COMMONWEALTH OF MASSACHUSETTS

 

 

 

Worcester ss                                                                                                    Criminal action

                                                                                                        Worcester Superior Court

                                                                                                                                 #93-0135

Commonwealth of Massachusetts

                     v.

Michael G. Elbery

 

DEFENDANT'S MOTION FOR NEW TRIAL

&

DISCOVERY AND EVIDENTIARY HEARING

 

 

The defendant moves the court, pursuant to Massachusetts Rules of Criminal Procedure-rule 30(b), that he be granted a new trial, as justice was not done by the trial of the above criminal case.

The grounds upon which this motion is based is the conduct of the trial, the trial verdict was against the weight of the evidence, and over two dozen U.S. Constitutional errors or violations. This defendant's conviction of the above captioned case was a miscarriage justice. The conviction was obtained in violation of law and was manifestly unjust, as is proved in the supporting memorandum all the prosecution's evidence was fabricated.

The defendant further requests discovery, as allowed by Rule 30, on the injuries allegedly sustained by alleged victim, Tom King, and prosecution witness Mann. See claims I, II, III, IV of the Memo relating to Mann and King. The defendant requests discovery regarding the issues in claim VII of the Memo, King's demotion and whereabouts on 9-28-92. Specifically, this defendant requests discovery on the following:

1. The negatives of the pictures Tom King presented at trial, exhibits 1, 2, 3 at trial, relating to his eye injuries of 9-29-92. So there can be a comparison by an expert to the actual pictures at trial as in #2.

2. The pictures submitted by King, exhibits 1, 2, 3 at trial, relating to his eye injuries.

3. All medical reports relating to the alleged injuries of King and Mann as claimed at trial.

4. All documents of payments for the medical treatment by medical insurance companies for the activity described in #3.

5. The subpoena Louis P. Aloise sent the Westboro Police regarding the above docketed action and the demotion of Thomas King. This subpoena is itemized in claim VII.

6. All demotion documents from the Westboro Police regarding the demotion of Thomas King.

7. A deposition of Dr. Arinella, R.N. Grenier (the medical people who treated King) and the alleged physician that treated Mann.

8. A physical viewing of Christina Mann's face for scaring that should have resulted from the alleged glass cutting her face above and below her eye.

The defendant also requests an evidentiary hearing on the claims as per the accompanying Memorandum of Fact and Law.

WHEREFORE,

This defendant motions for a new trial, as the law requires, as well as, discovery and an evidentiary hearing on the claims per the Memorandum of Fact and Law.

Michael Elbery

6-28-99

 

SEE - MEMORANDUM OF FACT AND LAW IN SUPPORT OF MOTION FOR NEW TRIAL


 

 

Commonwealth                                                                                                 Worcester Superior Ct.

v.                                                                                                                         93-0135

Elbery

TABLE OF CONTENTS

FOR

MEMORANDUM OF FACT AND LAW IN SUPPORT OF DEFENDANT’S, ELBERY, MOTION FOR NEW TRIAL UNDER MASS. RULE 30b OF THE M.R.C.P.

&

The APPENDIX OF

THE APPEAL OF THAT MOTION FOR NEW TRIAL

 

 

Motion for New Trial & Discovery & Evidentiary Hearing

Procedural Background Memo (required in Appendix of Appeal)

I. THE VICTIM'S ALLEGED INJURY-ALOISE'S INEFFECTIVE ASSISTANCE OF COUNSEL 1

II. KING’S EYE INJURY-THE PROSECUTION fabricates the big lie.                                             16

III. King’s medical report was inadmissible evidence.                                                                   27

IV. CHRISTINA MANN’S CUT FACE – Fabricated cause for citizen’s arrest                         30

V. CITIZEN’S ARREST – there was no felony committed by Elbery prior to King’s citizen’s arrest. 39

VI. The Broken Beer Bottle Assault-Deadly Weapon – more fabricated attempt to justify King’s citizen arrest.                                                                                                                                      46

VII. King’s Motive to Lie – the Jury did not know the alleged victim/witness had something to hide.                                                                                                                                                  58

VIII. GRAND JURY – Impairment by the Worcester D.A.’s Office                                           65

IX. Clerk-John O'Connor Caused a Biased Proceeding-Continued Failure by Aloise.               71

X. Prior Inconsistent Statements – Failure of Aloise to Impeach Witnesses                                           73

XI. More Ineffectiveness by Aloise Opening Statement, argument, adopts-confirms prosecutions theory of case.                                                                                                                                                   89

XII. ADA Morris A. Bergman Incident – Why was this district court prosecutor at trial everyday? – so that he could get caught lying under oath.                                                                                                   96

XIII. Aloise fails to call Witnesses                                                                                                       98

XIV. Double Jeopardy and More Deficiency by Aloise                                                                      100

XV. Miscellaneous Aloise Deficiencies                                                                                               102

XVI. Illegal Prosecutorial Statements – Aloise No Objection                                                               107

XVII. Judge’s Instructions                                                                                                                   111

XVIII. Ineffectiveness of Appellate Counsel – Attorney Bobby Sheketoff from the rear                        114

Conclusion:                                                                                                                                          115

------------------------------------------------------------------------------------------------------------

 

Commonwealth                                                                                                                Worcester s.s.

        v.                                                                                                                             Criminal action

                                                                                                                                        93-0135.

Michael Elbery

 

DOCUMENT LISTING

Certificate of Service…1 page

Defendant’s Motion for New Trial & Discovery and Evidentiary Hearing, Com. v. Elbery 93-0135,…... 2 pages.

Defendant’s Memorandum of Procedural Background, Com. v. Elbery 93-0135,...3 pages.

Defendant’s Affidavits in Support of Motion For New Trial Under Rule 30, Com. v. Elbery 93-0135...... 6 pages.

Memorandum of Fact and Law in Support of Defendant’s , Elbery, Motion for New Trial,…......115 pages.

 

EXHIBITS

Exhibit A- Tom King’s medical report from Medical Center of Central Mass. for treatment on 9-29-92,…5 pages.

Exhibit B- Investigation and readable deciphering of King’s medical records of Exhibit A…5 pages.

Exhibit C- Dr. Hull’s affidavit in support of Defendant’s New Trial- A medical experts opinion of Tom King’s eye injury as per the medical records in Exhibit A…. 3 pages.

Exhibit D-Worcester Police Incident Report regarding the Incident of 9-29-92 on Shrewsbury St., near the Winner’s Circle Bar and arrest of Michael Elbery, plus Supplement Report…2 pages each, and Exhibit D Amended by W.P.D.

Exhibit E-Letter from ADA Michael Salloum to Attorney Louis P. Aloise dated 11-30-92…1 page.

Exhibit F-Complaint at Worcester District Court of 9-29-92 against Michael Elbery for mayhem etc.,…1 page.

Exhibit G-1-21-93 article Worcester T&G, Judge raps Cop…1 page.

Exhibit H-The Bolton Report, Reporting Westboro P.D. officer Tom King,…4 pages.

Exhibit I-Defendant’s Potential Witness List, …2 pages.

Exhibit J-Footnote 1- Tom King’s Injuries…5 pages.

Exhibit K-Footnote 3-Mann’s Injuries…3 pages.

Exhibit L-Footnote 4-Bottle Incident transcript citings…9 pages.

Exhibit M-Docket activity thru 3-22-94, Com. v. Elbery 93-0135…3 pages.

Exhibit N-Eviction Notice/Legal Documents – Celularo v. Elbery…2 page.

Exhibit O- ADA Morris Bergman Note…1 page.

Exhibit P-Transcript pages from Deposition of Elbery v. Hester…2 pages.

Exhibit Q-Elbery’s  Medical Reports…3 pages.

Exhibit R-Com. v. Elbery 93-0135, Motion 25-2-b…9 pages.

Exhibit S - Motion 25 Required Finding Not Guilty at Close of Commonwealth's Case -2 pages

 

TRANSCRIPTS

Trial Transcript of Com. v. Elbery 93-0135, 5 volumes, 1302 pages.

Grand Jury Transcript Com. v. Elbery, March 3, 1993, 10 pages.

Probable Cause Hearing Transcript, Com. v. Elbery, NO. 9262CR10017-January 20, 1993 1 volume, 266 pages.

 

TABLE OF ABBREVIATIONS

Ex.=Exhibit, PC=Probable Cause Hearing Transcript, TR=Trial Transcript, Aff.=affidavit, O/S=Opening Statement, GJ=Grand Jury Transcript

 

 

 



 

Commonwealth                                                                                                     Worcester Superior Ct.

v.                                                                                                                                                93-0135

Elbery

 

 

 

 

MEMORANDUM OF FACT AND LAW IN SUPPORT OF DEFENDANT’S, ELBERY, MOTION FOR NEW TRIAL UNDER MASS. RULE 30b OF THE M.R.C.P.

 

I. THE VICTIM'S ALLEGED INJURY-ALOISE'S INEFFECTIVE ASSISTANCE OF COUNSEL

A. Prosecution witness-in-chief, Thomas King, lied at the trial about all his eye injuries, treatment received for his injuries and the cause of his injuries.

B. Attorney Louis P. Aloise was deficient in his performance and conspired with the prosecution, regarding the alleged victim’s, Tom King, eye injury at trial resulting in prejudice to the defendant.

1. Failure to investigate or call as witnesses the medical professionals who treated alleged victim, Thomas King, or any medical professionals regarding King's injury.

2. Failure to apprise the jury of King's actual injury and treatment knowingly allowing King to testify falsely about his injuries and treatment.

3. Failure to apprise the jury of King's cause of injury while knowingly allowing King to testify falsely about his cause of injury.

4. The effect on the prosecution's closing argument and instructions to the jury.

C. Prejudice resulting in the denial of Elbery's right to Due Process, effective assistance of counsel and Compulsory Process as is guaranteed by the 5th, 6th and 14th Amendment of the U.S. Constitution, as well as, Article 12 of the Massachusetts Declaration of Rights.

-1-

 

 

A. Prosecution witness-in-chief, Thomas King, lied at trial about all his eye injuries, the related treatment and cause of his eye injury.

 

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.

    This testimony by King was corroborated at trial by prosecution witnesses O'Connor, Schlener, Traskiewicz, as well as, defense witnesses Perma and DePasquale. All these witnesses were friends of King. See footnote 1 – Ex. J for transcript citings of all these witnesses' testimonies regarding King's injuries.

    Particularly prejudicial to the defendant was the testimony of Dennis O'Connor, who claimed to be a medical professional, TR 747 20-24. O'Connor testified that King's lower auricle was full of blood, T. R. 756-14. Auricle means earlobe. O'Connor implied that the auricle was part of King's eye, thus misleading the jury.

    None of these eye injuries or treatment occurred as was discovered by Michael Elbery via the investigation of King's medical report of 9-29-92 after Elbery's conviction of 7-2-93. King and his friends/witnesses lied about King's eye injuries and treatment.

-2-

 

The truth-King's actual injuries and treatment documented by the medical professionals

 

The medical personnel who observed and treated King only minutes after the incident on 9-29-92, document, by-way of the medical/hospital report, Exhibit A, injuries and treatment entirely different from that testified to by King and his friends. See exhibit A and B for King's medical/hospital report and readable interpretation, respectively.

Per exhibit A-1 R.N. Judith Grenier, who first observed King at 2:10 a.m. only minutes after the incident occurred outside the Winner's Circle Bar on 9-29-92, documents an absence of a bleeding eye or leaking vitreous fluid. Grenier observed no cut eyeball, no lacerated eyeball, she did not freeze or numb King's eye nor did she apply two eye patches, only one eyeshield. R.N. Grenier treated King for a minor injury to the eye and possible infection to the eye. Her report was highly technical yet legible. See Dr. Hull's affidavit, Exhibit C, for review of Exhibit A and explanation of King's injuries and medical treatment received.

Dr. Arinella observed and treated King after Grenier. Arinella documents, per his medical report A-2, none of the serious eye injuries enumerated by King at trial. Dr. Arinella observed King to have a superficial abrasion to the eyelid and swelling to the left eyelid and a blood shot eye. Arinella's diagnosis states King had a conjunctival laceration. The conjunctiva being the outermost mucous membrane covering the eyeball. Arinella treated King for minor injuries to the superficial covering of the eye, see Dr. Hull's affidavit, Exhibit C. See Ex. B-3 for readable form of Arinella’s report.

Two other doctors observed King in the emergency room that night, Dr. O'Connell and Dr. Lemmon's as documented by the medical report, yet neither made any written documentation regarding King's eye.

-3-

Nowhere is there any concern, per Exhibit A, about King losing his eye or having permanent eye damage or muscle damage. King was in the hospital for one-hour and 25 minutes, Exhibit A-1., including the time it took Dr. Arinella to arrive on call

2. Prosecution witness-in-chief and alleged victim, Thomas King, lied about the cause of his eye injury.

The medical reports by Dr. Arinella and R.N. Grenier each contained an interview section where they recorded a statement by King as to how he got injured. See Exhibits A-1 under "chief complaint" and Exhibit A-2 under "history and subjective" for the recording of King's interview by R.N. Grenier and Dr. Arinella respectively. See Ex. B-3 for readable form of Arinella’s interview.

King told Arinella he "got a finger in the left eye". Similarly, he told R.N. Grenier "someone poked his fingernail through my eyeball leaking vitreous fluid". There is no need to comment on King's statement to Grenier regarding vitreous fluid and a fingernail going through his eyeball, these did not happen per medical documentation, Exhibits A, B-3 and Ex.C.

Both interviews are void of the words, gouging, or any description of pushing in harder and harder by thumbing or two occasions of thumbing to the side and almost behind the eyeball. 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 this defendant being sentenced to 10 years in the state prison.

-4-

 

B. Defense Attorney Louis P. Aloise was deficient in his performance and conspired with the prosecution, regarding the alleged victim -Tom King's eye injury, at trial, resulting in prejudice to the defendant.

1. Aloise failed to investigate or call as a witness the medical professionals who treated alleged victim Tom King or any other medical professionals regarding King's injuries. Defense Attorney Aloise failed to interview or investigate or call as witnesses the medical professionals R.N. Grenier, Dr. Arinella, Dr. Lemmon's or Dr. O. Connell who observed and treated alleged victim King. Aloise presented no other expert witnesses nor did he talk to any other medical people with respect to King's medical report and injuries, see affidavit #1

 

PREJUDICE

Because Aloise did not investigate or call as witnesses the treating medical professionals or any medical witnesses the jury did not learn the truth about King's eye injury, instead they only heard the prosecution's falsification regarding these injuries of King's, as itemized in section A of this claim I. Aloise did not challenge the prosecution's falsified claim of King's injury as a result the jury could believe nothing else. The jury was left to believe, because there was no other evidence at trial, that King suffered serious eye injuries the equivalent of mayhem and that King was the victim of deadly force.

Had Aloise investigated and called as witnesses the various medical professionals who treated and observed King they would have been committed to testify as is documented per their report of 9-29-92, Exhibit A. Their testimonies, substantive evidence, see Liacos infra, regarding King's injury would be irrefutable and totally in opposite to the prosecution's description regarding King's eye injury. The effect would be to erase the prosecution's false evidence regarding King's eye injury, treatment and cause and to expose the prosecution witness-in-chief, King, was committing perjury. The credibility of the prosecution witnesses and the other testifying friends of King, two defense witness, De Pasquale and Perma, would be similarly categorized as perjurious due to the medically documented proven falsity of their testimonies regarding King's injuries.

-5-

Because Aloise did not investigate and call as witnesses the medical professionals who treated King or any medical expert witnesses the jury was not informed that a finger in the eye was consistent with King's minor injuries documented per King's medical reports, Exhibit A, and also Dr. Hull's affidavit, Exhibit C. The jury was not informed that had Elbery gouged King twice with the thumb to "the side in almost behind the eyeball" that King's injuries would have been far greater than as documented by the physician registered nurse. The jury was not informed that it would be physically impossible to get thumbed twice as King described at trial and come away with only minor injuries to the eye, per Exhibit A and C.

King, it should have been emphasized by Aloise, used two lies, the injury and cause of injury, to complement each other. Aloise at trial never challenged either.

Failure by Aloise to investigate, interview or call any medical personnel to testify on behalf of the defendant, Michael Elbery, not only deprived Elbery of the very best sort of witness-a neutral witness with excellent opportunity to observe and no apparent bias or motive to palter or mislead, but in so doing deprived Elbery of effective assistance of counsel and the right to compulsory process as is guaranteed by the Sixth and Fourteenth Amendment of United States Constitution, as well as by Article 12 of the Massachusetts Declaration of Rights.Com. v. Brookins 33 Mass. App.Ct. 626, ’92, (new trial ordered for this error by defense counsel). The ABA Standards for Criminal Justice 4-4.1 states that the defense counsel has a duty to conduct prompt investigation into the circumstances of the case. Per Strickland vs. Washington 466 U.S. 668, 690, (’84), 80 L Ed 2d 674, 695, 104 S. Ct. 2052, the defense counsel has a duty to make reasonable investigation or to make a reasonable decision that makes the particular investigation unnecessary. This deficiency, not calling the medical witnesses, deprived the defendant, Elbery, of a defense that King was not the victim of the excessive force, deadly force, or specific intent to maim that the Worcester D. A.’s Office pretended. It also adversely effected Elbery’s defense of self-defense. Better work by Aloise, as above, would have produced something material for the defense. This satisfies the standard set by the Mass. S.J.C. for ineffective assistance of counsel requiring a new trial. Com. v. Saferian 366 Mass. 89, 96, (’74), 315 N.E. 2d 878.

-6-

Attorney Aloise understood the importance of witnesses for the defense as he states during trial sidebar, TR 273-12, because I want to know as many people that can be named as potential witnesses.

Here are three federal cases and three Massachusetts case which were reversed due to counsel's failure to investigate or call witnesses, Harris v. Reed 894 F2d 871, 878 (7th Cir. ’90); Chambers v. Armontrout 907 F2d. 825, 831 (8th Cir. ’90); Sims v. Livesay 970 F2d 1575 (6th Cir. ’92); Com. v. Haggerty 400 Mass. 437,438, 509 N.E. 2d 1163, 1164 (’87), Com. v. Aviles 31 Mass. Appeals Ct. 244, 246, (’91), Com. v. Licata 412 Mass. 654, 656 (’92), 591 N.E. 2d. 672, 676.

Aloise did not call or investigate the medical witnesses because the prosecution's case would be destroyed, the truth revealed. How would the jury react to a red eyeball and treatment consistent with a minor injury and catching a finger in the eye? See below, Aloise new the truth about King’s injuries, treatment and cause, but in conspiracy with the prosecution he concealed the true evidence in order to help the cop-King and falsely convict and imprison his client, Elbery.

2. Attorney Aloise failed to present the real evidence of King's actual eye injury and treatment of that injury to the jury. Aloise instead sat on this exculpatory evidence to the defendant knowingly allowing King to testify falsely about his injuries, committing conspiracy with Tom King and the Worcester D.A.’s Office.

Attorney Aloise knew exactly what King's medical records disclosed in terms of King's eye injuries. Aloise stated during trial sidebar, "well I have read this before and reviewed it now. It appears to be an appropriate certified copy of the medical records pursuant to the statute", T. R. 446-19. Aloise had possession of King's medical report well before trial. Aloise would not allow Elbery to see King's medical evidence, see affidavit # 2. Aloise also knew, as he documents, King had only "superficial eye injuries", T. R. 479-1, (closing argument not evidence). See also, the 25-b-2 motion, Ex. R-page 5, Aloise authored regarding this case which clearly states that he knew King only had a "superficial abrasion of the eye". However, Aloise allowed King to avoid any cross-examination and prevented any evidence of this issue to reach the jury. Aloise made no challenge to the prosecution's falsification of King's eye injury during trial.

-7-

 

 

PREJUDICE

 

The jury did not learn of King's actual minor eye injuries and treatment for those minor injuries but instead was led to believe King suffered far greater injuries as itemized in section A, above. Aloise deliberately concealing this highly exculpatory evidence, to the defendant, was committing conspiracy with the Worcester DA’s Office and Tom King. This concealment of evidence in conspiracy by Aloise allowed the jury to convict on the very serious mayhem charge and contaminated the entire trial with constitutional error making it all the more easy for the jury to convict on the two misdemeanor charges.

This is a breakdown of the adversarial process required for a fair trial; the verdict cannot be relied on. This is the definition of ineffective assistance of counsel requiring a new trial. Strickland vs. Washington 466 U.S. 668, 698, ‘84, 80 LEd2d 674, 692, 104 S. CT. 2052.

    The Supreme Court of the U.S. held that Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358,364,90 S. Ct. 1068, 1073, 25 L. Ed2d 368' 70. In Mullaney vs. Wilbur, 421 U.S. 684, 697-698, 95 S.Ct. 1881, 44 L Ed 2d. 508 (’75),the Supreme Court made unmistakably clear that this principle applies not only to facts which if not proved would wholly exonerated defendant, but also to those facts which mitigate the degree of criminal culpability. Com. v. Stokes, 374 Mass. 583,590, 374 N.E. 2d 87,93 ’87. The concealment by Aloise of the real evidence of King’s eye injury caused a violation of both the Due Process theories, as in the above two Supreme Court cases. Elbery’s defenses of self-defense and no use of deadly force, excessive force, or specific intent were also adversely effected in violation of Due Process of the U.S. Constitution.

-8-

3. Attorney Aloise failed to present the real evidence of King's cause of injury while knowingly allowing King to testify falsely about his cause of injuries.

As itemized in section A-2 of this claim King lied about how he received his eye injuries or the cause of his eye injuries. King unchallenged during trial on this issue of cause was allowed to say Elbery thumbed him on two separate occasions to the side and almost behind the eye, T. R. 201-17, 20 and kept pushing the thumb into my eye, T.R. 202-12. This testimony with the falsified injuries misled the jury to convict Elbery of assault with intent to main via specific intent using deadly force.

The truth as to how King got injured was documented on King's medical report, Exhibit A, when the medical professionals, a doctor and a registered nurse, recorded King's interview statement as to how he got injured. King stated that he got a finger in the eye, this only minutes after the incident and independently to the nurse and doctor.

At trial the jury never knew this, Aloise had this information per the medical report, Exhibit A.

    Aloise should have cross-examined King regarding these prior statements about the cause of his eye injury and then presented direct testimony via the treating medical professionals on this evidence of injury cause. Both methods would have produced substantive evidence regarding the truth of this matter, and impeachment of King's credibility. Statements made by a patient to a physician or a physician's agent for the purpose of describing the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment are hearsay exceptions of Mass. law via Massachusetts Evidentiary Standard 803-4-a and are allowed as substantive evidence, see also Rolanti v. Boston Edison Corp. 33 Mass. App. Ct. 516, 526 (’92)(expressions made to a physician are admissible under our practice) and P.J. Liacos, Mass. Evidence 346, 5th ED. ’81(physician may testify about statements made

-9-

by declarant for purpose of diagnosis and treatment). King’s spontaneous exclamation regarding the cause of his eye injury to Hayes and the medical professionals only minutes after it occurred would also qualify as res gestae and excited utterance exceptions to the hearsay rule. Com. v. Sellon, 380 Mass. 220, 229 (1986), Barron’s Law Dictionary 3d. Ed. P.415, (such written or oral statements are admissable as "excited utterances", declarations as to present bodily conditions and present sense emotions).

Aloise should have underscored, to the jury, that this was King's instant account of his cause of injury. Aloise should have emphasized that the medical professionals documented this immediately on their official medical/hospital report. Aloise should have pointed out that King claimed a finger in the eye was the cause of his minor eye injury and King repeated this three times to three independent people, the medical professionals and Hayes.

Aloise should have informed the jury that the doctor and nurse were the very best third party witnesses, that they were disinterested parties at the time of the recording of King's medical interview. See Com. v. Brookins 33 Mass. App. Ct. 626, 635, ’92. (similar witness not being called to testify results in reversal), Com. v. Aviles 576 31 Mass. App. Ct. 244, 246 (defense counsel ineffective for not calling independent third party witness) Com. v. Satterfield 373 Mass. 109,115, (’77), 364 N.E.2d 1260, Com. v. Licata 412 Mass. 654, 656 (’92), 591 N.E. 2d. 672, 676, (S.J.C. rules defense counsel ineffective for failure to call witnesses). This deficiency by Aloise, in this claim I-B-3, deprived Elbery of an otherwise available substantial ground of defense and better work, by producing the above evidence of the cause of King’s eye injury, would have produced something material for the defendant. Com. v. Saferian 366 Mass. 89, 96, (’74), 315 N.E. 2d 878 (Mass. standard for ineffective assistance of counsel requiring a new trial).

PREJUDICE

The jury was never allowed to know that King told the treating medical professionals that he got a finger in the eye, and that was how he got his minor eye injury.

-10-

Had Aloise presented King's hospital report, Exhibit A, and real evidence (section B-2 and A-1 of this motion claim) of King's eye injury (a bump resulting in a red eyeball) the only evidence that would remain as to the charge of intent to maim would be King's testimonial description of the cause of his injury, by two occasions of thumbing and gouging to the side and almost behind the eye.

Had Aloise done as required of a defense attorney, presented the medical evidence via the hospital report, Exhibit A, the jury would have been informed that King per interview with R. N. Grenier and Dr. Arinella had described the cause of his eye injury entirely different than at trial. The jury would have been informed that immediately, minutes, following the incident on Shrewsbury Street King told both these medical people independently, that he got a finger in the eye, same as he told defense witness John Hayes, T. R. 918-16-19, while driving to the hospital.

Here are three federal cases where various U.S. appeals courts ruled that a defense attorney was ineffective for failure to introduce prior inconsistent statements of witnesses, Moffet v. Kolb 930 F2d. 1156, (7th Cir.’91); Nixon v. Newsome 888 F2d 112, (11th Cir. ’89); U.S. v. Tucker 716 F2d 576, (9th Cir. ’83). These all requiring new trials due to defense attorney’s errors.

King's account at trial of two thumbed gouging's almost behind his eye, unchallenged by Aloise, left the jury with no other account of events making it all the more likely for them to believe that Elbery was guilty of attempted mayhem and assault. This deficient performance by Aloise, not presenting to the jury King's original claim as to cause of his eye injury satisfies the Mass. S. J.C's test for ineffective assistance of counsel. That is, Elbery was deprived of a substantial defense due to Aloise's deficient performance and better work by Aloise would have produced something material for the defendant. Com. v. Street 388 Mass. 281, 285, (’83), 446 N.E. 2d 670, 672.

4. The prosecutor’s closing argument and Court’s jury instructions amplified the prejudice to the defendant caused by Aloise's failures/deficiencies regarding King's medical evidence and injuries.

-11-

The prosecutor argued in closing that the defendant, Elbery, used deadly force. The defendant digs his finger into King's eye and tries to put out, T. R. 1239-22. Consider the extent of force... it is deadly in the sense that deadly force which the judge will tell you about is determined by -- it is likely to cause serious bodily injury, TR 1240.

The Court gave an instruction on deadly force. I define for you deadly force as force which intended or likely to kill, or to seriously injure somebody, T. R. 1287-9.

This closing argument and instruction could only occur because of Aloise's failures surrounding the evidence of King's eye injury as described in this claim. This closing prosecutorial argument and Court’s instruction completed and amplified the prejudice to Elbery as a result of Aloise's ineffective assistance of counsel regarding King's eye injury and eliminated any defense of self-defense. In Com. v. Haggerty 400 Mass. 437, 442, 509 N.E. 2d 1163,1166 (‘87), the Mass. S. J. C. reversed on the grounds of ineffective assistance of counsel due to counsel leaving the defendant void of any defense against the charge. Better work by Aloise might have produced something material for the defense. Com. v. Saferian 366 Mass. 89,96 (test for ineffective assistance of counsel-Massachusetts).

C. Reasonable probability the verdict would have been different-prejudice resulting in the denial of Elbery's right to Due Process, effective assistance of counsel, compulsory process as is guaranteed by the Sixth and Fourteenth Amendment of the U.S. Constitution, as well as Article 12 of the Mass. Declaration of Rights.

    The evidence of attempted mayhem against Elbery was comprised entirely of King’s say-so and pointing finger, all perjury. There was contributing false evidence presented by other witnesses per footnote 1 – Ex. J, as discussed in section A-1 of this claim. King was allowed by Aloise and the prosecutor to be witness-in-chief and sole medical expert at trial. All the evidence presented by King about the charge of attempted mayhem was a medically documented lie. The evidence given by King about his eye injury and treatment to his eye at trial would disappear with the presentation of King's medical reports, Exhibit A, and the testimonies of the treating physician and registered nurse. This if Aloise had done his job.

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King's friends who testified at trial, as listed in section A-1, would not go along with any of the two occasions of thumb gouging described by King, although they acknowledged being present during all contact between Elbery and King. None of the witnesses-friends were questioned about these 2 thumb gougings by either the prosecutor or Aloise. Although they were willing to go along with many of King's falsifications i.e., the bleeding eye.

The jury would have been left, in relation to the charge of assault with intent to maim, evidence of a red eyeball and a swollen eyelid medically categorized as minor and superficial had Aloise done his job.

As to the cause of injury, had Aloise done his job, the jury would have been left with King's interview statement per the medical report, Exhibit A, provided by the testimony of the medical professionals. The jury would have before them the testimony of defense witness Hayes. All three witnesses would testify as documented, that King claimed he got a finger in the eye. The jury would have had before them via cross-examination, had Aloise done his job, the impeachment of King by-way of the introduction of his prior inconsistent statement to the medical professionals claiming his injury was a result of a finger, accidentally in the eye. Also there would be the testimony of prosecution witness, and friend of King's, Traskiewicz, saying Elbery's finger went into King's eye when Elbery was on his back in the street with King on top of him, T. R. 501-6, (of course Aloise failed to pursue this conflicting prosecutorial testimony by Traskiewicz).

The jury would have to compare this evidence of cause of King’s eye injury, via documented third party medical evidence and related medical professional’s testimonies and Hayes testimony, to the discredited prosecution witness-in-chief's claim of two thumbed gouging's enlarged with all its other perjured details. In fact, with this factual claim alone, had an average lawyer advocated the defense, King would have been shamed in front of the jury, notwithstanding, that his credibility would be even worse if the jury had the opportunity to consider the facts presented in the other claims in this motion.

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The jury would have understood why King's eye looked fine at trial, why there was no mention of surgery for the extensive eye injuries depicted by King. The jury would have understood, if Aloise had disclosed such, why King was in and out of the emergency room in one-hour and twenty minutes, see Exhibit A, including the time it took Dr. Arinella to arrive on call. The jury would have understood that the answer lay in the only and best defense to all King’s say-so and finger-pointing, it never happened and Tom King in conspiracy with ADA Mike Ball, the prosecution, and defense attorney Louis P. Aloise fabricated all the inculpatory evidence against Elbery.

The S. J. C. in Commonwealth vs. Stokes 374 Mass. 583, 590, stated that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime which is charged. In Mullaney vs. Wilbur 421 U.S. at 697-698, 955 S. Ct. 1881 the U.S. Supreme Court made it unmistakably clear that this principle applies not only to the facts which, if not proved, would wholly exonerated the defendant, but also those facts which mitigate the degree of criminal culpability. The prosecution used the falsified facts of King's injury, treatment and cause of injury to convict Elbery. The Due Process requirement that every fact necessary to constitute a crime must be proved beyond a reasonable doubt, as a result, was violated. Exposing that the prosecution's claim of injury, treatment and cause of King's eye injury was a lie would also qualify as mitigating facts as to criminal culpability, or self-defense and no deadly force or excessive force or specific intent by Elbery.

The jury would have been left, had Aloise done his job, with no evidence to convict on regarding the mayhem charge and no prosecution credibility on the two misdemeanor charges, this point would be reached without the jury even knowing about the other errors at trial contained in this motion. Prosecution witness-in-chief, Tom King, would be, to the jury, a complete liar. If Aloise had exposed the prosecution’s knowing use of fabricated evidence regarding King’s eye injury, the element, specific intent, of the crime of assault with intent to maim could not be satisfied. Nor would there have been any credible evidence to fulfill the prosecution’s claim of excessive force and deadly force. There would only be evidence of self-defense to defeat the assault charges, if only Aloise had done his job and presented the “real evidence” instead of conspiring with the prosecution to convict his client, Elbery.

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    None of this concealment of the prosecution's falsification of King's injury could have been accomplished without the cooperation and blatant conspiracy of defense attorney Louis P. Aloise. Had Aloise even hinted at advocating his clients cause by way of the medical evidence the prosecution would have been forced to drop the outrageous charge of assault with intent to maim or look ridiculous to the jury. The prosecution's falsification of King's eye injury insured convictions of the two misdemeanor charges (disorderly person and assault & battery) as well as the attempted mayhem charge.

    The jury was misled by the false evidence surrounding King's eye injury and their verdict was not just influenced but mandated by this false evidence. This being a miscarriage of justice, see Commonwealth vs. Freeman 352 Mass. 556, 564, (’67)(this being the Mass. S. J. C.'s definition of a miscarriage of justice requiring a new trial-if not for this error the verdict would have been different).

    The errors or conspiratorial acts made by Aloise just regarding King's eye injury and related medical evidence alone have such a pervasive effect on the evidence at trial that it changes the entire evidentiary picture of the trial and case against Elbery. There was a total breakdown of the adversarial system due to Aloise's conspiracy in handling of the medical evidence (concealment). This change in evidence and breakdown of the adversarial system at trial due to Aloise's ineffective assistance of counsel and conspiracy, surrounding King’s eye injury, creates a verdict that cannot be relied on and a trial that was unfair. This fulfills the prejudice prong of the Strickland test for determining a defense attorney to be constitutionally ineffective in his assistance of counsel, the deficiency prong replete in this claim, requiring a new trial. Washington vs. Strickland 466 U.S. at 698-699.

    Attorney Aloise was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).

    Further, Aloise failed to call the most important witnesses of the case, the doctor and nurse, violating Elbery's right to Compulsory Process, per B-1. U.S. v. Levy-Cordero, 67 F. 3d 1002, 1012-13 (C.A. 1 (Puerto Rico) 1995), Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988).

    All this resulting in the denial of Elbery's rights under the Sixth and Fourteenth Amendment of the U.S. Constitution, as well as Article Twelve of the Massachusetts Declaration of Rights.

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II. KINGS EYE INJURY-THE PROSECUTION

 

 

A. The prosecution knowingly allows and makes use of false and perjured evidence regarding King’s eye injury.

B. ADA Mike Ball produces, procures/solicits and offers false evidence regarding King’s eye injury. In conspiracy to violate and in violation of Elbery's Due Process Rights as guaranteed by the Fifth and Fourteenth Amendment of the U.S. Constitution.

A. The prosecution knowingly allows and makes use of false evidence regarding King’s eye injury.

Factual claim I-A of this instant motion establishes, via third party medical documentation, that prosecution witness-in-chief Tom King and five other witnesses, all friends of King, presented false evidence regarding King’s eye injury, see footnote 1 – Ex. J. The prosecution had possession of King’s medical report, Exhibit A, well before trial. King’s medical report clearly documents that King had minor injuries and was medically treated for minor injuries, see section A of Claim I. The prosecution, via King and his testifying friends, presented evidence that King had very serious eye injuries consistent with mayhem, see claim I-A.

    The prosecution knowingly allowed false evidence to be presented to the jury regarding King’s eye injury as to extent, treatment and cause of injury. The prosecution knowingly allowed the various witnesses at trial to perjure themselves regarding King’s eye injury. Thus the prosecution, specifically, ADA Mike Ball and the Worcester DA's office was in violation of Brady and Giglio, Gilday vs. Callahan 59 F3d 257, 267 (1st Cir.’95) (U.S. Supreme Court makes it clear that knowing use by the prosecution of false evidence requires a new trial).

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    The Supreme Court of the United States made it clear years ago that deliberate deception of the court and jurors by the presentation of known false evidence is incompatible with "the rudimentary demands of justice", Money v. Holohan, 294 U.S. 103, 112 (’35); Pyle v. Kansas 317 U.S. 213 (’42). The Mass. S. J. C. quotes the same two cases in related principles of law in Commonwealth vs. Collins 386 Mass. 1, 14, 434 N. E. 2d 964, 972 (‘ 82).

    A conviction obtained through the use of false evidence known to be by the representatives of the state, must fall under the Due Process Clause of the Fourteenth Amendment; the same result obtains when the state, although not soliciting false evidence, allows it to go uncorrected when it appears, Napue v. Illinois 360 U.S. 264, 269, 3 L ED 2d 1217, 1221; Gilday vs. Callahan 59 F3d. 257, 267 (1st Cir. ’95). Under the Due Process Clause, the prosecution’s suppression of material evidence justifies a new trial irrespective of the prosecution's good or bad faith; whether the nondisclosure was a result of negligence or design, it is the prosecutor’s responsibility, Giglio v. U.S. 405 U.S. 150, 154, 3 L ED2d 104, 109 (' 72). The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury, U.S. vs. Agurs 427 U.S. 97, 103 96 S. Ct. 2392, 2397, 49 L. Ed.2d 342, (' 76); Commonwealth vs.Tucceri 412 Mass. 401,405, 589 N.E.2d 1216, 1219, (' 92).

The evidence of King’s eye injury that ADA Ball failed to disclose to the jury was false, was the same evidence that Aloise per claim I-B decided to conceal from the jury. Both Ball and Aloise had possession and knowledge of the truth as to King’s eye injury, treatment and cause but Ball sat on the evidence, in conspiracy with Aloise, see Exhibit A. The omissions of a defense counsel do not relieve the prosecution of its obligation to disclose exculpatory evidence, Commonwealth vs.Tucceri 589 N.E.2d 1216, 1221.

    It is hard to believe, with the unlimited resources of the government, that the prosecution does not know of far more exculpatory evidence than this defendant has uncovered. All the prosecution had to do is read R. N. Grenier’s medical report to be alerted that King wasn't even close in his testimony concerning the eye injury, treatment and cause. Officer Perma and the "team" of Worcester police officers, PC 161-14, (their

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identities never disclosed except Collins and Quinn) who decided to press charges against Elbery including mayhem (not the later reduced charge of attempted mayhem) had to have some information regarding King’s real injury. Could this be more obvious conspiracy or is this how a "team" of Worcester police would reasonably act? Perma observed King at the hospital, yet he claimed to see King with a bleeding eye, TR 995-24, 996-2. King claimed he had a patch over each eye by the time Perma saw him at the hospital, TR 468-5. King’s employer, the Westborough police, must have had knowledge of his actual injuries; he took three days off from work. The Westborough police also had a demotion hearing for King as a result of his activity that night, see claim VII. Surely, some of these people, above, must have wanted details and known the truth. The false medical evidence given by King, unopposed by Aloise, was the most damaging inculpatory evidence at trial.

King with all his bleeding must have had some bloody clothes. What happened to them? He has made a federal case out of everything else with his crying isn’t it strange he didn’t produce his bloody clothes as evidence.

The investigation-Worcester PD and the Worcester County DA's Office-

Further Wrongdoing

When the police and Worcester District Attorney’s office knew the evidence did not correspond to the false charges against Elbery they would just stop investigating. This is true of King’s medical evidence but also many other evidentiary matters that are documented were in the hands and knowledge of the police and DA's office, see claims III through X.

ADA Mike Ball does a good job of revealing the investigation of this case at sidebar during trial.

T. R. 274-22 (Court) somebody must have been an investigating officer.

T. R. 275-9 (Ball) there is no indication that anybody actually investigated this case.

T. R. 275-21 (Court) it is almost a given there had to be an investigating officer in the case.

T. R. 274-24 (Ball) there was not... this was not the subject of the investigation. Officer Perma was a responding officer.

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Other choice Ball comments-no investigation

T.R. 1002-20 (Ball) It wasn’t referred to anybody because it was pretty much and open and shut ---thing about the people.

T.R. 1004-16 (Ball) Isn’t it true that the reason it was not referred to the detective bureau was because the defendant, the witnesses , were all named and known, and there was no need to have and investigation done by or a lengthy investigation done by detectives of the Worcester Police Department who are probably investigating hundreds of other cases, correct? A. This is true.

There was an investigation by both the DA's office and the police. They had King’s medical evidence, there was a probable cause hearing, the police report Exhibit D., ADA Michael Salloum investigated per Exhibit E. Evidence was produced from all the sources that all the charges against Elbery were phony not just the charge of mayhem, taking out King’s eye, which was later reduced to assault with intent to maim (attempted mayhem), see Exhibit F. It is obvious from the facts and evidence that Ball did not want anybody to know there was an investigation because of the Brady violations, via exculpatory evidence to the defendant, that this motion shows Ball and prosecution were concealing along with Aloise. No doubt Ball also knows about 42 U.S.C. s. 1983.

Failure of the Worcester DA's office to investigate and call as witnesses the medical professionals was only due to the fact that they wanted to avoid the truth and not destroy their false case against Elbery. The Worcester DA's office targeting Elbery for years along with the Worcester Police Department and the Worcester License Commission due to his outspoken criticism of these bureaucracies was not able to convict Elbery via 12 different false criminal charges over a period of seven years. The Worcester DA's office never in the past had any problem using the most unsavory witness in their attempt to convict Elbery.

It is unprofessional conduct for a prosecutor intentionally to avoid pursuit of evidence because he believes it will damage the prosecution's case or aid the accused. Mass S. J. C. rule 3:08, P. F. 7; U.S. vs. Kelly, 543 F. Supp. 1303, 1312, (' 82 1st circuit). The government may not avoid discovery by failing to inform itself as to its case, but must seek out material from the police and investigative agencies, 22A C. J. S. p. 71, 1989.

Even without medical evidence to document the truth the Worcester DA's office should have known King was lying about his eye injury, treatment and cause. How could they not suspect something did not make sense? After all, King said he got gouged twice and as a result his eye was bleeding, cut, lacerated, and

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leaking vitreous fluid, yet it was plainly written on R. N. Grenier's medical report, Exhibit A, he was only in the hospital a little over an hour resulting in a big band-aid put over one eye. There was nothing wrong with King's eye at the probable cause hearing or at trial, affidavit # 2a. There was no major medical treatment or surgery for a cut, lacerated and bleeding eyeball that was leaking vitreous fluid and was almost out of his head! The numbing and freezing treatment perjured by King was not enough for such injuries. The obvious truth was something other than what King and the prosecution were claiming about King’s eye and this was obvious from the circumstances even without the medical evidence. Knowing use by the prosecutor of perjury and falsified evidence requires a new trial and the prosecutor is responsible for all evidence he knew or should have known to be perjured or falsified. U.S. v. Agurs 427 U.S. 97, 103, 96 S.Ct 2392, 2397, and Com.v. Tucceri 412 Mass. 401, 405, n. 3.

Aloise’s ineffectiveness – the investigation

And of course Louis P. Aloise was deficient, again, because he did not highlight to the jury that a lack of police investigation undermines the prosecution’s evidence. Kyles v. Whitley, 514 U.S. 419,446, 131 L Ed 2d 490, 514, (‘1995).

King's statement to the medical professionals as to the cause of his eye injury.

 

As is discussed in factual claim I, King testified as to the cause of his injury a cause entirely different than was his instant statement to Dr. Arinella & R. N. Grenier per the medical reports, Exhibit A, and defense witness John Hayes. These narration sections written by Grenier and Arinella were the only legible and understandable sections of King's medical report. Instead of telling the jury he got a finger in the eye, as he told these medical people and Hayes, King testified that on two occasions Elbery put his thumb to the side and almost behind King’s eye, T. R. 201-20,202-12. This is more perjury by King; he knowingly misrepresented material evidence to the jury. The Mass. S. J. C. ruled in Commonwealth vs. Giles 213 N.E.2d 476, 484, 350 Mass. 102, 112, (' 66), that knowledge of the testimony being false may be inferred by the trier of fact from the circumstantial evidence which reasonably tends to show that knowledge existed. In perjury cases such knowledge may be inferred from the falsity of the statement itself, at least if considered in relation to the facts relating to the defendant's opportunity to have knowledge.

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Although four of King's friends testified they witnessed all contact between Elbery and King none would go along with the thumbing/gouging King describes at trial, see I-A-2. Neither Ball or Aloise at trial questioned any prosecution or defense witnesses about this alleged gouging to King’s eye. This was clear at the probable cause hearing so the Worcester DA's office got rid of the other witnesses and only allowed King to testify before the grand jury.

The prosecution is responsible for evidence that they knew or should have known was perjured, they have a duty to correct such perjury, Kyles vs. Whitley 514 U.S. 419,434 (’95), 131 L ED2d 490, 505,115 S. Ct. 1555,1565. Ball knowing what was on King's medical report, the interview sections being readable and understandable had a duty to correct King's perjury as to his cause of injury. A new trial is required id.

B. ADA Michael Ball procures /suborns perjury and offers false evidence regarding King's eye injury, bolstering the prosecution's case.

ADA Michael Ball made full use of the false evidence of King's eye injury, treatment and cause in order to bolster the prosecution's case against Elbery, for reasons already stated in this claim II and stated below in footnote #2. The Mass. S. J. C. held in Commonwealth vs. Collins 386, Mass. 1, 7 (’82) where the DA's choice to mislead the jury appears to have been deliberate and an attempt by the prosecution to bolster the prosecution's case artificially it warrants a new trial.

ADA Mike Ball was a major contributor, originator and innovator of fabricated evidence regarding the extent of King's injury, treatment and cause above and beyond what was falsely donated by the various trial witnesses. Mike Ball was guilty, via procurement, of the most lucid and outrageous perjury of the entire trial, see footnote #2 below. As a conductor of an orchestration of perjury he was truly prolific. Ball is guilty, as itemized below, footnote #2, of subornation of perjury and fraud on the American justice system.

Footnote 2.

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The following is a partial list of instances during trial of prosecutor, Mike Ball, fabricating evidence pertaining to King’s injuries, via his opening statement, leading questions to his own witnesses, and closing argument, some transcript excerpts are followed by a brief factual and, or legal comment by this moveant/defendant.

T. R. 113-17 (0/S) King's eye is bleeding terribly.

T. R. 113-17-21 (0/S) He says the defendant reached up a second time and grabbed his eyeball again, this time his fingernail is on the other side of the same eye, and he is trying to dig out the eye.

T. R. 115-20 (0/S) and he tried to take out King's eye on two occasions.

Not even King committed perjury as bold as this. Nowhere at trial does any witness make claims of grabbing and digging out an eye or specifically trying to take out King's eye. Ball knew from the medical reports, Exhibit A, this was perjury.

T. R. 203-24 (King) A. I got a laceration on the eyeball.

T. R. 204-1 (Ball) Q. Is that a cut?

-2 (King) A. Yes.

-3 (Ball) Q. As a result of that, were you able to see as well as you had in the past?

-5 (King) A. No, sir.

-6 (Ball) Q. Are you having any problems seeing?

-7 (King) A. Yes I am having a problem with the eye.

-8 (Ball) Q. Are you still having difficulty; is that right?

-10 (King) A. Yes.

T. R. 440-15 (Ball) Q. And it shows a laceration in your eye? A. Yes.

While leading his own witness, unobjected by Aloise, Ball leads the jury to believe King's eye is cut, having permanent eye damage, and lacerated. Ball must suborn such perjury otherwise there is no case against Elbery for any of the charges, especially the assault charges. 468-5 (Ball) Q. Now there was also questions about injuries to the defendant. Both of your eyes were covered right? (King) A. (No response).

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Ball through leading questions to his own witness, unobjected by Aloise, suborns the perjurious theory that King had "two patches", therefore he saw nothing because both eyes were blind. This is the "two patch conspiracy". See also TR 302-18 where King claims he had a patch put over each eye.

T. R. 469-5 (Ball) Q. Because in fact your eye was not taken out; is that right?

-7 (King) A. Yes.

-8 (Ball) Q. But it is fair to say, isn't it that it appeared as if your eye was taken out that night, didn't it?

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

Ball through, unobjected to, leading questions to his own witnesses communicates to the jury King's eye was almost taken out of his head. This subornation of perjury compounds the bleeding/cut eye, digging and grabbing perjury by Ball; further misleading the jury with knowingly false evidence.

T. R. 569-17 (Ball/Traskiewicz) Q. And that technique was digging his finger into King's eye, correct?

T. R. 571-7 (Ball/Traskiewicz) Q. When King came back that eye was bleeding right? A. Correct.

T. R. 821-16 (Ball/O'Connor) -- After you turned and saw Mr. King's eye was bleeding badly, you approached Mr. Elbery, correct?

More unobjected leading questions by Ball, reinforcing the digging and bleeding perjury. The witnesses knew just what lie to tell with the lead of Mike Ball.

T. R. 936-21 (Ball/Hayes) Q. You didn't know that he had just almost had his eye dug out of his head, right?

T. R. 994-9-13 (Ball/Perma) Q. Or at least charged him with mayhem was that at the time you had information that Mr. King had lost his eye; is that right? There was some talks about his eye being popped out? A. (Worcester police officer-Perma) Yes.

T. R. 1125-7 (Ball/Elbery) Q. At no point did you stick your thumb into Tommy King’s eye and try to put it out, did you?

Repeated falsification by Ball about King almost losing his eye which was especially damaging with the confirmation of the highly believable, to the jury, investigating police officer and defense witness Perma. Also here Ball employs the cross-exam technique of asking questions that he knows will be answered, by defense witnesses, in the negative and which have no factual foundation (knowingly false) and are highly prejudicial to the defense. And of course defense attorney Louis P. Aloise makes no objection to these illegal tactics of Ball’s, this being another deficiency.

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T. R. 1239-22 (Ball/closing) Defendant gets one free, digs his finger into King's eye and tries to put it out.

T. R. 1240-8 (Ball/closing) Consider the extent of force... it is deadly in the sense that deadly force which the judge will tell you about is determined by -- it is likely to cause serious bodily injury.

T. R. 1242-16 (Ball/closing) This defendant tried to take out Mr. King's eye.

ADA Ball successfully utilizes the false evidence of King's eye injury and cause of injury defining it as deadly and tying his definition in with the Courts definition/instruction, destroying a defense theory of self defense further misleading the jury.

This claim II shows the prosecutor, A.D.A. Mike Ball, not only knowingly using false and perjured evidence to convict Elbery but he couples or compounds those falsifications in his closing argument blatantly misrepresenting the evidence to the jury. The S.J.C. of Massachusetts held in Com. v. Collins, 386 Mass. 1, 8, (’82), 434 N.E. 2d 964, 969, that this type of abuse by the prosecutor results in an inescapable conclusion and that is that the conviction can not stand.

The "two patch conspiracy"

 

Particularly damaging to the defense and the truth finding function of the trial was ADA Mike Ball's perpetuation of he and King’s conspiracy of perjury that King had a patch over each eye, as applied by the medical professionals, TR 468-5, TR 203-18, TR 383-21. The medical reports, Exhibit A, document that King had only one eye covered, one eye shield was applied by R. N. Grenier.

The prosecution needed "two patches" in order to claim that both King’s eyes were so obscured/blind that he could see nothing after contact with Elbery. Therefore, King could avoid answering any questions during trial as to how Elbery was hospitalized after having been beaten and taken off the street by the Worcester police, TR 381-5, 426-17, 468-5-8. At the probable cause hearing King testified he had only one eye patch, PC 17-9. At trial King repeatedly testified that he saw nothing because he was blinded as was indicated by the "two patches applied", T. R. 203-18.

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Was Tom King sophisticated enough to change his testimony regarding the two patches in order to disclaim any knowledge as to how Elbery ended up face down on Shrewsbury Street or was he coached by others? He certainly did taylor (perjury) his testimony in order to accommodate this anticipated problem.

Unwittingly ADA Mike Ball reveals he knew Elbery was chased by a "gang of six"

Tom King and the prosecution did everything possible to make the jury believe that King acted on his own, TR 371-19, when he chased Elbery 100 yards down Shrewsbury St., T.R. 199-1, (Q. So it was just you chasing Elbery) A. Yes, Sir. T.R. 402-5 (Q. So you are telling the jury is that it wasn’t six or seven on one?) A. That’s Correct.

Mike Ball did everything within the imagination to maintain and aggrandize the prosecution's perjurious/false theory of the incident on Shrewsbury Street and in the Winner's Circle Bar on 9-29-92. However, Ball disclosed he knew exactly what went on that night. T. R. 468-1 Q. So he (Elbery) was running from one person, yet on Shrewsbury Street he turned around to face what? Six or 7 people? Did you know those six or seven people were there? A. (King) No sir.

At trial King testified, TR 376-8-20, that Elbery was running and turning around running backwards, as Elbery described it "packed peddling", T. R. 376-14, 376-20. Ball knew why Elbery was running; it was because of the danger from the "gang of six".

Since Ball knew Elbery was chased by a bar room " gang of six" or even seven he had an obligation to correct the rest of the prosecution’s claim of events that King acted alone. At trial's length the prosecution witnesses refused to concede that Elbery was outnumbered by such odds and that he was running because of this reason. The prosecution refused to admit that Elbery was defending himself against a barroom "gang of six". This is another count of knowing use of perjury and falsification of evidence by the prosecutor, Ball. The defendant, Elbery, was further prejudiced by the Judge’s instruction to the jury of "consciousness of guilt", TR 1267-1269.

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Aloise fails to highlight to the jury this evidence of a "gang of six"

Aloise failed to cross-examine on this obvious point, a gang was involved not just King, and bring it to the jury’s attention in the opening statement and closing argument- this is another deficiency by Aloise. Aloise could have brought out this evidence of a gang chasing Elbery via the inconsistencies among the various witnesses regarding the flight of Elbery and the bar emptying out, and also the discrepancies among the witnesses about the contact between Elbery and King.

The prosecutor is responsible for the knowing use of perjury and falsification of evidence and has a duty to correct such. If the prosecutor fails to correct the false evidence a new trial is required. Commonwealth vs. Tucceri, 412 Mass.401, 405, (’92), 589 N.E. 2d 1216, 1219, U.S. v. Agurs 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L.Ed. 2d. 342, (’76). This claim II, as above, is the ultimate violation of this rule of law.

As is itemized in this instant claim II ADA Mike Ball committed subornation of perjury all in conspiracy to violate Elbery's Constitutional Due Process Rights as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, as well as, Article Twelve of the Massachusetts Declaration of Rights requiring a new trial. The violations in this claim II are also a violation of the 6th Amendment, as it deprived Elbery of a fair trial.

This claim II shows further deficiencies by defense attorney Louis P. Aloise, as he failed to object to the prosecutor’s continued and repeated illegal direct exam and cross-exam techniques, as above. This is another example at this trial of the breakdown of the adversarial system resulting in a trial that was unfair and verdict that cannot be relied on satisfying the definition of constitutional ineffective assistance of council requiring a new trial. Strickland v. Washington 466 U.S. 668, 685-688, 80 L.Ed 2d. 674,691-693, 104 S. Ct. 2052. Better work by Aloise would have produced something material for the defendant, this requiring a new trial. Com. v. Street, 388 Mass. 281,285, (1983), 446 N.E. 2d 670, 672.

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III. King’s medical report was inadmissible evidence.

Attorney Louis P. Aloise fails to object making him further deficient rendering ineffective assistance of counsel. This resulting in the jury being misled requiring a new trial due to a miscarriage justice.

A. References to liability.

The Mass. Statute on medical evidence GL 231 S. 79 allows presentation of all evidence pertinent to treatment and medical history but excludes anything within the hospital report which makes reference to the question of liability.

King’s hospital report, See Exhibit A, contained two interview sections, the first labeled "chief complaint ", on Exhibit A-1, taken by R. N. Grenier and the other by Dr. Arinella, Exhibit A-2, labeled "history and subjective". Both these interview sections, per GL 231 S. 79, should have been excluded as evidence. Both of these interview sections are narrations by alleged victim-witness, King, as to his story of how his injuries occurred. See Ex. B-3 in order to read Arinella’s report Ex. A-2.

Narration of circumstances or the patient's story of how the injuries were suffered are strictly prohibited from being admitted into evidence. P.T. Liacos, Handbook of Mass. Evidence p. 512 (' 94); Commonwealth vs. Howard, 355 Mass. 526, 529.Inangelo v. Petterson 236 Mass. 439, 440 (' 20) explains this issue specifically; a distinction, is therefore, to be made between entries which record details or diagnosis, treatment and prognosis with mention of facts helpful to understanding of the medical or surgical case (in this case King said he got a finger in the eye per claim I-B-3), and those which narrate events or state facts connected with the patient or the occasion for his resort to the hospital, but having no reference to his treatment or medical history in the hospital.

Making these narrations of King’s via the hospital report interview sections even more prejudicial to defendant, Elbery, is that they contain information that is undisputedly false (the underlined words and sections 1 and 2 are false) as follows:

1. R.N. Grenier's-"chief complaint"-Exhibit A-1-"someone poked his fingernail through my eyeball-leaking vitreous fluid."

2. Dr. Arinella-"history subjective"-ExhibitA-2-"states someone assaulted patron. Felt blood and fluid come out of eye.

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Even assuming that vitreous fluid and assault were stricken from Arinella's interview section as was directed by the judge, T. R. 450-7, the remaining narration including the false portions thereof were prejudicial to the defendant, Elbery. Per copy of this trial exhibit 18, Exhibit A-1 this motion, obtained from the Worcester Court’s file on this instant case by this moveant, these words, vitreous fluid and assault were never stricken from King’s medical report.

Admission of these interview sections corroborated King’s perjury as to his injury. The jury reasonably could have believed, especially since these interview sections were the only legible and understandable sections of the report, that this was medical fact, not King’s story. The jury being exposed to this false evidence created an injustice to the defendant, as the jury reasonably could have believed this false story by King to be highly reliable medical evidence from independent medical professionals.

B. Illegible and highly technical medical documentation is inadmissible.

King’s medical report, Exhibit A, was exhibit 18 at trial. The jury could not read or understand the hospital records relating to King’s injury. Dr. Arinella's report was absolutely illegible, both Arinella's and Grenier's reports were too technical to be understood by a layman. The jury could come to no conclusion as to King’s eye injury unless they could fully read and understand both Arinella's and Grenier's reports.

Massachusetts law excludes illegible hospital reports, admitted under GL 233 S. 79, to be admitted as evidence, Commonwealth vs. Baldwin 24 Mass. App. Ct. 200, 203, (’87); Commonwealth vs. Brattman 10 Mass. App. Ct. 579, 586, (’80); Commonwealth vs. Haraldstad 16 Mass. App. Ct. 565, 573 (’83).

Massachusetts law also excludes evidence which is very technical medical language and is unintelligible to jury, this situation per Massachusetts law requires an expert to testify to the technical medical language. Commonwealth vs. Ennis 2 Mass. App. Ct. 864, 865, ('74); Commonwealth vs. Copland 375 Mass. 438, 442, (‘78).

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The only parts of Kings medical/hospital report that could be understood by the jury was the narration of circumstances, by King, leading to his injury which is also inadmissible, see section A above.

Although King’s medical reports, Exhibit A, were an evidentiary exhibit at trial and submitted to the jury the reports are void of any evidentiary value both as a matter of law or practicality. If the jury cannot read and, or understand the medical report it should not have been given to the jury as evidence. The jury must have assumed that the unreadable/unintelligible medical documentation, Exhibit A, contained exactly the same information given falsely by the prosecution, in Claim I and II, since the defense attorney, Aloise, never challenged it at any time during trial. This recorded narration interview, as a result, further enhanced and corroborated the prosecution's knowing false evidence regarding King’s injury. Louis P. Aloise should have objected to the admission to the jury of this medical report as evidence.

The trial attorney was ruled by the Appeals Court of Massachusetts to be ineffective in his assistance of counsel for his failure to object to inadmissible evidence and his inaction and apparent failure to recognize important evidentiary principles. Commonwealth vs. Frisino 21 Mass. App. 551, 555, (' 86), 488 N.E.2d 51, 55 (' 86).

See U.S. vs. Tucker 716 F. 2d 576 (' 83) where, in part, the U.S. Ninth Circuit found a defense attorney ineffective in his assistance of counsel for not objecting to documentation.

"A miscarriage of justice"

 

The admission of King’s medical report as evidence resulting in highlighting and corroborating, to the jury, the prosecution's knowing false account of King’s injury misled the jury to the prejudice of the defendant creating a miscarriage of justice requiring a new trial, Commonwealth vs. Freeman 352 Mass. 556, 564(' 67).

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    However, it is not likely that the jury reviewed any of the trial exhibits including this Ex. 18, as they only deliberated 1 hour. The jury only deliberated for 1 hour, including pit stop and travel time, because there was only one team on the field during that unlawful trial, the prosecution.

 

 

IV. CHRISTINA MANN’S CUT FACE.

A. The prosecution knowingly produces and allows false evidence regarding injury to Mann.

B. Defense Attorney Louis P. Aloise sanctions the prosecution's false evidence regarding injury to Mann,  

making him further ineffective in his assistance of counsel.

 

A. The prosecution knowingly produces and allows false evidence regarding injury to Mann. 

            Prosecution witnesses’ and friend’s testimonies regarding Mann’s facial cutting.

    At trial six witnesses gave testimony (see footnote 3 – Ex. K), regarding Mann's facial cutting. Tom King, prosecution witness-in-chief and his friends testified that Mann’s face was cut very badly, that her eye was cut and blood was dripping down her face between her fingers, (see footnote 3 – Ex. K). Mann testified that she went to U. Mass. Hospital immediately after leaving the bar, and that a physician puts stitches above and below her eye as a result of her face being cut. The various witnesses claimed that Mann's injuries were caused by the defendant, Elbery, breaking a bottle, the glass flying cutting her face. Mann claimed the injury occurred after she got up from her seat and was moving away from what she thought was a fight starting, she claimed to be approximately three seats away from Elbery, T. R. 166-24, (see also footnote 3 – Ex. K) for transcript citings regarding Mann’s fictitious facial cutting).

Evidence contradicting Mann’s facial cutting not brought to the attention of the jury.

1. There were no criminal charges brought against Elbery for this alleged injury to Mann. Whoever causes injury to another due to a wrongful act or a willful, wanton and reckless act is guilty of battery i.e., a crime. Commonwealth vs. Hawkins 157 Mass. 551, 553, (1883), Mass Practice Volume 32 s. 322 p. 238.

2. There was no medical evidence presented to support Mann's cutting and physician stitching her face.

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3. There was no facial scarring to this 18-year old girl’s face, see affidavit #3.

4. Per the police report, the Worcester Police searched all area hospitals and found that nobody had gone to any area hospital for such treatment or injuries, see Exhibit D. The police searched for this girl as a result of bartender Jeff Schlener telling the police that a girl had gotten glass in her eye, cutting her, Exhibit D.

5. The prosecutor, although making full use of this evidence against Elbery, never pointed to any scarring that should have resulted from cutting requiring stitches only nine months prior to trial.

6. Defense attorney Aloise never pointed to a lack of facial scarring to Mann during cross-examination but agreed with his client in private that Mann had no scarring, affidavit #4.

7. There was absolutely no physical or third party medical evidence to support this claim of Mann’s facial cutting; there was only finger pointing and say-so by a group of King’s friends.

8. At the probable cause hearing, PC 53-6 and 52-6, King testified he didn't know what the girl’s injuries were, (there was only an unidentified girl at the time of the probable cause hearing). Compare this to King at trial testifying as to Mann’s injury, blood coming around her hand, out her hands, through her fingers down her face, T. R. 194-7.

Other evidence that should have alerted the prosecution that Mann's injuries were at least of suspicious authenticity.

9. Tom King claimed during testimony that he found Mann after the probable cause hearing about March' 93. They just coincidentally found her after losing the probable cause hearing six months after the incident.

10. Man briefly contradicted her testimony about bloody facial cuts requiring stitching, "yes, -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, T. R. 174-20. "I thought I saw a little bit of blood. But another guy came over and said you know your fine and everything", T. R. 144-13. Man let the truth slip out, being a witness may have been stressful especially when you can't remember your lines, see 11 below.

11. The prosecutor should have been further suspect to Mann’s claims of injuries when she, prior to trial, told ADA Mike Ball she was leaving and did not want to testify, this at the urging of her boyfriend. The prosecutor, Ball, responded by threatening to arrest her. Police officer Tom King then took her aside for over an hour and they talked, see affidavit #5.

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Mann’s in court identification of Elbery-violation of Due Process because of improper pretrial identification-The Court, Aloise and Ball look the other way-King obstructs justice, tampers with witness.

 

One of the more outrageous highlights of the trial came while Aloise cross-examined

prosecution witness Mann.

T. R. 159-9 (Aloise) Q. You spoke of the case?

(Mann) A. Yes (with King).

(Aloise) Q. What did you speak about the case?

(Mann) A. He just -- He showed me who the defendant was.

(Aloise) Q. He (King) pointed Mr. Elbery out to you?

(Mann) A. Yes.

(Aloise) Q. Is it fair to say that before he did that, you would not have recognized Mr. Elbery?

(Mann) A. I recognized him but I could not recall the face.

(Aloise) Q. So you really did not recognize them?

(Mann) A. No not his name. No, I didn't, no.

(Aloise) Q. He pointed him out to you and he told you who he was?

(Mann) A. Yes.

The record clearly reflects Mann could not identify Elbery until King showed her who she was to finger.

    Aloise was once again deficient in his performance, in that, he should have requested a voire dire to challenge Mann’s identification of Elbery. Commonwealth vs. Scott 321 N.E.2d 682, 684, 2 Mass. App. Ct. 763, 766. Aloise was deficient for not requesting a mistrial because of Mann’s admitted perjury, she falsely identified Elbery, Commonwealth vs. McLeod 394 Mass. 727, 740. Aloise should have further pursued this perjury by Mann and witness tampering by King that Aloise tripped over during

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cross-examination of Mann. Instead he avoided any further issue of this matter during Mann’s cross-examination and neglected to bring it to the jury's attention in closing. Aloise was not about to make an issue out of this with King, Aloise merely avoided any controversy on this issue during King's cross-examination.

The prosecution failed to correct this perjury, once again violating Elbery's Due Process Rights under the 14th Amendment of the U.S. Constitution. Napue v. Illinois 360 U.S. 264, 268 3 L Ed 2d 1217, 1221, 79 S. Ct.1173 (‘59). .

The U.S. Supreme Court held that in such cases due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications, obtained through unnecessarily suggestive procedures. Moore vs. Illinois 434 U.S. 220, 54 LED2d 424, 98 Sup. Ct. Rpt. 458,464.

Tom King is guilty, per this documentation, of subornation of perjury, Mass. GL C. 268 S. 2 and tampering or influencing a witness, Mass. GL 268 S. 13 B.

 

The prosecutor's duty to know the facts of the case and investigate.

 

It is a prosecutor's duty to investigate, to inquire into the facts with care and accuracy, examining the available evidence, 27 C. J. S. S. 14 (1) p. 671. A prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused. U.S. vs. Kelly 543 F. Supp.1303, 1310 (' 82), (quoting the ABA Ethical Consideration 7-13); The S. J.C. Rule 3:08 P. F. 7 b.

The police knew, document, from their initial and brief investigation, see Exhibit D., that a girl did not get injured. This just as bartender Schlener reported immediately following the incident on 9-29-92, per Exhibit D. The police document per, Exhibit D., they went to all area hospitals and found no such girl with facial injuries to have been treated at any of these hospitals. Obviously, Worcester police and Worcester County DA’s office investigated this case, contrary to what Ball and officer Perma claimed at trial, T. R. 275-9, T. R. 1002-12, respectively. The result of the investigation was not good for their case and objective to convict Elbery.

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The prosecution chose to ignore what was right in front of them via points 1-11 above, instead they presented false evidence on the Mann issue to the jury, see footnote #3 – Ex K.

Further, the Mass. S. J.C. in Commonwealth vs. Lam Hue To 461 N.E.2d 776, 779, (' 84) 391 Mass. 301, 304, held that imputed to the police is the responsibility for evidence they knew or should have known. The Supreme Court per Kyles vs. Whitley 131 L. Ed2d. 490, 508, 514 U.S. 419,115 S. Ct. 1555, ('95) held a prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s case including the police, regardless of good or bad faith. The prosecution should have known, as is made obvious in this factual claim IV that Mann and her other witness friends were lying about Mann's injuries. They had to lie in order to cover-up their criminal behavior that night, the ganging-up and beating of the defendant.

Also, Tom King was part of the prosecution team, he boasted to Elbery in the courthouse that he was being paid regular police wages to testify at trial, not as a witness citizen, but as a police officer, see affidavit #6.

Of course the police and prosecution acted as if they knew Mann and the other witness friends testified falsely at trial regarding injury to Mann. They did not bring criminal charges against Elbery. Instead of further investigating or utilizing what they knew to be the truth from their investigation the prosecution chose to allow false evidence to be presented to the jury. Knowing use by the prosecution of false evidence or its equivalents requires a new trial. U.S. vs. Giglio 405 U.S. 150, 31 L. Ed.2d.104, 108 ('72), Commonwealth vs. Tucceri 412 Mass. 401, 405 , (' 92), 589 N.E.2d 1217, 1219,n. 3 (prosecution is responsible for evidence they knew or should have known to be false, they have a duty to correct such). This in further violation of Elbery's Due Process Rights under the Fifth and Fourteenth Amendment to the United States Constitution.

This claim IV shows the prosecutor, A.D.A. Mike Ball, not only knowingly using false and perjured evidence, surrounding Mann’s fictitious injury, to convict Elbery but he couples or compounds those falsifications in his opening statement and closing argument, TR 115-16,111-8, 1237-21, blatantly misrepresenting the evidence to the jury. The S.J.C. of Massachusetts held in Com. v. Collins, 386 Mass. 1, 8, (’82), 434 N.E. 2d 964, 969, that this type of abuse by the prosecutor results in an inescapable conclusion and that is that the conviction can not stand.

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PREJUDICE

Use by the prosecution of this perjury-the central prosecutorial theory based on lie.

 

The prosecution used this alleged injury to Christina Mann to justify Tom King and friends chasing the defendant, Elbery, almost a 100 yards down the street, TR 197-17, 497-22, 755-3-10, and making a citizen’s arrest and beating him. The prosecution knew from the evidence, this claim, that the evidence about Mann's injuries was false. The prosecution chose to ignore this and instead use it for their case in chief.

The prosecution portrayed King, to the jury, as a white knight heroically, and single handedly, defending this 18-year-old female victim, whose face was mutilated by Elbery. The prosecution witnesses Traskiewicz, O'Connor, King, Schlener, and defense witnesses D. Pasquale, all friends, testified they were "holding" Elbery because of Mann's injury, TR 547-19, 502-13, 757-13, 199-24 through 200-2, but Schlener claimed at trial he called the cops because of King’s alleged injury. Why didn't Schlener call the cops about Mann's injury? Could it be that in actuality there was nothing to call about in regards to Mann or a patron? Allegedly Mann was injured first.

What were the friends going to say at trial, that they got a little carried away and jumped a guy who was by himself in trying to avoid odds of six against one? Man's injury was a cover-up, a reason they made up to justify their actions. The prosecution knowing they could not use Mann’s alleged injury as the felony justifying King’s citizen’s arrest of Elbery tried to get a felony conviction on the assault with a deadly weapon charge which they knew never happened either, see claim VI, in order to satisfy the Massachusetts law on citizen’s arrest, see claim V. But it was the girl's fictitious injury that they used to gain the sympathy of

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the jury even though they knew they couldn't convict Elbery on this crime because it did not exist. Knowing use by the prosecution or its equivalents requires a new trial; the prosecution has a duty to correct all perjury. Commonwealth vs.Tucceri 412 Mass. at 405, U.S. vs. Agurs 427 U.S. at 103, 96 S. Ct. at 2397.

The jury was misled at trial by this false evidence of Mann’s injuries. This being a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564 (' 67) (mislead the jury on this material evidence the trial is unfair requiring a new trial).

 

More prejudice resulting from the prosecution using perjury about Mann's injuries.

The introduction by the prosecution of this false evidence regarding Mann’s injury made it all the more easy for the jury to believe that if Elbery cut Mann’s face there would be little doubt that he would assault King. The false evidence of Mann's face injuries created overwhelming sympathy for King's actions and overwhelming prejudice, via the jury, against Elbery. The jury likely would have considered the cutting off Mann's face with all the testimony about dripping blood and stitching, a far worse act than the alleged assault on King, after all there was no weapon involved in the claimed assault on King and Mann was an alleged innocent bystander and defenseless female.

Compare this set of facts with Commonwealth vs. Miranda 415 Mass. 1, 7, (' 86), 610 N.E.2d 964, 967, (' 93), where the Mass. S. J.C. decided a new trial to be in order due to the prosecution introducing highly prejudicial evidence in the form of a nolle prossed indictment. The S.J.C found that the reinstatement of the nolle prossed indictment made it all the more likely that the other indictment, the other indictment being a less serious charge, would result in a conviction.

The question the S. J. C. asked in determining reversal of Miranda on the lesser charge was, "did the introduction of the nolle prossed indictment taint the trial by making a conviction on the other charge more likely"? Although, there is no nolle prossed indictment involved in this instant case the effect of the prosecution introducing the false evidence of Mann’s injuries, a crime, to the jury tainted the trial and made it all the more likely to convict Elbery on the charges at trial. The contamination of the trial by this falsified Mann-injury evidence requires a new trial. i.d.

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B. Mann's injuries and Aloise's ineffective assistance of counsel-Failure to investigate-Harboring the prosecution's false presentation of evidence-deprivation of Compulsory Process-stipulation of the prosecution's false evidence. More conspiracy by Aloise.

For reasons listed in items 1-11, above in section A, the defendant, Elbery, see affidavit #7, demanded half-way through Mann’s testimony that Aloise subpoena her medical records of this alleged facial cutting and stitching at U Mass. Aloise refused three times to the demands of his client regarding Mann's medical records. This resulted not only in deficient performance by Aloise but at the same time he denied his client Compulsory Process via documentary evidence. Compulsory Process applies to documentary evidence, as well as, witnesses. Taylor v. Illinois 484 U.S. 400, 407-408 (’88), 98 L. Ed 2d 798, 108 S.Ct. 646, 652-653; U.S. v. Levy-Cordero 67 F3d 1002 (CA 1 (Puerto Rico) 1995); U.S. v. Burr, 25 F. Cas 30, 33 (C.C. Va 1807)(No. 14, 692d); U.S. v. Nixon 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed 2d 1039(1974); Brahan v. State 571 P. 2d 631, , (Alaska' 77).

For reasons stated in section A items 1-11, Aloise once again knowingly allows the prosecution to falsify its case against Elbery, as well as, the paragraph above which shows Aloise harbored the prosecution's false evidence regarding Mann's facial cutting, stitching and visit to the hospital. This is a breakdown of the adversarial process required between the prosecution and defense in order to obtain the truth and a fair trial. U.S. vs. Cronic 466 U.S. 648,659, (’84) , 80 L Ed.2d. 657, 666-668, 104 S. Ct. 2039 (breakdown of the adversarial testing is a violation of the U.S. Sixth Amendment requiring effective assistance of counsel). The U.S. Supreme Court held that a deficient performance by the defense counsel is presumed to have prejudiced the claimant where there is a complete breakdown of the adversarial testing. id.

The choice, conspiracy, not to investigate Mann’s claimed injuries and physician treatment at a hospital is another count of deficient performance by Aloise. The need to investigate this evidence should have been

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 obvious to Aloise even without the urging of his client. Per Strickland vs. Washington 80 L. Ed.2d. 674, 694-95, (' 84), 466 U.S. 689,690, an attorney has a duty to investigate, to advocate the cause of his client; if the attorney chooses not to investigate that decision should be based on a reasonable decision. The result of a proceeding is unreliable because of a breakdown in the adversarial process and a new trial is required Strickland 80 L Ed 2d. 698,699, 466 U.S.695-696.

In order to demonstrate constitutionally ineffective assistance of counsel it must be shown that counsel's conduct fell below the applicable standard for performance, defined by what the lawyer knew or should have known at the time of counsel's tactical choices. U.S. vs. Oritz 23 F3d. 21,26 (1st circuit' 94).

Prejudice to the defendant is also required to demonstrate constitutional ineffective assistance of counsel id.-The prejudice to Elbery surrounding Aloise's handling of evidence of Mann’s injuries is the same as prejudice in section A of this claim.

The conspiracy by Aloise to allow the prosecution's false evidence of injury to Mann poisoned the jury against Elbery preventing any chance that he got a fair trial or a trial whose verdict could be regarded as reliable. Aloise never challenged any witness especially Mann about these alleged injuries. He never gave any indication to the jury in his closing that there was something wrong about Mann's evidence. This in violation of the Six and Fourteenth Amendment to the United States Constitution requiring Due Process, effective assistance of counsel, and the right to a fair trial. Cronic 466 U.S. at 657-659, 80 L Ed 2d. at 666-668.

 

Stipulation by Aloise of the prosecution's false theory regarding Mann's injury.

 

To make matters not just worse but ridiculous Aloise in his opening statement, T. R. 129-3, And (Mann) went off the U Mass where she was treated with butterfly stitches on her cheek below her eye, advocated the prosecution's false evidence about Mann, he presented this false evidence as fact. This is by Aloise stipulation, as fact, of the prosecution's false evidence regarding Mann. Statements made by counsel in opening statement are judicial admissions binding on the party. Mass Practice volume 19 S. 518 p. 706. An attorney should know the law otherwise he (Aloise) is deficient in his performance. U.S. vs. Natanel 938 F. 2d 302, 309 (1st circuit' 91). An attorney has a duty to advocate his client’s defense, the breakdown of the adversarial trial process requires a new trial as this situation would be a deprivation of effective assistance of counsel guaranteed by the Six and Fourteenth Amendment. U.S. vs. Cronic 466 U.S. 648, 657-659, ('84), 80 L ED 2d 657, 666,668, 104 S. Ct. 2039, Washington vs. Strickland 466 U.S. 668, 686, 80 L. ED 2d. 674, 692(' 84). (The benchmark for judging a claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result).

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CITIZEN’S ARREST

V. Failure of Aloise to present evidence and law regarding King’s illegal citizen’s arrest. The prosecutor knowingly allowed the jury to believe King made a legal citizen's arrest.

The prosecution's central theory in their case against Elbery was that King acted legally and justifiably in chasing Elbery 100 yards down Shrewsbury Street. The prosecution claimed King was protecting the girl who allegedly got her face cut, that Elbery had committed a felony or felonies in the bar, that King was legally entitled in his actions on Shrewsbury Street because he made a citizen's arrest. All the evidence, although fabricated – see claims I – A, of the elements of the two assault charges against Elbery resulted from activity, allegedly by Elbery, during King’s citizen’s arrest of Elbery.

King assaults- falsely arrests-initiates all violence

King testified he arrested Elbery, T.R. 199-8, I advised him he had hurt an individual in the bar, a young lady in the bar, and he wasn’t going anywhere until the police arrived. T.R. 199-24, I said, " you’re not going anywhere. You’re going to stay here until the Worcester Police arrive.T.R. 219-15, I told him he wasn’t going anywhere until the Worcester Police arrived.

King admitted he used force in making his illegal citizen’s arrest of Elbery, T.R. 401-6, I said I had my arms out to the side, with my arms open and facing him. TR 401-16 I knocked him to the ground. I grabbed him around the arms and knocked him to the ground.

Schlener-testifies King corrals Elbery before Elbery throws a defensive punch

The prosecution produced additional evidence that King assaulted Elbery, T.R. 594-2 (Schlener), I saw Mr. King going after Elbery with his arms out saying--.T.R. 594-6 (Schlener) Like he (King) was going to tackle him. PC 87-14 King corralled Elbery then Elbery threw a few punches that didn’t land. TR 593, 630-8 King and four friends went after Elbery immediately. TR 636 King went to grab Elbery and that’s when Elbery threw a punch. King and Elbery squared-off in the street.

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O’Connor, De Pasquale, Traskiewicz-consenting combat but King pursued Elbery

TR 789-1 (O’ Connor)It was a mutual touching between Elbery and King. TR 747-16 (De Pasq) They both touched each other. TR 497-11 Tommy and him were paired off. TR 498-12 (Traskiewicz) they were squared off- they weren’t throwing any punches or anything until they got down. TR 498-20 King had his arms extended and palms out. TR 536-22 Elbery right on the sidewalk when bar emptied out after Elbery. TR 537-17 There was no chase after Elbery. TR 553-5 King was squared off with Elbery in front of Harpies, TR 552-8, after the two shimmered down the street. TR 538-19 They continued to move down Shrewsbury St. At some point Elbery and King stopped. We knew there was going to be a fight. TR 564-6 It was a barroom brawl in the street.

King further admitted he was functioning as an ordinary citizen with no privileged police powers, T.R. 386-4, (Out of jurisdiction as a police officer). TR 386-8, (No police arrest powers) That’s correct. T.R. 395-22, I was a private citizen. The judge agreed there was no cop and only a citizen – King, T.R. 218-17, his status as a police officer and state of mind is immaterial.

However, King had no right to make a citizen’s arrest, there was no felony committed by Elbery in the bar or before King chased and held/arrested Elbery. The Mass. S. J.C. held that in order to have a citizen's arrest there must be a felony conviction to justify the citizen’s arrest, this is the "in fact" test. Commonwealth vs. Claiborne 423 Mass. 275,280, Commonwealth vs. Grise 398 Mass. 247, 250, ('86), 496 N.E.2d 162, 164, Commonwealth vs. Harris 415 N.E.2d 216, 220 ('81), 11Mass. App. Ct. 165, 170. The element of citizen’s arrest, that a felony was "in fact" committed was not satisfied. There was no felony committed by Elbery, see claim IV, VI, before King and his group of friends chased and beat Elbery on the street. There was no crime committed by Elbery, period.

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The prosecutor’s misuse of citizen’s arrest.

 

ADA Mike Ball and the Worcester DA's Office made full use of the legal concept of citizen's arrest in protecting off-duty officer, Tom King, legally justifying King's actions on 9-29-92. The prosecutor felt he was at liberty to waffle from one alleged felony committed by Elbery to another. Ball initially used the fictitious bottle assault as the felony Elbery committed in the bar, then Ball switched the felony justifying a citizen's arrest to Mann's fictitious face cutting.

From the transcript citings below it is clear that Ball felt free to use whatever fictitious "felony" was convenient in order to justify King’s citizen’s arrest.

TR 132-21 (Ball sidebar O/S) I will be asking for instructions on arrest powers, and I guess one of those is the right of a citizen to make an arrest on a felony when that felony has been committed.

TR 133-5 (Ball sidebar O/S) I purposefully refrained from characterizing the striking of the girl in the bar as an assault and battery by means of a dangerous weapon, which we all know is reckless conduct, even if it wasn't directed at her.

TR 133-15 (Ball sidebar O/S) It doesn't seem there isn't a crime for that. What was done was not a felony is what I am saying. (Referring to Mann's alleged cutting).

T. R. 133-24 (Ball sidebar O/S) It was a felony when he swung the beer bottle.

T. R. 218-6 (Ball sidebar) Even a citizen, Judge, I would suspect to you if there is an assault, in this case you heard enough of an assault dangerous weapon, that is also a felony.

TR 218 - 11 (Ball sidebar) He does have the right to make an arrest an assault dangerous weapon.

Above Ball took the position that the felony inside the bar, giving justification for King's citizen arrest was the fictitious beer bottle assault. Ball was quite clear, Mann's alleged injury was not a felony, T. R. 133-15.

However, Ball realizing that the assault with a dangerous weapon charge (beer bottle) was in trouble he changes the justifying felony inside the bar to Mann's alleged facial cutting. This was initially done by Ball during cross-examination of defense witness De Pasquale who was called out of order (why not he changed his probable cause testimony in King's favor and thus Ball was cross-examining what turned out to be a prosecution witness or "friend").

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T. R. 740-3 (Ball-X) Q. The fragments of that broken bottle splintered and struck the girl in the eye; is that right? A. Yes it did.

T. R. 740 - 6 (Ball-X) Q. Do you know, sir, that is an assault dangerous weapon.

T.R. 1069-22, (Ball/sidebar) Judge, I would like an instruction an assault and battery dangerous weapon. TR 1070-22 He smashed that bottle against the pole, the injury resulted to the woman, an assault and battery dangerous weapon would lie. If this defendant did, in fact, commit that act, that is a felony committed, any citizen would have a right to arrest for that felony. I am going to ask for a citizen’s arrest instruction as well.

T.R. 1073-1 (Ball/sidebar) He had a justification. A felony was committed, and apparently the felony leaving the area, and he was acting as a citizen.

Ball at closing,

T. R. 1242-18 I'm telling you a citizen has just as much right as anybody to go after someone that is caused injury to another person like they did. (Ball admitting once again that King did not act alone).

Ball attempted to change the justifying felonies because he knew by law he needed a felony to validate King's citizen arrest, otherwise King was the criminal attacking Elbery. Ball knew the charge of assault with a deadly weapon (beer bottle) was not faring well for the prosecution. In fact, that charge was directed by the judge not guilty, see Ex M. They did not at trial, initially attempt to use Mann as the felony because they knew it didn't happen, see claim IV, it was just a lie fabricated by Schlener given to the cops on 9-29-92 during the instant incident and investigation in order to cover for Schlener's friends. Why not? Schlener owed his friends that much, after all, Schlener made the snowballs and King and his friends threw them.

A.D.A. Ball at closing, T.R. 1242-18 above, used the fabrication, that King had a legal justification to make a citizen’s arrest, in his closing argument. This blatant misrepresentation by Ball in his closing argument to the jury coupled with falsification at trial, that King was legally justified to pursue Elbery down the street and make a citizen’s arrest, inescapably causes need for a new trial. Com. v. Collins 386 Mass. 1, 8, (’82), 434 N.E. 2d 964, 969.

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The prosecution once again violated Elbery's Fourteenth Amendment Due Process Rights as they had a duty not to mislead the jury. Giglio v. U.S. 405 U.S. 150, 153 ('72), 31 L. E. D. 2d 104, 108, 92 S.Ct. 763, Napue vs. Illinois 360 U.S. 264, 270 (‘59), 3 L. Ed.2d. 1217, 1221, 79 S.Ct. 1173. The deception by the prosecution that King was legally justified in chasing Elbery in making a citizen's arrest should have been corrected. The prosecutor should have presented the law and fact to the jury, there was no "felony" to justify King's "citizen's arrest" and King acted improperly in chasing (attacking) Elbery down Shrewsbury Street. This being necessary in order to ensure Elbery's Due Process and his right to a fair trial under the Fifth, Sixth and Fourteenth Amendment of the U.S. Constitution. The U.S. Constitution under these amendments requires an impartial presentation of evidence and law.

 

King changes his justification for his citizen arrest.

 

King at the probable cause hearing, PC 62-21, the grand jury, GJ 6-20 and his "Bolton Report", T. R. 415-10, used the alleged cut face of Mann as the justifying felony for his citizen's arrest. Why did King and prosecution switch felonies at trial to the "waving"/"movement" (TR 192-23 & TR 194-22) of a broken beer bottle, to wit, assault dangerous weapon, TR 218-9.

 

The judge-the instructions to the jury

 

There were no instructions given the jury about King's citizen arrest. Little doubt, the judge was in error concerning this issue, (Judge-sidebar) T. R. 1248-12, there is no violation of law in chasing anyone down the street. (Judge-sidebar) T. R. 214-19, Does not matter if it was a felony. The judge is responsible for providing the proper jury instructions, Com. v. Gladney 34 Mass. App. Ct. 151, (’93), 607 N.E. 2d 750, 755-756. There should have been instructions on the Massachusetts law regarding the right of a citizen to make an arrest and an instruction that "in fact" no felony was committed. The judge instead gave a 3-page consciousness of guilt instruction relating to Elbery running 100 yards down Shrewsbury St. and trying to escape from the gang on the street in front of Harpies Auto Parts, TR 1267 through 1269.

King by chasing Elbery down the street was assaulting Elbery; King was attacking Elbery and that is a crime/assault. Elbery, as ADA Ball knew, was running not just from the grossly overweight King, TR-468-1-3, there was a gang of six or seven overwhelming Elbery.

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As above, the absence of instructions on citizen’s arrest coupled with the judge’s big instruction highlighting Elbery’s flight down the street and attempt to escape the "gang of six" as "consciousness of guilt" misled the jury causing a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564, (' 67). This is also a denial of Due Process under the Fourteenth Amendment as this evidence should have been suppressed due to King’s false arrest (illegal citizen’s arrest). This rendered the trial arbitrarily and fundamentally unfair by the aggregate effect of the inadmissible evidence that took place after King’s false arrest of Elbery compounded by the Court’s instruction to use such evidence in the most prejudicial manner possible. McGuire v. Estelle ’90 CA 9 Cal 902 F 2d 749.

The "in fact" test is satisfied when the alleged felony which caused the citizen’s arrest results in a felony conviction. Com. v. Harris 11 Mass. App. Ct. 165, 170, (1981), 415 N.E. 2d 216, 220. Elbery committed no felony before King chased him 100 yards down the street and made a citizen’s arrest and as a result all the evidence, although fabricated by the prosecution, against Elbery for the alleged crimes charged against him on 9-29-92 must be SUPPRESSED. Com. v. LeBlanc 407 Mass. 70, 75, 551 N.E. 2d 906,909, (1990), 32 Mass. Practice s. 24A 1998 pocket p.8. This of course would leave no evidence of any crime except for assault and battery by King and his "friends" and tortious wrongdoing by King and his "friends" via a false arrest and assault. Harris 11 Mass. at 170.

Judge Milton Raphelson at the probable cause hearing understood the law, PC 265-8, Mr. King went to stop a person who he had no right to stop, PC 266-2,and there was no felony committed by Elbery in the bar.

 

Aloise-Ineffective Assistance of Counsel.

 

Attorney Louis P. Aloise almost understood the law, (Aloise-sidebar) T. R. 215-1, My understanding is a citizen arrest is only if a felony is committed in the presence of a citizen. As per above, Judge Raphelson already gave Aloise the answer regarding citizen’s arrest. But Aloise did nothing in terms of informing the jury that there was no legal citizen’s arrest by King and in fact King was illegally attacking Elbery in the chase down Shrewsbury Street.

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This is yet another count of professional deficiency by Aloise. Aloise should have regarding the issue of citizen’s arrest done as follows:

1. Alerted the jury there was no legal citizen’s arrest by King and King not only had no right to chase Elbery down the street but that King in doing so was committing a crime, assault. Further, the jury should have been informed that King was also guilty of assault and battery on Elbery. Aloise should have alerted the jury that King at every point of the incident was the initiator of violence, see King assaults- falsely arrests-initiates all violence, above in the second paragraph of this motion count.

2. Informed the jury Elbery was being assaulted by not just King but by six or seven barroom gangsters. This could have been facilitated by Aloise pursuing the various "friends" conflicting testimonies as to what happened between the time the fight started inside the bar and Elbery ended up face down on the street with three or four "friends" on top of Elbery.

3. Asked for jury instructions on citizen's arrest and tie in the closing argument with the facts of the case and citizen’s arrest law. At trial Aloise was helping the prosecution regarding citizen's arrest, as he did exactly the opposite, T.R. 1071-1, I’m strongly opposed to either a citizen’s arrest instruction….

4. Filed criminal charges against King and his friends for chasing Elbery and beating him, (assault, assault and battery, and assault and battery dangerous weapon).

5. Motioned for a dismissal of all charges against Elbery due to King's illegal behavior and the District Attorney's Office Due Process Violation surrounding the indictments and citizen’s arrest, see claim VIII.

6. Motion to suppress all evidence resulting from the illegal citizen’s arrest by King. This would result in no evidence for the prosecution regarding criminal charges against Elbery for the incident on Shrewsbury Street on 9-29-92. Com. v. LeBlanc 407 Mass. 70, 75,551 N.E. 2d 906, 909 (1990), 32 Mass. Practice s. 24A 1998 pocket p. 8. Please note well, as provided in this motion, that all the prosecution’s evidence was a fabrication to begin with.

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PREJUDICE

 

    The law was on Elbery’s side, by not allowing the jury to know the law regarding citizen’s arrest Elbery lost a defense, and had Aloise done as an average lawyer would have and presented the facts and law of citizen arrest surrounding this instant case something better would have resulted for the defendant. Aloise's deficiency regarding citizen's arrest law also prejudiced Elbery's claim of self-defense, hence another loss of defense all requiring a new trial. Commonwealth vs. Saferian 366 Mass. 89, 96, (' 74).

    If Aloise did his job the jury would have viewed King as an illegal aggressor and this would have totally changed the evidentiary picture of the trial with a reasonable probability resulting that the verdict would have been different, and a new trial is required. Strickland vs. Washington 466 U.S. 668, 695-696, 80 L ED 2d 674,698-699 (’84), 104 S. Ct.2052.

    The law in Massachusetts is all evidence must be suppressed that results from an illegal citizen’s arrest, Leblanc Com. v. LeBlanc 407 Mass. 70, 75,551 N.E. 2d 906, 909. Since King had no right to make a citizen’s arrest of Elbery all the evidence against Elbery at trial, although the evidence was fabricated, must be suppressed, id. As a result, there is a reasonable probability, because all the evidence would have been suppressed due to the illegal citizen’s arrest, that if not for Aloise’s deficiencies, as in this claim V surrounding citizen’s arrest, there would have been produced a not guilty verdict. This satisfies the standard for Constitutional ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendment of the U.S. Constitution requiring a new trial. Strickland vs. Washington 466 U.S. 668, 695-696, 80 L ED 2d 674,698-699 (’84), 104 S. Ct.2052.

.

 

VI. The Broken Beer Bottle Assault-Deadly Weapon.

A. Prior to the Probable Cause Hearing-ADA Michael Salloum confirms there was no bottle assault.

B. The probable cause hearing-testimonies confirm there was no bottle assault.

C. Grand jury-the Worcester DA’s office sponsors King to lie regarding the alleged bottle assault-Aloise does nothing.

D. Trial-the prosecution knowingly uses King's false testimony and Aloise cooperates/conspires regarding the alleged bottle assault.

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A. A.D.A. Michael Salloum confirms prior to the probable cause hearing that Elbery did not assault anyone with a beer bottle.

Attorney Aloise informed this moveant/defendant prior to the originally scheduled probable cause hearing of 12-3-92 that ADA Michael Salloum, then handling this case at the Worcester District Court, told Aloise that both the alleged victim-witness, King, and original complainant, Schlener, admitted that Elbery never assaulted anyone with a bottle, that he never used a bottle as a weapon i.e., the incident never happened-Schlener, the bartender, told another lie, see affidavit #8.

Not so strangely, ADA Salloum was taken off this case before it went to the probable cause hearing on 1-20-93, before Judge Milton Raphelson. But not before he sent a letter to Aloise documenting prior oral confirmations, see exhibit E. Per this letter the charge of assault with a deadly weapon was not being considered. This letter was dated 11-30-92, prior to the probable cause. The probable cause hearing was originally scheduled for 12-3-92.

Aloise makes it clear via his questions at the probable cause hearing that Salloum confirmed there was no assault on 9-29-92 with a beer bottle by Elbery, as below.

As per Aloise cross-examination of King, PC 76-15, And do you recall telling Mr. Salloum that in fact in your opinion he did not, Mr. Elbery did not, waive the beer bottle at you to the point where you felt you were assaulted?

PC 76-19 He -- as I testified to, Mr. Elbery waving the beer bottle in everybody's direction so --

PC 76-22 Q. Right. But to you recall Mr. Salloum because he had just had a conversation with me, being concerned about the particular issue and asking you perhaps out of your presence Mr. Schlener, whether or not Mr. Elbery had assaulted you with the beer bottle and you indicated to Salloum the answer was no?

PC 77-5 A. Well, with the distance there is no way he could have got me with the beer bottle.

As per Aloise cross-examining Schlener at the PC hearing,

PC 137-18 Q. But in effect later on, you did tell ADA Salloum that it did not happen?

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PC 137-21 A. Right I did tell Salloum that it was more general right?

At trial, via cross-examination of King, Aloise confirms all the more Salloum's admission, prior to trial, that there was no assault with a beer bottle,

T. R. 342-22 Q. And did you recall on that prior time before the actual hearing took place that you told the prosecutor assigned to the case that you were not assaulted by the beer bottle? (Objection sustained).

And likewise cross-examine of Schlener,

T. R. 647-17 Q. Did you tell -- do you recall telling Salloum, ADA Salloum, that it was more general, that it was not specifically directed at you?

T. R. 647-21 A. Yes, I did say that.

T. R. 648-10 Q. And do you recall when you were asked that on December 3rd 1992 by ADA Salloum, you told him King was not assaulted by Mr. Elbery with that beer bottle am I right?

A. Yes.

T. R. 648-20 Q. And just as you have done now, you admitted then that you told Officer Perma something that wasn't so, and you corrected it with Mr. Salloum sometime before the probable cause hearing just as you have done now, right? A. Yes.

And again at PC closing, Aloise confirms that he was told by A.D.A. Salloum that the prosecution witnesses (King & Schlener) admitted Elbery did not assault anyone with a broken beer bottle, PC 249-5, There was no indication it was specifically directed as an assault and Mr. King told the ADA that when he had the first opportunity to do so.

B. The bottle assault-the truth at the probable cause hearing.

The Worcester District Attorney's office was put on notice during the probable cause hearing of this instant case that Elbery did not assaulted anyone with a broken beer bottle, the incident was fabrication by Schlener, the bartender, to the police on 9-29-92 in order to cover-up for his group of friends, see exhibit D. -police report.

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King at the PC hearing admits no assault.

 

Initially at the probable cause hearing during direct examination King testifies that Elbery made gestures with the broken bottle at Jeff Schlener, the bartender, that he "waived" it all around, however, King would not say that Elbery made even a "movement" or "waving" at him, see footnote #4, PC 9-5 through 9-17, - Ex. L.

King during direct examination then revealed the following,

PC 21-16 Q. Sir were you placed in fear by the beer bottle that Mr. Elbery had in his hand?

A. The distance between us, no. He had thrown it down.

During cross-examination King finally admitted that Elbery did not use a bottle to assault anyone, he went right out the door.

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. 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, sir.

King was allowed to waffle his testimony but the admission was documented, "he had thrown it down," "he immediately went out the door", "stood up and left via the front door." Judge Raphelson could understand English, PC 76-2 I thought he (King) said he never saw it? I thought he said he never saw it? When Raphelson was referring to the alleged bottle assault.

Schlener at the PC hearing-admits no assault.

 

Schlener, prosecution witness and the initiator of most of the prosecution's false case against Elbery, took an abrupt change in story during his probable cause testimony as compared to what he told police that instant report on 9-29-92, Exhibit D. Instead of saying Elbery assaulted him with a bottle, Schlener casually testifies it was a random breaking of the bottle, it was pointed at nobody, P.C. 112-3, that Elbery went right of the door after he looked at everybody, P.C. 112-9. By testifying as such Schlener admits, unwittingly, that he lied to the police on 9-29-92 about Elbery assaulting Schlener and the other patrons with a broken beer bottle. (See footnote #4 - Schlener's PC testimony – Ex. L).

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Jeff Schlener, bartender, initiated this lie as he did about King almost losing his eye, and Chris Mann having glass in her eye causing her to be cut, see Exhibit D. Per the police report, Exhibit D., Schlener told police "Elbery broke a beer bottle on the bar and "waived it" at him and the other patrons in a threatening and menacing gesture". Schlener made up these lies in order to cover-up what really happened and in order to protect his friends and incriminate Elbery, after all at the probable cause hearing Schlener admitted starting the entire incident, see claim X.

The two other witnesses and friends, Sawyer and De Pasquale also testified at the PC there was no bottle assault, see footnote #4 – Ex. L.

C. The Grand Jury-The Worcester DA’s office sponsors King to lie, procuring perjury by ADA Paul Bolton, Todd Mathieson in conspiracy with Tom King-Louis P. Aloise does nothing.

The Worcester District Attorney's Office was not stopped by the foregoing, documented evidence that at a minimum there was no assault with a beer bottle/deadly weapon by Elbery. Not discouraged and determined to get their conviction they went right ahead and indicted Elbery on this charge, as well as, three other indictments, see claim VIII for grand jury claim.

The Worcester DA’s office indicted Elbery on 3-20-93 on the single testimony of Tom King, excluding the other four witnesses who testified at the probable cause hearing. This avoidance of the other witnesses, at least in part, was due to the probable cause hearing finding of no probable cause on all charges, except disorderly person. These witnesses, all friends of King’s, donated all exculpatory evidence to Elbery at the probable cause hearing. For his presentation before the grand jury King made up a brand-new story regarding the bottle assault, "Elbery made jabbing motions at Jeff and then me and the other patrons", G. J. 6-4.

    This grand jury testimony is totally in conflict with King's probable cause testimony and what he had previously told ADA Salloum. King committed perjury before the grand jury, he lied to the grand jury. To

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find perjury it must be demonstrated that inconsistent declarations are irreconcilable such that one of the statements is necessarily false. U.S. v. Flowers 813 F. 2d 1320,1324 (U.S. 4th circuit' 87). Where it is shown that contradictory statements made under oath material to the same point in two separate proceedings, it is presumed that he did not believe both statements. 70 C. J. S. Perjury S. 40 p. 287.

To obtain this indictment the Worcester DA’s office not only encouraged King to lie but they sponsored King to lie to the grand jury. The Worcester DAs office was fully apprised there was no bottle assault by Elbery. The Mass. S. J. C. found in, Commonwealth v. Mayfield 500 N.E.2d 774, 778, 398 Mass. 615, 620, (‘86), if the Commonwealth or one of its agents knowingly uses false testimony to procure an indictment, the indictment should be dismissed and the prosecutor who learns of the use of knowingly false, material evidence, has a duty to come forward. Further, this was procurement of perjury by ADA's Paul Bolton, Todd Mathieson, and Michael Salloum in conspiracy to deprive Elbery of his constitutional Due Process Right under the Fourteenth Amendment.

Aloise fails to dismiss the indictment knowingly does nothing.

 

After being indicted, defendant Elbery, affidavit #9, inquired of his trusted defense counsel how it was possible to be indicted after ADA Salloum and all the probable cause witnesses said there was no such event as an assault by Elbery with a broken beer bottle.

    Attorney Aloise replied he would file a "McCarthy motion" and get the beer bottle assault dismissed. At trial Aloise was in agreement once again that the bottle incident should be dismissed as he states at trial sidebar, T. R. 650-16, the grand jury was unfairly presented with evidence regarding the alleged assault with a beer bottle. The judge responds, T. R. 650-18, true, but that would have been a motion to dismiss under whatever ground. Aloise agrees, T. R. 650-22, probably, yeah.

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Attorney Aloise after repeated urging by his client, affidavit #9, never made any attempt to motion for dismissal of this grand jury indictment. As a result of this deliberate omission by Aloise, he is once again deficient in his performance as a defense counsel. The prejudice from this count of deficiency resulted in the trial being infected with an illegal indictment, thus contaminating the jury with evidence of false charges. Aloise was, as a result, ineffective in his assistance of counsel satisfying the two-pronged test, deficiency and prejudice. Commonwealth v. Saferian 366 Mass. 89,96 (' 74), Strickland v. Washington 466 U.S. 668, 687, 80 LED 2d 674, 693 (' 84) (prejudice satisfied when counsel's errors were so serious as to deprive the defendant of a fair trial). This claim VI once again shows a total breakdown of the adversarial testing process at trial, due to Aloise’s deficiencies (conspiracy with the prosecution), causing a trial that is unfair and verdict that cannot be relied on id. Had Aloise done as an average attorney for the defense better work would have produced something material for the defendant, Elbery, as there would have been no evidence of this bottle assault to contaminate the jury with constitutional error. This fulfills the Massachusetts standard set in Saferian requiring a new trial. Saferian 366 Mass. at 96.

D. The trial-the Worcester DA’s office knowingly uses King's false testimony-sponsoring King to lie-Aloise cooperates/conspires.

1. The prosecution.

At trial the chief prosecution witness, police officer Thomas King, being further encouraged to lie by the Worcester DA’s office, shamefully testified, T. R. 194-21-24, Elbery held off the entire bar for 30 seconds not only making jabbing threatening gestures at Schlener and he but at all the other patrons. This is an enlargement of King's perjury to the grand jury.

The prosecutor, Mike Ball, who demonstrated at trial he was extremely versed with the probable cause hearing transcript, the grand jury minutes, had a duty under the U.S. Constitution and Mass. Declaration of Rights to correct this King perjury. The prosecutor had a duty not to knowingly use false evidence against Elbery in order to convict him. This instance of unabashed effrontery to the American judicial heritage and the U.S. Constitution and everything the American justice system is supposed to represent requires a new trial, without considering any other instances in this motion of Brady violations and other violations of the Constitution/Due Process.

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This claim VI shows the prosecutor, A.D.A. Mike Ball, not only knowingly using false and perjured evidence, surrounding the fictitious bottle assault, to convict Elbery but he couples or compounds those falsifications in his opening statement, TR 111-8-22, TR 115-16, blatantly misrepresenting the evidence to the jury. The S.J.C. of Massachusetts held in Com. v. Collins, 386 Mass. 1, 8, (’82), 434 N.E. 2d 964, 969, that this type of abuse by the prosecutor results in an inescapable conclusion and that is that the conviction can not stand.

Per U.S. vs. Bagley 473 U.S. 667, 678-80, 105 S. Ct. 3375, 3381-83, 87 LED 2d. 481 (' 85), if the prosecution knowingly fails to disclose that testimony used to convict a defendant was false, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury verdict. Per Commonwealth v. Giles 350 Mass. 102, 112, 213 N.E.2d 476, 484, (' 66) the Mass. S. J. C. stated, knowledge of perjury may be inferred from circumstantial evidence, which reasonably tends to show that knowledge existed.

It is noteworthy that perjury is plain from comparisons of King's testimonies under oath but also not one other witness at trial or probable cause hearing would say Elbery used a bottle as a weapon. Conspicuous by its absence, ADA Ball would not even ask some prosecution witnesses if they saw a bottle assault or even a "movement" or "waving", that would be witnesses O'Connor and Christine Mann. Only Traskiewicz said Elbery held the bottle, but in a defensive position as he exited the bar, T. R. 497-2. Schlener, at trial, denied ever telling officer Perma there was a bottle assault, T. R. 645-10, 624-8-20. Per, T. R. 648-14, Schlener admitted he lied to Perma. He knew, evidently, from his observations of the proceedings there would be no penalty for such perjury to the prosecution's witnesses.

But all the jury heard was the testimony of the man they knew as a police officer, Tom King, testify Elbery acted like mad man for 30 seconds trying to stab everyone in the bar.

2. Louis P. Aloise's ineffective assistance of counsel-the alleged bottle assault.

a. Regarding the alleged beer bottle assault Aloise was professionally deficient at trial as follows:

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1. He failed to call as a witness ADA Michael Salloum, who would have per Aloise's own documented comments, per section A of this claim VI, confirmed King was lying, there was no bottle assault and King said so. This should have been further corroborated by Salloum's letter of 11-30-92, Exhibit E., which documents Salloum was dropping the false charge of assault with a beer bottle, none of this was done by Aloise.

2. As always Aloise would not object to Ball's repeated leading questions of his prosecution witnesses regarding the bottle assault. This was done in order that Ball could direct the perjury, see footnote #4-*items – Ex. L.

3. He allowed the false bottle assault indictments, already discussed in section C., to be presented to the jury.

4. Aloise failed to disclose to the jury the evidence/ testimony admitted by King at the probable cause hearing that there was no bottle assault. Probable cause hearing testimony is substantive evidence and allowed for its full probative value. Commonwealth v. Forte 597 N.E.2d 1056,1058-1059, (' 92), 33 Mass. App. Ct. 181. See sections A. and B. for King's admissions of no bottle assault by Elbery.

5. Aloise failed to challenge King during cross-examination at trial about King's newly fabricated testimony of Elbery holding off, menacing the entire bar for 30 seconds.

6. Aloise never pursued the conflicts of the various witnesses "all friends" of King’s who would not testify that there was such an incident as a bottle assault by Elbery. Aloise failed to highlight or bring this to the jury's attention during his questioning at trial or his closing argument.

Aloise, during trial, asked King only one question regarding his probable cause testimony where King admitted the bottle assault never happened. TR 309-3, Q. Isn't it a fact, sir, that you indicated at the probable cause hearing, that in fact Mr. Elbery after the bottle was smashed threw the bottle down on the floor? A. (King) Before he ran out the door, yes, sir.

    This masquerade of defense cross-examination by Aloise did nothing but, to the jury, further corroborate King's claim of a bottle assault. Aloise allowed King to change his probable cause testimony, via TR 309-7, regarding the bottle assault with impunity.

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Exclusion of cross-examination regarding King's prior admission to ADA Salloum-

that there was no bottle assault by Elbery.

 

However, after badgering by his client, affidavit #10, Aloise was forced during re-cross-examination of King to ask the pertinent question, T. R. 342-22, and did you recall on that prior time before the actual hearing took place that you told the prosecutor assigned to the case that you were not assaulted by the beer bottle?

ADA Mike Ball objected to this question, TR 343-2, his intent inside of the bar was not going to come into play, what King thought had occurred. Two assault is a legal term.

The judge sustained Ball's objection, T.R. 345-12, whether he (King) himself thought it was an assault is immaterial.

Neither of Ball's grounds were reasons for sustaining his objection. This objection was a manipulation of Ball and company to keep King and the prosecution from being embarrassed by King's lies and to keep the jury from hearing evidence that King had admitted, under oath, there was no such incident as a bottle assault by Elbery. This evidence would have damaged King’s credibility immensely if handled by defense counsel Aloise correctly.

Ball had anticipated this question per TR 342-22 during trial sidebar about citizen’s arrest, T. R. 216-13 through T. R. 217 - 12, where out of the clear blue Ball exclaims, if you want to stipulate that his (King's) intent was -- that intent is not an issue in this case -- what he had in his mind.

The question, per T. R. 342-22, Aloise was forced to ask by his client, see affidavit #10, simply related to the fact established before the probable close hearing, as a result of King's admissions to Salloum, that there was no such incident as Elbery assaulting anyone with a bottle.

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Aloise helps the prosecution exclude the question.

 

Of course the exclusion of this valuable defense cross-examination was unopposed by Aloise. Instead Aloise agrees with the prosecution's manipulation of question TR 342-22 and provides input to the prosecution's theory during sidebar, T. R. 343-348, that Tom King told ADA Salloum he wasn't assaulted because he (King) wasn't put in fear. Aloise advocating the opposition’s (judge and prosecutor) position that the assault incident occurred. What would you expect? Aloise was a former prosecutor himself in Worcester and blindly supports the police. This behavior/activity of Aloise is another count of deficient performance and unequivocal breakdown of the adversarial testing required for a fair trial and verdict that can be relied on. Strickland 466 U.S. at 687.

 

Law-exclusion of cross-examination.

This exclusion of cross-examination by the judge is a violation of Elbery's Sixth and Fourteenth Amendment of the U.S. Constitution, as well as, Article 12 of the Mass. Declaration of Rights. The defendant is guaranteed the right to confront witnesses against him. Implicit within this guarantee and a very heart of it is the right to cross-examination. Davis vs. Alaska 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 LED 2d. 347 (' 74), Commonwealth V. Miles 648 N.E.2d 719, 723 (' 95), 420 Mass. 67, 71.

If this question had been allowed by an average defense attorney, or this pro se litigant, it could have demonstrated King was a liar. Of course, if King did not truthfully respond the attorney would have to present evidence in cross-examination, the probable cause transcripts, that in fact King did admit saying this to Salloum, there was no bottle assault. An average lawyer if allowed to ask just this one question per T. R. 342-22 could demonstrate that King was willing to lie about evidence as outrageous and prejudicial to the defense as Elbery menacing the whole bar with a broken beer bottle for 30 seconds. An average lawyer with this one question on cross-examination could have destroyed King's credibility showing that he was willing to frame the defendant. The exclusion of this cross-examination requires a new trial. Delaware vs. Van Arsdall 106 S. Ct. 1431, 1438 (' 86), 475 U.S. 673, 684 (the correct inquiry regarding confrontation clause errors is whether assuming the damaging potential of cross-examination were fully realized a reviewing court would say it was nonetheless harmless).

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Conclusion-Aloise's ineffective assistance-Bottle Assault.

As itemized in this section D of claim VI Aloise was deficient in his defense attorney performance due to his incompetence, insufficiency, inattention, and conspiracy. Commonwealth vs. Saferian 366 Mass. 89,96 (' 74) (satisfying the S. J.C's definition of deficiency). An average lawyer could have destroyed King's credibility by using, at trial the evidence in sections A, B, C, prior inconsistent statements made under oath and all substantive evidence surrounding the alleged bottle assault, and calling ADA Salloum as a witness and presenting Exhibit E.

Instead, Aloise aided the prosecution, helping them eliminate evidence and challenging King on absolutely nothing while knowing King was lying about the bottle assault. Aloise's performance fell below the constitutional norm as a result of not exercising enough skill and knowledge to make the trial an adversarial testing process. Scarpa v. DuBois 38 F. 3d 1 (1st circuit' 94).

No similar case found for an attorney conspiring with the prosecution for the purpose and objective of imprisoning his own client. But the above deficiencies satisfy both Strickland and Saferian, as the prejudice is overwhelming. Attorney Aloise was advocating King's and the prosecution’s best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).

 

b. Prejudice resulting from Aloise's deficient trial performance-regarding the alleged bottle assault.

Regardless of the directed verdict on this charge, Aloise by allowing King to testify that Elbery held off the entire bar for 30 seconds with a broken beer bottle while knowing there was no such incident created the most damaging and prejudicial evidence of the entire trial against the defense. The jury was left with the image of Elbery trying to stab everyone with a broken beer bottle. The jury was simply told, T. R. 1274-5, (Court) don't draw any inferences from the fact the indictment is no longer in front of you.

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Ignore this false indictment/charge at trial the jury could not, after all, the Mass. Court of Appeals per their opinion on the direct appeal of this instant case found that the jury could have found for a half a minute Elbery menaced other people with a broken bottle. Elbery v. Com. of Mass. 38 Mass. App. Ct. 912, 912, (‘95).

With all this prejudicial false evidence presented about the bottle assault the jury had to find it much easier to convict on the other charges. After all there was no weapon involved with the other charges against Elbery. A new trial is required because the false evidence of the fictitious bottle attack tainted (contaminated and poisoned) the entire trial and made it more likely to convict on the other charges, Commonwealth vs. Miranda 415 Mass. 1, 4, (' 86) (new trial required if illegal charge made conviction more likely on the other charges).

Aloise's deficient performance and conspiracy surrounding the bottle assault caused a significant change in the evidentiary picture to the detriment of the defense, there was a breakdown of the adversarial process requiring a new trial because the trial, as a result, was unfair and its verdict is unreliable. Strickland vs. Washington 466 U.S. 668,695-696, (' 84), 80 LED 2d. 674, 698-699, 104 S. Ct. 2052, U.S. vs. Cronic 466 U.S. 468,659, 80 LED 2d. 657,668,(' 84), 104 S. Ct. 2039.

The jury was misled at trial by this false evidence of the bottle assault. This being a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564 (' 67) (mislead the jury on material evidence the trial is unfair requiring a new trial).

 

King’s Motive to Lie

VII. Defense attorney Louis P. Aloise fails to present evidence that King had an interest in the outcome of the trial, that he had a motive to lie. Aloise and ADA Ball knowingly allow King to lie about his demotion as a result of the incident on 9-29-92 and drinking on duty prior to the incident. Aloise fails to produce subpoenaed evidence from the Westborough P. D. regarding King's demotion.

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King's Demotion.

    Witness-in-chief and alleged victim, Thomas King, was demoted to patrolman from his previous position/status of detective as a result of his misconduct at the Winner's Circle Bar on 9-29-92. King's demotion took place after the probable cause hearing of 1-20-93 of this instant case and the related, adverse to King, publicity in the Worcester T&G, see Exhibit G. This information was given to defense counsel Aloise by ADA Mike Ball prior to trial. Aloise did not apprise his client, Elbery, of this information until after his conviction on 7-2-93, affidavit #11.

Furthermore, Aloise, months prior to trial told his client, Elbery, that he heard rumors King had been demoted due for his misconduct on 9-29-92, whereupon, Elbery called the Westborough P. D. and was told King was only a patrolman and not a detective, affidavit #12. King was punished for his bad behavior.

 

Aloise and ADA Ball allow King to lie about his demotion.

 

At trial Aloise asked King if he was demoted in rank at the Westborough police department as a result of the incident on 9-29-92, T. R. 220-19, where you were at the time this –(sic) - in the same status you were at the time of the incident in September of 1992? A. (King) Yes sir.

Aloise knowing King had been demoted failed to challenge King on this evidence and apprise the jury of the truth, but rather sat on this evidence of King's demotion allowing King to lie.

ADA Mike Ball had a duty to correct King's perjury regarding his job status/demotion. Mike Ball had a duty to inform the jury that King had been demoted, he did nothing but allow King to lie. Com. vs. Tucceri 589 N.E.2d 1216, 1219, 412 Mass. 401, 404, (' 93), Giglio v. United States 405 U.S. 150, 153, 31 LED 2d. 104, 108. When the "reliability of a given witness may be determinative of guilt or innocence" nondisclosure of evidence affecting credibility falls within this general rule, id. Ball was also in violation of S. J. C. Rule 3:08 P. F. 12 which says the prosecutor must promptly withdraw false evidence upon its discovery. New trial is required, Giglio 405 U.S. at 153.

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ADA Ball stipulates King drinking on duty-Aloise and Ball allow King to lie about his drinking on duty.

 

ADA Mike Ball stipulated at trial sidebar in the confidence of the judge and defense attorney Aloise, T. R. 452-12, the reason he (King) didn't do that (ID himself as a cop) is because he was drinking on duty. Statements made during sidebar are stipulations of fact and judicial admissions binding on the party. Mass. Practice Volume 19 S. 517, p. 706. Ball via this stipulation also reveals part of the reason King was demoted.

Aloise asked King the right question at trial, T. R. 408-20, were you drinking on duty that night, sir? A. (King) no, sir. Yet Aloise armed with this information donated by Ball, at sidebar, did nothing for the defense of his client, instead he allowed King to lie.

ADA Ball having a duty to correct perjured testimony did nothing, but instead allowed King to lie about not drinking on duty prior to the incident on Shrewsbury Street, on 9-29-92. Commonwealth vs. Tucceri 589 N.E.2d 1216, 1219 (' 92), 412 Mass. 401, 404 (new trial required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury). United States vs. Agurs 427 U.S. 97, 103, (' 76), 96 S. Ct. 2392, 2397, 49 LED 2d. 342. King got off duty at 11:00 p.m. but arrived at the Winner’s Circle Bar at about 10:30 p.m. after he left U. Mass., T.R. 237. King left U. Mass. after picking up a rape evidence kit at 10:30 p.m., T.R. 237 – see exhibit 4 at trial, and went directly to the Winner’s Circle Bar, TR 231. Although the rape evidence kit, trial exhibit 4, documented King was done at U. Mass. at 10:30 Aloise allowed King to contradict this evidence and escape further cross-examination. Aloise allowed King to say he left U. Mass. after 12:00 a.m., T.R. 238-13, T.R. 188-9. But also see claim XIII –Nurse Berry.

The incident occurred at about 2:00 a. m. Therefore, King had been drinking in that bar over 3 hours before the incident.

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Aloise failed to reveal subpoenaed documents from the Westborough P. D. containing information about King's demotion.

 

At trial sidebar Aloise reveals, T. R. 235-20, I subpoenaed records (plural) from the Westborough police department.

However, at trial Aloise submitted one document into evidence from the Westborough police department, the fax cover sheet, Ex. 4 at trial. Per conversation with Aloise he told Elbery on about 9-96 that he has no subpoena or subpoenaed documentation on file from the Westborough police regarding this case, affidavit #13. This pro se litigant is still trying to obtain the original subpoena sent by Aloise to the Westborough P. D. in' 92-' 93. This is a continued act of conspiracy by Aloise to conceal the truth about King's demotion.

Prejudice resulting from Aloise's deficiencies regarding King's demotion and drinking on duty and resultant motivation to lie an interest in the outcome of the trial.

As a result of defense attorney Aloise's failure to allow the jury to know King was demoted, due to his misconduct on 9-29-92, including King's drinking at the Winner’s Circle Bar while he was on duty, the jury was not informed that King had an interest in the outcome of the trial. The jury was not allowed to know King had a motive to lie and was biased beyond that of a bar room/street combatant.

The Sixth Amendment of the United States Constitution gives the criminal defendant the right "to be confronted with witnesses against him". The Supreme Court has held that this right includes an adequate opportunity to cross-examine adverse witnesses. The purpose of protecting the right to cross-examine is to afford the defendant an opportunity to impeach the credibility of a witness and to explore the witnesses’ motives and biases. U.S. vs. Berrio-Londono 946 F. 2d 158 (1st circuit' 91). The U.S. Supreme Court recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the

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constitutionally protected right of cross-examination. Davis vs. Alaska 415 U.S. 308, 316-317, 94 S. Ct. 1105, 1110 (' 74), Delaware v. Van Arsdall 475 U.S. 673,680, (' 86), 89 LED 2d. 674, 106 S. Ct. 1431, 1435. One of the principal purposes of cross-examination is the inquiry looking toward impeachment of the witness on any of the several grounds of bias, hostility, or an interest. Mass Practice volume 19, ch. 10, S. 187 p. 201.

Had Aloise done his job he would have informed the jury that the Westboro Police Department found King guilty of misconduct during the barroom incident of 9-29-92. Had Aloise done his job for the defense he would have disclosed to the jury that King's demotion came after Elbery's exoneration at the probable cause hearing of 1-20-93 and the related adverse to King publicity, exhibit G. Aloise should have pointed out that King sought a conviction against Elbery in order to cover up his wrongdoing. Aloise should have disclosed to the jury that if Elbery was found guilty by a jury then King's misconduct in the bar would be reversed, or at least mitigated. Aloise should have, as a result, disclosed that King had a motive to lie needing to shed guilt from himself.

Had Aloise defended his client the jury would have learned that not only had King been drinking on duty prior to 11:00 p.m. on 9-28-92 but that King was drinking for a minimum of three hours prior to the incident on Shrewsbury Street. Had Aloise done his job the jury would have learned that King's claim, T. R. 188-15, that he drank "almost two whole drinks" and that he was sober, was more King lies. The jury would have learned that the prosecution's claim at trial’s length that King was not intoxicated during the incident was also a big lie. The jury would have learned that King entered the bar prior to 11: 00 p.m., while on duty, on 9-28-92 not 12:30 a.m. on 9-29-92, see T. R. 237.

If not for Aloise's deficiencies itemized in this claim VII surrounding King's demotion/drinking the jury would have learned King was once again lying and covering up critical evidence to the defense. The jury would have learned, had Aloise done his job, that King was not the heroic cop who was, T. R. 231-4 & 277-20 & 285-21, "briefly" in the bar just say "hello", (244-5), to friends, but was a drunk involved in the barroom gang fight.

Instead of protecting King, Aloise should have pointed out to the jury the reason King did not identify himself as a police officer during the incident on 9-29-92, see T. R. 395-19-23 & 396 1-13, is he did not want Elbery to know he was a cop because King was drinking on duty prior to 11: 00 p.m., TR 452-12. Further, King was hiding his identity as a cop because he was intoxicated and wrongfully involved in a barroom gang beating of Elbery. King did not want to get in trouble with the Westborough Police Department by disclosing he was a cop.

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Had Aloise done as required of the defense attorney regarding King's demotion, and drinking on duty and wrongful conduct via a gang fight, Aloise would have made it clear to the jury that King had an interest in the outcome of the trial, a bias, and a motivation to lie. Had Aloise done as required of a defense attorney regarding these issues King's credibility would be zero without considering any other claims in this motion.

The judge's instructions compounding the prejudice.

 

The prejudice to Elbery, due to Aloise's deficiencies surrounding King's demotion were further compounded by the judge’s instructions on bias, motive to lie, and interest in the outcome of the trial. The judge instructed, T. R. 1261-6, you may also consider the motive for testifying. Whether or not the witness has an interest in the outcome of the case. These are all things that go into the mix for you to determine credibility, TR 1262-6. The fact that a witness has an interest in the outcome of the case, doesn't mean that the witness isn't trying to tell the truth... but the witness interest in the case or the outcome of the case is a factor that you may consider along with all the other factors.

Due to Aloise's deficiencies and Ball’s violation of law regarding King's demotion due to his misconduct in the bar on 9-29-92 the jury had no idea what the witness-in-chief’s motives for testifying were, what his bias was, that King had a very big interest in the outcome of the trial. The jury only knew Elbery was the defendant and that he was the only one with an interest in the outcome of the trial. These instructions led the jury to believe Elbery was lying.

The judge's instructions, law of the case, make it plain Elbery had a right to have King's bias, motive to lie, and interest in the outcome of the trial disclosed.

The jury was misled by the judge's instructions due to Aloise's and Ball's "errors" and conspiracy in concealing King's demotion for misconduct and related interest in the outcome of the trial and motive to lie from the jury. This being a miscarriage of justice as defined by the Mass. S. J.C. requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556,564, (' 67) (jury misled material evidentiary issue new trial required). But do not forget that the judge knew King was drinking on duty, see TR 452-12, where at sidebar Ball told the Judge this.

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The prosecutor argued in closing, TR 1230-21, that Elbery should not be believed-that he lied to the jury. That compounded the effect the prosecution’s concealment of King’s motive for testifying/lying had on the jury. Further, compounding this concealment of King’s motive for lying was the Judge’s instruction on motive for testifying, TR 1261-1262.TR 452-12, The judge knew, at a minimum, King was drinking on duty. This is a violation of Due Process under the Fourteenth Amendment of the United States Constitution. State v. Albright (1980 App) 98 Wis 2d. 663, 298 N.W. 2d, 26 ALR 4th 1100.

Aloise Ineffective Assistance of Counsel.

 

The evidence at trial would be radically altered, King's credibility zero, had the information in this claim regarding King been disclosed to the jury. The adversarial requirement of a defense counsel was not satisfied, resulting in a verdict which could not be relied on, therefore causing the trial to be unfair. If not for the deficiencies of the defense counsel surrounding King's demotion/drinking on duty and related motive to lie/interest in the outcome of the trial, there is a reasonable probability the result of the trial would have been different making Aloise constitutionally ineffective in his assistance of counsel and depriving Elbery of due process in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution. Strickland vs. Washington 466 U. S. 668,687, 80 LED2d. 674,693 (' 84).

Attorney Aloise was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).

 

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GRAND JURY

VIII. The Worcester DA's office sponsors police officer King to lie before the grand jury-the Worcester DA's office further impairs the grand jury process-attorney Aloise knowingly approves and participates failing to motion for dismissal.

A. The Worcester DA's Office sponsors King to lie before the grand jury.

The S. J. C. Mass. held that if the Commonwealth or one of its agents knowingly uses false testimony to procure an indictment, the indictment should be dismissed, and a prosecutor who learns of the use of the knowingly false material evidence has a duty to come forward. See Commonwealth vs. Salman 387 Mass. 160, 166-67, 439 N.E.2d 245 (' 82); Commonwealth vs. Mayfield 398 Mass. 615, 620, 500 N.E.2d 774,778, (1986).

The Worcester DA's office sponsored Westborough police officer Thomas King to lie to the grand jury in order to gain indictments against Elbery on 3-20-93, categorized as follows:

1. King testified falsely about the extent and type of his eye injuries and as to how the injuries occurred, this as is itemized in claim I of this instant motion, as King's testimony at trial and the grand jury were substantially the same regarding this issue.

2. At the probable cause hearing King testified that he was not assaulted by Elbery with a beer bottle just as he told ADA Salloum prior to the probable cause hearing. Before the grand jury King went ahead and boldly said he was assaulted with a bottle by Elbery, see claim VI of this motion, as the perjury committed by King at trial was substantially the same as before the grand jury regarding the alleged bottle assault.

3. At the probable cause hearing King said he did not know what the girls injuries were, PC- 52-6. Yet, two months later at the grand jury, King testified a girl's face had been cut so badly that blood was coming out from under her hand as she covered her face, G. J.- 5-25. For the reasons stated in claim IV - of this motion, Mann’s alleged injuries, King committed perjury, as his trial and grand jury testimony were substantially the same regarding this factual issue.

The Worcester DA's office having full knowledge of the above perjury and falsification of evidence by King before the grand jury, via the probable cause hearing, had a legal duty and obligation to come forward and tell the truth in order to have the indictments dismissed. See Commonwealth vs. Mayfield infra. Since the Worcester DA's office chose to sponsor King to lie and encouraged King to lie, they violated this defendant’s Fourteenth Amendment Rights under the United States Constitution via procedural and substantive due process violations.

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B. Failure of the Worcester DA's office to disclose exculpatory evidence that would undermine King’s credibility-Impairment of the grand jury.

The S. J. C. held that the grand jury should be told of known exculpatory evidence that would greatly undermine the credibility of important witness. Commonwealth vs. Mayfield 398 Mass. 615, 621, 500 N.E.2d 774,778 (' 86). The Worcester DA's office had a duty to tell the grand jury that officer King had been demoted from his job at the Westborough police department as a result of his drinking on duty and other wrongdoing at the Winner's Circle Bar on 9-29-92. The Worcester DA's office knowingly kept hidden this important evidence that would have effected King's credibility before the grand jury as he had a motive to lie and an interest in seeing Elbery convicted in order to exonerate himself. See claim VII of this motion which explains the demotion of Thomas King.

The DA's office also had a duty to disclose to the grand jury that King was an obese 300 pound heart patient with a pacemaker at the date of the incident on 9-29-92. King had a heart surgery on 2-28-93 just before the indictments, T. R. - 252-21(King at sidebar). This would have been important to credibility because King claimed he acted alone while chasing Elbery 100 yards down Shrewsbury Street. King boasted to the grand jury that he subdued Elbery by "sweeping Elbery's feet from under him" and "knocking" him to the ground, G. J. - 7-14,15. This would be quite a trick as King documented to the Westborough police, Exhibit H., Elbery was 6' 2"-225 pounds and muscular. King was so impressed with Elbery he described Elbery's complexion as muscular, see exhibit H-the Bolton report.

C. Worcester DA's office failure to disclose known exculpatory evidence from the probable cause hearing-impairment of the grand jury process.

The Worcester DA's office being fully apprised of the probable cause hearing evidence exculpatory to Elbery decided to hide this exculpatory evidence. At the probable cause hearing there were four witnesses that testified besides King, all four donated almost entirely exculpatory evidence towards Elbery, including bartender- Jeff Schlener, who was the prosecution's witness.

This was not a problem, the Worcester DA's office only allowed the demoted Westborough police officer, Tom King, to testify before the grand jury and with a newly tailored testimony the product of much behind the scenes coaching.

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Had the Worcester DA's office allowed the other four probable cause hearing witnesses to testify, as justice requires, their exculpatory testimonies to Elbery are summarized from the probable cause hearing as follows:

Schlener (bartender), De Pasquale (doorman), Dr. Stephen Sawyer (customer).

1. Schlener admitted he was at fault for insulting Elbery and apologized in open court, PC-81-23; 106-7; 111-7.

2. All said King stuck his nose into Elbery's and Schlener’s low-key argument and confronted Elbery who was seated on the other side of the horseshoe bar at the Winner’s Circle. (De Pasquale) PC-187-19; 189-1; 191-7; 200-18-22; (Schlener) PC 110-13; (Swayer) PC 228-8; 230-10-13.

3. King had to be re-strained by the other patrons, in particular former Winner's Circle doorman De Pasquale, who grabbed King around the waste. Schlener had to yell at King to mind his own business, (Schlener) PC 107-1-24; 82-15; (DePasquale) PC 194-13-20.

4. None saw how the bottle broke including King. PC 83-5; 50-21; 196-2-3; 244-4.

5. They admitted most of the bar emptied out after Elbery, who immediately left the bar after the bottle broke, (a minimum of five men). PC 113-1-4; 114-19 thru 118; 199-6-9; 234-23.

6. Schlener admitted no police were called because of the girl’s "injury", PC 113-1-24.

7. The fight was on the street, all said this, PC 122-15-23; 146-20; 199-21.

8. Schlener said King corralled Elbery then Elbery through a couple of punches that didn't land, PC 87-14.

9. De Pasquale strangely volunteered, without being asked, he saw no punches thrown, PC 203-5.

10. De Pasquale and Schlener saw only wrestling between King and Elbery that lasted a few seconds resulting with Elbery lying in the street and King withdrawing with an eye "injury", PC 127-7; 204-3-7; 204-20;207-8.

11. There were three-four men on top of Elbery holding him down, PC 146-16; 205-9; 212-18; 236-1; 147-13.

12. There was no testimony corroborating King’s story telling Elbery he wasn't going anywhere because a "girl" was injured, nor any confirming King’s story of two thumb gougings, once while King was bear-hugging Elbery and once while on top of Elbery after King had "knocked" Elbery to the ground. See King’s perjury, claim I. There was no corroboration of King sweeping Elbery’s feet from under him, as he testified to the Grand Jury, GJ 7-14.

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13. PC- 120-3 & 114-1&2, Schlener testified that he exited the bar two minutes after Elbery fled the bar and that the gang was just catching up to King and Elbery, who were 75 yards down the street. Schlener further said he was able to see Elbery throw that first punch, P.C. 87-19. De Pasquale testified he left the bar five minutes after Elbery and the gang exited the bar in order to see the whole incident between King and Elbery, PC- 202-7.

A rational and alert grand jury would have found this time sequence to be doubtful as Elbery and the chasing gang, including King, would have run the 75 yards distance in much less than two minutes (closer to 10 seconds) let alone five minutes.

King at the probable cause hearing and trial described no delay in the chase. P.C. 56-5, TR 402-14.

Both Sawyer and Schlener testified Sawyer exited the bar before Schlener and Sawyer further testified that the chase and fight had been concluded by the time he got outside the bar, PC 118-16;239-19-22;240-3. De Pasquale also testified Schlener was still in the bar after he, De Pasquale, exited the bar 5 minutes after Elbery.

The grand jury if given this information could reasonably have concluded Schlener was helping his friend King by saying he witnessed Elbery throwing the "first punch". The grand jury could have reasonably concluded De Pasquale was concealing he was involved in the gang beating of Elbery. Since, Sawyer, PC 239-2, testifies DePasquale was one of the ones who went out immediately after Elbery.

Perma-Investigating Worcester Police Officer.

1. The Worcester Police Dept. found no girl at area hospitals, PC 154-17 thru 155-1, who fit the description given by Schlener per the police report of having a cut face and eye, See Ex. D. He asked Schlener and company to come forward with information as to the identity of this "injured" girl, nobody did, PC 154-5-16.

2. Elbery was arrested on the street for disorderly person as a result of making noise while struggling under the force of several men, PC 162-23;159-7.

3. A "team" of Worcester police decided to charge Elbery with mayhem (not attempted mayhem) a 20 year prison sentence for taking out King's eyeball, PC 161-14.

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The Mass. S.J.C. specifically held in Commonwealth vs. Mayfield 500 N.E.2d. 774,778, 398 Mass. 615, 621, and Commonwealth vs. O’Dell 392 Mass. 445, 448-449, 466 N.E.2d 828 (' 84) that failure to disclose known information may impair the grand jury proceedings and that intentional nondisclosure of exculpatory evidence favorable to the defendant impairs the grand jury proceedings and requires a dismissal of the indictments.

D. Failure of the Worcester DA's office to advise grand jury of Mass. law on citizen’s arrest, further impairment of the grand jury process.

The prosecution had a duty to inform the grand jury of facts and law surrounding the case before them. Commonwealth vs. Mayfield 500 N.E.2d 774,778, 398 Mass. 615, 621. The defendant was denied Due Process of Law to a fair and impartial presentation of evidence before the grand jury through the prosecutor’s failure to instruct grand jury on Massachusetts law regarding the right of a citizen to make an arrest. Crimmins vs. Sup. Ct. Marcopa C.Y. 668 P2d. 882, 885-886 (' 83 Az.); State v. Ball 632 A. 2d 1222, 1246-1247 (Super Ct. N.J. Appellate Division ’93).

Without instruction on the law of citizen’s arrest the grand jury could not make a determination of the facts within the law. They could have thought that King was acting with the powers of a police officer as he identified himself as such before the grand jury. The grand jury should have been alerted that the law says King had no right to pursue Elbery unless a felony had been committed prior to King's action. The grand jury should have been informed there was no felony committed in the bar to justify King chasing Elbery down the street let alone assaulting Elbery. Commonwealth vs. Grise 496 N.E.2d 162,164, 398 Mass. 247, 250 ('86) (no felony committed unless "in fact" a felony was committed via a conviction)(all evidence from an illegal citizen’s arrest is suppressed).

This prosecutorial due process violation and impairment/sabotaging of the grand jury process regarding citizen’s arrest is further compounded with King's perjury presented to the grand jury as the grand jury was falsely led to believe Officer King was acting heroically, legally, and in defense of the innocent girl and public.

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Summary

The misconduct by the Worcester DA's office surrounding the grand jury process as itemized in this motion claim requires a dismissal of all the indictments, as the grand jury was misled (lied to) and there has been an injustice. The sole purpose for this prosecutorial wrongdoing regarding the grand jury process was to gain indictments falsely against Elbery. The grand jury would have been left with no probable cause to indict Elbery, there would be nothing to present to the grand jury, had it not been for the perjury of King and impairment by the Worcester DA's office of the grand jury proceedings, Commonwealth vs. Mayfield 500 N.E.2d 774,778, 398 Mass. 615, 621 (Standard and test in Mass. For dismissal of indictment). All the indictments against Elbery should have been dismissed.

Due Process Violated by Worcester DA's Office.

 

Elbery's right to Due Process as is guaranteed under the Fourteenth Amendment of the U.S. Constitution was violated due to the prosecutorial misconduct surrounding the grand jury process itemized in this motion claim VIII. Due Process of Law, guaranteed by the Fourteenth Amendment to a person charged with a crime is complied with when he is regularly indicted by proper grand jury. Ker v. Illinois (1886) 119 U.S. 436, 30 L. ED2d 421, 7 S. Ct. 225. Due Process of Law means law in the regular course of administration, according to prescribed forms, and with general rules for protection of the individual rights. Hurtado vs. People of California 4 S. Ct. 111,110 U.S. 516, 28 LEDs 2d 232.

Attorney Aloise-the grand jury-ineffective assistance of counsel

 

Once again, Attorney Aloise was deficient in his performance. At a minimum, Aloise should have motioned to dismiss all the indictments against his client as a result of the outrageous irregularities surrounding the indictments against his client.

However, even with the urging of his client to do something about what was obviously wrong, see affidavit #14 & 14a, Aloise did nothing. Aloise was well aware that his client's rights were voided before the grand jury. The probable cause testimonies, King's hospital report, King's demotion, Judge Raphelson alerting Aloise to the law of the case regarding citizen's arrest, PC- 265-8-9; 266 1-4, were all documented and in Aloise's possession before the trial.

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The prejudice is obvious; Elbery had to face false indictments. Elbery was faced with a stack of false accusations; to defend any charge was impossible due to the prejudice brought by the remaining false charges.

The test to determine ineffective assistance of counsel requires deficient performance and resulting prejudice to the defendant so that if not for the defense counsel's errors there would be a reasonable probability of a different outcome at trial. Strickland vs. Washington 466 U.S. at 694-696. If the grand jury indictments had been dismissed it can be safely said there would have been a different verdict, thus the prejudice prong is satisfied.

Attorney Aloise was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).

 

 

CLAIM IX

Clerk-John O'Connor Caused a Biased Proceeding-Continued Failure by Aloise.

According to the S. J. C.'s rule 3:12 Canon 4E Clerk-Magistrate should disqualify himself from serving in an adjudicative capacity in a proceeding in which The Clerk-Magistrate's impartiality might reasonably be questioned. As defined by the S. J. C., a Clerk-magistrate is broadly defined to mean a position of clerk, register, recorder, etc., see S. J. C. rule 3: 12 Canon 1.

At the trial of this instant case, every day of trial, there was a clerk present in the courtroom named John O'Connor. His position was covered as defined above. His son was a prosecution witness, Dennis O'Connor. Dennis O'Connor also was a participant in the beating of the defendant, Michael Elbery, T. R. 756-22; 757-13. As many testimonies of this instant case would indicate Dennis O'Connor was a member of the " gang of six" who chased and beat Elbery on the street. Dennis O'Connor testified that he used physical force against Elbery, T. R. -756-22; 757-13.

Combined with the fact that there was no legal right for O'Connor and his gang to chase and beat Elbery (a crime) with the fact that Elbery claimed he was beaten by a gang on the street, O'Connor being a member of that gang, Clerk John O'Connor had a bias in the outcome of the proceedings against Elbery. Clerk and father, John O'Connor, was not impartial.

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As per law directed by the S. J. C. John O'Connor had no business being present at Elbery’s trial.

Elbery had a right to an impartial trial void of clerk John O'Connor's biased influence over the Judge and proceedings. O'Connor had an obvious bias toward his son who could have been prosecuted and found guilty of assault and assault and battery with a dangerous weapon, as Elbery testified at trial that O'Connor was one of the gang of seven that attacked Elbery on the street resulting in his hospitalization, T.R.- 1115-15.

Had all the evidence and truth of this case been presented, as the law requires, Dennis O'Connor would have been the object of both criminal and civil actions.

The presence of clerk, John O'Connor, was an additional injustice that the Court inflicted upon Michael Elbery at trial. Due Process under the Fourteenth Amendment requires that a trial be impartial and O’ Connor’s presence during Elbery’s trial violated that Constitutional Right, Ward v. Village of Monroeville 409 U.S. 57, 61, 34 L. Ed 2d. 267, 93 S. Ct. 80, 83-84. See aff. #25.

Aloise-further ineffective in his assistance of counsel

Prior to trial defense attorney Louis P. Aloise informed his client, Elbery, that John O'Connor was the father of one of his assailants or Dennis O'Connor, see affidavit #15. Elbery protested instinctively knowing this should not be in an American courtroom and demanded John O'Connor be removed/replaced as courtroom clerk. Attorney Aloise stated "there was nothing that could be done and clerk O'Connor must remain" see affidavit #15.

Attorney Aloise should have had O'Connor removed, instead, he knowingly allowed an approved of clerk John O'Connor being present during the entire trial causing the trial to be biased. This deficiency by Aloise caused prejudice to his client Elbery, as a verdict from a bias trial is not reliable, is untrustworthy, and there is a reasonable probability had the trial not been biased the verdict may have been different. This deficiency by Aloise in this claim IX resulted in a trial that was not fair. This is the definition of constitutional ineffective assistance of counsel. Strickland vs. Washington 466 U.S. 668, 684, & 694-696, 80 L. Ed 2d 674, 691, & 698-699 104 S. Ct.2052.

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Count X. Failure by Attorney Louis P. Aloise to impeach witnesses with prior inconsistent statements and present the related substantive evidence-Use by the prosecution of perjury in relation to these prior inconsistent statements-Aloise donates false testimony aiding the prosecution.

There were numerous very large and unaccounted for inconsistencies between the probable cause hearing testimonies of this case and the testimonies by the same witnesses, at trial. The failure of Aloise to make known to the jury the existence of these prior inconsistent statements by the witnesses who appeared at both the probable cause hearing and trial resulted in more ineffective assistance of counsel on the part of Aloise, see aff. #24. Probable cause hearing testimony is substantive evidence and allowed for its full probative value as well as impeachment of witness credibility. Commonwealth vs. Forte 33 Mass. App. Ct. 181, 185-186, 597 N.E. 1056, 1058-1059 (' 92).

Further, the prosecution had a duty to correct all perjury during trial amongst these witnesses, as the prosecution not only knew what was said at the probable cause hearing and had a transcript of the probable cause hearing, ADA Mike Ball refers to the transcript frequently at trial. These anticipated discrepancies cause Ball alarm at sidebar, T. R. 222-224. U.S. vs. Giglio 405 U.S. 150, 31 L. ED 2d 104, 108, 92 S. Ct. 763 (’72)(the prosecution has a duty to correct perjury known to them). Failure by ADA Mike Ball to obey the law relating to these prior inconsistent statements, perjury, of the witnesses requires a new trial id.

Cited below are major areas of prior inconsistent statements resulting between the probable cause hearing testimony and trial testimony of this case that was not brought to the attention of the jury by Aloise or the prosecution.

Had a lawyer of average ability presented these prior inconsistent statements to the jury they could have reasonably found that the witnesses were guilty of tailoring and accommodating their testimony for King’s benefit, as well, they could have found that these witnesses were coached to testify in King’s favor, therefore, indicating a conspiracy to perjure, suborn perjury and to maliciously prosecute Elbery.

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Further, a reasonable jury would have found the prosecution witnesses, King and Schlener, and 2 "friends" of King’s (De Pasquale and Officer Perma), that were used by Aloise as defense witnesses against Elbery, had no credibility at all and where big liars.

Note that below are inconsistent statements not analyzed in other counts of this motion, see claims I, II, IV, V, VI, VIII for more.

 

SCHLENER

A. Schlener’s testimonies compared between the probable cause hearing and trial.

1. Description of argument in the bar,

direct exam-probable cause hearing

PC 80-15. A. Well, when Michael arrived at the Winner's Circle, he walked in and he said to me, he goes, he said, "what are you doing working here tonight? And I said: "it's Monday night, I work Monday nights, and he said, "no, you don't, you never work Monday's", and I said, "what are you doing, are you telling me my schedule now?" "I work Monday's. I always work Monday's."

So that was that, and then from there, something transpired and I said something to him, something negative. I told him I thought he was opinionated, OK, and then from there we started arguing back and forth and --

PC 81-22 Q. And were you also yelling?

A. No, not particularly, I was making -- I made a couple of statements that I probably shouldn't have. I made a couple of negative statements and he made a couple more back to me, and then we started arguing.

PC 82-11. At that point Michael was very loud, and Tommy King was on the other side of the bar, and he walked over to Michael and started telling him to calm down layoff me, wherein I said to Tom, I said "Tom, this is an argument between he and I which it was and I thought that between us we could solve our argument and things would get better, OK?

PC 82-20. As it was, Tom went back to his seat.

Cross-examination

PC 105-8 Q. And your conversation with Mr. Elbery was between you and he alone?

A. Exactly.

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PC 105-11 Q. there was nobody else involved in that, not Sawyer, not D. Pasquale, nobody else?

A. Nobody.

PC 104-10 Q. Did he have any conversation with anyone else?

A. I don't think so.

PC 105-19 A. I made a couple of wise cracks to him; he made a couple back to me.

PC 107-6. No, I actually asked -- if you remember, I asked Tom King to sit down. I said: it's between he and I, and we can solve it.

PC 107-18. "Go back, Tom, it's between us."

PC 111-1 Q. So when King turned around and came back and sat down, did you have any conversation with Mr. Elbery?

A. No, I walked away. And I can't remember exactly what happened, but I thought we had calmed it down. You know, I think I -- I hopefully said I was sorry, I don't know if I did or not.

 

Clearly prosecution witness Schlener, who was the bartender and King’s friend, tells some of the truth at the probable cause hearing. He portrays a situation in which he was the initiator of the argument that involved only he and Elbery, nobody else involved. Elbery, per Schlener, had no conversation with anyone else. King was the aggressor and was told by Schlener to sit down and keep out of it. Schlener apologizes at the probable cause hearing for his insulting Elbery needlessly in public. Aloise should have pointed out to the jury that Schlener never asked Elbery to leave the bar – why would he, Schlener was having to good of a time insulting Elbery.

However, Schlener paints a whole new picture at trial about the same bar argument, tailoring his testimony to accommodate King and the prosecution's fabrication.

Direct Exam-Trial

T. R. 582-21 He was talking to somebody I don't remember, somebody was over in the vicinity, he (Elbery) was acting up a little bit. So I walked up to him and said something I should not have said to him.

TR 583-3. I told him he was very opinionated.

T. R. 583-11. As a result he got very mad. He said, "you don't know anything about this business, your nobody, your this and that. I can buy and sell you."

-75-

T. R. 585-3. Well he got really mad and he was kind of steaming at me. And that's when King I guess became aware of the situation.

T. R. 585-10. Then he (King) got out of his chair, came within 3' or so and said, "hey buddy we don't need any of this anymore. Watch it, why don't you just leave.

T. R. 585-17 Q. At some point did you move between King and defendant? A. No.

T. R. 586-9-13. I didn't want a fight and it looked like Elbery was calming down. I said, " Tom, it looks like we are all set. Why don't you slid over."

T. R. 586-15. King went back to his seat.

Cross-Exam-Trial

T. R. 612-16-21 Q. "Some barbs exchanged but nothing requiring you to get protection?"

A. well, at that point he became menacing.

-24. Physically large man semi out of his seat kind of leaning in.

T. R. 616-13 Q. Okay. At some point did you say anything to Mr. King to attempt to dissuade him from having a confrontation with Mr. Elbery? A. no, I didn't.

T. R. 616-20 Q. Did you say to King "go back Tom, it's between us"?

A. That is what I said last hearing. Can I say what I really felt.

T. R. 617-13 Q. Did you say that at the probable cause?

A. Yes, I did.

T. R. 617-14 Q. So that then, which is closer in time to the incident and presumably when your memory would have been better than it is now, you said to the judge on that occasion, that you told King to quote, "go back, Tom, it's between us" am I right?

A. Yes I did. It's not what I'm meant to say.

At trial Schlener has Elbery causing trouble with someone else in the bar prior to Schlener being involved. He changes his testimony to include Elbery being very mad and steaming, acting in a threatening, menacing manner. Schlener, at trial, taylors his testimony to King's favor in order to make King look like a peacemaker rather than an aggressor getting involved in harmless "barbs" that were none of King's business.

Aloise missed all this with the exception of T. R. 616-20, when he asked Schlener if he had told King "go back Tom it's between us". Schlener responded, T. R. 617-17, that is not what I'm meant to say. Whereupon, Aloise allowed Schlener to act like he made an honest mistake at the probable cause hearing, resulting in no impeachment of Schlener or substantive evidence or benefit to the defense.

-76-

This deficient handling of prior inconsistent statements between the probable cause hearing and trial, as described in this section A-1 above, allowed the prosecution to change the bar argument scenario to one where Elbery became the initiator, aggressor, bothering at least one other patron before Schlener even got involved, a big uncontrollable, steaming, threatening man. This was not only prejudicial to Elbery in terms of the jury's evaluation of him but it allowed the jury to believe Tom King was needed to protect the public like a white knight, from Elbery.

2. Schlener’s testimonies regarding Elbery exiting the bar,

Probable Cause Hearing-Direct Exam

PC 85-4. He (Elbery) went out the door and went something like this. (Schlener indicating with hands).

PC 85-7 Q. Now, when you say "something like this," you're curling your two hands with your fingers?

A. Right, some kind of movement like come after me.

Trial-Direct Exam

T. R. 590-8-13. He still had the beer bottle in his hands going like this (indicating) went out the door, backwards.

Trial-Re-Direct

T. R. 669-18 Q. Come and get me with a broken bottle and he was just backing up as he was waving the hand around, correct?

-21. A. Yes.

 

Schlener changes his testimony of the probable cause hearing from Elbery curling his two hands, i.e., making them empty hands, to a trial testimony of Elbery backing out the door with a broken bottle waving it around in a menacing gesture. Aloise failed to bring this to the jury's attention. The prosecution portrayed, via fabricated evidence, Elbery as a madman assaulting everyone with a broken bottle. And once again Ball is leading his own witness with fabricated evidence and Aloise does not object.

-77-

3. Schlener’s testimonies regarding somebody yelled, "Call the police".

Probable Cause Cross-exam

PC 113-8. Somebody yelled, "call the police". I unfortunately waited.

Trial-Direct

T. R. 588-14. I went to the back of the bar to go around, Tom King yelled, "call the police".

-18. He called "call the police".

T. R. 590-20. Next thing went around bar. King told me to call the police, I didn't.

Trial Cross-exam

T. R. 626-11. Are you absolutely certain Mr. King shouted or yelled or said call the police, are you absolutely certain of that?

-14. Yes, I am.

Schlener for the benefit of Tom King alters his testimony at trial to include Tom King as that "somebody" who yelled, "call the police". By testifying this way Schlener puts King in the position of a do-gooder and a person always conscious of the rightful procedure and authority before taking any action.

Schlener did not want to testify as he did at the probable cause hearing about this incident because the jury would see King as one eager to assault and get involved in the gang beating of Elbery. Schlener did not call the police because nobody got injured in the bar and the gang was beating Elbery in the street.

Note, King testified at the probable cause hearing, P.C. 54-19-23, he went right out after Elbery. There was no mention by King that he called for police, but see section C this claim.

4. Schlener’s testimonies regarding his exiting the bar in time for him to observe Elbery throw that "first punch" at King, and Aloise aiding the prosecution’s perjury via leading questions and summation of the prosecution’s falsified theory of the case.

PC-Direct Exam

PC 87-4 Q. Now you, yourself, went outside to the doorway? A. Yes, after I checked on the girl.

PC-Cross-Exam

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PC 113-23 Q. How long do you wait before anything else happens that you were involved with?

A. About two minutes maybe, at the most.

PC 114-2 Q. And during that time is when you determine that the young lady who was injured actually did not have glass in her eye? A. Right. (Schlener here admits Mann is not injured).

PC 114-10 Q. And after that two minutes, did you go outside? A. yes.

PC 118-11 A. What happened after that is we ended up going out to the doorway to the Winner's Circle.

PC 118-14 Q. now, you said, "we ended up". Beside yourself, did anyone else look out?

A. Well I think Sawyer was there at the time and whoever --

PC 120-8 Q. so now at some point after that short period of time goes by, you and I think you said Sawyer, went out onto -- outside the entrance onto Shrewsbury Street, to look to see what was -- what if anything was going on?

A. Right.

PC 124-5 Q. You gestured that King had his arms outstretched?

A. Like this.

Q. Like he is going to grab, right?

A. Right.

PC 125-15 A. Well, he threw a couple of punches.

Q. Elbery did?

A. Yeah.

A. And then they locked and they went down and the other guys were around them and I couldn't see them, you know.

PC pages 127-128. Wyne tells Schlener to call police; Schlener does 3-4 minutes after the incident started inside the bar.

At the PC Schlener is clear that he waited two minutes, after checking a girl, before exiting the bar to make observations of Elbery and King 50-100 yards down Shrewsbury Street. He is clear that Sawyer was already in the doorway. Schlener says, per the PC, it was at this point in time he saw Elbery throw a couple of punches. Next, Wyne tells Schlener, with Sawyer present, to call the police because King's eye is out and Schlener says it is 3-4 minutes after the incident started inside the bar that Schlener calls the police.

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At trial Schlener, knowing his time frame was a problem and that Sawyer's testimony at the probable cause hearing, PC 239-19-21, was that Schlener exited the bar last, proved Schlener to be lying, changes his story about exiting the bar and seeing Elbery allegedly hit King first.

Direct Exam-Trial

T. R. 591-2. Then I ran around the bar and I checked on the girl.

T. R. 593-18 Q. After you initially observed the girl where did you do go?

-20A. I went out the front entrance.

-24A. I look down the street.

T. R. 594-2 A. I saw Mr. King going after Elbery with his arms out saying...

-10 A. He (Elbery) through a punch.

-12 A. I was too far away to really see what happened. After they tangled.

Trial Cross-Exam

T. R. 628-24 A. The whole thing was probably a minute, minute and a half maybe, before going out to observe the confrontation.

T. R. 629-11 A. He (Sawyer) stayed with Chris, and at some point he was in the hallway, out in the street with me.

-16 Q. Sawyer went out of the bar after you?

A. (King) Right.

T. R. 656-9 Q. Now do you recall that when you went outside of the bar after everybody filed out, and Elbery had left, do you recall going out with Sawyer?

-19 A. Basically I went out independently of myself. Sawyer happened to be the person next to me who I was --

T. R. 657-1 Q. But I am asking you whether or not as a matter of fact what happened was that you both went out at the same time after obviously both determining that Chris was not seriously hurt?

-5 A. Right.

T.R. 657-6 Q. And you said so at the probable cause hearing, did you not, that you went out together, right?

-9 A. (Nodding)

T. R. 658-5 A. Right that was after I called the police. Is that what we are talking about?

-80-

-7 Q. (Aloise) No I am talking about the time you first went out.

-9 A. Sawyer was with the girl, and then after the phone call the second time, that is when Sawyer was --

-12 Q. (Aloise sorting out Schlener story) So you are saying that Sawyer went out one time and you went out twice, and it was a second time that you went out, you went out either with or shortly after Sawyer?

-16 A. Right.

-17 Q. (Aloise) Am I right?

-18 A. Right.

The above comparison shows a blatant case of perjury on Schlener’s part, with the help of Aloise, all so Schlener could more comfortably and convincingly lie about Elbery "throwing the first punch".

The most potent perjury/fraud on the court or procurement of perjury is by Aloise, T. R. 658-12, when Schlener gets caught in his own lies regarding his exiting the bar. Aloise simply ignores all that was testified to at the PC hearing and invents a new perjured story in order that Schlener doesn't get caught in front of the jury lying. Schlener per, T. R. 658-16 & 18, had no choice but to accept Aloise's version of events, not even Schlener was that good of a liar. Why wouldn't Schlener agree with Aloise, he got Schlener out of a serious jam on the witness stand.

This is conspiracy to commit perjury and to maliciously prosecute, by Aloise, his own client. Further, it is conspiracy to violate Elbery's constitutional rights, the right to Due Process and assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of United States Constitution.

The only reason Aloise asked about Schlener's PC testimony was due to the insistence and badgering of his client, Elbery. See affidavit #16. This insistence was because it would have been impossible, as per Schlener's PC testimony, for Schlener to attend to a girl and get out of the bar two minutes after the incident started and still have seen the beginning of the contact between King in Elbery.

The perjury/conspiracy by Aloise, as per T. R. 658-12, allowed the prosecution to cover up the obvious truth, Schlener did not and could not have seen any contact between Elbery and King. There was not enough time. Schlener with the cooperation of Aloise covered up the discrepancies of Schlener’s PC and trial testimony regarding his exiting the bar and seeing a fight.

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The jury believed, as a result, that Schlener simply did as he testified, why not, Aloise, the defense attorney, confirmed everything.

Aloise should have pointed out to the jury the discrepancies between Schlener’s PC hearing testimony and trial testimony. This should have been done by Aloise with the objective of showing the jury that Schlener was perjuring himself in order to maintain he was a legitimate witness to King's claim that Elbery threw that first punch at King.

Specifically, instead of aiding the prosecution by sorting out and fabricating Schlener's new story, Aloise should have itemized, to the jury, including the prior inconsistent statements made by Schlener under oath at the PC hearing regarding his exiting of the bar as follows:

a. At the PC hearing there was no mention of two exits by Schlener from the bar, by any witness including Schlener. Schlener testified, per the PC, he exited once and Sawyer was already outside when he allegedly saw Elbery throw the "first punch" at King.

b. Both Mann T. R. 172-9, and Dr. Sawyer, PC 239-21, testified Schlener was the last to leave the bar and any action outside especially involving King and Elbery was over. This also should have been brought out at the closing argument by Aloise. P.C. 240-3, De Pasquale also claimed Schlener was still in the bar and last to leave after he (De Pasquale) left the bar 5 minutes after the incident.

c. Schlener testified at the PC hearing he was outside the bar with Sawyer when, as a result of Wynne telling him King's eye was out to "call the cops", he went back in the bar and phoned the police. According to Schlener, PC 127 through PC 129, Wynn’s false alarm resulted in Schlener calling the cops 3-4 minutes after Elbery exited the bar, and after the fight incident was over. Schlener claimed at trial he went out initially, leaving behind Sawyer and girl, then came back in the bar and called the police, whereupon, he exited the bar a second time meeting Sawyer.

d. Schlener testified at the probable cause hearing that he waited two minutes before exiting the bar after tending to girl. At trial he trimmed his timing of exit to one minute to a minute and half in order to make it more believable that he could have been outside the bar in time to see Elbery throw "that first punch".

Both King’s and Elbery’s testimonies agree that the chase-fight activity was non-stop, they agreed there was no break in the action. Even if they disagreed on everything else. How long would it take a man to run 75 yards? Maybe a slow man would take 12 seconds. How could Schlener have gotten out of the bar in time to see the entire fight if he waited even a minute before exiting the bar?

-82-

Aloise should have highlighted to the jury that Schlener was claiming King was attacking Elbery, TR 594-2, King going after Elbery with his arms out. That was the prosecution’s evidence even if everything Schlener said at trial was a documented lie.

 

 

DE PASQUALE

B. Mitchell De Pasquale's discrepancies between the probable cause hearing and trial testimonies ignored by Aloise.

1. Conflict described by D. Pasquale inside the bar, the initiation of the incident.

At the probable cause hearing of this instant case defense witness De Pasquale, and friend of the prosecution witnesses’-"friends", testified that King had to be re-strained that he was one of the ones who stopped King from getting any closer to the defendant, Elbery. King was depicted by De Pasquale as the aggressor who had to be held around the waste to stop King, Elbery was not interfered with as he sat down on his own according to De Pasquale, as below,

Probable Cause Hearing-Direct Exam

PC 189-14 King walked over to where Michael was.

PC 190-3 I was one of the ones that got in between.

PC 190-9 I was one of the ones that got up to make-to try to make some peace.

PC 194-13 I stepped in front of Tommy to face him and I was holding him around a waste.

PC 194-20 "Come on Tom let's not do this, come on and sit down. Let it go." I tried to coax him back to his seat.

PC 195-1-6 No I did not have any conversation with Mr. Elbery. He sat back down.

At trial De Pasquale changed his testimony (lied) in King's favor. As per transcript below he described a much milder mannered King. De Pasquale claimed to be an off-duty bouncer at the Winner’s Circle Bar. During direct examination by Aloise, De Pasquale claimed he didn't have to do anything to King, that he stopped himself. De Pasquale testified at trial that he merely touched King on the hip section.

Trial-Direct Exam

T. R. 700-19 Q. How close did King get to Elbery?

-83-

A. Not that close we stepped in between them.

T. R. 701-5 I didn't have to do anything. Tommy Stopped.

T. R. 701-12-18 Went in direction of Elbery after getting off stool in front of Tommy and told him to go back to his seat.

T. R. 701-24 I kind of touched him on the hip section and asked Tom to calm down and go back to his seat.

T. R. 703-13 Also said "you don't need this. Go back to your seat. We don't want any trouble.

T. R. 703-8 Q. Who stopped him (King)?

-9 A. Nobody. He stopped himself.

During cross-exam by Ball, De Pasquale made even bigger changes in his testimony (bigger lies), claiming he made some mistakes at the probable cause hearing and that he at no time grabbed King around a waste. There was no need for Ball to worry about De Pasquale's prior testimony because Aloise did not bring them to the attention of the jury. Rather on redirect Aloise gets De Pasquale to admit he put his hand on King's waste, T. R. 722-21-24, by which Aloise once again adopts the prosecution's account of events to the prejudice of his client.

Trial Cross-Exam

T. R. 724-16-20. Didn't touch Elbery afraid of getting punched.

T. R. 728-10 Q. You still made some mistakes at the probable cause hearing? A. Yes.

T. R. 736-7 Q. You at no time grabbed King around the waste and pulled him away? A. No.

Direct

T. R. 722-21 Q. Now at any time while you were standing up between Mr. Elbery and King, did you put your hands-on Mr. Kings waste? A. Yes, I did.

 

KING

C. Louis P. Aloise ignores discrepancies between King’s probable cause hearing and trial testimonies, conceals evidence about the prison guards who were with King.

1. About the girl’s alleged injuries.

PC-Cross Exam

PC 52-1 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. Correct.

-84-

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?

-10 A. Right.

Trial-Direct Exam

T. R. 194-4. (King Testifies) One of the women had her hand to her face and she was bleeding.

-7. Coming around her hand, out of her hands, through her fingers down her face.

As seen above King does a stellar job of lying about a girl’s injury in order to gain approval from the jury for his actions and at the same time trying to fabricate a "felony" by Elbery. And Aloise conspires with King, refusing to cross-examine on this issue of the girl's injuries, and covers up the true evidence. King did not know, as he testified at the PC, about any girl’s injury. This is because there were not any. Was this girl, Mann, really in the bar that night?

2. About the mysterious prison guards seated with King at the bar,

Probable Cause-Cross-Exam

PC 30-22 (King) The prison guards are acquaintances.

Trial-Cross-Exam

T. R. 269-13 Q. Are these people, these two correctional people that you did not know before you went into the barroom that particular night?

A. (King) Yes, sir.

Aloise being forced by his client to ask about the prison guards, see affidavit #17, falls shot in his duty. Aloise allows King to say he doesn't know them after testifying at the PC that they were acquaintances. In fact, Aloise leads King to say he did not know these guards.

Aloise knew exactly who the guards were, not just King. Aloise had Mark Pinkham, one guard drinking with King and the person who drove King to the hospital, listed as a defense witness, see Exhibit I. Aloise had spoken to Pinkham many times and allowed the jury to believe that these guards drinking with King were unknown to everyone involved with the trial. Further, Aloise allowed the jury to believe there were two sets of prison guards that night during the incident. Pinkham was the same guard at the bar with King as the guard who drove King to the hospital. Aloise in conspiracy with the prosecution suborned this perjury at trial. This is also fraud upon the Court.

-85-

As my appellate lawyer, Bobby Scheketoff said, "I thought it strange that there were just, coincidentally, 2 sets of prison guards."

3. In reference to King and the police being called, King’s testimonies differ as follows:

Probable Cause-Direct

PC 10-22 (King) Jeff was on the phone, and it was my understanding that he had --. That he was calling the police.

Probable Cause-Cross Exam

PC 55-2 Q. (Aloise) Did you observe that Jeff Schlener called the police, or did you know that he called police after?

-5 A. I knew he was over at the phone, and I --

-9 A. I knew he had to be calling the police; yeah.

-11 Q. So you had a fair assumption at least that Mr. Schlener was on the phone to the police, and you presumed that the Worcester police would respond?

-15 A. Right.

King, at the probable cause hearing, makes no claim he yelled, "call the police".

Trial-Direct

TR 195-18 (King) I yelled to somebody to call the police. Mr. Schlener had gone to the rear of the -- -- reached around where the phone was, so I thought he was calling the police.

 

Aloise allows King to look like a conscientious good citizen to the jury. Allowing King to testify that he took the proper precautions and yelled for the police before taking the law into his own hands. Coincidentally, Schlener changed his story, this claim X section A-3, about the police being called in order to help King and fit his trial lie.

4. Aloise allows King to cover up the fact that the entire incident/fight took place in the street, not the sidewalk. The discrepancies are as follows:

Probable Cause-Direct

PC 9-22. I chased him out the door.

-86-

-24. Yes, down Shrewsbury Street.

PC 10-13. Ran down Shrewsbury Street approximately 50 yards.

PC 11-4 Q. When you caught up with him on Shrewsbury Street; what did you do?

-6 A. Listen you're not going anywhere.

PC 20-13 Q. During the course of the struggle with Mr. Elbery on Shrewsbury Street, do you recall anything he said?

-17. No.

PC 55-24 thru 56-7. (King) No, I ran out the door, ran out into Shrewsbury Street and ran down Shrewsbury Street and I ran after him.

Trial-Direct

T. R. 198-5 Q. Did you see the defendant go into the street at all?

-7 A. No, sir. Not at all.

King and the prosecution had good reason to change the case scenario to the sidewalk, the jury may have found it even more difficult to believe that Elbery came to a screeching halt in the middle of a main street, as King testified, TR 197-22. This is more prosecution lying ignored by Aloise.

By ignoring these discrepancies about the street and Elbery’s route in fleeing from the bar, Aloise allowed the jury to more easily believe that Elbery was not in fear and not fleeing from King’s assault and that of the "gang of six". It would have been hard for the jury to believe that Elbery came to a screeching halt in the middle of the street as opposed to what King said, T.R. 377-7,8, TR 386-15 thru 21, TR 197-22, He came to a stop on the sidewalk.

6. About the amount of time spent in the hospital by King. Clearly, Aloise read King's medical report.

Probable Cause Hearing-Direct

PC 16-21 Q. How long were you in the hospital?

A.(King) four hours.

-87-

Trial-Recross

T.R. 478-18 Q. Your arrival was 2:10 a.m. and the time of your discharge was 3:35 a.m., am I write? (Aloise reading from Ex. A-King’s medical report).

-23 A. Yes.

Aloise clearly read King's medical report, but did not tell the jury that not only was King at the hospital for a mere 1:25 minutes but this included the time King waited for Arinella to arrive on call. Aloise did not inform the jury that King lied at the probable cause hearing and grand jury in order to make his red eye worse, saying he was in the hospital for four hours, PC-16-21.

Aloise should have underscored, to the jury, that this brief time in the hospital, 1 hour and 25 minutes, to be examined by a nurse and doctor, including the time it took the Dr. to arrive on call was indicative of King’s minor/superficial injuries or red eye.

Constitutional Violations-Aloise and Ball

 

For the above failures enumerated in this claim X Louis P. Aloise was ineffective in his assistance of counsel, Aloise suborned perjury, conspired with the prosecution to maliciously convict Elbery, fabricated evidence for the prosecution’s benefit against his client, committed perjury/fraud on the court, advocated the prosecution's perjured story working to the prejudice of his client, failed to apprise the jury of a landslide of prior inconsistent statements, all substantive evidence, made by various witnesses. Clearly, this claim proves there was no adversarial relation at trial, that better work may have produced something better for the defense. The failures here show that the trial was unfair and the verdict cannot be relied on, there is a reasonable probability that if Aloise handled these witness discrepancies (perjury) with the care of an average lawyer’s performance the verdict would have been different. The adversarial testing as required by the U.S. Supreme Court was not met causing a trial that was unfair and a verdict that can not be relied on. Strickland v. Washington 466 U.S. 668, 684-685, 80 L. Ed. 2d 674,691-692, 104 S. Ct.2052.

Aloise as a result violated Elbery's Sixth and Fourteenth Amendment of the U.S. Constitution the Right to Effective Assistance of Counsel, and a fair trial, as provided by the Due Process Clause.

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Attorney Aloise, regarding this evidence in this claim X, was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).

ADA Mike Ball knowingly allowed the above discrepancies amongst the three itemized witnesses knowing that under oath at the probable cause hearing they had presented evidence which exonerated Elbery. Ball and the DA's office in Worcester are guilty of conspiracy to violate Elbery's constitutional rights. Ball and company knowingly allowed this perjury, as itemized in this claim, and made use of it without making the required correction in order to maliciously convict Elbery. Giglio v. U.S., 405 U.S. 150, 31 L. ED 2d 104, 108, 92 S. Ct. 763 (’72). (the prosecution cannot knowingly use perjury to convict and they have a duty to correct all perjury); Commonwealth vs. Tucceri 589 N.E. 2d. 1216, 1219, 412 Mass. 401, 405, (’93), (new trial required when prosecution knowingly uses perjury). Knowing use by the prosecution of fabricated evidence, as is abundant in this claim X, is a violation of the Fourteenth Amendment Due Process Clause of the U.S. Constitution. This claim X alone is of sufficient constitutional error to require a new trial for Elbery and convict numerous members of the Worcester DA's office and Aloise of various criminal counts. As a matter of law a new trial is required id.

 

XI. More ineffectiveness by Aloise during opening statement, argument, directing cross-examination-Aloise adopts, confirms and presents the prosecution's theory of the case-Aloise presents prejudicial evidence about his defendant/client.

Elbery owned/lost the infamous Mulcahy's Bar

TR 121-1 (0/S Aloise) Fulfill a lifelong dream of becoming an owner of a barroom.

TR 121-5 (0/S Aloise) He owned a local Tavern known as Mulcahy's cafe at Webster Square in Worcester.

TR 121-7 (0/S Aloise) As a result of factors beyond Elbery's control, sometime before 9-29-92, Mr. Elbery lost the bar. Went out of business, and was sensitive and affected adversely by the fact he lost his business.

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The only object to this information to the jury by Aloise was to insult and discredit Elbery. Attorney Aloise represented this defendant during the eviction proceedings that caused this defendant to terminate business at his bar, in '92, see Ex. N. The defendant, as Aloise well knew, went out of business because he lost his lease. The landlord and his daughters now run a bar at that location. Mulcahy's was a well-known biker bar in Worcester. Aloise via these opening statements gave the impression to the jury that Elbery had done something wrong. Aloise needlessly associated Elbery with an "alleged" outlaw bar, Mulcahy's. Further, Aloise made Elbery look foolish by saying "owning a bar was a lifelong dream". Elbery never told Aloise any such thing; in fact Elbery told Aloise he hated many elements surrounding the running of the bar and wanted to do something else, see aff. #44. Elbery told Aloise years before '93-'92 that he could not stand the bar anymore.

Confrontation bar

TR 122-20 (O/S Aloise) Mr. King... took it upon himself to get up and tell Mr. Elbery in no uncertain terms to shut up and not bother Mr. Schlener.

TR 292-13 Q. (Aloise) And in substance, you told him you wanted him to quiet down and be quiet; am I right?

A. (King) Yes.

TR 292-16 Q. (Aloise) Did you use those words or did you use more harsh language than that?

A. (King) I told him I asked him to quiet down.

(Aloise) Right.

TR 294-2 Q. (Aloise) Now when you said or asked or told what ever it was Mr. Elbery to quiet down, he responded to you in no uncertain terms basically to mind your own business, Right?

TR 294-9 A. (King) He asked me to step outside.

-10 Q. (Aloise) Right. Did you are ask him "okay, let's go outside"?

-12 A. (King) No. I said, "I wouldn't waste my time." I turned around, walked around sat down.

-14Q. (Aloise) Your response was, "I wouldn't waste my time". Is that right?

-16A. (King) That's correct sir.

-90-

    In these above transcript citings regarding the confrontation in the bar Aloise adopts and confirms the prosecution's theory of the case. He continually agrees with and highlights the prosecution's theory of the case with the use of right after King presents his version of the facts. Aloise in opening statement presents King a concerned citizen trying to shut-up an out of control Elbery. This is not what Elbery told Aloise, Elbery's version of the facts were totally different, see TR-1032 through 1040. And of course, Aloise did no cross-examination on how the incident precipitated in order to present his client's version of the facts. Elbery's version of the facts was also that described at the probable cause hearing by King's friends.

The "touching" by De Pasquale

TR 486-2 Q. (Aloise) I ask you... whether or not Mr. D. Pasquale grabbed you around waste. You said no. You said he touched my stomach, right?

-6 A. (King) Yes.

TR 486-7 (Aloise) Okay.

TR 486-18 Q. (Aloise) look, are you telling us that you never went by where Mr. De Pasquale was sitting?

-20 A. (King) That's correct.

-21 Q. (Aloise) All right.

Aloise questioning King about him going by De Pasquale during the bar confrontation and having to be restrained, as was the evidence at the probable cause hearing via numerous witnesses allows King to say the opposite. Aloise with the use of "all right", "Okay" and "right" confirms King's perjurious testimony. The evidence at the p.c. hearing was that De Pasquale and others had to restrain King and Elbery stayed at his bar stool, see claim X-B-1.

Regarding the chase down Shrewsbury Street

TR 125-22 (0/S Aloise) And he was running with Mr. King directly behind him, and the other four directly behind King.

TR 126-13 (0/S Aloise) In any event (King) tackled Mr. Elbery. Tackled him, put him to the ground, rolled him out into the Street over the berm or over the curb into Shrewsbury Street.

TR 377-7 Q. (Aloise) Mr. Elbery abruptly stopped; am I right?

-91-

TR 377-19 Q. (Aloise) So that it is clear that one you chased him two, he abruptly and without explanation, that is without telling you anything or saying anything to you stopped, just stopped dead in his tracks; am I right?

TR 380-6 (Aloise)Q. Did you tackle him thereby causing him to stop?

A. (King) No.

TR 386-15 Q. (Aloise) You also testified that after you chased Mr. Elbery and after he abruptly stopped and after you were face-to-face with him, that you told him that he wasn't going to go anywhere until the Worcester police arrived; Am I right?

-21 A. (King) Correct.

TR 401-2 (Aloise) Q. Do you recall testifying at the PC hearing that you said you moved your arms in an outstretched position? Do you remember saying that?

-6 A. (King) I said I had my arms out to the side, with my arms open and facing him.

-8 Q. (Aloise) Show us exactly what you did?

TR 401-10 Q. (Aloise) Now when you said you grabbed onto Mr. Elbery, you testified at the PC hearing that you tackled him. You testified here today, if I understand you correctly, that you swept him or you took his legs out from under him?

TR 401-16 A. (King) I knocked him to the ground. I grabbed him around the arms and knocked him to the ground.

-18 Q. (Aloise) You grabbed him around what? The waste?

-19 A. (King) The upper torso. He is about my height.

-23 Q. (Aloise) While you are still facing him, right?

A. (King) Yes.

TR 403-1 A. (King) He threw several punches at me as I have testified.

-3 Q. (Aloise) I understand that.

TR 404-20 A. (Aloise) So, you deny, I take it, that after tackling Mr. Elbery and going to the ground, that the others jumped on top of him and beat the hell out of him as well?

TR 425-13 A. (King) I was trying to knock his hand out of my eye and take his hand out of my eye.

-15 (Aloise) Right. Q. You grabbing onto him, right? After your eye was injured you were able to grab onto him, wrestle him to the ground, roll around on Shrewsbury Street, roll into the gutter, and get you on top of him, and you've got enough control to get up and get off him; Am I right?

-92-

TR 425-22 A. (King) I knocked him on the ground. And when he landed, I was on top of him.

-24 (Aloise) Right.

TR 426-1 A. (King) Okay. I rolled off him onto the ground and was helped up when I yelled for somebody to help me.

TR 427-15 Q. (Aloise) So that the fact that earlier in your testimony you said you never heard anybody say anything, you never heard anybody behind you, you did, in fact, hear footsteps?

-20 A. (King) After I was on the ground, yes.

-21 Q. (Aloise) But before --

-22 A. (King) As I have testified.

-23 Q. (Aloise) But before you heard nothing, right?

TR 428-18 Q. (Aloise) There is no question that when you rolled off of Mr. Elbery and Mr. Elbery is down on the ground, Wynne is there and the others are there, right?

TR 432-17 Q. (Aloise) When you were struck in the eye the first time, do you have a recollection of moving your head away, at least turning away from?

-18 A. (King) I was trying to get his thumb out, yes.

TR 433-12 (Aloise) When the thumb is in the eye, you grab his hand, you get it away, he try to get it away, you grab him, you go down to the ground, right? All that is taken a very short period of time; Am I right?

-17 A. (King) That's correct.

TR 435-16 Q. (Aloise) after you had got poked in the eye the first time, sir, and were able to get Mr. Elbery's hand away, could you tell us what at that point you didn't simply turn around and get away to avoid any further injury as opposed to continuing to hold onto Mr. Elbery and tackling him to the ground as you indicated that you did?

TR 436-2 Q. (Aloise) Well, you were there having no initial intention, it was your testimony, to physically assaulted, no intention of holding him, right?

TR 436-8 Q. (Aloise) When you got injured in the eye that you have indicated in the manner that you did, why didn't you just get away once you got Mr. Elbery's hand away from your face and leave?

-93-

T R 482-18 Q. (Aloise recross) Now despite the injury you received to your eye after you say Mr. Elbery first poked you, you were able blind to continue or to get Mr. Elbery's hand out of your eye, to hold onto him, to tackle him to the ground, to get on top of him and to get off of him, all the time in which you had suffered an eye injury that ran did you in your testimony blind; Am I right?

484-2 Q. (Aloise allowed question after objection) Do you recall that question? Is that your answer yes?

A. (King) Yes.

Once again Aloise crusades the prosecution's version of the facts with the constant use of "right" and "I understand that" after King testifies prejudicially and the opposite to what Elbery testifies to. Elbery gave Aloise a whole different version, (including backpeddling while defending himself against the two prison guards, TR 1046-6, and a gang chasing Elbery down the street, T.R. 1045-5), of facts but Aloise refused to do any impeachment of King or present his clients facts of the event through cross-examination. As above, Aloise agrees and confirms/adopts King's entire chase-fight scenario.

Elbery testified that De Pasquale tackled him around the ankles football style when he was going between two cars onto Shrewsbury St., that he was defending against several attackers as he was trying to escape overwhelming odds while running 100 yards down Shrewsbury St.. Elbery testified there was no statement by King or verbal confrontation, but rather King jumped on top of Elbery after he was already football tackled by attackers on Shrewsbury Street. King claimed Elbery just stopped on the sidewalk for no reason, this is totally the opposite of what Elbery said. See T.R. 1043 through 1049 for Elbery's testimony.

Worst of all, Aloise repeatedly confirms and adopts King's claim of eye injury and cause.

That King was waiting for the police

TR 437-2 Q. (Aloise) You also knew, or reasonably assumed anyway that the police were called, right?

-4 A. (King) Yes, sir.

TR 386-22 Q. (Aloise) and even though you didn't see Mr. Schlener make any phone call or hear him express that he was going to make the phone call, you, as you testified earlier, assumed that was what he was doing? A, because a young woman appeared to be hurt, and B, because you saw him go in the direction where you knew the phone was, right?

-94-

387-6 A. (King) Yes.

-7 Q. (Aloise) So it is reasonable to conclude then that you, as you were chasing Mr. Elbery down the street, assumed that the police would be on the way?

-11 A. (King) Yes, sir.

Aloise advocates King's cause and the prosecution's theory that King wasn't a cowardly mean spirited bum and part of the barroom "gang of six" that rushed out after Elbery to gang up on him. Rather Aloise portrays King, contrary to the probable cause hearing, as an individual conscious of the right thing to do via the police. See claim - X-C-3. The deficiency here, claim XI, by Aloise shows that he again was not representing his client's best interests and the adversarial process required to have a fair trial failed. This satisfies the standard for ineffective assistance of counsel requiring a new trial as defined by the U.S. Supreme Court, Strickland v. Washington 466 U.S. 668, 687, 80 LED 2d. 674, 693, ('84). Better work by Aloise just on this issue may have produced something material for the defense, as above, thus these deficiencies in this claim satisfy the Massachusetts standard for ineffective assistance of counsel requiring a new trial, Com. v. Saferian 366 Mass. 89, 96, ('84).

The jury was misled at trial by this false evidence as presented in this claim XI. This being a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564 (' 67) (mislead the jury on material evidence the trial is unfair requiring a new trial).

 

 

 

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XII. ADA Morris A. Bergman takes the witness stand and gets caught lying-the DA's office tries to trigger a mistrial-Attorney Aloise refuses the judge's invitation to a mistrial over the defendant's strongest objection.

 

During initial direct examination of defense witness John Hayes the court officer reported to the judge that the jury foreperson claimed Hayes was in the court room the day before, therefore violating sequestration, TR 861-1. The foreperson claimed, per the court officer, a couple of jurors had seen him (Hayes) in the courtroom the day before listening to testimony, TR 862-2.

The judge held a voire dire, TR 862, and concludes with the two other lawyers that Hayes was not in the courtroom the day before, TR 868-10. The judge instructs the jury they were mistaken about seeing Hayes the day before, T. R. 874-3.

Little did the judge know but he was correct, as the jury informs the court that they had only seen Hayes in the morning not the day before, T. R. 876-3-10. The court officer got the information wrong on TR 861-1, above, that Hayes was in the court that day before.

Nobody, the defendant (see aff. #26), the court officers, the ADA Ball, Aloise, or the judge had seen Hayes in the courtroom the day before. Further, and most important, the jury was not claiming he was in the courtroom the day before. The jury was claiming (and court officer got it wrong) Hayes was in the court room a little before lunch just as Hayes admitted, TR 864-20. ADA Morris Bergman did not know this; he out smarted himself. Bergman submitted a note, (T.R. 885-11-Ex. F at trial, see Ex. O), prior to realizing the jury was misrepresented by the court officer. The note, as read by the judge TR 882-23, made claim that Bergman had seen Hayes in the courtroom the day before, TR 885-15. Further, Bergman testified he saw Hayes and courtroom on two prior days, TR 887-8. Bergman claimed that upon observing Hayes on the two previous days he questioned himself as to what Hayes relationship was to the defendant, TR 889-21. (Sure).

Morris Bergman clearly got caught up in the court officers mistake and subsequent confusion orchestrated by the judge that the jury was claiming Hayes was in the court room the day before, hence violating sequestration. Moe Bergman lied, he got caught. This was more wrongdoing by the Worcester DA's office towards Elbery their long time target and critic. Bergman being a long time adversary of Elbery (due to Bergman's extreme political beliefs and hatred of Elbery) was in the courtroom (Superior Court) everyday and saw this alleged sequestration problem with Hayes as an opportunity to damage Elbery and his case. Problem was the Court Officer, (efficiency not being a requirement of his government job) got everything wrong and the only one left claiming Hayes was in the courtroom the previous day or days was Bergman. Bergman, as is documented here, is a monument to the kind of viciousness that Elbery has had to endure at the hands of the "Worcester authorities". ADA Morris Bergman, as documented here, is an unscrupulous liar willing to do anything for his agenda.

-96-

Why was Bergman at Elbery's trial everyday? See aff. # 35. Bergman worked in the District Court, yet he was representing the DA's office, TR 363-10, when Judge Toomey jailed Elbery on the second day of trial because Toomey "thought" Elbery was "about to get out of control", T.R. 363-14. Although the record reflects Elbery saying or doing nothing prior to the jailing.

    Moe Bergman tried to trigger or goad a mistrial, as well as, eliminate a very important defense witness. The attempted triggering of a mistrial by the prosecution requires a dismissal of the indictments, Com. v. Lam Hue To 391 Mass. 301, 310-311, 461 N.E. 2d. 776 '84, (prosecutor's conduct of goading the defendant into moving for a mistrial results in dismissal of the indictments and defendant may raise a bar to further prosecution via double jeopardy). The knowing use by Bergman of perjury relating to defense witness-Hayes also requires a new trial, U.S. v. Agurs 427 U.S. 97, 103 96 S. Ct. 2392, 2397, 49 L.Ed 2d. 342, ('76), Com. v. Tucceri 412 Mass. 401, 404, 589 N.E. 2d 1216, 1219, ('92).

The judge acknowledged the possible prejudice to the defense due to a juror, Mr. Audet, TR 875-24, excusing himself, as a result, allegedly, of Hayes being in the courtroom earlier that day and hearing about one hour of prosecution witness, O'Connor's, testimony. The judge was concerned the effect Audet and the entire incident could have on the remaining jurors towards the defense. Was that the real reason Audet left? I doubt it.

Aloise refuses mistrial over Elbery's objection

The judge, as a result, asked Aloise twice, TR 879-20, if the defense wanted a mistrial. You are not asking me to do anything, (judge) T. R. 879-20. Again on TR 896-20 the judge not only gives Aloise the option of a mistrial but comments he is impressed, TR 896-10, with Aloise resisting a mistrial because of the damaging effect this information might have on Aloise's client. Fact of the matter was that Aloise's client, Elbery, demanded that Aloise request or accept a mistrial. This in conference between Aloise and Elbery, see affidavit #21. What was bothering Aloise about another trial? Was it the same reason he did not ask in the alternative for a new trial when he filed the 25-b-2 motion after the jury's verdict? See Ex. R This is further

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deficient performance by Aloise and shows that he never wanted to see another lawyer work on this case. The deficiency here, claim XII, by Aloise shows that he again was not representing his client's best interests and the adversarial process required to have a fair trial was violated. This satisfies the standard for ineffective assistance of counsel requiring a new trial as defined by the U.S. Supreme Court, Strickland v. Washington 466 U.S. 668, 687, 80 LED 2d. 674, 693, ('84). Better work by Aloise just on this mistrial issue may have produced something material for the defense, as above, thus these deficiencies in this claim satisfy the Massachusetts standard for ineffective assistance of counsel requiring a new trial, Com. v. Saferian 366 Mass. 89, 96, ('84).

 

 

XIII. Defense Attorney Louis P. Aloise failed to call as witnesses the following resulting in ineffective assistance of counsel.

Dr. Stephen Sawyer

Dr. Stephen Sawyer, who was present in the Winner's Circle Bar that 9-29-92, testified at the probable cause hearing for the defense. His probable cause testimony was beneficial/exculpatory to the defense for the following reasons:

1. Sawyer testified Elbery never used a broken beer bottle as a weapon. PC 234-12 (Sawyer) The glass went flying and all hell broke lose, I guess. People were flying up from chairs, and I know that he (Elbery) backed out or went out through the door.

2. Sawyer testified that King started the argument between he and Elbery and pursued and approached Elbery from the other side of the bar. PC 288-8 (Sawyer) Jeff and Mike may have been having words, nothing loud. PC 231-11 I know that Tom got up from his seat at the far side of the bar and made his way around to the side where Mike was sitting.

3. Sawyer testified to facts at the probable cause hearing that would make Jeff Schlener's trial testimony concerning his exiting the bar twice in time to see Elbery throw that first punch a lie/perjury. PC 239-14 (Sawyer) Schlener came out of the bar after I had exited with two girls.

4. Sawyer testified that when he left the bar, PC 235-20, Mike was on the ground with three or four people holding him down. PC 236-9, King was walking up the sidewalk. PC 240-3 he, Sawyer, made these observations before Schlener came out of the bar.

-98-

Therefore, as also described and documented in claim X-A, it was perjury for Jeff Schlener to testify, T.R. 594-10, He (Elbery) threw a punch. It was perjury because Schlener was still inside the bar. This is of course consistent with Christina Mann's trial testimony, T. R. 172-6, that Jeff Schlener was still inside the bar after she left which was 10 minutes after the incident started.

5. At the probable cause hearing Sawyer observes King walking up the sidewalk but makes no mention of King having a bleeding eye, or vitreous fluid leaking from King's, or any noticeable damage to King's eye. Strange, he didn't see any of King's claimed injuries, as Sawyer was a health care professional.

Louis P. Aloise in his opening statement, TR 128-20, promised the jury that Dr. Sawyer would testify at trial. Not calling Sawyer is another deficiency by Aloise, Harris v. Reed 894 F2d 871, 878 (7th Cir. '90)(failure to produce promised witness in opening statement is a "speaking silence "that is prejudicial as a matter of law). Dr. Sawyer was not called as a witness because he was not going to lie and his testimony would have upset the conspiracy between Aloise and the prosecution. The defendant, Elbery, demanded that Sawyer testify, that he was Elbery's best witness. Aloise refused to call Sawyer saying the jury would get mad because Sawyer would carry the trial into the long weekend of the 4th of July, see aff #23.

An average lawyer could have done great damage to the prosecution at trial with the testimony of Dr. Sawyer, as itemized above. Dr. Sawyer would have been a very credible witness in the eyes of the jury. See claim I-B-1 for cases where an attorney is ineffective in his assistance of counsel for failure to call defense witnesses. This deficiency, Claim XIII, by Aloise is a further breakdown in the adversarial process required for a fair trial; the verdict can not be relied on. Strickland v. Washington 466 U.S. 668, 686-687, '84, 80 L Ed. 2d. 674, 692-693, 104 S. Ct. 2052. Better work by Aloise by calling defense witness Dr. Sawyer may have produced something material for the defense thus Aloise was ineffective in his assistance of counsel requiring a new trial, Com. v. Saferian 366 Mass. 89, 96 ('74), 315 N.E. 2d. 878.

Sawyer was a friend of the prosecution witnesses and De Pasquale not Elbery, PC 222-21.

-99-

Nurse Berry

Aloise never made any attempt to interview or call as witness this nurse who sent the rape kit fax that was signed by King at 10:30, see TR 237-238. This would have provided evidence that King was drinking on duty, as he testified he went to the Winner's Circle Bar, which is a few minutes from U. Mass., after conducting police business at U. Mass.

Don Wynn and Alice Arsenault

This girl, Arsenault, was never contacted by Aloise or used as a witness. She, per Mann's trial testimony, was at the Winner's Circle Bar with Mann. This girl, according to Aloise, had worked for Aloise during the previous summer. Aloise told Elbery that Arsenault got caught selling drugs to cops while she was on working hours for Aloise's law firm. Aloise knew where she was and knew her personally. See aff.# 42, #43.

Since, Mann's testimony was so outrageous and had so many holes in it, see Claim IV, bringing in Arsenault might have made a difference to the defense. She may have told the truth thus destroying the whole conspiracy. She had no reason to take up King's lies. That explains why the prosecution did not call her.

Don Wynne was a long time personal friend of King's. Aloise claimed he could never reach Wynne. Wynne, according to all the other witnesses at trial, including Elbery, was present during the entire incident. Wynne was named as a prosecution witness, see Ex. I page 2. Ball was willing to arrest Mann because she did not want to testify. Could it be Wynne threatened to tell the truth if put on the witness stand? See aff. #43.

Count these two potential witnesses as two more deficiencies, Aloise should have known if they were friend or foe, but he probably did know.

 

 

XIV DOUBLE JEOPARDY AND MORE DEFICIENCY BY ATTORNEY LOUIS P. ALOISE

The defendant, Elbery, was convicted of two crimes that resulted from the same incident or alleged offense. This via the trial of 6-28-93 through 7-2-93 of the above docketed action. These two convictions were assault and battery (Mass. C. 265.13A) and assault with intent to maim (Mass. C. 265.15), but see exhibit M. This is double jeopardy or multiple punishments for the same offense.

Multiple punishments for the same offense is a violation of the double jeopardy clause of the Fifth Amendment to the U.S. Constitution and Massachusetts common law rule. Commonwealth vs. Arriaga 44 Mass. App. Ct. 382, 691 N.E.2d 585, 587 (quoting North Carolina vs. Pearce 395 U.S. 711,717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d. 656 (1969). Luke vs. Commonwealth 421 Mass. 415,419,658 N.E.2d 664 (1995).

-100-

Elbery was given consecutive sentences for these two offenses (or from and after sentences), see Exhibit M.

At trial the judge correctly instructed that assault (Mass. C. 265.13A) is a lesser-included offense of assault with intent to maim (Mass. 265.15).

Assault and battery is the same crime or 265.13A under Massachusetts law as assault which is also C. 265.13A. If the jury had convicted Elbery of the lesser-included charge, assault C. 265.13, instead of the greater charge, C. 265.15, the lesser-included conviction would have been merged as one conviction with the assault & battery conviction. There would not have been two C. 265.13A convictions because there was only a single act or incident, allegedly, by Elbery.

Further, assault and battery should be a lesser-included offense of assault with intent to maim where there is no weapon involved. There is no way a trier of fact could find that the defendant intended to maim, while not using a weapon, unless there was contact or a battery on the alleged victim. Since there has never been a conviction of record, in Massachusetts judicial history, of assault with intent to maim where no weapon is involved it is reasonable that this issue has never been addressed.

Neither the judge nor the prosecutor isolated for the jury which acts could constitute assault battery and which acts could constitute assault with intent to maim in order to ensure no duplication charges against Elbery. Commonwealth vs. Sanchez 405 Mass. 369,540 N.E.2d 1316 (1989).

The lesser charge assault and battery, Mass. C. 265.13A must fall.

Deficiency by Aloise.

Failure by defense counsel Louis P. Aloise to argue that these charges constitute double jeopardy is another count of deficiency against him. The prejudice is plain the defendant was convicted and served an on and after sentence needlessly and illegally. This is the definition of ineffective assistance of counsel requiring a new trial. Strickland v. Washington 466 U.S. 668, 685-688, '84, 80 LED 2d 674, 692-693, 104 S. Ct. 2052. As above, something material for the defense may have been produced. Thus, Aloise was ineffective, again, as per Com. v. Saferian 366 Mass. 89, 96, ('94), 315 N.E. 2d. 878 (Mass. standard for ineffective assistance of counsel requiring a new trial).

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Illegal Sentence- Disorderly Person

Elbery was sentenced to a from and after sentence of 1 year for disorderly person, see Ex. M, yet the maximum sentence for this offense is 6 months. Compensation must be made.

 

XV. Miscellaneous Aloise Deficiencies

The following is a potpourri of deficiencies that further contributed to the sum total of Aloise's ineffectiveness of the above docketed trial.

25-b-2 Motion

Louis P. Aloise failed via the 25-b-2 motion to ask the judge, as the law allows via 25-b-2, for a new trial. A new trial should have been requested in the alternative via this motion 25-b-2 and Aloise deliberately did not ask for a new trial, see exhibit R. Aloise is deficient for not requesting a new trial since the weight of the evidence required a new trial.

The judge denied the motion in March of '94 although the denial is dated July '93. See affidavit #39.

Aloise failed to appeal the denial of that motion. Commonwealth vs. Cardenuto 406 Mass. 450, 452-53, 548 N.E.2d 864,' 90, (failure of counsel to appeal denial of motion for required finding of not guilty is ineffective assistance of counsel).

What bothered Aloise about a new trial for Elbery? See affidavits #27, #28, #29, #30. As per these affidavits this is more deficiency and bias of Aloise regarding this defendant.

Aloise advised Elbery to apologize at the sentencing

At the sentencing hearing regarding this case Aloise advised Elbery to apologize to the judge and he would get a smaller sentence. See affidavit #31. Elbery refused stating he was innocent and that he got railroaded.

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Aloise deficient regarding King's pictures presented at trial.

At trial King and the prosecution submitted three pictures of King's alleged eye injury. These pictures were produced at the PC hearing. They were exhibits 1,2, 3, at trial. Elbery told Aloise the pictures did not look real and that color did not look natural. Elbery told Aloise that he felt the pictures were falsified and that tests should be done on these pictures. Aloise would do nothing, see affidavit #40.

At a federal deposition held by this defendant of Tom King it was learned that the Westborough police produced those pictures from negatives, see exhibit P. This moveant has asked for discovery regarding these pictures and negatives.

Further, the admission of these three pictures by the prosecution of the same alleged eye injury of King's is more deficiency by Aloise regarding this case. These pictures were duplicates and cumulative and only one should have been admitted as evidence. Commonwealth vs. Adams 416 Mass. 55,60, 617 N.E.2d 594,597 (1993), Romero vs. Lynaugh 884 F. 2d 871 (CA 5 Texas 1989). Attorney failed to object to inadmissible evidence found ineffective in his assistance of counsel. Commonwealth vs. Gillette 33 Mass. App. Ct. before 427,432, (' 93).

Aloise's secretary-Disqualification required by Aloise due to this Conflict of Interest

Upon being released from jail on bail after conviction Elbery went to Aloise's office via appointment. His secretary, Sharon, chastised Elbery and made quite clear that she was adverse to him. Sharon stated she was best friends with the bartender's (Jeff Schlener) wife. See affidavit #22. This caused bias via Aloise and his office towards Elbery.

The Worcester Police Department booking video and Elbery's bloody clothes.

As per affidavit #18 Elbery demanded that Aloise subpoena the booking video that was taken when Elbery was arrested on 9-29-92 as result of the Winners Circle incident. This would have provided evidence of the extent of injuries Elbery sustained on 9-29-92 prior to being treated and cleaned up at the hospital.

Further, Elbery brought to trial the same ripped and bloody clothes that he had on that 9-29-92. Aloise told Elbery that the jury would not like that type of evidence and it was never presented by Aloise. See affidavit's #18, #36.

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Documented medical evidence of Elbery's injuries.

Aloise refused over Elbery's demand, to produce for trial evidence via medical reports documenting the damage to Elbery's neck on 9-29-92. See affidavit, #19, see Ex. Q.

The court officers contaminate the witnesses against Elbery.

Before the trial started two Court bailiffs told several witnesses they would be sued by Elbery for the gang beating of him on Shrewsbury Street, see affidavit #20. Aloise was present during this whole episode and did nothing. Aloise's loyalty is to the Court and its personnel-this is more conflict of interest.

More bias by Aloise and the lie detector.

During an appointment with Aloise several weeks before trial he expressed bias in favor of the police and Tom King against Elbery, see affidavit #34.

Aloise wanted Elbery to take a lie detector test which would be administered by the Mass. State police at a cost to him of over $1,000, see affidavit #37. Aloise wanted Elbery to take the lie detector test so the DA's office would know he was telling the truth and it would show, according to Aloise, that Elbery was cooperative. Aloise demonstrates more conflict of interest as his loyalty is to the police and the D.A.'s Office.

Aloise tries to abandon his client.

After Elbery was convicted on 7-2-93, Aloise went to the Worcester Superior Court lockup and told Elbery he wanted nothing more to do with the case and that Elbery was on his own for sentencing. Elbery replied he should not be in jail for defending himself against a gang of drunks while trying to escape one hundred yards down Shrewsbury Street. Elbery further told Aloise that he was paid handsomely for his services and that Aloise better get him out of jail. See affidavit #38.

Aloise refuses to present the defendants evidence, again, -Elbery attempts to do Aloise's job.

The defendant, Elbery, was so frustrated by the end of trial when he testified that he had to present his case without the help of his attorney. See Elbery's testimony. Elbery's answers through direct testimony were continuously ruled excluded and instructed as such by the judge TR 1256-24. It is demonstrated through the direct testimony of the defendant, Elbery, that Elbery is attempting to produce evidence that Aloise is not willing to question him about.

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Even though Elbery had asked Aloise to present this evidence Aloise would not ask the requisite questions in order to produce the evidence that Elbery was trying to give to the jury. Wouldn't you think that after hearing what Elbery was trying to donate to the jury, via his answers during direct testimony, Aloise would have asked the correct question in order to obtain that same evidence? Aloise did not.

Aloise should not have used Perma and De Pasquale for the Defense

As is obvious from this motion and review of the trial transcript, Perma and De Pasquale testified and lied in favor of the prosecution. De Pasquale was an acquaintance of King’s and Perma a fellow cop. Aloise had a duty to know what they would testify about prior to trial and if they did not testify as interviewed Aloise had a duty to impeach. Aloise did none of this making him once again deficient.

Aloise should have objected to Ball prosecuting the case due to Ball’s bias – a former cop

ADA Mike Ball was a former cop and this may explain some of his outrageous conduct/bias towards Elbery at trial. A defendant has a right to an unbiased prosecutor under the Fourteenth Amendment Due Process Clause.

Aloise failed to highlight the variances amongst all the witnesses surrounding the chase fight scenario.

There was not 2 witnesses that told the same story concerning Elbery’s exiting the bar and what followed until he was arrested. The prosecution witnesses’ story varied from a waltz or shimmer down Shrewsbury St. to King chasing Elbery all by himself. All the prosecution witnesses (except King) and friends (De Pasquale) that testified admitted that a gang immediately followed Elbery out the bar with King. None would testify, as King, that there was 2 thumb gougings, only Traskiewicz saw a finger go in King’s eye while King was on top of Elbery on the street. As in Claim V, they described King as the aggressor.

Aloise failed to highlight this ridiculous variance in testimonies at trial in both his direct exam of De Pasquale, cross-exam of the prosecution witnesses and in his closing. This makes Aloise deficient as this is an

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 indication the witnesses, all friends of King’s, were trying to hide their participation of the beating of Elbery and were lying for King.

LAW

The above 13 deficiencies by defense Attorney Louie Aloise contribute to the only conclusion you can have about his performance regarding the defense of Michael Elbery of the above docketed case; he was ineffective in his assistance of counsel. Had Aloise not done as per these deficiencies something material may have been produced for the defense. Saferian 366 Mass. at 96.

The conflict of interest that is documented in some of the above 13 deficiencies in this Count XV is more constitutional ineffective assistance by Aloise in violation of the 6th Amendment of the U.S. Constitution and Article 12 of the Mass. Declaration of Rights, Com. v. Hodge 386 Mass. 165, 434 N.E. 2d. 1246 ('82)(Once a genuine conflict of interest is shown there is no additional requirement that prejudice be proved for the defense counsel to be in violation of Article 12 of the Massachusetts Declaration of Rights which guarantees effective assistance of counsel)(the Mass. Declaration of Rights provides greater rights concerning this issue).

Concerning Aloise's secretary - the protection for client's is a direct responsibility of lawyers to supervise their employees. Aloise's secretary possessed confidential information material to the defense of Elbery, yet she was adverse to Elbery and in close relation/contact with the prosecution witness who was instrumental in falsely putting Elbery behind bars for 10 years. This person is the bartender- Jeff Schlener. The remedy is that Aloise, due to his secretaries conflict of interest, should have disqualified himself from representing Elbery, Mallet & Smith, Legal Malpractice, Ch. 16 - Fiducial Obligations s. 16.18.

 

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XVI. Illegal Prosecutorial Statements-Aloise Does Not Object-Miscarriage of Justice.

    During trial ADA Mike Ball made the following illegal statements in violation of M.R.C.P. -Rule 24 and due process clause of the U.S. Constitution. This claim includes only illegalities by Ball during closing argument and opening statement. Ball's other illegalities under Rule 24 during trial are highlighted in claims II, IV, V, and VI, VII.

Closing Argument - Ball

TR 1230-21 Do you really believe that everyone of these people that were in that bar that night, with the exception of the defendant, came in here... into court under oath and lie to you.

Ball is expressing his personal opinion as to the credibility of the witnesses and calling the defendant a liar without any evidence from trial to support his argument this is a violation of Rule 24, Mass. Practice Volume 30A s. 1860 p.254-256.

TR 1234-18 Remember when he (Elbery) said he gouged King's eye?

Here, Ball misstates and misquotes evidence of the trial. This is a violation of Rule 24, Mass. Practice Volume 30A s.1867 p.259.

TR 1236-10 That speaks volumes of the defendant's attitude and everyone else's impression of the defendant's attitude when he was in that bar that night.

Here, Ball gives his personal opinion about the defendant and the other witnesses' attitude towards him. Ball is also arguing facts not in evidence which is a violation of Rule 24, Mass. Practice Vol. 30A s. 1860 & 1865 p.253 & 257.

TR 1238-6 Who instinctively runs out after him? Police officer, the off-duty police officer. What do we expect? That is the type of individual a police officer is. That is why a lot of them are police officers.

Here, Ball is illegally vouching for the victim witness this is a violation of Rule 24, Mass. Practice Vol. 30A s. 1852 p. 247. Also, Ball misstates fact and law by calling King a police officer and thus giving the jury, contrary to law, the impression he was legally justified in chasing Elbery. This is more violation of Rule 24, Mass. Practice Vol. 30A s. 1867 p. 259.

TR 1239-10 What happened was he turned around and saw that the one-person he saw in the bar and he said, "hey, step outside with me," that is the only person that is right up to him.

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Here, Ball lies to the jury, as Ball already disclosed he knew more than one person was chasing Elbery, see TR 468-1, T.R. 1242-18. This is a violation of Rule 24 because it is illegal for the prosecutor to misstate evidence, Mass. Practice Vol. 30A s. 1867 p. 259.

TR 1241-10 Mr. King was doing what we all hope a police officer would do.

Here, Ball misstates law and fact of the case by calling King a police officer, King was only a citizen. In addition he is vouching for King and played impermissibly on the jury’s emotions- pandering to the jury with "we all hope a police officer would do". . This is more violation of Rule 24, Mass. Practice Vol. 30A s. 1867 p. 259 and

TR 1241-12 what is that business that he was drinking off-duty? T. R. 1241-16 we didn't hear anybody saying, "well, King, obviously was drinking on duty. He wasn't at the police station".

Here, Ball lies to the jury, as at trial sidebar, TR 452-12, Ball stipulated, as fact, that King was drinking on duty per claim VII. This is a violation of Rule 24, Mass. Practice Vol. 30A s. 1876 p. 259. Ball is also, in violation of Rule 24 by arguing evidence not introduced at trial, Mass. Practice Vol. 30A s. 1865 p. 257.

TI 1242-4 The other thing is, to believe, to even suggest that those people were instigators were, the initial -- that is absurd.

Here, Ball, once again, expresses his personal opinion. This in violation of Rule 24, Mass. Practice Vol. 30A s. 1860 p. 253-254.

TR 1242-10 Well, two more witnesses, hey, bring them on and they would be saying the same story, and they support that story, too.

Here, Ball is illegally eluding to his, alleged, knowledge of evidence not presented to the jury and telling the jury what the evidence would be that these missing witnesses would present. This is a violation of Rule 24, Mass. Practice Vol. 30A s.1858 p.25, United States v. Cresta, 825 F. 2d 538 (1st Cir. 1987), Mass. Practice Vol. 30A s.1860 p.121.

TI 1242-18 I'm telling you that a citizen has just is much right as anybody to go after someone that is caused injury to another person like they did. Mr. King should be commended.

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Here, Ball misstates the law on citizen's arrest, see Count V, and he vouches for King. This is a violation of Rule 24, Mass. Practice Vol. 30A s. 1868 p.259 and s. 1852 p.247.

Also, Ball admits that King did not act alone, as he uses the word they.

Opening statement - the prosecutor - Ball

T.R. 111-8 The beer bottle went into one of the young woman's eyes, her name is Christina Mann, she is here today. You will hear that the glass went around her eye and she was cut very badly.

Per the evidence in Claim IV of this motion this alleged cutting never happened to Mann. Here, Ball knew or should have known this was false. Mann also testified that no glass got in her eyes.

T.R. 111-22 He is waving this beer bottle at all of the people in the bar.

Per the evidence in Claim VI Elbery did not "waive" the bottle at anybody, let alone use it as a weapon. Here Ball knowingly misstates facts of the case.

T.R. 113- 16 King's eye is bleeding terribly.

Here, Ball knowingly lies to the jury, Ball had the medical evidence well before trial and conspired with Aloise and the prosecution witnesses to hide the documented real evidence about King's eye in Claim I.

T.R. 114-17 They had no police involvement really on the case except if you want to say where Thomas King being an off duty officer he was involved as a police officer.

Here, Ball misstates fact and law of the case. He tells the jury that King could be considered as a police officer instead of what the law demands just a citizen.

T.R. 115-16 the defendant did in fact swing that broken beer bottle, not only at the girl, King is named as a victim where the bottle was swung at him.

The girl, Mann, testified that Elbery never used the bottle as a weapon or even "waived" it at her, T.R. 178-14. As per the probable cause hearing it was already established via all witnesses that Elbery never used a bottle as a weapon or even "waived" it, see Claim VI, of this motion.

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T.R. 115-20 and he also tried to take out King's eye on two separate occasions.

As per Claim I and II Ball blatantly lies here, Ball had King's medical report, see exhibit A.

Ball points his finger in Elbery's face and Aloise and the Judge condone it.

The first thing the jury saw during this trial of Elbery's was ADA Mike Ball sticking his finger in Elbery's face while he claimed Elbery tried to gouge out King's eye. Ball was allowed, by Aloise and the judge, to abuse and disrespect Elbery with this finger in your face technique and set the tempo for the entire trial. This was done by Ball at the beginning of the prosecution's opening statement. See aff. #41, #32.

Elbery did not remain stoned faced while Ball insulted him with his index finger pointing in his face in front of the jury and judge Dan Toomey took that opportunity to criticize Elbery at trial's length for making "grimaces", TR 137-7 thru 14. Toomey threatened to hold Elbery in contempt of court because Toomey claimed Elbery was making faces, as a result of Ball's finger pointing.

The above misconduct by Prosecutor - Ball is a violation of Rule 24 of the M.R.C.P. , these opening statements and argument where so prejudicial (to an extreme) individually and collectively that Ball caused a miscarriage of justice, Mass. Practice Vol. 30A s.1839 p.102. These deliberate violations by Ball influenced/contributed to the jury's verdict. Com. v. Viriyahiranpaiboon, 412 Mass. 224, 232, 588 N.E. 2d. 643, 649 (1992). These illegalities by Ball went to the heart of the case and require a reversal of the jury's verdict, Com. v. Kelly, 417 Mass. 266, 271, 629 N.E. 2d 999, 1002 (1994).

Even if the Judge tells the jury that arguments are not evidence, the case may still be reversed if the prosecutor's argument is prejudicial to the extreme, Com. v. Hoppin, 387 Mass. 25 438 N.E. 2d 820 (1982).

Louie Aloise - deficient as is his custom, again.

Defense counsel, Louie Aloise, refused to say a word. He should have objected to all these illegalities by Ball and demanded a mistrial. Add this deficiency to the existing tally to equate a total ineffective assistance of counsel.

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Violation of the Fourteenth Amendment Due Process Clause.

The prosecutor, Mike Ball, was engaged during Elbery's trial in persistent and pronounced misconduct as per his statements and arguments itemized above. The prosecutor Mike Ball deliberately mislead the jury. This misconduct deprived the defendant of a trial that was fair and violated his right to Due Process of law under the Fourteenth Amendment of the U.S. Constitution. Berger v. United States 295 US 78, 79 L Ed 1314, 55 S. Ct. 629, (1935); 40 L Ed 2d 886, at 891.

 

XVII. Judge's Instructions

The following is a criticism of the judge's instructions at trial not raised during direct appeal of this case.

A. Accident Instruction

There should have been an instruction on accident, because at trial both Elbery and the prosecution witnesses gave testimony that there was contact between King and Elbery but that it was only a few seconds in duration and that King was on top of Elbery in the street and then King retreated with an eye injury. Later the real evidence was that King got a bump in the eye consistent with an accident. Com. v. Ferguson 571 N.E. 2d 411, 30 Mass. App. Ct. 580 (’91)(where evidence raises the possibility, the defendant is as a matter of Due Process entitled to a jury instruction that the Commonwealth has the burden of proving beyond a reasonable doubt that the act was not an accident).

B. Self-defense instruction

The judge defined maim, T.R. 1281-27, "wildly" as meaning a wound. This instruction defeated the self-defense instruction, since the jury could reasonably have determined that King had a "wound" and they could have reasonably concluded that if Elbery maimed King, via a wound, then Elbery used deadly force and not self-defense. The jury would have reasonably concluded that if maim = wound, as per the judge's instructions, then because every juror would consider maiming a serious injury that Elbery must have used "deadly force". The judge defined "deadly force" as that that causes serious injury. The judge further instructed, TR 1286-14, the question as to how far the defendant could go in defending himself is for you to decide. TR 1287-14, if you conclude that the self-defender did use deadly force, you must next determine whether that deadly force was justified in the circumstances.

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The definition of maim does not include to wound, Com. v. Robinson 26 Mass. App. Ct. 441, 529 N.E. 2d 156 (1988).

A defendant has a right to a proper self-defense instruction when evidence of self-defense has been raised at trial, Com. v. Stokes 374 Mass. 583, 374 N.E. 2d 87, 93 (1978)(quoting Mullaney v. Wilbur 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).

 

C. Self-defense Instruction - "Whether or not"

TR 1291-14 & 1285-17, If you have a reasonable doubt about whether or not he acted on self-defense, your verdict must be not guilty. The use by the judge of "whether or not" caused confusion to the jury and made the self-defense instruction meaningless. "Whether or not" are opposite events and could not result in the same determination by the jury. Jury instructions are constitutionally illegal when they lead the jury to misinterpret the Constitution. Victor v. Nebraska 511 U.S. 1, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994). A defendant has a right to a proper self-defense instruction when evidence of self-defense has been raised at trial, Com. v. Stokes 374 Mass. 583, 374 N.E. 2d 87, 93 (1978)(quoting Mullaney v. Wilbur 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).

To suppose that two contrary demonstrations can exist, is to suppose that the same proposition is both true and false: which manifestly is absurd, Victor v. Nebraska at 1245.

 

D. Reasonable Doubt Instruction illegal - use of to a "Moral Certainty"

TR 1273-10, 1272-16,19, the judge used moral certainty to define reasonable doubt. The use of moral certainty suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard, Com. v. Therrien 428 Mass. 607, (1998). The use of moral certainty was not used with language which lends content and meaning to the phrase. Victor v. Nebraska 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d. 583 (’94).

The instructions are constitutionally illegal when they lead the jury to misinterpret the Constitution, id. The defendant had a right to a proper instruction on reasonable doubt, In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (’70)(the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged).

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Thus the judge’s incorrect reasonable doubt instruction violated Elbery’s Right to Due Process under the Fourteenth Amendment of the U.S. Constitution.

E. Consciousness of Guilt Instruction

Concerning this instruction the judge instructed, TR 1268-17, I am just telling you that is the basic fact which there is some evidence of. The judge referring to the clerk’s son’s testimony that the defendant wanted to leave the area, Harpies, where he got ganged-up and beaten.

By telling the jury what is a "basic fact" supported by evidence the judge was instructing, highlighting, them on fact and invading the province of the jury, Mass. Practice 30A s.1871 p. 262.

F. Earlier statements not proof of fact, TR 1263-10.

Here the judge incorrectly instructed the jury concerning prior inconsistent statements. Earlier statements at the probable cause hearing or grand jury are to be considered as substantive evidence to be used for the full probative value or proof of a fact. Com. v. Forte 597 N.E. 2d 1056, 1058-59, 33 Mass. App. Ct. 181 (’92). Although Aloise deliberately avoided use of the witnesses prior inconsistent statements to defend his client a few mistakenly got to the ears of the jury. All were the result of prior testimony and hence could be used as evidence.

 

G. You may not speculate about what the real facts may or may not have been, TR 1263-10.

This instruction is characteristic of the whole trial. The judge here is telling the jury not to go any further in determining a verdict than the foolishness they were presented by the prosecution in conspiracy with Aloise. Maybe some of the jurors realized that certain evidence at trial was bogus, as per this motion. This instruction invaded the province of the jury, Mass. Practice 30A s. 1871 p. 262. One of the jurors, Audet, resigned from the jury because he could see what the real facts were and what was going on with forelady, Rita Downey, who was drooling to convict via numerous comments during trial.

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H. Citizen’s Arrest and Provocation Instruction – None

There was no instruction on citizen’s arrest or provocation. The judge has a duty to instruct the jury as to the law pertinent to the issues of the case. As per Claim V of this motion citizen’s arrest was an issue.

Per Com. v. Stokes 374 N.E. 2d. 87 an instruction must be given on provocation if there is evidence of such and per Mullaney v. Wilbur 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d. 508 (’75) the government must prove beyond a reasonable doubt that the accused was not provoked. The lack of instruction on provocation is a violation of Elbery’s Right to Due Process under the Fourteenth Amendment id.

The lack of citizen’s arrest instruction causes a constitutional deficiency in that it interferes with the defense of self-defense. The government has to disprove self-defense id. If the jury had known King and his "barroom gang of six" were not legally entitled to chase (assault) and apprehend/beat Elbery their determination about Elbery’s use of self-defense would have been different.

The above errors regarding instructions at trial create a miscarriage of justice as these errors influenced the result of the trial. Com. v. Martin 427 Mass. 816, 696 N.E. 2d. 904 (’98). A new trial is required.

Aloise Deficient

Attorney Louis P. Aloise was deficient as he failed to object to the above instructions given in error or to the instructions that should have been given but were not. Aloise, as per claim V, was against an instruction on citizen’s arrest and failed to ask for an instruction on provocation.

 

XVIII. Ineffectiveness of Appellate Counsel

The defendant had a right to effective representation via his appellate counsel per the Sixth Amendment of the U.S. Constitution, Evitts v. Lucey 469 U.S. 387, 105 S. Ct. 830 (’85), Gray v. Greer 800 F2d 644 ( 7th Cir.’85), as above there are numerous instances of professional deficiencies by Elbery’s appellate attorney since some of the above meritorious issues could have been raised on direct appeal. As a result, the defendant’s appellate counsel was ineffective in his assistance of counsel.

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Conclusion

The above claims, all, constitute one giant miscarriage of justice requiring a new trial for Elbery, Com. v. Freeman 352 Mass. 556, 564, (’67). The above claims constitute a trial that was not fair and a trial that prevented Elbery from having a meaningful opportunity to present a complete defense. The Fourteenth Amendment of the U.S. Constitution guarantees both these conditions at trial. Crane v. Kentucky 476 U.S. 685, 106 S. Ct. 2142, 2146 (’86). New trial is required.


Behold, a black horse, and he who sat on it had a pair of scales in his hand.

 

 

Michael Elbery

6-28-99