V. Failure of Aloise to present evidence and law regarding Kingís illegal citizenís 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.

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 wasnít going anywhere until the police arrived. T.R. 199-24, I said, " youíre not going anywhere. Youíre going to stay here until the Worcester Police arrive.T.R. 219-15, I told him he wasnít going anywhere until the Worcester Police arrived.

King admitted he used force in making his illegal citizenís 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 didnít land. TR 593, 630-8 King and four friends went after Elbery immediately. TR 636 King went to grab Elbery and thatís when Elbery threw a punch. King and Elbery squared-off in the street.


OíConnor, De Pasquale, Traskiewicz-consenting combat but King pursued Elbery

TR 789-1 (Oí 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 werenít 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) Thatís correct. T.R. 395-22, I was a private citizen. The judge agreed there was no cop and only a citizen Ė 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 citizenís 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 citizenís 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 citizenís 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.


The prosecutorís misuse of citizenís 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 Kingís citizenís 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").


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 citizenís 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 citizenís 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 citizenís arrest, inescapably causes need for a new trial. Com. v. Collins 386 Mass. 1, 8, (í82), 434 N.E. 2d 964, 969.


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 (Ď59), 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, (í93), 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.


As above, the absence of instructions on citizenís arrest coupled with the judgeís big instruction highlighting Elberyís 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 Kingís false arrest (illegal citizenís arrest). This rendered the trial arbitrarily and fundamentally unfair by the aggregate effect of the inadmissible evidence that took place after Kingís false arrest of Elbery compounded by the Courtís instruction to use such evidence in the most prejudicial manner possible. McGuire v. Estelle í90 CA 9 Cal 902 F 2d 749.

The "in fact" test is satisfied when the alleged felony which caused the citizenís 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 citizenís 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 citizenís arrest. But Aloise did nothing in terms of informing the jury that there was no legal citizenís arrest by King and in fact King was illegally attacking Elbery in the chase down Shrewsbury Street.


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

1. Alerted the jury there was no legal citizenís 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.

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 citizenís arrest law. At trial Aloise was helping the prosecution regarding citizen's arrest, as he did exactly the opposite, T.R. 1071-1, Iím strongly opposed to either a citizenís arrest instructionÖ.

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 citizenís arrest, see claim VIII.

6. Motion to suppress all evidence resulting from the illegal citizenís 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 prosecutionís evidence was a fabrication to begin with.




    The law was on Elberyís side, by not allowing the jury to know the law regarding citizenís 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 (í84), 104 S. Ct.2052.

    The law in Massachusetts is all evidence must be suppressed that results from an illegal citizenís arrest, Leblanc Com. v. LeBlanc 407 Mass. 70, 75,551 N.E. 2d 906, 909. Since King had no right to make a citizenís 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 citizenís arrest, that if not for Aloiseís deficiencies, as in this claim V surrounding citizenís 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 (í84), 104 S. Ct.2052.