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.
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?
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?
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 defendant’s 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.
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 Raphaelson could understand English, PC 76-2 I thought he (King) said he never saw it? I thought he said he never saw it? When Raphaelson 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).
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
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 an 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.
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.
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:
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.
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.
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).
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.
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).