MASSACHUSETTS SUPREME JUDICIAL COURT

 

 

 

 

 

MICHAEL ELBERY,

                                                        APPELLANT

V.

COMMONWEALTH OF MASSACHUSETTS,

                                                                  APPELLEE

_____________________________________________________________

REQUEST FOR LEAVE TO OBTAIN FURTHER APPELLATE REVIEW

FILED UNDER RULE 27.1 OF M.R.A.P.

______________________________________________________________________

 

 

 

 

 

 

 

Michael Elbery

168 Fairfield St.

Needham, Mass. 02492

781-444-7324


 

 

 

 

TABLE OF CONTENTS

 

Table of Authorities                                   ii

Table of Abbreviations                                iii

Request for Leave to Obtain Further Appellate Review    1

Statement of Prior Proceedings                          1

Statement of Facts                                      4

Statement of Points                                     9

Statement of Reasons Requiring Further Appellate Review10

ADDENDUM

Mass. Appeals Court Rescript

Certificate of Service

TABLE OF AUTHORITIES

Mass. Cases:

Com. v. Baldwin, 24 Mass. App. Ct. 200 ('87)                 12

Com. v. Clairborne, 423 Mass. 275 ('96)                      16

Com. v. Elbery, 38 Mass. App. Ct. 912 ('95)                   3

Com. v. Ennis, 2 Mass. App. Ct. 864 ('74)                    12

Com. v. Forte, 33 Mass. App. Ct. 181, 597 NE 2d 1056(92)      4

Com. v. Harris, 11 Mass. App. Ct. 165 16,                    18

Com. v. Juvenile, 409 Mass. 49 ('91) 17

Com. v. Moreira, 388 Mass. 596, 601 ('83) 16 Com. v. Stokes, 374 Mass. 583 ('87)                                               14

Com. v. Tucceri, 412 Mass. 401, 589 NE2d 1216 ('92)       10, 13

Com. v. Vaughn, 23 Mass. App. Ct. 40 ('86)                    15

Gibney v. Com., 375 Mass. 146, 375 NE2d 714 ('78)             10

White v. White, 40 Mass. App. Ct. 132, 662 NE2d 230(96)       10

 

Supreme Court of the United States:

Evitts v. Lucey, 469 U.S. 387 ('85)                           10

Giglio v. United States, 405 U.S. 150('72)                14, 19

Mullaney v. Wilbur, 421 U.S. 684 ('75)                    14, 18

Napue v. Illinois, 360 U.S. 264 ('59)                         18

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Strickland v. Washington, 466 U.S. 668,('84)              15, 19

United States v. Agurs,427 U.S. 97 ('76)                      13

Amendments to the United States Constitution:

Fourteenth Amendment                                          10

Mass. Statutes & Rules:

MRAP - Rule 27.1                                               1

MRCP 30b                                                      10

MRCP 15                                                       17

 

 

TABLE OF ABBREVIATIONS

Add.                Addendum

Arg.                Argument

CBr.                Commonwealth's/Appellee's Brief

DBr.                Defendant's Appeal brief

DRb.                Defendant's Reply brief

DW                  Dangerous Weapon

Ex.                 Exhibit

Exs.                Exhibits

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ftnt.               footnote

Id.                 Identified

memo                "Memorandum and Decision" by Motion Judge 

                      Hillman

motion               Defendant's "Memorandum in Support of                   Motion for New Trial" (1st 115 pages of                   Appendix)   

PC                    Probable Cause Transcript

RA                    Record Appendix

TR                    Transcript of Trial

WPD                   Worcester Police Dept.

                     paragraph

 

 

 

 

 

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Request for Leave to Obtain Further Appellate Review

    The defendant/appellant- pro se requests leave from the Mass. SJC to obtain further appellate review as provided by Rule 27.1 of the M.R.A.P. The conviction of the defendant, Michael Elbery, was an injustice and will cause to undermine the public's confidence in the Mass. Courts. The evidence that convicted the defendant, Elbery, was perjury knowingly used by the prosecutor.

Statement of Prior Proceedings

Arrest-Charges

    This case resulted from the defendant being arrested by citizen and alleged victim, Tom King, on 9-29-92 at about 1:30a.m. on Shrewsbury St., in Worcester, 100 yards from the Winner's Circle Bar. Minutes later the Worcester Police arrived and arrested the defendant for disorderly person due to the defendant making noise while under the weight of 3 men being subdued on the street. See RA 129 (WPD incident report) and PC 162-163, PC 159-7.

By 8:00am. the charges were increased to include "Mayhem", Assault Dangerous Weapon, Assault and Battery, and Disorderly Person (defendant making noise under a pile of 3 assaulting men). RA 134.

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Probable Cause Hearing

On January 20, 1993 there was a Probable Cause Hearing held on those charges before Worcester District Judge Milton Raphelson. The prosecution reduced the mayhem charge to "attempted mayhem" after Judge Raphelson inquired as to the police officer with the missing eye. After a 5 hour hearing, the defendant did not testify, Judge Raphelson found there was no probable cause for any of the charges before him. PC 265-266. Raphelson did find probable cause for alleged disorderly conduct (a misdemeanor) inside the bar although this charge was not before him. See RA 135 (Worcester T&G 1-20-93) & PC 265-266.

Indictment

The Worcester D.A.'s Office rid themselves of all their witnesses and the exculpatory evidence produced at the Probable Cause Hearing and impaired the Grand Jury Process by indicting the defendant on the sole and knowingly false testimony of alleged victim, Tom King. RA 64-69.

Trial and Conviction

After a 5 day trial the jury convicted the defendant on three of the four indictments - "assault with intent to maim"(attempted mayhem), "assault and battery", and "disorderly conduct" after deliberating less than an hour. The indictment for "assault dangerous weapon" (beer bottle) was directed not guilty by the

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trial judge, Daniel Toomey. On 7-15-93 Judge Dan Toomey sentenced the defendant to 10 (TEN) years in state prison and allowed the defendant to walk out the Courthouse door via a "stay of sentence pending appeal". RA 159-160. The defendant's stay was revoked 13 months later due to the Shrewsbury Police falsely arresting the defendant on 6 gun charges, which resulted in a disposition of not guilty on all charges at trial.

Post Conviction

There was a Direct Appeal filed by the defendant's appellate lawyer, Bobby Sheketoff. 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 "Motion for New Trial" in Worcester Superior Court. That Motion was denied by motion judge Hillman on 12-26-01, 2 1/2 years later. The defendant timely filed an appeal brief, docket 02-P-318, and reply brief with the Mass. Appeals Court regarding Hillman's denial. The trial judge, Toomey, had recused himself from the case due to publicity caused when Governor Cellucci acted on the defendant's innocence, due to a letter accompanied by the defendant's motion for new trial, presented to the Governor by the defendant in September of 1999. See Boston Globe 9-27-99 - front page.

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Statement of Facts

The facts below are undisputed unless otherwise indicated.

    The defendant entered the Winner's Circle Bar on 9-29-92 at 1:30am at last call and was served, and never asked to leave. TR 1081-12. The testimonies at the probable cause hearing were that the defendant was minding his own business not bothering anyone and the bartender started insulting the defendant. The bartender apologized to the defendant at the probable cause hearing while testifying. The undisputed fact, via the probable cause testimonies, was that alleged victim, King, threatened the defendant inside the bar and had to be restrained by several people while the defendant remained in his seat. See RA 73-89 & 67-68 (motion claims X & VIII-p.67-68).

    However, at trial those same witnesses changed their testimonies by claiming that the defendant started the argument in the bar and was the aggressor. The jury was never alerted to these changes in trial witnesses' probable cause testimonies, which were all substantive evidence. Com. v. Forte, 33 Mass. App. Ct. 181, 185 597 N.E. 2d 1056, 1058, 1059 ('92). See DBr.-Arg. VI.

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    The jury heard evidence the defendant smashed a beer bottle, TR 191-4, 300-23, however, at the probable cause hearing these same witnesses admitted they did not know how the bottle broke. See RA 67 item 4 (motion claim VIII p. 67-item 4). The jury was never alerted to this change in testimony. See DBr-Arg. VI p. 46.

    The court claims, p. 3 of memo, that half an hour passed between the bar argument and the bottle breaking in the bar, however, per trial transcript, there was no such evidence given at trial.

    The court claims, per memo p. 3, that 1 minute passed between the bottle breaking and the defendant exiting the bar. However, only King testified at trial the defendant was in the bar for 30 seconds threatening the whole bar with a broken beer bottle. TR 192-194. At the probable cause hearing all the witnesses, including King, admitted the defendant exited the bar immediately after the bottle broke, and never used a bottle as weapon. See RA 49 & 67-item 5 (motion claim VI p. 49 & VIII p.67-item 5). The trial jury was never alerted to these changes in testimonies of the probable cause hearing, which is all substantive evidence. id. See DBr. Arg. VI.

    Contrary to the court's memo, p. 3, there is no trial transcript testimony that King yelled at the defendant to stop

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and wait for the police because someone was hurt. Per RA 86-item 3 (motion claim X-item 3), King testified, at trial, it was his understanding that "Jeff the bartender" was on the phone calling police. However, at the probable cause hearing, PC 55-11, he testified he presumed, because the bartender was near the phone, that he was calling police. The bartender, Schlener, testified at the probable cause hearing he never called the police prior to King exiting the bar in pursuit of the defendant. See PC 113-(1-24) & RA 67 item 6 (motion claim XIII-p. 67 item 6). See DBr. VI p. 46 & 47.

    It was undisputed, at trial, that King and his friends pursued the defendant down the street after the defendant fled the bar, see memo p. 3. Although the trial testimonies of all witnesses were substantially different, as to how and what happened when King actually reached the defendant, King testified and documented, RA 139 (Westboro PD report-last ) (trial Id. A), he made a citizen's arrest. King testified and documented he prevented the defendant from escaping. See RA 39 (motion claim V). King's citizen's arrest, as a matter of Mass. law, was actually a false arrest and a series of assaults followed by battery. See RA 39-46 & DBr. Arg. III (citizen's arrest).

    The prosecution presented two fabricated events inside the bar (Mann's injury & bottle assault), as justification to the

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jury for King's arrest of the defendant. RA 30-38 & 46-57 (motion claims IV & VI). See DBr. Arg. IV & DRb-Reply #1.

    The prosecution knowingly allowed King and most of the witnesses at trial to falsely testify that King suffered a list of bloody-brutal injuries to his eye after King's arrest of the defendant. King claimed the defendant's repeated thumb gougings caused his eye injury. See DBr. - Arg. II.

    Although no other witnesses would corroborate, King also was allowed by the prosecution to falsely testify about the cause (defendant's repeated thumb gougings) and treatment of his eye injury. See RA 1-46 (motion claim I, II, III) & DBr. - Arg. II.

    Almost a year after trial the defendant discovered that King's illegible medical record, as written by Dr. Dennis Arinella, documented that King sustained only a superficial injury to his eyelid, and a small laceration to the conjunctiva causing a red eye. The defendant also discovered a year later that King admitted to his treating physician a few minutes after the incident, per that same record, his "injury" was caused by catching a finger in the eye after he chased a bar patron. See RA 3-4 (claim I-p.3-4) & RA 116-128 (Exs. A through C, all).

    This is medically documented evidence that was never known to the jury, and that showed the evidence that convicted and put the

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defendant away for 10 (TEN)years in prison was perjury. See DBr. Arg II & DRb-Reply #3-#6.

    The Worcester Police Dept. (W.P.D.) arrived at 1:47am, a few minutes after King made his "arrest" of the defendant, and found the defendant under 3-4 men in the middle of the street, see RA 67 item-11 (claim VIII p. 67 item 11). Officer Perma then arrested the defendant for disorderly person, only. See RA 129 (WPD incident report), RA 68 item 2 (claim VIII p. 68 item 2) & PC 162-23, 159-7. The police then brought the defendant to the hospital. See RA 169 (Central Mass. Medical Center documenting 9-29-92 at 2:25am). Once the WPD realized who they had arrested and that King was a Westboro cop they trumped-up the charges to "mayhem", "assault dangerous weapon," "assault and battery".

 

 

 

Statement of Points

1. None of the defendant's motion claims are waived for inclusion in the defendant's first Motion for New Trial, and appellate review.

2. The evidence of the extent and cause of the alleged victim's eye injury, which was the evidence that convicted the defendant of "assault with intent to maim" and "assault and battery", was perjury knowingly used by the prosecution and the defendant's trial defense attorney allowed it.

3. The prosecution deceived the jury to believe that the alleged victim's, King's, pursuit and stop of the defendant was a citizen's arrest, and the defense attorneys allowed it.

4. The prosecutor knowingly presented More perjury to the jury and the defendant's trial attorney and appellate attorneys were ineffective.

 

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Statement of Reasons Requiring Further Appellate Review

1. None of defendant's motion claims are waived. DBr.-Arg. I

The Motion Judge, the appellee, and Mass. Appeals Court are incorrect in claiming that the defendant's motion claims of prosecutorial misconduct and inadequate jury instructions are waived for appellate review. They claim those motion claims should have been raised on direct appeal. The U.S. Constitution guarantees, via the 14th Amendment, Effective Assistance of Appellate Counsel. Evitts v. Lucey, 469 U.S. 387, 396-97 105 S. Ct. 830, 837 ('85). The only place, in Mass., to raise ineffective assistance of appellate counsel is in a Motion for New Trial under Rule 30b - M.R.C.P.

All but one, (DBr. - Arg. III- Citizen's Arrest), of the defendant's claims of prosecutorial misconduct raised on appeal involve factual claims not of the trial record. Factual claims can only be raised in a "motion for new trial" under Rule 30b. Gibney v. Comm., 375 Mass. 146, 1148 375 NE2 714 ('78); White v. White, 662 NE2 230, 232, 40 Mass. Ct. 132, 133. Further, all the defendant's claims, per his DBr., of prosecutorial misconduct are "knowing use of perjury" which can only be raised on a "motion for new trial". Com. v. Tucceri, 412 Mass. 401, 405, 589 NE2 1216, 1219 ('92).

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2. The evidence of the extent and cause of the alleged victim's eye injury, which was the evidence that convicted the defendant of "assault with intent to maim" and "assault and battery", was perjury knowingly used by the prosecution and the defendant's trial defense attorney allowed it. DBr.- Arg. II & DRb - Reply #3-#6.

    The alleged victim and prosecution's witness-in-chief, Tom King, lied to the jury about the cause and extent of his eye injury. This evidence caused the defendant convictions for "attempted mayhem" and "assault and battery" and 10(TEN) year prison sentence.

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

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

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

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

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

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

6. Repeated testimony by King that he almost lost his eye, T.R. 203-9, 469-17, 468-24, 405-15.

7. Eye blind, T.R. 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 perjury by King about King's eye injury. See RA 142-146 (King's injuries-ftnt. 1).

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.

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    It is undisputed that King went to the hospital 10 minutes after the incident. King's treating physician, Dr. Arinella, produced an unreadable medical record, RA 120, 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, RA 120, 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, RA 120, deciphered, RA 123, and interpreted by a physician, Dr. Hull, RA 126-128.

    Upon review of the deciphering, RA 123, of King's medical report, RA 120, medical expert, Dr. Joe Hull, disclosed that King sustained a superficial abrasion to his eyelid and a small conjunctiva laceration causing a "red eye" or inflammation. See RA 126-128. Dr. Hull discloses per affidavit, RA 126-127 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

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lacerated. Hull states, RA 126-27, that King's superficial injury was consistent with being poked in the eye, not repeated thumb gougings.

    Per the readable deciphering of King's medical record, RA 123, Dr. Arinella documented that King claimed that his "eye injury" was caused by "catching a finger in the eye". See interview sections of RA 120 and its deciphering, RA 123. But the jury never knew this was the real cause of injury.

    The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury; it is presumed A.D.A. Ball knew the perjury 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".Tucceri 412 Mass. 405, ftnt. 3. See RA 16-20.

    The Worcester D.A., per CBr., does not deny that the eye injury evidence at trial was perjury; they never address the 4 pages of perjury by prosecution witnesses, RA 142-146. The D.A. also agrees, CBr.-41(lines 7-9), 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". They instead claim that Dr. Hull's affidavit is cumulative evidence of King's

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medical record. In effect, the D.A. agrees King's eye evidence at trial was perjury. The D.A. claims, CBr. 28,40-41, that the jury could sort out the perjury at trial because they had King's medical record, RA 120. Because the jury could not read or understand King's medical record, RA 120, although it, RA 120, was an exhibit at trial, Dr. Hull's affidavit, RA 126-128, cannot be cumulative evidence. In fact, the appellee insists that the judge, prosecutor, and Aloise could read and understand (the question is, how?) King's medical records, CBr p.39-40. The prosecutor had a duty to correct the perjury at trial, RA 142-146, regarding King's injury, regardless of the readability of King's medical record. Giglio v. United States, 405 U.S. 150, 153. DBr-Arg. II p.19 & Reply#4 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). See 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.

    Can the Mass. SJC read King's medical record, RA 120, or understand its deciphering, RA 123? An appeals court is in same

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position as a jury to judge documentary evidence. Com. v. Vaughn, 23 Mass. App. 40, 43 ('86).

    Instead of calling King's treating physician or any other medical expert witness, Louis P. Aloise allowed the perjury unchallenged regarding King's eye injury and this caused the jury to believe the illegible/unintelligible medical reports were a confirmation of that perjury at trial. It is undisputed that not only did Aloise and the prosecutor have possession of King's medical record, RA 120, but that Aloise knew the records revealed King only had superficial abrasions, DRb-Reply#6 & DBr p.21-25. Aloise was ineffective in his assistance of counsel, again. Strickland v. Washington, 466 U.S. 668, 694. This issue could not be raised on direct appeal its facts were not on the trial record.

3. The Prosecution deceived the Jury to believe that the alleged victim witness made a "citizen's arrest" when he pursued the defendant 100 yards down the street and the defense attorneys allowed it. DBr.- Arg. III & DRb - Reply #2

    It was an undisputed fact at trial that the alleged victim pursued the defendant 100 yards and physically stopped the defendant, memo p.3. The prosecution deceived the jury to believe that this pursuit and stop of the defendant by the alleged victim was a valid "citizen's arrest", DBr-Arg III. However, in Mass. to make a valid citizen's arrest the person making the arrest (this case the alleged victim) must point to a felony committed by the

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arrestee prior to the arrest and that alleged felony must pass the "in fact test". Com. v. Harris, 11 Mass. App. Ct. 165, 170 ('81). The "in fact test" requires that the alleged felony giving cause for the "citizen's arrest" must result in a felony conviction. id.

    It is undisputed that the defendant never was convicted of any felony occurring before the alleged victim chased him 100 yards. The 2 assault convictions resulted from the defendant's alleged conduct after King's "arrest".

    The appellee claims that because the alleged victim, Tom King, was an out of jurisdiction police officer he is entitled to the "relaxed standard" of the "in fact test". CBr 36. The "relaxed standard" of the "in fact test" requires that an out of jurisdiction police officer have only probable cause of a felony to make a citizen's arrest. Com. v. Clairborne, 423 Mass. 275 ('96). However, unlike the police in Clairborne, it was undisputed that King was not only an out-of-jurisdiction Westboro cop, but also off-duty drinking in a Worcester bar room several hours before the incident. DBr. 41-42 & TR 211-(14-19). Undisputed trial fact, unlike the police in Clairborne, King concealed his identity as a police officer; Causing King to lose all benefits of a cop. Com. v. Moreira, 388 Mass. 596, 601, ('83). See DRb 8. King did not comply with "responsible action of legitimate law enforcement" required for the "relaxed standard" of citizen's arrest. DRb 7-11.

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NO Probable Cause found by P.C. Judge - Even if the Court decides to change the law and give all off-duty police who conceal their identity as police in Mass. 24 hour state-wide jurisdiction via the "relaxed standard" of citizen's arrest, that won't justify King's arrest of the defendant, Because the Probable Cause Hearing Judge found there was No Probable Cause of a felony to pursue and arrest the defendant. PC 265-(8-17), PC 266-2. No appeal may be taken of matters arising out of probable cause hearing. Com. v. Juvenile, 409 Mass. 49,51 ('91), Rule 15 of Mass.R.Crim.P.

    The Appellee, CBr. 36, claims King had probable cause to arrest the defendant because of an "Assault by Means of Dangerous Weapon" and an "A&B-DW on a "girl" in the bar. Judge Raphelson found No Probable Cause for "A&B-DW", PC 265-(3-5), and the "Assault by means of Dangerous Weapon" charge, PC 265-(21-24) & RA 135.

    The D.A. documented there was no Probable Cause of a Felony per DBr.-p.2 and RA 133, TR 133. See DRb p. 11.

    Alleged victim, Tom King, testified there was no probable cause for him to chase and arrest the defendant for an assault with a broken bottle (Assault-DW), DBr. 36-37, or anything to do

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with an A&B-DW on a "girl" because he testified when he exited the bar to pursue the defendant he did not know a "girl" was injured. PC 53-6.

    The indictment for Assault-DW causes no probable cause because the grand jury was impaired, see DRb Reply #2 p. 10. There was no indictment for AB-DW, including on a "girl".

    Because King is not entitled to the "relaxed standard" and did not pass the "in fact test" or its "relaxed standard" for his citizen's arrest, his "arrest" of the defendant was a false arrest and assault and battery. Harris, 11 Mass. App. Ct. at 170. This makes the defendant the victim as a matter of law. But the jury did not know this. The jury was deceived by the prosecution that King made a perfectly legal citizen's arrest. "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). This deception by the prosecutor also prejudiced the defendant's defense of self-defense and the defendant's constitutional right to have the prosecution disprove self-defense. Mullaney v. Wilbur,421 U.S. 684,697-702.DRb-#2 p.11.

    And the defendant's trial attorney allowed the prosecution to the deceive the jury that King's pursuit and stop of the

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defendant was a legal "citizen's arrest" making him ineffective in his assistance of counsel. Strickland v. Washington, 466 U.S. 668, 690-94. The defendant's appellate attorney failed to raise this issue on direct appeal making him ineffective in his assistance of counsel. id.

4. The prosecutor knowingly presented More perjury to the jury and the defendant's trial attorney and appellate attorneys allowed it.

    At the P.C. 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. These same witnesses testified it was the prosecution's alleged victim, King, who started the fight with the defendant inside the bar and that it was King that had to be restrained while the defendant remained seated. DBr-Arg VI.

    However, at trial these same witnesses testified the opposite (perjury). DBr.-Arg. VI.

    In order to justify King's citizen's arrest, the prosecutor knowingly presented false evidence that the defendant used a bottle as a weapon, DBr. Arg. IV, and injured a "girl," DRb. Arg #1.

    The prosecutor had a duty to correct that perjury at trial. Giglio v. U.S., 405 U.S. 150, 153 ('72). Again, the defendant's trial & appellate attorneys were, ineffective

in their assistance of counsel. Strickland, 466 U.S. at 696.

Michael Elbery, 3-22-03

 

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ADDENDUM

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

02-P-318

COMMONWEALTH

vs.

MICHAEL G. ELBERRY.1

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

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

motion for a new trial and request for an evidentiary

hearing. The facts in this case are set forth in

succinct manner in our decision affirming the

defendant's conviction on direct appeal.

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

(1995). The motion judge determined that certain of

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

prosecutorial misconduct, inadequate jury

instructions, errors in the admission of evidence,

errors in sentencing, and claim that the verdicts were

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

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

reasons and upon the authorities set forth in the

motion judge's memorandum of decision, and in the

Commonwealth's brief, especially at pages twenty

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

claims were waived by his failing to raise them in his

direct appeal.

__________________

1 Although the defendant, in his pro se brief, spells his name

"Elbery," we follow our editorial convention of adhering to the spelling in the indictment..

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    In his motion, Elberry also claimed ineffective

assistance of both his trial and appellate counsel.

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

    With regard to the defendant's claim of ineffective 

assistance of appellate counsel, the motion judge

appropriately reviewed the trial record to determine

whether trial counsel was in fact ineffective and thus

appellate counsel would have been ineffective if he

failed to raise trial counsels ineffectiveness on appeal.

Our review of the trial record leads us the same

conclusion as that reached by the motion judge: that

trial counsel was not ineffective, and therefore

appellate counsel had no reason to raise the issue on

direct appeal.

    For the reasons and upon the authorities set forth

in the motion judge's memorandum of decision, and

for those set forth in the Commonwealth's brief,

especially at pages twenty-three through forty-three,

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

motion in this regard. We further conclude that there

was no abuse of discretion in the motion judge's

refusal to grant an evidentiary hearing, as the

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defendant raised no substantial issue. See

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

Order denying motion for new

trial affirmed.

By the Court (Laurence, Gelinas &

Mills, JJ.),

 

Clerk

Entered: March 10, 2003.

 

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