Count X. Failure by Attorney Louis P. Aloise to impeach witnesses with prior inconsistent statements and present the related substantive evidence-Use by the prosecution of perjury in relation to these prior inconsistent statements-Aloise donates false testimony aiding the prosecution.
There were numerous very large and unaccounted for inconsistencies between the probable cause hearing testimonies of this case and the testimonies by the same witnesses, at trial. The failure of Aloise to make known to the jury the existence of these prior inconsistent statements by the witnesses who appeared at both the probable cause hearing and trial resulted in more ineffective assistance of counsel on the part of Aloise, see aff. #24. Probable cause hearing testimony is substantive evidence and allowed for its full probative value as well as impeachment of witness credibility. Commonwealth vs. Forte 33 Mass. App. Ct. 181, 185-186, 597 N.E. 1056, 1058-1059 (' 92).
Further, the prosecution had a duty to correct all perjury during trial amongst these witnesses, as the prosecution not only knew what was said at the probable cause hearing and had a transcript of the probable cause hearing, ADA Mike Ball refers to the transcript frequently at trial. These anticipated discrepancies cause Ball alarm at sidebar, T. R. 222-224. U.S. vs. Giglio 405 U.S. 150, 31 L. ED 2d 104, 108, 92 S. Ct. 763 (í72)(the prosecution has a duty to correct perjury known to them). Failure by ADA Mike Ball to obey the law relating to these prior inconsistent statements, perjury, of the witnesses requires a new trial id.
Cited below are major areas of prior inconsistent statements resulting between the probable cause hearing testimony and trial testimony of this case that was not brought to the attention of the jury by Aloise or the prosecution.
Had a lawyer of average ability presented these prior inconsistent statements to the jury they could have reasonably found that the witnesses were guilty of tailoring and accommodating their testimony for Kingís benefit, as well, they could have found that these witnesses were coached to testify in Kingís favor, therefore, indicating a conspiracy to perjure, suborn perjury and to maliciously prosecute Elbery.
Further, a reasonable jury would have found the prosecution witnesses, King and Schlener, and 2 "friends" of Kingís (De Pasquale and Officer Perma), that were used by Aloise as defense witnesses against Elbery, had no credibility at all and where big liars.
Note that below are inconsistent statements not analyzed in other counts of this motion, see claims I, II, IV, V, VI, VIII for more.
A. Schlenerís testimonies compared between the probable cause hearing and trial.
1. Description of argument in the bar,
direct exam-probable cause hearing
PC 80-15. A. Well, when Michael arrived at the Winner's Circle, he walked in and he said to me, he goes, he said, "what are you doing working here tonight? And I said: "it's Monday night, I work Monday nights, and he said, "no, you don't, you never work Monday's", and I said, "what are you doing, are you telling me my schedule now?" "I work Monday's. I always work Monday's."
So that was that, and then from there, something transpired and I said something to him, something negative. I told him I thought he was opinionated, OK, and then from there we started arguing back and forth and --
PC 81-22 Q. And were you also yelling?
A. No, not particularly, I was making -- I made a couple of statements that I probably shouldn't have. I made a couple of negative statements and he made a couple more back to me, and then we started arguing.
PC 82-11. At that point Michael was very loud, and Tommy King was on the other side of the bar, and he walked over to Michael and started telling him to calm down layoff me, wherein I said to Tom, I said "Tom, this is an argument between he and I which it was and I thought that between us we could solve our argument and things would get better, OK?
PC 82-20. As it was, Tom went back to his seat.
PC 105-8 Q. And your conversation with Mr. Elbery was between you and he alone?
PC 105-11 Q. there was nobody else involved in that, not Sawyer, not D. Pasquale, nobody else?
PC 104-10 Q. Did he have any conversation with anyone else?
A. I don't think so.
PC 105-19 A. I made a couple of wise cracks to him; he made a couple back to me.
PC 107-6. No, I actually asked -- if you remember, I asked Tom King to sit down. I said: it's between he and I, and we can solve it.
PC 107-18. "Go back, Tom, it's between us."
PC 111-1 Q. So when King turned around and came back and sat down, did you have any conversation with Mr. Elbery?
A. No, I walked away. And I can't remember exactly what happened, but I thought we had calmed it down. You know, I think I -- I hopefully said I was sorry, I don't know if I did or not.
Clearly prosecution witness Schlener, who was the bartender and Kingís friend, tells some of the truth at the probable cause hearing. He portrays a situation in which he was the initiator of the argument that involved only he and Elbery, nobody else involved. Elbery, per Schlener, had no conversation with anyone else. King was the aggressor and was told by Schlener to sit down and keep out of it. Schlener apologizes at the probable cause hearing for his insulting Elbery needlessly in public. Aloise should have pointed out to the jury that Schlener never asked Elbery to leave the bar Ė why would he, Schlener was having to good of a time insulting Elbery.
However, Schlener paints a whole new picture at trial about the same bar argument, tailoring his testimony to accommodate King and the prosecution's fabrication.
T. R. 582-21 He was talking to somebody I don't remember, somebody was over in the vicinity, he (Elbery) was acting up a little bit. So I walked up to him and said something I should not have said to him.
TR 583-3. I told him he was very opinionated.
T. R. 583-11. As a result he got very mad. He said, "you don't know anything about this business, your nobody, your this and that. I can buy and sell you."
T. R. 585-3. Well he got really mad and he was kind of steaming at me. And that's when King I guess became aware of the situation.
T. R. 585-10. Then he (King) got out of his chair, came within 3' or so and said, "hey buddy we don't need any of this anymore. Watch it, why don't you just leave.
T. R. 585-17 Q. At some point did you move between King and defendant? A. No.
T. R. 586-9-13. I didn't want a fight and it looked like Elbery was calming down. I said, " Tom, it looks like we are all set. Why don't you slid over."
T. R. 586-15. King went back to his seat.
T. R. 612-16-21 Q. "Some barbs exchanged but nothing requiring you to get protection?"
A. well, at that point he became menacing.
-24. Physically large man semi out of his seat kind of leaning in.
T. R. 616-13 Q. Okay. At some point did you say anything to Mr. King to attempt to dissuade him from having a confrontation with Mr. Elbery? A. no, I didn't.
T. R. 616-20 Q. Did you say to King "go back Tom, it's between us"?
A. That is what I said last hearing. Can I say what I really felt.
T. R. 617-13 Q. Did you say that at the probable cause?
A. Yes, I did.
T. R. 617-14 Q. So that then, which is closer in time to the incident and presumably when your memory would have been better than it is now, you said to the judge on that occasion, that you told King to quote, "go back, Tom, it's between us" am I right?
A. Yes I did. It's not what I'm meant to say.
At trial Schlener has Elbery causing trouble with someone else in the bar prior to Schlener being involved. He changes his testimony to include Elbery being very mad and steaming, acting in a threatening, menacing manner. Schlener, at trial, taylors his testimony to King's favor in order to make King look like a peacemaker rather than an aggressor getting involved in harmless "barbs" that were none of King's business.
Aloise missed all this with the exception of T. R. 616-20, when he asked Schlener if he had told King "go back Tom it's between us". Schlener responded, T. R. 617-17, that is not what I'm meant to say. Whereupon, Aloise allowed Schlener to act like he made an honest mistake at the probable cause hearing, resulting in no impeachment of Schlener or substantive evidence or benefit to the defense.
This deficient handling of prior inconsistent statements between the probable cause hearing and trial, as described in this section A-1 above, allowed the prosecution to change the bar argument scenario to one where Elbery became the initiator, aggressor, bothering at least one other patron before Schlener even got involved, a big uncontrollable, steaming, threatening man. This was not only prejudicial to Elbery in terms of the jury's evaluation of him but it allowed the jury to believe Tom King was needed to protect the public like a white knight, from Elbery.
2. Schlenerís testimonies regarding Elbery exiting the bar,
Probable Cause Hearing-Direct Exam
PC 85-4. He (Elbery) went out the door and went something like this. (Schlener indicating with hands).
PC 85-7 Q. Now, when you say "something like this," you're curling your two hands with your fingers?
A. Right, some kind of movement like come after me.
T. R. 590-8-13. He still had the beer bottle in his hands going like this (indicating) went out the door, backwards.
T. R. 669-18 Q. Come and get me with a broken bottle and he was just backing up as he was waving the hand around, correct?
-21. A. Yes.
Schlener changes his testimony of the probable cause hearing from Elbery curling his two hands, i.e., making them empty hands, to a trial testimony of Elbery backing out the door with a broken bottle waving it around in a menacing gesture. Aloise failed to bring this to the jury's attention. The prosecution portrayed, via fabricated evidence, Elbery as a madman assaulting everyone with a broken bottle. And once again Ball is leading his own witness with fabricated evidence and Aloise does not object.
3. Schlenerís testimonies regarding somebody yelled, "Call the police".
Probable Cause Cross-exam
PC 113-8. Somebody yelled, "call the police". I unfortunately waited.
T. R. 588-14. I went to the back of the bar to go around, Tom King yelled, "call the police".
-18. He called "call the police".
T. R. 590-20. Next thing went around bar. King told me to call the police, I didn't.
T. R. 626-11. Are you absolutely certain Mr. King shouted or yelled or said call the police, are you absolutely certain of that?
-14. Yes, I am.
Schlener for the benefit of Tom King alters his testimony at trial to include Tom King as that "somebody" who yelled, "call the police". By testifying this way Schlener puts King in the position of a do-gooder and a person always conscious of the rightful procedure and authority before taking any action.
Schlener did not want to testify as he did at the probable cause hearing about this incident because the jury would see King as one eager to assault and get involved in the gang beating of Elbery. Schlener did not call the police because nobody got injured in the bar and the gang was beating Elbery in the street.
Note, King testified at the probable cause hearing, P.C. 54-19-23, he went right out after Elbery. There was no mention by King that he called for police, but see section C this claim.
4. Schlenerís testimonies regarding his exiting the bar in time for him to observe Elbery throw that "first punch" at King, and Aloise aiding the prosecutionís perjury via leading questions and summation of the prosecutionís falsified theory of the case.
PC 87-4 Q. Now you, yourself, went outside to the doorway? A. Yes, after I checked on the girl.
PC 113-23 Q. How long do you wait before anything else happens that you were involved with?
A. About two minutes maybe, at the most.
PC 114-2 Q. And during that time is when you determine that the young lady who was injured actually did not have glass in her eye? A. Right. (Schlener here admits Mann is not injured).
PC 114-10 Q. And after that two minutes, did you go outside? A. yes.
PC 118-11 A. What happened after that is we ended up going out to the doorway to the Winner's Circle.
PC 118-14 Q. now, you said, "we ended up". Beside yourself, did anyone else look out?
A. Well I think Sawyer was there at the time and whoever --
PC 120-8 Q. so now at some point after that short period of time goes by, you and I think you said Sawyer, went out onto -- outside the entrance onto Shrewsbury Street, to look to see what was -- what if anything was going on?
PC 124-5 Q. You gestured that King had his arms outstretched?
A. Like this.
Q. Like he is going to grab, right?
PC 125-15 A. Well, he threw a couple of punches.
Q. Elbery did?
A. And then they locked and they went down and the other guys were around them and I couldn't see them, you know.
PC pages 127-128. Wyne tells Schlener to call police; Schlener does 3-4 minutes after the incident started inside the bar.
At the PC Schlener is clear that he waited two minutes, after checking a girl, before exiting the bar to make observations of Elbery and King 50-100 yards down Shrewsbury Street. He is clear that Sawyer was already in the doorway. Schlener says, per the PC, it was at this point in time he saw Elbery throw a couple of punches. Next, Wyne tells Schlener, with Sawyer present, to call the police because King's eye is out and Schlener says it is 3-4 minutes after the incident started inside the bar that Schlener calls the police.
At trial Schlener, knowing his time frame was a problem and that Sawyer's testimony at the probable cause hearing, PC 239-19-21, was that Schlener exited the bar last, proved Schlener to be lying, changes his story about exiting the bar and seeing Elbery allegedly hit King first.
T. R. 591-2. Then I ran around the bar and I checked on the girl.
T. R. 593-18 Q. After you initially observed the girl where did you do go?
-20A. I went out the front entrance.
-24A. I look down the street.
T. R. 594-2 A. I saw Mr. King going after Elbery with his arms out saying...
-10 A. He (Elbery) through a punch.
-12 A. I was too far away to really see what happened. After they tangled.
T. R. 628-24 A. The whole thing was probably a minute, minute and a half maybe, before going out to observe the confrontation.
T. R. 629-11 A. He (Sawyer) stayed with Chris, and at some point he was in the hallway, out in the street with me.
-16 Q. Sawyer went out of the bar after you?
A. (King) Right.
T. R. 656-9 Q. Now do you recall that when you went outside of the bar after everybody filed out, and Elbery had left, do you recall going out with Sawyer?
-19 A. Basically I went out independently of myself. Sawyer happened to be the person next to me who I was --
T. R. 657-1 Q. But I am asking you whether or not as a matter of fact what happened was that you both went out at the same time after obviously both determining that Chris was not seriously hurt?
-5 A. Right.
T.R. 657-6 Q. And you said so at the probable cause hearing, did you not, that you went out together, right?
-9 A. (Nodding)
T. R. 658-5 A. Right that was after I called the police. Is that what we are talking about?
-7 Q. (Aloise) No I am talking about the time you first went out.
-9 A. Sawyer was with the girl, and then after the phone call the second time, that is when Sawyer was --
-12 Q. (Aloise sorting out Schlener story) So you are saying that Sawyer went out one time and you went out twice, and it was a second time that you went out, you went out either with or shortly after Sawyer?
-16 A. Right.
-17 Q. (Aloise) Am I right?
-18 A. Right.
The above comparison shows a blatant case of perjury on Schlenerís part, with the help of Aloise, all so Schlener could more comfortably and convincingly lie about Elbery "throwing the first punch".
The most potent perjury/fraud on the court or procurement of perjury is by Aloise, T. R. 658-12, when Schlener gets caught in his own lies regarding his exiting the bar. Aloise simply ignores all that was testified to at the PC hearing and invents a new perjured story in order that Schlener doesn't get caught in front of the jury lying. Schlener per, T. R. 658-16 & 18, had no choice but to accept Aloise's version of events, not even Schlener was that good of a liar. Why wouldn't Schlener agree with Aloise, he got Schlener out of a serious jam on the witness stand.
This is conspiracy to commit perjury and to maliciously prosecute, by Aloise, his own client. Further, it is conspiracy to violate Elbery's constitutional rights, the right to Due Process and assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of United States Constitution.
The only reason Aloise asked about Schlener's PC testimony was due to the insistence and badgering of his client, Elbery. See affidavit #16. This insistence was because it would have been impossible, as per Schlener's PC testimony, for Schlener to attend to a girl and get out of the bar two minutes after the incident started and still have seen the beginning of the contact between King in Elbery.
The perjury/conspiracy by Aloise, as per T. R. 658-12, allowed the prosecution to cover up the obvious truth, Schlener did not and could not have seen any contact between Elbery and King. There was not enough time. Schlener with the cooperation of Aloise covered up the discrepancies of Schlenerís PC and trial testimony regarding his exiting the bar and seeing a fight.
The jury believed, as a result, that Schlener simply did as he testified, why not, Aloise, the defense attorney, confirmed everything.
Aloise should have pointed out to the jury the discrepancies between Schlenerís PC hearing testimony and trial testimony. This should have been done by Aloise with the objective of showing the jury that Schlener was perjuring himself in order to maintain he was a legitimate witness to King's claim that Elbery threw that first punch at King.
Specifically, instead of aiding the prosecution by sorting out and fabricating Schlener's new story, Aloise should have itemized, to the jury, including the prior inconsistent statements made by Schlener under oath at the PC hearing regarding his exiting of the bar as follows:
a. At the PC hearing there was no mention of two exits by Schlener from the bar, by any witness including Schlener. Schlener testified, per the PC, he exited once and Sawyer was already outside when he allegedly saw Elbery throw the "first punch" at King.
b. Both Mann T. R. 172-9, and Dr. Sawyer, PC 239-21, testified Schlener was the last to leave the bar and any action outside especially involving King and Elbery was over. This also should have been brought out at the closing argument by Aloise. P.C. 240-3, De Pasquale also claimed Schlener was still in the bar and last to leave after he (De Pasquale) left the bar 5 minutes after the incident.
c. Schlener testified at the PC hearing he was outside the bar with Sawyer when, as a result of Wynne telling him King's eye was out to "call the cops", he went back in the bar and phoned the police. According to Schlener, PC 127 through PC 129, Wynnís false alarm resulted in Schlener calling the cops 3-4 minutes after Elbery exited the bar, and after the fight incident was over. Schlener claimed at trial he went out initially, leaving behind Sawyer and girl, then came back in the bar and called the police, whereupon, he exited the bar a second time meeting Sawyer.
d. Schlener testified at the probable cause hearing that he waited two minutes before exiting the bar after tending to girl. At trial he trimmed his timing of exit to one minute to a minute and half in order to make it more believable that he could have been outside the bar in time to see Elbery throw "that first punch".
Both Kingís and Elberyís testimonies agree that the chase-fight activity was non-stop, they agreed there was no break in the action. Even if they disagreed on everything else. How long would it take a man to run 75 yards? Maybe a slow man would take 12 seconds. How could Schlener have gotten out of the bar in time to see the entire fight if he waited even a minute before exiting the bar?
Aloise should have highlighted to the jury that Schlener was claiming King was attacking Elbery, TR 594-2, King going after Elbery with his arms out. That was the prosecutionís evidence even if everything Schlener said at trial was a documented lie.
B. Mitchell De Pasquale's discrepancies between the probable cause hearing and trial testimonies ignored by Aloise.
1. Conflict described by D. Pasquale inside the bar, the initiation of the incident.
At the probable cause hearing of this instant case defense witness De Pasquale, and friend of the prosecution witnessesí-"friends", testified that King had to be re-strained that he was one of the ones who stopped King from getting any closer to the defendant, Elbery. King was depicted by De Pasquale as the aggressor who had to be held around the waste to stop King, Elbery was not interfered with as he sat down on his own according to De Pasquale, as below,
Probable Cause Hearing-Direct Exam
PC 189-14 King walked over to where Michael was.
PC 190-3 I was one of the ones that got in between.
PC 190-9 I was one of the ones that got up to make-to try to make some peace.
PC 194-13 I stepped in front of Tommy to face him and I was holding him around a waste.
PC 194-20 "Come on Tom let's not do this, come on and sit down. Let it go." I tried to coax him back to his seat.
PC 195-1-6 No I did not have any conversation with Mr. Elbery. He sat back down.
At trial De Pasquale changed his testimony (lied) in King's favor. As per transcript below he described a much milder mannered King. De Pasquale claimed to be an off-duty bouncer at the Winnerís Circle Bar. During direct examination by Aloise, De Pasquale claimed he didn't have to do anything to King, that he stopped himself. De Pasquale testified at trial that he merely touched King on the hip section.
T. R. 700-19 Q. How close did King get to Elbery?
A. Not that close we stepped in between them.
T. R. 701-5 I didn't have to do anything. Tommy Stopped.
T. R. 701-12-18 Went in direction of Elbery after getting off stool in front of Tommy and told him to go back to his seat.
T. R. 701-24 I kind of touched him on the hip section and asked Tom to calm down and go back to his seat.
T. R. 703-13 Also said "you don't need this. Go back to your seat. We don't want any trouble.
T. R. 703-8 Q. Who stopped him (King)?
-9 A. Nobody. He stopped himself.
During cross-exam by Ball, De Pasquale made even bigger changes in his testimony (bigger lies), claiming he made some mistakes at the probable cause hearing and that he at no time grabbed King around a waste. There was no need for Ball to worry about De Pasquale's prior testimony because Aloise did not bring them to the attention of the jury. Rather on redirect Aloise gets De Pasquale to admit he put his hand on King's waste, T. R. 722-21-24, by which Aloise once again adopts the prosecution's account of events to the prejudice of his client.
T. R. 724-16-20. Didn't touch Elbery afraid of getting punched.
T. R. 728-10 Q. You still made some mistakes at the probable cause hearing? A. Yes.
T. R. 736-7 Q. You at no time grabbed King around the waste and pulled him away? A. No.
T. R. 722-21 Q. Now at any time while you were standing up between Mr. Elbery and King, did you put your hands-on Mr. Kings waste? A. Yes, I did.
C. Louis P. Aloise ignores discrepancies between Kingís probable cause hearing and trial testimonies, conceals evidence about the prison guards who were with King.
1. About the girlís alleged injuries.
PC 52-1 Q. Isn't it fair to say you don't know and didn't know at the time, certainly, how badly the female was hurt, whether or not it was just a cut on the face that bled or something more serious; Correct?
PC 53-6 Q. Now when Officer Perma's report indicates that Mr. Elbery struck a girl in the eye, you don't know that to be true, do you, from your observations?
-10 A. Right.
T. R. 194-4. (King Testifies) One of the women had her hand to her face and she was bleeding.
-7. Coming around her hand, out of her hands, through her fingers down her face.
As seen above King does a stellar job of lying about a girlís injury in order to gain approval from the jury for his actions and at the same time trying to fabricate a "felony" by Elbery. And Aloise conspires with King, refusing to cross-examine on this issue of the girl's injuries, and covers up the true evidence. King did not know, as he testified at the PC, about any girlís injury. This is because there were not any. Was this girl, Mann, really in the bar that night?
2. About the mysterious prison guards seated with King at the bar,
PC 30-22 (King) The prison guards are acquaintances.
T. R. 269-13 Q. Are these people, these two correctional people that you did not know before you went into the barroom that particular night?
A. (King) Yes, sir.
Aloise being forced by his client to ask about the prison guards, see affidavit #17, falls shot in his duty. Aloise allows King to say he doesn't know them after testifying at the PC that they were acquaintances. In fact, Aloise leads King to say he did not know these guards.
Aloise knew exactly who the guards were, not just King. Aloise had Mark Pinkham, one guard drinking with King and the person who drove King to the hospital, listed as a defense witness, see Exhibit I. Aloise had spoken to Pinkham many times and allowed the jury to believe that these guards drinking with King were unknown to everyone involved with the trial. Further, Aloise allowed the jury to believe there were two sets of prison guards that night during the incident. Pinkham was the same guard at the bar with King as the guard who drove King to the hospital. Aloise in conspiracy with the prosecution suborned this perjury at trial. This is also fraud upon the Court.
As my appellate lawyer, Bobby Scheketoff said, "I thought it strange that there were just, coincidentally, 2 sets of prison guards.
3. In reference to King and the police being called, Kingís testimonies differ as follows:
PC 10-22 (King) Jeff was on the phone, and it was my understanding that he had --. That he was calling the police.
Probable Cause-Cross Exam
PC 55-2 Q. (Aloise) Did you observe that Jeff Schlener called the police, or did you know that he called police after?
-5 A. I knew he was over at the phone, and I --
-9 A. I knew he had to be calling the police; yeah.
-11 Q. So you had a fair assumption at least that Mr. Schlener was on the phone to the police, and you presumed that the Worcester police would respond?
-15 A. Right.
King, at the probable cause hearing, makes no claim he yelled, "call the police".
TR 195-18 (King) I yelled to somebody to call the police. Mr. Schlener had gone to the rear of the -- -- reached around where the phone was, so I thought he was calling the police.
Aloise allows King to look like a conscientious good citizen to the jury. Allowing King to testify that he took the proper precautions and yelled for the police before taking the law into his own hands. Coincidentally, Schlener changed his story, this claim X section A-3, about the police being called in order to help King and fit his trial lie.
4. Aloise allows King to cover up the fact that the entire incident/fight took place in the street, not the sidewalk. The discrepancies are as follows:
PC 9-22. I chased him out the door.
-24. Yes, down Shrewsbury Street.
PC 10-13. Ran down Shrewsbury Street approximately 50 yards.
PC 11-4 Q. When you caught up with him on Shrewsbury Street; what did you do?
-6 A. Listen you're not going anywhere.
PC 20-13 Q. During the course of the struggle with Mr. Elbery on Shrewsbury Street, do you recall anything he said?
PC 55-24 thru 56-7. (King) No, I ran out the door, ran out into Shrewsbury Street and ran down Shrewsbury Street and I ran after him.
T. R. 198-5 Q. Did you see the defendant go into the street at all?
-7 A. No, sir. Not at all.
King and the prosecution had good reason to change the case scenario to the sidewalk, the jury may have found it even more difficult to believe that Elbery came to a screeching halt in the middle of a main street, as King testified, TR 197-22. This is more prosecution lying ignored by Aloise.
By ignoring these discrepancies about the street and Elberyís route in fleeing from the bar, Aloise allowed the jury to more easily believe that Elbery was not in fear and not fleeing from Kingís assault and that of the "gang of six". It would have been hard for the jury to believe that Elbery came to a screeching halt in the middle of the street as opposed to what King said, T.R. 377-7,8, TR 386-15 thru 21, TR 197-22, He came to a stop on the sidewalk.
6. About the amount of time spent in the hospital by King. Clearly, Aloise read King's medical report.
Probable Cause Hearing-Direct
PC 16-21 Q. How long were you in the hospital?
A.(King) four hours.
T.R. 478-18 Q. Your arrival was 2:10 a.m. and the time of your discharge was 3:35 a.m., am I write? (Aloise reading from Ex. A-Kingís medical report).
-23 A. Yes.
Aloise clearly read King's medical report, but did not tell the jury that not only was King at the hospital for a mere 1:25 minutes but this included the time King waited for Arinella to arrive on call. Aloise did not inform the jury that King lied at the probable cause hearing and grand jury in order to make his red eye worse, saying he was in the hospital for four hours, PC-16-21.
Aloise should have underscored, to the jury, that this brief time in the hospital, 1 hour and 25 minutes, to be examined by a nurse and doctor, including the time it took the Dr. to arrive on call was indicative of Kingís minor/superficial injuries or red eye.
Constitutional Violations-Aloise and Ball
For the above failures enumerated in this claim X Louis P. Aloise was ineffective in his assistance of counsel, Aloise suborned perjury, conspired with the prosecution to maliciously convict Elbery, fabricated evidence for the prosecutionís benefit against his client, committed perjury/fraud on the court, advocated the prosecution's perjured story working to the prejudice of his client, failed to apprise the jury of a landslide of prior inconsistent statements, all substantive evidence, made by various witnesses. Clearly, this claim proves there was no adversarial relation at trial, that better work may have produced something better for the defense. The failures here show that the trial was unfair and the verdict cannot be relied on, there is a reasonable probability that if Aloise handled these witness discrepancies (perjury) with the care of an average lawyerís performance the verdict would have been different. The adversarial testing as required by the U.S. Supreme Court was not met causing a trial that was unfair and a verdict that can not be relied on. Strickland v. Washington 466 U.S. 668, 684-685, 80 L. Ed. 2d 674,691-692, 104 S. Ct.2052.
Aloise as a result violated Elbery's Sixth and Fourteenth Amendment of the U.S. Constitution the Right to Effective Assistance of Counsel, and a fair trial, as provided by the Due Process Clause.
Attorney Aloise, regarding this evidence in this claim X, was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).
ADA Mike Ball knowingly allowed the above discrepancies amongst the three itemized witnesses knowing that under oath at the probable cause hearing they had presented evidence which exonerated Elbery. Ball and the DA's office in Worcester are guilty of conspiracy to violate Elbery's constitutional rights. Ball and company knowingly allowed this perjury, as itemized in this claim, and made use of it without making the required correction in order to maliciously convict Elbery. Giglio v. U.S., 405 U.S. 150, 31 L. ED 2d 104, 108, 92 S. Ct. 763 (í72). (the prosecution cannot knowingly use perjury to convict and they have a duty to correct all perjury); Commonwealth vs. Tucceri 589 N.E. 2d. 1216, 1219, 412 Mass. 401, 405, (í93), (new trial required when prosecution knowingly uses perjury). Knowing use by the prosecution of fabricated evidence, as is abundant in this claim X, is a violation of the Fourteenth Amendment Due Process Clause of the U.S. Constitution. This claim X alone is of sufficient constitutional error to require a new trial for Elbery and convict numerous members of the Worcester DA's office and Aloise of various criminal counts. As a matter of law a new trial is required id.
XI. More ineffectiveness by Aloise during opening statement, argument, directing cross-examination-Aloise adopts, confirms and presents the prosecution's theory of the case-Aloise presents prejudicial evidence about his defendant/client.
Elbery owned/lost the infamous Mulcahy's Bar
TR 121-1 (0/S Aloise) Fulfill a lifelong dream of becoming an owner of a barroom.
TR 121-5 (0/S Aloise) He owned a local Tavern known as Mulcahy's cafe at Webster Square in Worcester.
TR 121-7 (0/S Aloise) As a result of factors beyond Elbery's control, sometime before 9-29-92, Mr. Elbery lost the bar. Went out of business, and was sensitive and affected adversely by the fact he lost his business.
The only object to this information to the jury by Aloise was to insult and discredit Elbery. Attorney Aloise represented this defendant during the eviction proceedings that caused this defendant to terminate business at his bar, in '92, see Ex. N. The defendant, as Aloise well knew, went out of business because he lost his lease. The landlord and his daughters now run a bar at that location. Mulcahy's was a well-known biker bar in Worcester. Aloise via these opening statements gave the impression to the jury that Elbery had done something wrong. Aloise needlessly associated Elbery with an "alleged" outlaw bar, Mulcahy's. Further, Aloise made Elbery look foolish by saying "owning a bar was a lifelong dream". Elbery never told Aloise any such thing; in fact Elbery told Aloise he hated many elements surrounding the running of the bar and wanted to do something else, see aff. #44. Elbery told Aloise years before '93-'92 that he could not stand the bar anymore.
TR 122-20 (O/S Aloise) Mr. King... took it upon himself to get up and tell Mr. Elbery in no uncertain terms to shut up and not bother Mr. Schlener.
TR 292-13 Q. (Aloise) And in substance, you told him you wanted him to quiet down and be quiet; am I right?
A. (King) Yes.
TR 292-16 Q. (Aloise) Did you use those words or did you use more harsh language than that?
A. (King) I told him I asked him to quiet down.
TR 294-2 Q. (Aloise) Now when you said or asked or told what ever it was Mr. Elbery to quiet down, he responded to you in no uncertain terms basically to mind your own business, Right?
TR 294-9 A. (King) He asked me to step outside.
-10 Q. (Aloise) Right. Did you are ask him "okay, let's go outside"?
-12 A. (King) No. I said, "I wouldn't waste my time." I turned around, walked around sat down.
-14Q. (Aloise) Your response was, "I wouldn't waste my time". Is that right?
-16A. (King) That's correct sir.
In these above transcript citings regarding the confrontation in the bar Aloise adopts and confirms the prosecution's theory of the case. He continually agrees with and highlights the prosecution's theory of the case with the use of right after King presents his version of the facts. Aloise in opening statement presents King a concerned citizen trying to shut-up an out of control Elbery. This is not what Elbery told Aloise, Elbery's version of the facts were totally different, see TR-1032 through 1040. And of course, Aloise did no cross-examination on how the incident precipitated in order to present his client's version of the facts. Elbery's version of the facts was also that described at the probable cause hearing by King's friends.
The "touching" by De Pasquale
TR 486-2 Q. (Aloise) I ask you... whether or not Mr. D. Pasquale grabbed you around waste. You said no. You said he touched my stomach, right?
-6 A. (King) Yes.
TR 486-7 (Aloise) Okay.
TR 486-18 Q. (Aloise) look, are you telling us that you never went by where Mr. De Pasquale was sitting?
-20 A. (King) That's correct.
-21 Q. (Aloise) All right.
Aloise questioning King about him going by De Pasquale during the bar confrontation and having to be restrained, as was the evidence at the probable cause hearing via numerous witnesses allows King to say the opposite. Aloise with the use of "all right", "Okay" and "right" confirms King's perjurious testimony. The evidence at the p.c. hearing was that De Pasquale and others had to restrain King and Elbery stayed at his bar stool, see claim X-B-1.
Regarding the chase down Shrewsbury Street
TR 125-22 (0/S Aloise) And he was running with Mr. King directly behind him, and the other four directly behind King.
TR 126-13 (0/S Aloise) In any event (King) tackled Mr. Elbery. Tackled him, put him to the ground, rolled him out into the Street over the berm or over the curb into Shrewsbury Street.
TR 377-7 Q. (Aloise) Mr. Elbery abruptly stopped; am I right?
TR 377-19 Q. (Aloise) So that it is clear that one you chased him two, he abruptly and without explanation, that is without telling you anything or saying anything to you stopped, just stopped dead in his tracks; am I right?
TR 380-6 (Aloise)Q. Did you tackle him thereby causing him to stop?
A. (King) No.
TR 386-15 Q. (Aloise) You also testified that after you chased Mr. Elbery and after he abruptly stopped and after you were face-to-face with him, that you told him that he wasn't going to go anywhere until the Worcester police arrived; Am I right?
-21 A. (King) Correct.
TR 401-2 (Aloise) Q. Do you recall testifying at the PC hearing that you said you moved your arms in an outstretched position? Do you remember saying that?
-6 A. (King) I said I had my arms out to the side, with my arms open and facing him.
-8 Q. (Aloise) Show us exactly what you did?
TR 401-10 Q. (Aloise) Now when you said you grabbed onto Mr. Elbery, you testified at the PC hearing that you tackled him. You testified here today, if I understand you correctly, that you swept him or you took his legs out from under him?
TR 401-16 A. (King) I knocked him to the ground. I grabbed him around the arms and knocked him to the ground.
-18 Q. (Aloise) You grabbed him around what? The waste?
-19 A. (King) The upper torso. He is about my height.
-23 Q. (Aloise) While you are still facing him, right?
A. (King) Yes.
TR 403-1 A. (King) He threw several punches at me as I have testified.
-3 Q. (Aloise) I understand that.
TR 404-20 A. (Aloise) So, you deny, I take it, that after tackling Mr. Elbery and going to the ground, that the others jumped on top of him and beat the hell out of him as well?
TR 425-13 A. (King) I was trying to knock his hand out of my eye and take his hand out of my eye.
-15 (Aloise) Right. Q. You grabbing onto him, right? After your eye was injured you were able to grab onto him, wrestle him to the ground, roll around on Shrewsbury Street, roll into the gutter, and get you on top of him, and you've got enough control to get up and get off him; Am I right?
TR 425-22 A. (King) I knocked him on the ground. And when he landed, I was on top of him.
-24 (Aloise) Right.
TR 426-1 A. (King) Okay. I rolled off him onto the ground and was helped up when I yelled for somebody to help me.
TR 427-15 Q. (Aloise) So that the fact that earlier in your testimony you said you never heard anybody say anything, you never heard anybody behind you, you did, in fact, hear footsteps?
-20 A. (King) After I was on the ground, yes.
-21 Q. (Aloise) But before --
-22 A. (King) As I have testified.
-23 Q. (Aloise) But before you heard nothing, right?
TR 428-18 Q. (Aloise) There is no question that when you rolled off of Mr. Elbery and Mr. Elbery is down on the ground, Wynne is there and the others are there, right?
TR 432-17 Q. (Aloise) When you were struck in the eye the first time, do you have a recollection of moving your head away, at least turning away from?
-18 A. (King) I was trying to get his thumb out, yes.
TR 433-12 (Aloise) When the thumb is in the eye, you grab his hand, you get it away, he try to get it away, you grab him, you go down to the ground, right? All that is taken a very short period of time; Am I right?
-17 A. (King) That's correct.
TR 435-16 Q. (Aloise) after you had got poked in the eye the first time, sir, and were able to get Mr. Elbery's hand away, could you tell us what at that point you didn't simply turn around and get away to avoid any further injury as opposed to continuing to hold onto Mr. Elbery and tackling him to the ground as you indicated that you did?
TR 436-2 Q. (Aloise) Well, you were there having no initial intention, it was your testimony, to physically assaulted, no intention of holding him, right?
TR 436-8 Q. (Aloise) When you got injured in the eye that you have indicated in the manner that you did, why didn't you just get away once you got Mr. Elbery's hand away from your face and leave?
T R 482-18 Q. (Aloise recross) Now despite the injury you received to your eye after you say Mr. Elbery first poked you, you were able blind to continue or to get Mr. Elbery's hand out of your eye, to hold onto him, to tackle him to the ground, to get on top of him and to get off of him, all the time in which you had suffered an eye injury that ran did you in your testimony blind; Am I right?
484-2 Q. (Aloise allowed question after objection) Do you recall that question? Is that your answer yes?
A. (King) Yes.
Once again Aloise crusades the prosecution's version of the facts with the constant use of "right" and I understand that after King testifies prejudicially and the opposite to what Elbery testifies to. Elbery gave Aloise a whole different version, (including backpeddling while defending himself against the two prison guards, TR 1046-6, and a gang chasing Elbery down the street, T.R. 1045-5), of facts but Aloise refused to do any impeachment of King or present his clients facts of the event through cross-examination. As above, Aloise agrees and confirms/adopts King's entire chase-fight scenario.
Elbery testified that De Pasquale tackled him around the ankles football style when he was going between two cars onto Shrewsbury St., that he was defending against several attackers as he was trying to escape overwhelming odds while running 100 yards down Shrewsbury St.. Elbery testified there was no statement by King or verbal confrontation, but rather King jumped on top of Elbery after he was already football tackled by attackers on Shrewsbury Street. King claimed Elbery just stopped on the sidewalk for no reason, this is totally the opposite of what Elbery said. See T.R. 1043 through 1049 for Elbery's testimony.
Worst of all, Aloise repeatedly confirms and adopts King's claim of eye injury and cause.
That King was waiting for the police
TR 437-2 Q. (Aloise) You also knew, or reasonably assumed anyway that the police were called, right?
-4 A. (King) Yes, sir.
TR 386-22 Q. (Aloise) and even though you didn't see Mr. Schlener make any phone call or hear him express that he was going to make the phone call, you, as you testified earlier, assumed that was what he was doing? A, because a young woman appeared to be hurt, and B, because you saw him go in the direction where you knew the phone was, right?
387-6 A. (King) Yes.
-7 Q. (Aloise) So it is reasonable to conclude then that you, as you were chasing Mr. Elbery down the street, assumed that the police would be on the way?
-11 A. (King) Yes, sir.
Aloise advocates King's cause and the prosecution's theory that King wasn't a cowardly mean spirited bum and part of the barroom "gang of six" that rushed out after Elbery to gang up on him. Rather Aloise portrays King, contrary to the probable cause hearing, as an individual conscious of the right thing to do via the police. See claim - X-C-3. The deficiency here, claim XI, by Aloise shows that he again was not representing his client's best interests and the adversarial process required to have a fair trial failed. This satisfies the standard for ineffective assistance of counsel requiring a new trial as defined by the U.S. Supreme Court, Strickland v. Washington 466 U.S. 668, 687, 80 LED 2d. 674, 693, ('84). Better work by Aloise just on this issue may have produced something material for the defense, as above, thus these deficiencies in this claim satisfy the Massachusetts standard for ineffective assistance of counsel requiring a new trial, Com. v. Saferian 366 Mass. 89, 96, ('84).
The jury was misled at trial by this false evidence as presented in this claim XI. This being a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564 (' 67) (mislead the jury on material evidence the trial is unfair requiring a new trial).