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

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King's Demotion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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