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.
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.
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.
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.
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
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, 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.
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 or deadly force 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.
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.
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.
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
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).
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.
Had Aloise presented King's hospital report, Exhibit A, and real evidence (section B-2 and A-1 of this motion) 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.
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.
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.
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-1, 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.
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.
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).
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
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-
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.
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
leaking vitreous fluid, yet it was plainly written on R. N. Grenier's medical report, Exhibit A-1, 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 Louise 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.
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.
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).
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.
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-1, 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.
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.
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 Louise 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.
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.
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).
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).
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.