classified as Newly Discovered Evidence, but "Ineffective Assistance of Counsel" and "Knowing Use of Perjury by the Prosecution." The evidence, Herein, this Amended Claim #2, was gained by the Defendant during the Testimony of Dr. Dennis Arinella at the Federal Trial of Elbery v. Sklut in May of 2002. Dr. Arinella was subpoenaed at the Federal Sklut case.

This is the first time a Judiciary in Massachusetts has the opportunity to review the sworn testimony of the Alleged victim, Tom King's, doctor, Dr. Dennis Arinella, regarding the cause and extent of injuries to King at the underlying incident on 9-29-92 that gave rise to the above docketed action. Arinella's testimony proves to a medically documented certainty that the trial jury that convicted Defendant - Elbery was lied to and that King, according to Dr. Arinella's testimony in the Sklut case, had only superficial abrasion caused by King "catching a finger in the eye." 

Defendant, Michael Elbery, was convicted of "Attempted Mayhem" (trying to take out King's eye) due to false testimony by King about the cause and extent of his eye injuries that were totally in opposite to Dr. Dennis Arinella's testimony at the Sklut case as to King's cause and extent of eye injury on 9-29-92.

 

See - The Federal Transcript (F.T.R.) - Testimony of Dr. Dennis Arinella, Elbery v. Sklut 97-11743

Dr. Dennis Arinella was avoided as the required witness the defense of Michael Elbery needed to defend the charges of Attempted Mayhem in July 1993. Elbery's Defense Attorney - Louis P. Aloise, in agreement with former Worcester County prosecutor Mike Ball, made sure that Dr. Arinella never showed for trial, so that the alleged victim, off-duty out-of-jurisdiction Westboro cop, Tom King, and the prosecution, could have an unobstructed time lying about King's eye injury at trial. That same eye injury charge of "Attempted Mayhem" was found by a Massachusetts Judge to have No Probable Cause, yet, Michael Elbery would be sentenced to 10 years in a State Prison on that same criminal charge of "Attempted Mayhem."

Attorney Louis P. Aloise and his co-conspirators were successful in preventing the jury from ever knowing what was disclosed in medical reports of Dr. Dennis Arinella, Ex. A**, and the attending registered nurse about cop - King's cause and extent of eye injury that got Michael Elbery 10 years in Prison. There was absolutely no medical witness that testified at trial to tell the jury that King was lying about his injuries and that he only had a superficial abrasion to his eye lid and a red eye caused, as King admitted to Dr. Arinella, by "catching a finger in the left eye after King chased a person down the street".

But there were things that Attorney Louis P. Aloise could not account for in the years that followed. Aloise believed back in 1993 that because he was a former prosecutor, himself, and that he prosecuted the Jose Anibal Colon (see 408 Mass 419) case that he would always be a Sacred Cow in Massachusetts; Aloise believed that because he put a cop killer in prison that he would be protected from his own crimes in the Massachusetts courts. Aloise determined in the Worcester County Courthouse who would be prosecuted and imprisoned regardless of law and evidence. Lou Aloise despised and attacked anyone he considered didn't "play ball". Aloise targets anyone who speaks out against his power group, the "Home Rule Gangsters" in "Worm Town"; disagreeing is intolerable to Attorney Louis P. Aloise who likes everybody to "play ball" in his gang's yard, with their rules and referee.

The Shrewsbury Police would needlessly torch the E-z mini Storage on Route 9, Shrewsbury, Mass. on August 4-5, 1994 in order to get Michael Elbery off the streets from a "Stay of Sentence Pending Appeal" after he was maliciously convicted of "Attempted Mayhem" on July 2, 1993. The Shrewsbury cops, led by Sgt. James Hurley, falsely arrested Michael Elbery on August 5, 1994 for guns violations, although he was legally licensed. Elbery would be found Not Guilty of the 6 gun charges at E-z and in 1997 he filed a Federal lawsuit against the Shrewsbury cops, Elbery v. Sklut et al.

On May 20, 2002 that Federal lawsuit came to trial and Michael Elbery subpoenaed Dr. Dennis Arinella to give testimony about King's real injuries, as per Dr. Arinella's instant report that 9-29-92, Ex. A, when he examined King at the U. Mass. Medical Center Emergency Room. Federal Plaintiff - Michael Elbery planned to show through Dr. Dennis Arinella's testimony at the Sklut case that alleged victim cop - Tom King was knowingly sponsored to lie about the cause and extent of his eye injuries at the trial of Com. v. Elbery #0135 in Worcester Superior Ct. in July 1993. Plaintiff-Elbery stated per his complaint against the Shrewsbury cops that they torched the E-z Mini Storage facility in order to help fellow officer Tom King, who they knew lied at the "Attempted Mayhem" trial of June-July 1993 that resulted in a false imprisonment of Michael Elbery worth 10 years.

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Dr. Dennis Arinella showed on the second day of trial of the federal Sklut case against the Shrewsbury cop defendants and tried desperately to lie in order to advocate the cop, Tom King, that he saw at the Emergency Room on 9-29-92. Dr. Dennis Arinella was repeatedly made by Plaintiff - Michael Elbery to refer to his medical report that Arinella produced on 9-29-92, Ex. A, when he looked at Tom King's red eyeball immediately after the underlying incident that caused the above docketed action against Defendant - Elbery.

This Federal Transcript of Dr. Arinella's testimony is just more undisputable documented evidence that Westboro Police Officer, Tom King, lied at trial that framed Michael Elbery for 10 years in prison because Tom King lied about the cause and extent of his eye injuries. And Elbery's Defense Attorney, Louis P. Aloise, knew King was lying, as did A.D.A. Mike Ball and Worcester D.A. John Conte. 

 

Under oath on the witness stand that 5-22-2002, and as per transcript, Dr. Dennis Arinella was made to tell the truth that he so desperately wanted to avoid. Dr. Arinella made no attempt to hide his bias against Plaintiff - Michael Elbery, but Dr. Dennis Arinella was forced to admit under oath the true facts and evidence that was totally the opposite to the testimony given by Tom King about his cause and extent of eye injuries at the trial of the Attempted Mayhem charges that caused Elbery 10 years in prison.

 

I. Referring to the medical report, Ex. A, Dr. Dennis Arinella wrote as a result of examining cop - Tom King on 9-29-92, Dr. Arinella testified,( F.T.R. p.15 line 22 thru p.16 line 8), that King admitted to him at the Emergency Room during that examination that King received his eye injury caused as follows:

                                                 "Chasing a bar patron down the street caught a finger in left eye."

 

Arinella testified, (F.T.R. p. 34), King never told him that his eye injury was caused by "two occasions of trying to gouge out King's eye", as King testified during the prosecution of Michael Elbery at the trial of June-July 1993 at Worcester Superior Court for Attempted Mayhem.

Arinella testified King never told him that someone was trying to take out his eye (F.T.R. p. 33), as Off-duty officer Tom King testified to at that trial for "Attempted Mayhem", as below.

 

*See Footnote 1 - bottom of this Chapter of MassInjustice.Org for Alleged victim's, Tom King's, trial testimony as to cause of his eye injury.

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II. Dr. Dennis Arinella then admitted under oath that his medical report, Ex. A, disclosed that Tom King sustained eye injuries "from catching a finger in the eye" as follows:

 

 

Dr. Dennis Arinella's testimony confirmed to a medically documented certainty that King's claim of injuries that put Michael Elbery away for 10 years for "Attempted Mayhem" (trying to take out King's eyeball) were lies. Dr. Arinella testified in opposite to King's testimony before a jury at Worcester Superior Court in June 1993 concerning the extent of his (King's) eye injury. As confirmed under oath in the Federal Court by Dr. Dennis Arinella, Tom King's testimony regarding his eye injury causing Michael Elbery to be framed in Worcester Superior Court in July of 1993 was a calculated lie, as follows:

There was no leaking vitreous fluid coming out of King's eye, (F.T.R. p.25 line 23).

King's eye was not almost out of his head but was formed, in tact and not damaged, (F.T.R. p.28 lines 20 thru 21 & p. 17 line 8 thru 10).

King's eyeball was not cut or lacerated. (F.T.R. p. 23 line 1 & p. 24 lines 15 thru 22 & p. 30 lines 24-25 & p. 35 lines 2-4).

King was not blinded by his chasing incident, (F.T.R. p. 16 line 17 & p. 19 thru p. 20).

King did not have permanent eye damage, and the ocular pressure in King's eye was normal, (F.T.R. p.17 lines 1 thru 16).

King did not almost lose his eye. (F.T.R. p. 1-70)

King did not have a "detached retina", (F.T.R. p.31 line 1-3).

King's eye was not frozen or numbed, (F.T.R. p. 22 lines 8 thru 12).

King did not have "two eye patches applied" by Arinella, (F.T.R. p. 22 line 12).

King's eyeball was not dripping blood, but that it was possible that a small drop of blood  could have occurred from a broken capillary of the conjunctiva that caused King's bloodshot eye ball, (F.T.R. p. 24 line 23 thru p. 25 line 20). Dr. Arinella testified there was no notation on his report, Ex. A, that he saw any blood at all on patient King.

Arinella admitted, (F.T.R. pgs. 13 thru 14),  that he arrived on call at the Emergency Room of U. Mass. Hospital on 9-29-92 at 2:25am after King was admitted at 2:10. King was discharged from that ER at 2:45am per the medical report, Ex. A.

There was no surgery done on King's eye, but rather the concern was possible infection because a fingernail hit King's eye and Dr. Arinella squirted some ointment on King's eye and gave him a big band aid for his eye and sent him on his way in a quick 20 minutes that 9-29-92, (F.T.R. p. 22 lines 5 thru 16).

Arinella further testified that the inflammation or red eye would have healed on its own, (F.T.R. p. 23 line 3).

 

*See Footnote 2 - bottom of this Chapter of MassInjustice.Org for Alleged victim's, Tom King's, trial testimony as to extent of his eye injury and treatment.

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III. Attorney Gerald "Geraldine" Fabiano advocates cop lies

The Shrewsbury cops' defense attorney, Gerald "Geraldine" Fabiano, attempted to save the day and enforce the lies that Westboro, Mass. cop, Tom King, told almost 10 years earlier before a jury in Worcester Superior Court that resulted in Michael Elbery being sentenced to 10 years in prison. True, Fabiano lacked the necessary presence needed by a trial lawyer before a jury, but that wasn't the reason he was defeated in his quest to get Dr. Arinella to lie to the Federal Sklut jury. The problem Gerry Fabiano had was that King's testimony was a medically documented lie and there was nothing he or John Conte's Worcester County D.A.'s Office can do about it, other than acknowledge that they knowingly imprisoned Michael Elbery on cop lies.

Attorney Gerry Fabiano was almost successful in getting Dr. Arinella to state that King's superficial eye injury could have been intentional, (F.T.R. p. 45). But when questioned during re-cross on this issue by plaintiff - Michael Elbery, Dr. Dennis Arinella had to admit under oath that he didn't know if King's eye injury was the result of an intentional or accidental/unintentional finger to King's eye, (F.T.R. p. 53 lines 1- 4).

Dr. Dennis Arinella was sure that alleged victim and Westboro, Mass. cop - Tom King confessed that his injury was caused by "catching a finger in the left eye".

 

IV. So What's New? Nothing - same evidence that existed at the date of Trial and was concealed by the Prosecutor and Defense Attorney Aloise

On May 22, 2002 at the Federal Courthouse - Boston, Mass., Dr. Dennis Arinella was made to tell the truth about his patient, off-duty and out of jurisdiction Westboro cop, Tom King, who he looked at for 20 minutes in the ER of U. Mass. Hospital because King "caught a finger in his left eye". Dr. Dennis Arinella didn't want to tell the truth about King's confessed cause of his eye injuries and the medically documented extent of King's eye injury, but he was boxed-in by the documented medical record he wrote, Ex. A, on that 9-29-92. Federal Plaintiff - Michael Elbery had a deciphering of Dr. Arinella's medical report,, Ex. B, so to insure that Arinella couldn't express his bias in favor of cop - Tom King's lying at the trial of July 1993 in Worcester Superior Court that put Michael Elbery in prison for 10 years for a crime of "Attempted Mayhem". It was obvious to Plaintiff - Elbery that Dr. Arinella knew that D.A. John Conte's, Worcester District Attorney's Office, A.D.A. Mike Ball, and Attorney Louis P. Aloise used perjury regarding King's (lack of) eye injury to convict Michael Elbery.

Dr. Dennis Arinella hated telling the truth that he unwittingly documented years before and then had to reconfirm under oath in the Federal Court of Federal Judge Mark Wolf and to a Federal Jury.

 

Same Medically Documented Truth in Elbery's Motion New Trial

There you have it, again, but this time with the testimony of King's treating physician, Dr. Arinella; the required medical testimony that was deliberately avoided at the trial in Worcester Superior Ct. in 1993 that convicted Defendant - Elbery of the prosecution's charge of "Attempted Mayhem" (attempting to take out King's eye) which was all executed by King's perjury. Alleged victim, Cop-Tom King, was allowed, at trial, to be the sole medical witness who testified as to his fabricated eye injury, cause of eye injury, and his medical treatment, all illegally causing Defendant-Elbery to be convicted by perjury.

But Michael Elbery already presented this same medically documented evidence in his Motion for New Trial. In that Motion for New Trial, Elbery dedicated the first three claims to the issue of Cop - Tom King's lies about the cause and extent of his eye injury and conspiracy by the prosecutor, A.D.A. Mike Ball, and Elbery's defense attorney, Louis P. Aloise, to sponsor Westboro cop - Tom King to lie at trial about the most import evidence during that trial.

Attorney Louis P. Aloise doesn't have to confess that he conspired with A.D.A. Mike Ball (the prosecutor) to allow cop - Tom King to lie at trial and conceal the real evidence that was documented on the Medical Records produced by Dr. Arinella and the admitting nurse. The same medical records that Michael Elbery, after his conviction in preparation for the Direct Appeal, paid an investigator to get deciphered, Ex. B, by Dr. Arinella's office staff and explained by Dr. Hull, Ex. C. No Aloise signed his name to his conspiracy to maliciously prosecute his own client as did the prosecutor, A.D.A. Mike Ball, and it's all contained in the Trial Transcripts and the Motion for New Trial that Michael Elbery wrote and filed in July of 1999 and Re-filed on June 13, 2013.

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*Footnote 1 - Tom King's trial testimony as to cause of his eye injury. (See trial transcripts pgs. 185-491 for King's trial testimony).

King testified at trial, T. R. 201-17, 20, He (Elbery) took his thumb and jammed 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... (2nd thumbing) jammed that thumb back into my eye on the inside of my eye and kept pushing the thumb into my eye.

King lied at trial with his testimony of two occasions of thumbing to the side and almost behind the eye. King's statement to the medical people, only minutes after his eye injury are clear-he got poked in the left eye by a finger. This is, coincidentally, what he told defense witness Hayes, per Hayes testimony, "I must have got poked in the eye". "I think I got poked in the eye", T. R. 918-16. Hayes was told this by King while driving King to the hospital on 9-29-92 immediately following his bump in the eye or injury, that resulted in the defendant being convicted of "Attempted Mayhem" and sentenced to 10 years in the state prison.

 

 

*Footnote 2 - King's trial testimony as to extent of injuries and treatment (all lies). (See trial transcript pgs. 185 - 491 for King's trial testimony)

1. At trial, prosecution witness-in-chief and alleged victim, Thomas King, lied about his eye injuries and related treatment. King testified at trial that defendant Michael Elbery caused him to have the following severe serious eye injuries:

a. A cut eyeball, T. R. 204-1, 2; 468-9.

b. A lacerated eyeball, T. R. 203-24, 385-12, 440-15, 479-3.

c. Bleeding from his eyeball, blood coming out of his eye, T. R. 202-24, 203-1, 468-14-16.

d. Vitreous fluid leaking from his eye, T. R. 202-24, 203-1.

e. Permanent eye damage, T. R. 204-3, 204-3-10.

f. Repeated testimony about almost losing his eye, T. R. 203 - 9, 469-17-19; 468-24, 405-15.

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

Additionally, before the Grand Jury, regarding this instant case, King testified he had muscle damage to his eye, G. J. 8-13, and at the Probable Cause Hearing he testified he was at the hospital for four hours, PC 16-21.

King testified at trial that he had the following medical treatment to his eyes as a result of Elbery's alleged assault:

h. Freezing and numbing of the eye, T. R. 203-20.

i. Each eye covered by a patch, T. R. 203-21, 383-22, 406-1, 468-5-9.

 

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Dr. Dennis Arinella was never called as a witness at trial of the above docketed action. The above evidence produced by Dr. Arinella at the Civil trial of Elbery v. Sklut proves that Defendant - Michael Elbery was convicted by perjury. Dr. Dennis Arinella confirms, via this Amended Claim #2, that all the evidence produced by the prosecution regarding alleged victim, Tom King's, injuries, extent of injuries, cause of injuries, and treatment was perjury and the prosecution had a duty to know and should have known that the jury was being lied to at the trial that Convicted Defendant - Elbery in July of 1993.

Because Defendant - Elbery's Defense Counsel, Louis P. Aloise, did not call the alleged victim's treating physician, Dr. Dennis Arinella, as a witness at trial, or any medical witness at trial, Defense Attorney Aloise, was " Ineffective in his Assistance of Counsel.". Dr. Dennis Arinella would have produced the above exculpatory evidence for the defense that would have proved to a medically documented certainty that the evidence at trial that convicted the defendant was perjury. Had Dr. Arinella been called as a witness he would have been required to testify in compliance with the medical records he produced on 9-29-92, as above this Amended Claim #2 via Federal Testimony in Elbery v. Sklut, and Dr. Arinella's testimony, as herein and his testimony per Federal Transcript, would have resulted in any fair and unbiased jury finding a verdict of Not Guilty on the charges Aloise was allegedly defending for his client Michael Elbery.

In fact, had Aloise even hinted at his intent to call Dr. Arinella and produce the real evidence, per the medical report Dr. Arinella wrote that Aloise had possession of well before trial, as to the cause and extent of alleged victim, King's, red eye injury/bump, the Worcester D.A.'s Office would have "headed for the hills" and dropped the charges against Defendant - Michael Elbery, at the above docketed case, in Worcester Superior Court.

The prosecution did not call any medical witness at the trial of the above docketed action, but the prosecution had possession of their alleged victim's, King's, medical report produced by Dr. Arinella on 9-29-92; the same medical report that Dr. Arinella produced minutes after the underlying incident that caused the above docketed action. The prosecution should have known that the evidence produced at trial surrounding King's cause, extent and treatment of his alleged eye injuries that convicted Defendant - Elbery was perjury. This illegal conduct by the prosecution constitutes "Knowing Use of Perjury", at the trial that convicted Defendant - Elbery, as defined Under the Sixth Amendment of the U.S. Constitution's Bill of Rights, also known as a Brady Violation.

As a result Elbery's Constitutional Rights to a Fair Trial was also violated.

Wherefore,

Under the law of land of this here United States, A New Trial is Required.

 

Michael Elbery

120 Old Pleasant St.

Lee, Mass. 01238

5-15-14

 

 

** Ex. A, Ex. B, Ex. C refer to Defendant's/Moveant's Exhibits in support of Motion for New Trial #93-0135 which was Re-filed with the Worcester Superior Court on 6-13-13.