Commonwealth v. Elbery                                                                                                                                                                                                                       #93-0135

Worcester Superior Court




The defendant, Elbery, was convicted in Worcester Superior Court on 7-2-93 of assault with intent to maim, assault and battery, and disorderly person after a five-day trial, see exhibit M. The indictment of assault with a dangerous weapon was directed not guilty by the Superior Court Judge after presentation of the government's evidence, see TR-850-15, Ex. M-5.0.

The charges against Elbery resulted from an incident of 9-29-92, on Shrewsbury Street, Worcester, Massachusetts, near the Winner's Circle Bar. The incident precipitated in the Winner's Circle Bar.

The undisputed facts are that Elbery was escaping from an off-duty Westborough police officer, Thomas King, and his "friends" while they chased Elbery almost one hundred yards down Shrewsbury Street. The prosecution called this pursuit of Elbery a citizen’s arrest.

King physically stopped Elbery, as a King claimed, with his arms outstretched telling Elbery he was not going anywhere, hence a citizen's arrest by King of Elbery. All the prosecution’s evidence against Elbery for the two assault charges, in addition to being fabricated, occurred during King’s illegal citizen’s arrest of Elbery. See factual claims I, & V.

There was no felony committed by Elbery prior to King and "friends" pursuing and "arresting" Elbery, see claim V. The prosecution made several fraudulent attempts, at trial, to contrive a felony committed by Elbery prior to King's arrest of Elbery but failed as a matter of fact and law. In so doing, the prosecution violated Elbery's rights under the U.S. Constitution, see Memo of Fact and Law – claims IV, claim V  , and VI.

The Worcester Police Department arrived within minutes after the incident and found Elbery face down on Shrewsbury Street with three or four people on top of him. See Ex. D & Perma testimony PC-146 thru 148. Several witnesses at trial boasted they took part in the illegal arrest and beating of Elbery, see O’Connor testimony TR 794-799. Officer Gerald Perma arrested Elbery for disorderly conduct, PC-159-6, as he claimed Elbery was making noise while under the weight of several men.

Elbery was brought to the hospital by the Worcester Police Department and treated for various injuries, and then returned to the Worcester Police Department jail. At 8:00 a.m. Elbery was informed that he was charged with mayhem (a 20 year prison sentence via the Mass. law) for taking out a police officer's eye. At the same time Elbery was charged with assault with a dangerous weapon, assault and battery, and disorderly person, see exhibit F.

Elbery was released on a $200 bail that day. Judge Herbert Travers at that bail hearing asked his clerk if a police officer's eye was taken out and his clerk responded in the negative. Elbery inquired to Travers, why if it never happened was he being charged with mayhem. Travers threatened Elbery with contempt for speaking out for his rights even though he was not represented by counsel.

The initial probable cause hearing regarding these charges was scheduled for 12-3-92 and cancelled. On 1-20-93 the probable cause hearing was held before Worcester District Judge Milton Raphelson.

Upon Raphelson's inquiry as to where the cop was with the missing eye, the Worcester DA's office reduced the mayhem charge to assault with intent to maim (attempted mayhem-no weapon involved) alleging Elbery's thumb was the weapon.

King and 5 of his friends testified at the probable cause hearing, whereas, Elbery did not testify. Judge Milton Raphelson found no probable cause on all charges except for disorderly conduct, see PC-265. He then instructed the court reporter to turn off the record and balled King out for lying and trying to frame Elbery, see exhibit G.

The Worcester DAs office was not discouraged on March 3, 1993 they indicted Elbery on the same charges via the single testimony of Tom King. There was no new evidence just new falsifications. The Worcester DA's office rid themselves of King's friends who testified at the probable cause hearing in partial truth.

The trial was irregular or illegal and all that it produced is poison or unlawful. Nothing that resulted from that trial before Judge Dan Toomey can be relied on as a matter of law.

Elbery was sentenced to 10 years in state prison on 7-14-93 and released on a $7, 500 bail pending appeal. Elbery remained free on bail until 8-5-94 when he was arrested on six counts of gun possession. This arrest stemming from the mysterious fire of 8-4/5-94 at E-Z Mini-Storage, Shrewsbury Mass. where Elbery had rented a garage style storage unit.

Elbery was jailed on 8-5-94 and then imprisoned via bail revocation on 8-10-94. Those gun charges resulted in a not guilty verdict on all counts.

Elbery was released on parole after being imprisoned for one year of his ten-year state prison sentence, only to be falsely imprisoned by Mass. Parole 5 times until finishing his 10 years in 2002 with allowance for statutory good time.

The evidence at trial that convicted Elbery of the two assault charges was due almost entirely of the testimony of off-duty police officer Tom King regarding his eye injury that occurred during that 9-29-92 illegal citizen’s arrest of Elbery on Shrewsbury St., Worcester. King falsely claimed, as to the extent of his eye injury, that he sustained severe eye injuries as result of Elbery’s repeated thumb gougings to the side and almost behind his eye. Although King’s friends, who testified at trial and were involved in the incident, would not corroborate King’s fabrication of thumb gougings, they did testify falsely about the extent of King’s eye injuries. This false evidence as to the cause and extent of eye injury caused the element of the crime of assault with intent to maim, specific intent, to be satisfied. The prosecution’s claim of excessive force and deadly force was also only fulfilled by this knowing false evidence by the prosecution regarding King’s cause and extent of eye injury. The defense claim of self-defense was, in turn, destroyed by this same knowingly falsified prosecutorial evidence regarding King’s eye injury, this causing conviction of both assault charges. See claims I,  motion claim V.

Attorney Louise P. Aloise, who represented Elbery, allowed, in conspiracy with the prosecution, the presentation of the above false evidence that convicted Elbery. Had Aloise exposed that fabricated evidence and presented the "real evidence" there would not have been any credible evidence of specific intent as a required element of assault with intent to main charge, nor would there have been any credible evidence of the prosecution’s claim of excessive force and deadly force by Elbery. The "real and concealed evidence", had it been disclosed to the jury, would have shown only self-defense by Elbery after he fled his attackers 100 yards down Shrewsbury St.

It should be noted that the Worcester and Shrewsbury Police arrested Elbery a dozen times over a period of 10 years. Those charges resulted in not guilty or dismissals. Such a record is not a sign of good defense counsel but false charges and Constitutional violations.

The Worcester Police department vowed to put Elbery out of business at Mulcahy's Bar due to his criticism of them, the Worcester D.A.'s Office and the Worcester Liquor License Commission.

--------------------------------- Update 1999 ---------------------------------------

On 7-6-99 Defendant – Filed this same Motion for New Trial as is again filed in June of 2013.

On December 21, 2001 Judge Hillman decided to DENY that Motion for New Trial.

Defendant – Michael Elbery Appealed and the Mass. Appeals Court affirmed on 3-10-03 that Denial.

-------------------------------- Update June 2013 ----------------------------------------

Defendant – Michael Elbery re-files the same identical 115 page Motion for New Trial of Unconstitutional Activity that convicted him.

For the Trial Exhibits of this case held in July of 1993,

And for the Docket Entries of this case with corresponding documentation,

Please See on left margin/menu.