COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

 

 

CASE NO. 02-P-318

 

MICHAEL ELBERY,

                                 APPELLANT

V.

COMMONWEALTH OF MASSACHUSETTS,

                                   APPELLEE

__________________________________________________________________

APPEAL FROM THE DENIAL OF A MOTION FOR NEW TRIAL

FILED UNDER RULE 30B OF THE M.R.C.P. AT WORCESTER SUPERIOR COURT

____________________________________________________________________________

APPELLANT'S REPLY BRIEF

 

Michael Elbery

168 Fairfield St.

Needham, Mass. 02492

781-444-7324


 

TABLE OF CONTENTS

 

Table of Authorities                                    ii

Table of Abbreviations                                  iv

Reply #1- Contrary to the Appellee, the trial evidence of "Christiana Mann's Cut Face" was perjury.                 1

Reply #2- There was no Probable Cause for King's false arrest of the defendant, even if the prosecution now claim King acted as a police officer.                            6

Reply #3- Since the Appellee agrees that the evidence presented at trial to the jury about the alleged victim's eye injury was perjury a new trial is required.           13

Reply #4- The Appellee admits that the judge, prosecutor, and defense attorney knew the content of the alleged victim's medical record while allowing the perjury at trial.                                                    15

Reply #5- There was never an issue at trial about whether Dr. Arinella's report was legible or understandable for a jury.                                                     16

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Reply #6- Dr. Arinella's report is documented to a medical scientific certainty to be dispositive of the Conviction, Not Cumulative Evidence.                                  18

Reply #7- Argument VII of the DBr. complies with M.R.A.P.- Rule 16, the appellee misstates Rule 16a4.                20

CONCLUSION:                                               20

ADDENDUM:               Worcester D.A.'s Brief               

                         Certificate of Service

TABLE OF AUTHORITIES

Mass. Cases:

Broussard v. Great A&P Teas Co., 324 Mass. 323, 86 NE2 439 ('49)                                                     10

Com. v. Baldwin, 24 Mass. App. Ct. 200 ('87)          15, 17

Com. v. Clairborne, 423 Mass. 275, 280 (1996)           7, 8

Com. v. Collins, 386 Mass. 1 ('82)                         6

Com. v. Ennis, 2 Mass. App. Ct. 864, (1974)               17

Com. v. Harris, 11 Mass. App. Ct. 165, 415 NE2 216('81)                                             7, 8, 9

ii

Com. v. Hawkins, 157 Mass. 551, ('83)                      3

Com. v. Kerr, 409 Mass. 284, 565 NE2 1201 ('91)        10, 9

Com. v. Klien, 372 Mass. 823 (1977)                       11

Com. v. Lam Hue To, 461 NE2 776, ('84)                     2

Com. v. Moreira, 388 Mass. 596, 447 NE2 1224 ('83)     9, 12

Com. v. Sarmanian, 426 Mass. 405, 688 NE2 973 ('98)       19 Com. v. Tucceri, 412 Mass. 401, 589 NE2d 1216 ('92)        5

Com. v. Vaughn, 23 Mass. App. Ct. 40, 498 NE2 1072 ('86)  17

Supreme Court of the United States:

Berger v. United States, 295 U.S. 78, (1935)               6

Giglio v. United States, 405 U.S. 150('72) 5, 12, 14, 16, 18

Kyles v. Whitley, 514 U.S. 419 ('95)               2, 12, 16

Mullaney v. Wilbur, 421 U.S. 684 ('75)                    12

Napue v. Illinois, 360 U.S. 264 (1959)                    12

Reid v. Georgia, 448 U.s. 438 ('80)                       11

Strickland v. Washington, 466 U.S. 668,('84)       6, 12, 19

Terry v. Ohio, 392 U.S. 1 ('68)                           11

United States v. Agurs,427 U.S. 97 ('76)               5, 16

 

iii

Federal Cases:

Engleman v. Progressive Machinery Corp. 156 F. Supp. 46 (D. Mass. (1957)                                              10

Amendments to the United States Constitution:

Sixth Amendment                                          12

Fourteenth Amendment                                     20

Legal Treatises, Encyclopedias, Digests, etc.

Mass. Practice, Vol. 14A ('96)                           11

Mass. Practice, Criminal Law, Vol. 32 2001               10

Restatement: Torts 2d, s. 667                            10

State Rules of Court:

M.R.A.P. - Rule 16                                       20

TABLE OF ABBREVIATIONS

"A&B-DW"    Assault & Battery by Means of Dangerous Weapon

A.D.A.      Assistant District Attorney

Add.        Addendum to this Reply Brief

Aff.        Affidavit

Appellee    the prosecution, or Commonwealth of Mass.,   or          the Worcester D.A.'s Office

iv

Arg.        Argument

CBr.        Commonwealth's/Appellee's/Prosecution's Brief

D.A.         Worcester District Attorney

DBr.         Defendant's/Appellant's Brief

Ex.          Exhibit

Exs.         Exhibits

FT.         Federal Transcipt, Elbery v. Sklut, 97-11743MLW

            (filed with Clerk-Mass. Court of Appeals 2   copies)  

ftnt.       footnote

I.d.        Identified

MRAP        Mass. Rules Appellate Procedure

memo       "Memorandum and Decision" by Motion judge Hillman

motion      Defendant's "Memorandum in support of Motion for f           New Trial" (1st 115 pages of Appendix)

p.           page

P.C.         Probable Cause

PC           Probable Cause Hearing Transcript

RA           Record Appendix (filed with Appellant's Brief)

TR           Transcript of Trial

WPD          Worcester Police Dept.

            paragraph

v

Reply #1 -Contrary to the Appellee, trial evidence of "Christiana Mann's Cut Face" was perjury. - RA 30-39

Reply CBr.- Arg. B & CBr. - p. 37

    The Appellee uses the falsified evidence of Mann's cut face and facial stitching to justify King's illegal pursuit, false arrest and assault of the defendant during the underlying incident on 9-29-92 and to support many of the Appellee's arguments. See CBr.-Arg. B, p.37.

The prosecution knowingly presented false evidence at trial that an 18 year old girl, Christiana Mann, incurred facial lacerations from glass of a broken beer bottle that the prosecution claimed the defendant broke. Mann testified, initially, at trial that,

she was standing 3 seats away from the defendant, TR 166-24, when the bottle broke and a little bit of glass flew and cut her, TR 144-6. Mann testified she went to U. Mass. Hospital and a physician put stitches above and below her eye due to cuts from the flying glass. TR 147-16 thru TR 148-2. RA 30.

However, Mann slipped during trial examination and contradicted her prior testimony of injury,

TR 144-13 I thought I saw a little bit of blood. But another guy came over and said you know you are fine and everything.

TR 174-18 I said I was at the hospital. I don't know if I said U. Mass. I just called to let you know I was all right and no glass is in my eye or whatever. See RA 31 (motion p. 31-item 10).

    The defendant's trial counsel failed to pursue, explore or highlight this evidence he tripped on during

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 cross-examination. The jury was left believing the

prosecution's "best light fabricated evidence" of Mann's

face being cut by the defendant requiring two sets of

stitches on her face. RA 37-39.

The original prosecutor on the case, A.D.A. Michael Salloum, knew the truth. Salloum documents, per RA 133, that the reason for King pursuing the defendant was the defendant's alleged disorderly conduct (a minor misdemeanor if true) in the bar. Salloum says nothing on this document about a "girl" being cut/injured or a bottle assault or even a "felony", (No felony P.C.-see p.11), being committed by the defendant prior to King's pursuit of the defendant 100 yards down the street, in order to justify King's citizen's arrest.1

As per RA 30&31 (p. 30 & 31 of motion), the prosecutor was put on alert by other evidence that Mann's cut face was a fabrication as follows:

1. There were no criminal charges brought against the defendant for Mann's alleged injury. Com. v. Hawkins, 157 Mass. 551, 553 (1883)(defendant would be responsible for alleged battery due to reckless acts).


1.Evidently, Salloum's investigation yielded the same evidence as the W.P.D., per their incident report, RA 129-130, regarding the bartender's fabricated claim to the responding police that a "girl" was cut. See RA 129-130. The W.P.D. incident report states, "the Worcester police searched "all area hospitals" and that no girl went to the area hospitals for treatment for a glass cut". It's undisputed that U. Mass. Hospital is about 1 mile from the Winner's Circle Bar. The prosecutor has a duty to learn of any favorable evidence known to others acting on the government's case inlcuding the police, regardless of good or bad faith. Kyles v.Whitley, 514 U.S. 419, 438 '95. Imputed to the police is evidence they knew or should have known. Com. v. Lam Hue To, 461 NE2 776, 779 ('84).

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2. There was no scarring to Mann's face that should have resulted from glass cuts requiring stitches.RA 179-Aff#3.

3. The prosecutor never pointed to or highlighted as inculpatory evidence any scars on Mann's face, although he was enthusiastic about fabricating all the other evidence at trial. The defense attorney never pointed to any absence of scarring. See TR all. The trial was only 9 months after the alleged facial cutting and stitching.

4. There was no medical/hospital records produced at trial or discovery to corroborate Mann's alleged injuries.(Can't cite a negative-See TR all).

5. After being alerted falsely by the bartender, Schlener, that "glass from the bottle struck a girl in the eye - cutting victim", the W.P.D. document, RA 130, (p. 2 of incident report - Ex. D of motion), "we were unable to locate female victim who left scene prior to arrival and did not go to area hospitals for treatment". See RA 68 (motion p. 68 "Perma-Investigating Worcester Police Officer" - item 1), & PC 154-(4-17) thru PC 155-1.

6. Responding and investigating W.P.D. officer - Perma asked Schlener and his friends at the bar to come forward with information as to who this girl was and nobody did, PC 154-(5-16). RA 68-item #1.King claimed the prosecution found the "girl", Mann, January '93, 6 months before trial. TR 246-7. See the PC hearing transcript, no girl testified.

7. Schlener, the bartender, admitted under oath at the probable cause hearing that the girl was not hurt or injured by glass,

PC 114-2 Q. And during that time is when you determined that the young lady who was injured actually did not have glass in her eye? A. Right.

    As per motion RA 33, this fabrication about a girl being cut in the face was like the fabricated bottle assault; both were originated by the bartender, Schlener, to cover for his

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friends beating the defendant on the street causing the defendant to be hospitalized, see RA 169 (Ex. Q - p. 3 of motion (defendant brought to hospital by police at 2:25 am on 9-29-92)).

The various prosecution witnesses, and defense witnesses-DePasquale and Perma (both friends of King's) were allowed by the prosecution to use this fabricated Mann injury in the most prejudicial manner possible at trial, see RA 147-149 (motion Ex. K). This included King's and Schlener's perjury at trial,

TR 194-7 (King) Blood coming around her hand, out her hands, through her fingers down her face.

TR 588-7 (Schlener)One of the girl's yelled, "my eye it's cut", she had a cut. She was bleeding from the eye. (compare this testimony to Schlener's probable cause testimony above, PC 114-(2-4).

King testified at the P.C. hearing the opposite,

PC 52-1 (Aloise)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? A. (King) 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? A. (King) Right.

    There is good reason why there was a void, as above, of real evidence of Mann's cutting, but only say-so and finger pointing at trial. The evidence is Mann's facial cutting and stitching was more fabrication to cover for and help King

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 get out of trouble, and the prosecution knew and should have known it was false.

Prejudice to the defendant

This facial cutting and stitching to Mann was falsely used as an excuse, like the fabricated bottle assault, for King's illegal citizen's arrest of the defendant. Like the fabricated bottle assault, this false evidence that the defendant cut a girl in the face caused the defendant to, once again, be falsely put in the worst status possible before the jury. Making it all the more likely they would convict the defendant on the other false evidence at trial. The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury. U.S. v. Agurs, 427 U.S. 97, 103

New trial is required due to this knowing use by the prosecution of perjury. Giglio v. U.S.,405 U.S. 150, 154, Com. v. Tucceri, 412 Mass. 405. See RA 34-36.

A.D.A. Mike Ball Bolsters his case with Mann Perjury

    The prosecutor then compounded this knowing false evidence by using it at trial to justify King's citizen's arrest, tricking the jury. See RA 35 and RA 41-42. Per RA 35, the prosecutor also used this fabricated "Mann injury" in his opening statement, TR 115-16, TR 111-(8-22)(see also RA 109-p. 109 of motion-claim XVI), and closing argument, TR

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1237 -21, (see RA 149 - Ex. K of motion). Per the Mass. S.J.C. this blatant misrepresentation of evidence to the jury and abuse requires a new trial. Com. v. Collins, 386 Mass. 1, 13. RA 35. This also violates the Due Process Clause - 14th Amendment - U.S. Constitution causing a trial that was not fair. Berger v. U.S, 295 U.S. 78,84-89 '35.

Ineffective Assistance of Counsel - RA 37-39

Defense Attorney, Louise P. Aloise, refused to challenge Mann's claim of facial cutting and stitching. The above evidence, that Mann was never injured/stitched , was available to Aloise at trial but he refused to alert the jury. Instead, Aloise confirmed/stipulated, in his opening statement, the prosecution's fabricated evidence of Mann and her facial cutting, TR 129-3,RA 38. Further, Aloise refused the defendant's demands that Aloise subpoena Mann's hospital records, RA 37. This is another count of ineffective assistance of counsel by Aloise that causes need for a new trial because there was no adversarial process at the trial, and that caused the defendant a 10-year prison sentence. Strickland v. Washington, 466 U.S. 668, 690 '84.

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REPLY # 2 - There was no probable cause for King's false arrest of the defendant, even if the prosecution now claim King acted as a police officer. (Reply CBr.-argument B p.32)

The appellee now claims that King acted as a cop when King pursued the fleeing defendant 100 yards down the street and arrested the defendant. This is the opposite of the prosecution's claim at trial, see DBr. 28, where the prosecution & Judge claimed King was off-duty, out- of-jurisdiction and acting as a private citizen. TR 213-(17-24), TR 218-(2-24), TR 395-(19-22), TR 409-(3-7).

Police in Mass. have 24 hour state-wide Vigilantism?

The appellee cites Com. v. Clairborne, 423 Mass. 275 ('96) as giving King an exception to the Mass. citizen's arrest law-"in fact test" requirement. The Appellee claims that, due to the Clairborne's "relaxed standard" for out-of-jurisdiction police, the "in fact test" does not apply to their alleged victim's, Tom King's, arrest of the defendant during the underlying incident. The appellee contends that the law, due to Clairborne's "relaxed standard", is that King only needed probable cause of a felony committed by the defendant to pursue and arrest the defendant and that the "in fact" test does not have to be passed to justify King's arrest.

The "relaxed standard" for the "in fact" citizen's arrest test is founded in Com. v. Harris, 11 Mass. App. Ct. 165, 172, 415 NE2 216,221 '81. Those two cases and other Mass. cases like them distinguish between the out-of-jurisdiction

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cops in those cases and Tom King. The police in Clairborne and Harris etc., were all on-duty, and identified themselves as police, and had driven just over the next town's border to make an arrest. King was an off-duty Westboro cop, three towns away in a Worcester barroom where he was enjoying an evening of libation. DBr. 41-42 & TR 211-(14-19). It was undisputed at trial that King did not identify himself as a police officer,2   TR 386-(9-14),TR 395-(19-22), TR 400-(2-20), TR 408-24 thru 409-15), TR 452-10 (Trial Judge) He (King) didn't identify himself at the scene, and the defendant didn't know King, TR 1010-(3-8). The Court in those cases, did not give all police in Mass. 24 hour state-wide jurisdiction/vigilantism. The Harris (ftnt. 6) and Clairborne (ftnt. 4) cases specifically indicate that 24 hour state-wide jurisdiction for all police in Mass. was not the Court's intent or law. Because King hid his identity the "responsible action of legitimate law enforcement" required for the "relaxed standard" was not satisfied. Clairborne, 423 Mass. at 280.

    Since King was off-duty (civilian clothes) and did not identify himself as a cop (because King was drinking & criminally wrong-see DBr. Arg.V) the "in fact

test" applies to King's illegal citizen's arrest.3


2 During an arrest a police officer must identify himself as such or at least make known he is a police officer. Hiding his identity as a police officer causes the to lose the benefits of the police authority during an arrest. Com. v. Moreira,388 Mass. 596, 601, '83.

3 The precedent case for an off-duty, out-of-jurisdiction cop like King is the Kerr case. The court in Kerr make law that an out-of-jurisdiction, off-duty cop is only a citizen with no police powers. Com. v. Kerr, 409 Mass. 284, 287, 565 NE2 1201, 1203 '91. (cop was repossessing cars.) 

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The defendant was not convicted of any crime occurring prior to King's citizen's arrest; King fails the "in fact test" causing King's citizen's arrest to be unlawful. Com. v. Harris, 11 Mass. App. Ct. 170 DBr. 29.

There was no Probable Cause for King's arrest

Even if the Court decides to change the law and give all police in Mass. 24 hour state-wide jurisdiction via the "relaxed standard" of citizen's arrest, that won't justify King's arrest of the defendant. Because the P.C. Hearing Judge found No Probable Cause of a felony to pursue & arrest the defendant. PC 265-(8-17), PC 266-2.

The Appellee, CBr. 36, claims King had probable cause to arrest because of an "Assault by Means of Dangerous Weapon" and an "A&B-DW" on a "girl" in the bar. Judge Raphelson found No Probable Cause for "A&B-DW", PC 265-(3-5), and the "Assault by means of Dangerous Weapon" charge, PC 265-(21-24) & RA 135. Raphelson found P.C. only for "disorderly person" inside the bar, which was not a charge at P.C. hearing. PC 265-(10-13),PC 252-253.

    King, like Schlener the bartender and the initiator of the fabricated bottle attack, RA 129 & DBr. 35, admitted at

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 the probable cause hearing that the defendant never assaulted anyone with a broken bottle. See DBr.36-37. The grand jury cannot be pointed to for probable cause, due to the indictment for "Assault by means a dangerous weapon" because the Worcester D.A.'s Office impaired the Grand Jury Process. See RA 65-2. There is no probable cause if indictment was obtained by perjury, fraud, conspiracy. Broussard v. Great A&P Teas Co., 324 Mass. 323,86 NE2 439 '49; Restatement: Torts 2d, s. 667. An indictment is not prima facie evidence of probable cause. Engleman v. Progressive Machinery 156 F.Supp. 46 (D.Mass.'57). That charge resulted in a "Required Finding of Not Guilty" by the trial judge. RA 194.

    King admitted he had no probable cause to pursue and arrest the defendant due to anything to do with a "girl" (at trial allegedly Mann) because he testified when he exited the bar to pursue the defendant he did not know the "girl" was injured. PC 53-6.

There was enough (false) evidence produced at trial about Mann's alleged injury to get another indictment4 against the defendant. RA 147-149. The only reason the

D.A.'s Office didn't pursue/charge the alleged "Mann

injury/assault" is because it was a fabrication,


4 A person committing a willful, wanton, reckless act which results in personal injury to another is guilty of battery, it is not necessary to prove a defendant intended the precise harm or harm to a particular person. Mass. Practice, Vol. 32 s. 322, 2001.

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by Schlener to the responding police ,RA 129, to get King and his friends out of trouble. Per Reply #1, the "Mann fabrication" equals no probable cause for King.

The D.A. documented no felony P.C.- p. 2 & RA 133, TR 133.

King made a False Arrest & Jury should have been Alerted

    King testified, Dbr. 27 & PC 62-(9-12), PC 63-(1-5), he pursued and restrained the defendant which is an admission to an arrest.5 The U.S. Supreme Court defines an arrest as a restraint on a person's movement or freedom to walk away. Terry v. Ohio, 392 U.S. 1,Reid v. Georgia, 448 U.S. 438. The defendant had a right to have the jury know that King had no right pursuing and arresting the defendant and the defendant had a right to defend against King's unlawful citizen's arrest, since the defendant's defense was self-defense. Self-defense requires the defendant use all means of escape. Mass. Practice Vol. 14A s. 9.359 '96. It is undisputed that the defendant did use all means of escape when he fled 100 yards. DBr. 25. By deceiving the jury to believe that King had a right to pursue and arrest the defendant the prosecution & Aloise defeated the defendant's claim of


 

5 The appellee's reliance on Com. v. Klien, 372 Mass. 823, 830-31 (CBr.-33) is incorrect. There is absolutely nothing in that case, as the appellee claims, that says a prerequisite to a citizen's arrest is force. The Klien case deals with the issue of a citizen's right to use deadly force in making a a citizen's arrest. However, as per brief, the evidence is King did use force.

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self-defense, RA 46, and his constitutional right to have the prosecution disprove self-defense. Mullaney v. Wilbur, 421 U.S. 684, 697-702. There is still a right to resist and defend against a false arrest by a citizen, but not a cop (if he identifies himself as a cop). Com. v. Moreira, 388 Mass. 596, 601 447 NE2 1224, 1227 '83.

Since King acted only as a citizen, the jury never

should have known King's occupation was a cop. TR 218-(15-22). The jury was deceived that, not only that King's assault and false arrest of the defendant was perfectly legal, but also that King was acting in his official police capacity. RA 107-TR 1238-7 & TR 1241-10. Causing King to have groundless credibility to the prejudice of the defendant. This made the trial unfair in violation of the 6th Amendment of the U.S. Constitution. When reliability of a witness may be determinative of guilt or innocence false credibility evidence must be corrected by the prosecutor. Giglio v. United States 405 U.S. at 154. All "Brady" non-disclosure information must be analyzed collectively, not item by item, to determine materiality. Kyles v. Whitley, 514 U.S. 419, 436 (1995).

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Reply #3 - Since the Appellee agrees that the evidence presented at trial to the jury about the alleged victim's eye injury was perjury a new trial is required.

Reply to CBr.-Arg. C.

This defendant's biggest claim, DBr. Arg. II, is that all the evidence at trial about the alleged victim's eye injury was "knowing use of perjury" by the prosecution. Unbelievably, nowhere in the Appellee's Brief is there a denial or counter to that claim by the defendant that all the evidence about the alleged victim's eye injury was perjury. This is an "Admission by Silence" by the appellee that all the prosecution's evidence presented to the jury about the alleged victim's eye injury was perjury. That eye injury perjury put the defendant away for 10 years in prison.

More unbelievable, the appellee, CBr-41(lines 7-9), by admitting that King's medical record, RA 120, documents that the alleged victim had only a superficial abrasion and a small conjunctiva laceration, agrees that Dr. Hull's affidavit, RA 126-128, is correct.

The appellee argues King's medical record, RA 120, was an evidentiary exhibit at trial and that any evidence via Dr. Hull's affidavit, or that could have been provided via a medical expert witness at trial, would be cumulative evidence of that medical record, RA 120. The appellee is in essence admitting the content of the medical record, RA 120,

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and Dr. Hull's affidavit is the same. Because Dr. Hull's affidavit, RA 126-128 documents, as per RA 120, that King had only a minor superficial injury, the appellee is admitting that the prosecution's evidence at trial about King's injury was perjury. See DBr.-Arg. II and compare Dr. Hull's affidavit to the perjured evidence about King's eye injury at trial; they are opposite. The prosecution is responsible for its perjury and has a duty to correct it. Giglio v. United States 405 U.S. at 153.

The biggest failure with the appellee's argument, that Dr. Hull's affidavit is cumulative, is that the jury could not read or understand King's medical record, RA 120, because it is an illegible mess of medical jargon. See DBr. Arg. II-p. 18 & p. 21-22. No evidence can be cumulative of a record that is not readable by a jury. All the jury heard was the perjury about King's eye injury at trial. There was no one to tell the jury that the medical report, RA 120, produced by King's treating physician, proved to a medical scientific certainty King had a minor injury consistent with, as King admitted to Dr. Arinella, "catching a finger in the eye", after chasing the defendant illegally 100 yards and assaulting the defendant. See DBr.- Arg. II. Illegible medical records are inadmissible evidence. Com. v. Baldwin, 24 Mass. App. Ct. 200, 203 '87. RA 28.

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Reply #4- The Appellee admits that the judge, prosecutor, and defense attorney knew the content of the alleged victim's medical record while allowing the perjury at trial. Reply CBr.-Arg. C p.39-40

The appellee claims that the prosecutor, defense attorney, and trial judge, (trio), could read the alleged victim's, King's, medical report, RA 120, as written by King's treating physician, Dr. Arinella, minutes after the alleged criminal episode. See CBr. pgs. 39-40. "It is clear that the prosecutor, trial counsel, and judge had no problems deciphering the records," CBr-39. "Implicit in this discussion about the content of the records is the judge's opinion that the records were legible", CBr.-40.

    The defendant agrees that the "trio" knew the contents of the record, RA 120, as indicated by Dr. Hull's affidavit, RA 126-128. The defendant has already provided evidence his trial defense attorney knew what that medical record contained and that the prosecutor knew and should have known, see RA 7-8 & RA 17-20, respectively. The appellee doesn't reveal how the "trio" could read and knew the contents of King's illegible medical record. Did their

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fabricated victim, King, tell them? King must have known the truth about his injuries.

But the jury did not know what King's medical record, RA 120, contained and there was no way they could have read or understood that illegible mess of medical jargon. See DBr. Arg. II p.18 & 21-22 & Reply #5. The point is, since the "trio" knew the true content of Dr. Arinella's report/King's record, RA 120, they had a duty to correct the perjury at trial to the jury about King's eye injury, not advocate it. Giglio v. United States, 405 U.S. 153.

The appellee is arguing that the jury could read the medical report and it was up to the jury to sort out the perjured evidence the prosecution witnesses produced from the truth on the report. No! Even if the Dr. Arinella's report was readable, the perjury must be corrected. Id. "Knowing use of perjury by the prosecution" is a Due Process Violation requiring a new trial. Id. It's presumed that the "trio" knew the contents of all exhibits submitted to the jury at trial.

Reply #5 - There was never an issue at trial about whether Dr. Arinella's report was legible or understandable for a jury. Reply CBr. - Arg. C.

There is no evidence in the trial transcripts that the judge ruled that King's medical records were legible for the jury.

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The issue of whether King's medical records were legible was never raised at trial. See transcripts all. The trial judge was reading, sidebar-TR 446-453, the interview section of the nurse's report, RA 118. Arinella's report, RA 120, was never read at sidebar-TR 446-453. Compare TR 446-453 to the deciphering, RA 123.

This Reply does not conflict with #4. The defendant agrees the "trio" knew the perjured evidence at trial was totally different from the report contents, RA 120.

Let the Mass. Appeals Court be the judge and look at King's medical record, RA 120, as written by his treating physician Dr. Arinella only minutes after the incident. Is that record legible? The appeals court is in as good a position to judge documentary evidence as a jury. Com. v. Vaughn, 23 Mass. App. Ct. 40, 43 498 NE2 1072, 1074 ('86). Illegible medical reports are inadmissible. Com. v Baldwin, 24 Mass. App Ct. 200,203.

Arinella's Report was not understandable by a jury.

Even if someone could read that medical record written by Arinella, it was impossible to understand the Arinella medical record because of the medical jargon. So it was necessary to have a medical professional interpret the medical jargon/terminology for the jury. Com. v. Ennis, 2

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Mass. App. Ct. 864, 865 ('74). See RA 123 for the deciphering given by Arinella's secretary to the investigator hired by the defendant's appellate attorney. Does the Appeals Court understand what the deciphering means on RA 123? Submitting King's illegible and unintelligible medical record, RA 120, to the jury was a major trick used by the prosecution & Louise P. Aloise to convict the defendant. The defense counsel - Aloise never challenged the prosecution witnesses' perjury about King's injury causing the jury to regard Arinella's illegible mess of medical jargon, RA 120, as a confirmation of that trial perjury. The prosecutor had a duty to correct that perjury, Giglio v. U.S. at 153, which he never did. New Trial required. DBr. 22.

Reply #6 - Dr. Arinella's report is documented to a medical scientific certainty to be dispositive of the Conviction, Not Cumulative Evidence. Reply CBr. 40-42.

The truth about King's "injury" via Dr. Arinella's report, RA 120, as provided by Dr. Hull's affidavit, RA 126-128, and DBr.-Arg. II, is not cumulative evidence of the only truthful witness (John Hayes), who testified, superficially, at trial about the issue of King's eye injury. CBr-41. Dr. Arinella's report is third party medically documented evidence, which is accurate to a medical scientific certainty, and proves the evidence that put the defendant in

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prison for 10 years for "attempted mayhem" is a lie. Com. v. Sarmanian, 426 Mass. 405, 407, 688 NE2 973, '98. The appellee cannot claim Dr. Hull's affidavit is cumulative of the Dr. Arinella's report, RA 120, although it, RA 120, was an exhibit at trial. Again, the jury could not read (decipher & understand) the record, RA 120. See Reply#3.

Aloise's knowledge of King's injury was far more extensive than Hayes testimony. Compare Aloise's knowledge of King's eye injury, RA 7-8, to Hayes testimony, CBr.-41. Aloise's closing argument, TR 1224-25, "Look at the medical record of King's it was a superficial abrasion", was a result he knew the truth about King's injury, via the content of medical record, RA 120. See RA 123, Aloise used the same wording "superficial abrasion" as King's illegible report, RA 120. TR 1224-1225 was not a summation of Hayes testimony, but the medical record, RA 120. That's why Aloise told the jury to "look at the medical record". But Aloise knew the jury could not read King's medical record, RA 120. Concealing the truth about King's injury caused the entire trial evidentiary picture to change making the defendant's trial attorney, Louise P. Aloise, ineffective in his assistance of counsel.

-19-

Strickland v. Washington, 466 U.S. at 696(count all performance deficiencies at trial to determine prejudice and constitutional ineffectiveness of counsel).

Reply #7- Argument VII of the DBr. complies with M.R.A.P.-Rule 16, the appellee misstates Rule 16a4.

Reply CBr. - D.

The defendant argues fact and law in Argument VII of DBr. as required for appellate review. The defendant incorporated a 5 page Exhibit of his motion by reference to RA 106-111, to support his argument. Reference to the Appendix is allowed by MRAP-Rule 16a4 and 16e. The defendant's appendix contains the record of this case. It's not required that the list of TR cites, RA 106-111, should be re-typed in the defendant's brief. MRAP-16.

Conclusion: There is no evidence the defendant committed a crime. This is a Violation of the 14th Amendment' Due Process Clause of the United States Constitution.

They tricked the jury with fabricated evidence and law to believe King and his gang had the right to chase the defendant down and put him in the hospital. They claimed King was the victim by fabricating evidence his eye was almost taken out of his head by the defendant. Then they sentenced the defendant to 10 years in prison for "attempted mayhem".

"They do things a little different in Worcester County."

-20-

The appellant-defendant

Michael Elbery©

11-27-02

 

 

 

 

 

 

© - All rights reserved for use of case documents before the world court of public opinion on the World Wide Web.


 

 

APPENDIX D

D.A.'s Brief

 

D.A.'s Argument.

 

The Motion Judge Properly Denied Defendant's

Motion for New Trial Without a Hearing, Where

Defendant Did Not Raise a Substantial Issue With

an Adequate Factual Basis to Show that a

Substantial Risk of a Miscarriage of Justice

Occurred.

 

Proceeding pro se, defendant moved for a new trial

under Mass. R. Crim. P. 30(b). In his motion

defendant asserted, inter alia, that the trial

prosecutor engaged in misconduct, that the jury

charge was inadequate, and his trial and appellate

counsel were ineffective. (R.A. 1-115). The motion

judge denied this motion, ruling that defendant's

claims of prosecutorial misconduct and inadequate

jury instructions were waived and that defendant did

not present adequate evidence entitling him to a

hearing on his ineffective assistance of counsel

claims. (Def. Addendum 1- 18). On appeal, defendant

claims that the motion judge erroneously denied his

motion without a hearing because his claims were not

waived and they evinced a substantial risk of a

miscarriage of justice. Because defendant's claims

could have been raised in his direct appeal, the

motion judge correctly determined that they were

waived. Because defendant provided no factual basis

to show that a substantial risk of a miscarriage of

justice occurred, [20] the motion judge properly

denied defendant's motion without a hearing.

"'A motion for new trial may not be used as a

vehicle to compel . . . review and [consideration of]

questions of law,' on which a defendant has had his

day in an appellate court, or [on which he has]

foregone that opportunity." Commonwealth v.

Gagliardi, 418 Mass. 562, 565 (1994), cert. denied ___

U.S. __, 115 S.Ct. 753 (1995) (quoting

                                        -1-

Commonwealth v. Watson, 409 Mass. 110, 114

(1991)). This rule of waiver "applies equally to

constitutional claims which could have been raised

but were not raised on direct appeal . ."

Commonwealth v. Amirault, 424 Mass. 618, 641

(1997) (citations omitted). Where, as here, "there has

been appellate review of a conviction . . a judge

considering a motion for new trial should first exercise

discretion to deal with the substance of any issue

presented." Commonwealth v. Curtis, 417 Mass. 619,

634 n.14 (1994). "The trial judge's discretionary

power to give relief. . . should be exercised only in

those extraordinary cases where, upon sober

reflection, it appears that a miscarriage of justice

might otherwise result." Id. at 626. Defendant has

advanced no [21] reasons to circumvent the waiver

rule.

First, the motion judge properly determined that

defendant's claim of prosecutorial misconduct was

waived. Defendant's assertions that the prosecutor

withheld information and allowed perjury rest on

defendant's comparison of the trial testimony with the

probable cause and grand jury testimony and the

medical records submitted into evidence. (D.Br. 15-

49). Because this evidence was clearly available to

defendant and the law in this regard had been clearly

established, see United Stated v. Agurs, 427 U.S. 97

(1976) and its progeny, this claim should have been

raised on direct appeal. See Amirault, 424 Mass. at

642. Failure to do so constitutes waiver and, as

discussed below, see part A. infra, defendant has not

demonstrated a miscarriage of justice, which would

justify relief from the waiver doctrine.

Second, defendant asserts errors in the trial judge's

instructions on consciousness of guilt and assault

with intent to maim. (D.Br.. 32). Defendant raised the

adequacy of these instructions in his direct appeal

and this Court correctly determined that these

unobjected-to instructions were not erroneous and

did not create a substantial risk of a miscarriage [22]

                                            -2-

of justice. Commonwealth v. Elberry, 38 Mass. App.

Ct. 912, 912 (1995) Thus, the motion judge correctly

exercised his discretion to decline to consider these

claims. See Gagliardi, 418 Mass. 562, 565-67 (1994).

Third, in his motion for new trial, defendant

asserted that his appellate counsel was ineffective for

failure to raise certain claims of ineffective assistance

of trial counsel. The motion judge did not deem these

claims waived and assessed whether appellate

counsels decisions not to make certain arguments

amounted to ineffective assistance of counsel. (Def.

Addendum 6-18). Regardless of whether these

ineffective assistance claims are waived, the same

standard effectively applies, "because, if an omission

of counsel does not present a substantial risk of a

miscarriage of justice . . . there is no basis for an

ineffective assistance of counsel claim under either

the Federal or the State Constitution.'"

Commonwealth v. Young, 56 Mass. App. Ct. 60, 62

(2002) (quoting Curtis, 417 Mass. at 624 n.4

Based on [23] these standards, the motion judge

 

4 To prevail on a motion for a new trial which alleges ineffective

assistance of counsel, a defendant bears the burden of

demonstrating that his trial attorneys conduct fell "measurably

below that which might be expected from an ordinary fallible

lawyer--and, if that is found, [that] it has deprived [him] of an...

otherwise available, substantial defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). Such proof requires the

defendant to show that "better work might have accomplished

something material for the defense." Commonwealth v. Satterfield,

373 Mass. 109, 115 (1977). "Where the defendant challenges

counsels tactical or strategic decisions, he must establish that

such decisions are not merely unreasonable, but manifestly

unreasonable.'" Commonwealth v. Adams, 374 Mass. 722, 728

(1978) (citation omitted). The 'defendant bears a heavy burden in

establishing ineffective assistance of such magnitude as to entitle

him to a new trial," Commonwealth v. Brookins, 33 Mass. App. Ct.

626, 631 (1992), rev'd on other grounds, 416 Mass. 97 (1993), and

will not be permitted to "characterize as unreasonable a defense

that was merely unsuccessful." Commonwealth v. Montanez, 410

Mass. 290, 295 (1991). See also Commonwealth v. White, 409

Mass. 266, 272 (1991).

                                                 -3-

properly denied defendant's new trial motion without

a hearing because defendant did not show that a

substantial risk of a miscarriage of justice occurred.

"Whether to hold a hearing on a motion for post-

conviction relief or to consider it solely on the basis of

affidavits and other supporting material is a decision

which rests in the sound discretion of the judge,

based on a determination whether the motion and

affidavits raise a substantial issue." Commonwealth v.

McGann, 20 Mass. App. Ct. 59, 62, rev, denied, 395

Mass. 1102 (1985) '"In determining whether a

'substantial issue' meriting an evidentiary hearing...

[24] has been raised, [appellate courts] look not only

to the seriousness of the issue asserted, but also to

the adequacy of the defendant's showing on the issue

raised." Commonwealth v. Devincent, 421 Mass. 64,

68 (1995). The motion judge exercised proper

discretion when he declined defendant's request for a

hearing because defendant did not meet his burden of

establishing an adequate factual basis to support his

allegations.

 

A. The motion judge properly denied

defendant's motion for new trial without a

hearing, where defendant did not present

any evidence to show that the prosecutor

deliberately deceived the jury in any manner

or that trial counsel was ineffective.

 

Citing to discrepancies between the trial

testimony of the victim and the other witnesses, as

well as to the victim's and witnesses' trial testimony

as compared to their probable cause and grand jury

testimonies and statements in medical records,

defendant asserts that the prosecutor knowingly and

deliberately allowed the introduction of false

testimony at trial, thereby violating defendant's

                                           -4-

constitutional right to due process of the law.5 [25]

(D.Br. 15-25, 35-49). He further asserts that his trial

counsel was ineffective for failure to address these

issues at trial. (Id.). Because defendant provided no

evidence to demonstrate that the prosecutor

deliberately withheld evidence and knowingly allowed

perjured testimony/ the motion judge properly denied

defendant's motion for new trial without a hearing on

this matter.

It is true that where the prosecutor intentionally

introduces false testimony or remains silent when he

or she should have known of the perjured testimony

that a defendant's constitutional rights to due process

are violated. Agurs, 427 U.S. [26] at 103; Napue v.

Illinois, 360 U.S. 264 (1959); Commonwealth v.

Collins, 386 Mass. 1, (1982). Nevertheless, that

discrepancies exist between the witnesses'

testimonies, without more, does not demonstrate

such prosecutorial misconduct. Commonwealth v.

Sullivan, 410 Mass. 521, 532 (1991). Particularly,

where as here, the alleged discrepancies were placed

before the jury by both the prosecutor and defense

 

 

5 Defendant's claims are numerous in this, regard: by

comparing the victim's trial testimony to that of the other

witnesses and the medical records, which were admitted into

evidence by the prosecutor, defendant asserts that the prosecutor

allowed the victim to falsely testify regarding the extent of his eye

injury (D.Br. 15-25); by comparing the victim's trial testimony and

probable cause testimony, defendant argues that the prosecutor

knowingly allowed the victim to falsely testify that defendant had

waved the jagged bottle at the bartender and the rest of the

patrons (D.Br. 35-40); by taking the prosecutor's statement out of

context, defendant states that the prosecutor knew King was

drinking on duty and allowed King to testify to the contrary (D.Br.

4 1-43); by comparing various witnesses' testimony at the probable

the prosecutor knowingly allowed perjury (D.Br. 44-49); and 

defendant asserts that knowing that King's purported citizen's

arrest of defendant was unlawful, the prosecutor improperly

introduced evidence that there was a valid citizen's arrest (D.Br.

25-35).

                                        - 5 -

counsel, defendant did not meet his burden to show

that there was any deception on the part of the

prosecutor. See Sullivan, 410 Mass. at 521 ("'simply

because a witness alters some portion of his

testimony at the time of trial is not sufficient reason

to conclude that the new testimony was false, or that

the Commonwealth knew or had reason to know that

it was false."') (quoting Commonwealth v. McLeod, 394

Mass. 727, 743, cert. denied, 474 U.S. 919 (1985)).

First, there is no evidence that the prosecutor acted

improperly. With respect to King's eye injury, King

testified at trial that he felt blood and vitreous fluid

coming from his left eye after defendant had twice

jammed his thumbnail into King's eye. (TR.II 201-03).

King testified that as a result he received a laceration

or cut on his eyeball. [27] (Tr.II 203-04). The

prosecutor introduced into evidence King's medical

records, which show that King did suffer a laceration.

(R.A. 120). Thus, the records validate King's

testimony.

Second, at trial, defendant's counsel argues that

that the medical records indicated that King suffered

from a "superficial abrasion," (Tr.V 1224-25), and that

if defendant had gouged at King's eye in the way he

claimed, then King would not have an eye. (Id.). Thus,

any discrepancy in the evidence as to the extent of

King's eye injury was before the jury; the prosecutor

did not deceive them, and trial counsel did not sit by

passively. Rather, the jury was left to its fact-finding

function to determine whether defendant did commit

assault with intent to maim by trying to gouge out Mr.

King's eye. See Sullivan, 410 Mass. at 532 ("a

prosecutor may marshal the evidence for or against

the credibility of the witness, and allow the jury to

determine whether the witness is telling the truth.").

There is no evidence that the prosecutor acted

improperly in this regard.

Similarly, the prosecutor did not improperly elicit

false testimony that defendant assaulted King and the

other bar patrons with the jagged edge of a [28] bottle,

                                                     -6 -

and counsel was not ineffective for failure to bring

this matter to the jury's attention. At trial, Mr. King

testified that after smashing the bottle, defendant

waved the jagged edge of it at the bartender and the

other patrons. (Tr.I 192). Any discrepancies between

this and other testimony were highlighted by both the

prosecutor and defense counsel. (See e.g. Tr.I 301-03,

308-10). Defendant presented no evidence to show

that the prosecutor knew King's trial testimony was

false and the prosecutor was not required to

independently assess King's credibility on that score.

Sullivan, 410 Mass. at 532; Commonwealth v.

Zuluaga, 43 Mass. App. Ct. 629, 646 (1997) ("[tlhat a

prosecution witness contradicted herself is

insufficient to show that the Commonwealth

knowingly used perjured testimony."). Furthermore,

defense counsel also elicited testimony from King that

he was not placed in fear by defendant's display of the

bottle because defendant could not have reached him.

(Tr.lI 310). Counsel's examination was so successful

that the trial judge directed a verdict of not guilty on

the assault with a dangerous weapon charge. (Tr.IV

850). There being no prosecutorial misconduct or [29]

ineffective assistance in this regard, defendant's

claims fail.

Likewise, defendant's comparison of every

miniscule discrepancy between the various witnesses,

trial and probable cause testimony (D.Br. 15-25, 35-

49), does not show that the prosecutor elicited false

trial testimony from them or deliberately presented an

incorrect theory of the case. Sullivan, 410 Mass. at

532; Zuluaga, supra.

Next, by taking a passage of the trial transcript out

of context, defendant asserts that the prosecutor

deliberately deceived the jury by allowing Thomas

King to testify that he was not drinking on duty.

(D.Br. 41-43). He further asserts that his trial

counsel was ineffective as he sat by passively during

this conduct. (Id.). Because defendant's version of

events simply did not occur, his claim fails.

                                      - 7-

The prosecutor did not state that he believed

Thomas King was drinking on duty. Rather he stated,

in essence, that defense counsel was making this

allegation and he wanted to rebut it. Through cross-

examination, trial counsel attempted to imply that the

reason King had not identified himself as a police

officer that night was because he was inebriated and

[30] drinking on duty. (Tr.II 235-237, 285-86, 395,

406-09). To rebut this claim, the prosecutor sought to

introduce King's statement contained in the medical

records to hospital personnel that he was a police

officer. (Tr.II 448-452). Trial counsel opposed this and

the following transpired at side bar:

 

The Court: I don't understand how the

identification of himself as a police

officer is corroboration or that the

memorial hospital [record] is pertinent to

this at all.

 

[The Prosecutor]: Because of the

allegation that was made by -

 

The Court: He didn't identify himself at

the scene.

 

[The prosecutor): Reason he didn't do

that is because he was drinking on duty.

 

The Court: He already said that he told

them at the hospital that he was [a

police officer].

 

 

(Tr.II 452). As is evident from the transcript, the judge

interrupted the prosecutor midstatement; after this

interruption, the prosecutor continued his assertion

that he wanted in evidence King's statement to

hospital personnel that he was a police officer in order

to rebut trial counsel's implication that King did not

                                           - 8-

identify himself as such because he was drinking on

duty. [31]

Furthermore, trial counsel vigorously pursued the

idea that Mr. King was drinking on duty and

inebriated. Counsel cross-examined Mr. King at

length on this point, (Tr.II 234-38, 386, 406-09), and

called John Hayes who testified that Mr. King was

intoxicated when he entered the car to go to the

hospital. (Tr.IV 917). Trial counsel also argued in

summation that King was drinking on duty and that

he did not reveal his position because he was

inebriated. (Tr.V 1208-12 11). Thus, contrary to

defendant's arguments, the prosecutor never stated

that Mr. King was on duty when he was drinking at

the bar, and trial counsel did pursue this point.

In sum, defendant did not raise a substantial issue

with an adequate factual basis to show that the

prosecutor engaged in deliberate deception or that

trial counsel was ineffective for allowing this

deception. Accordingly, the motion judge properly

denied defendant's motion without an evidentiary

hearing.

 

B. Counsel rendered effective assistance

when he opposed giving of a citizen's arrest

Instruction to the jury, where the evidence

did not warrant such an Instruction. [32]

 

Defendant next argues that his counsel was

ineffective for failure to request a so-called "citizen's

arrest" instruction, on the theory that Mr. King, an

off-duty police officer out of his jurisdiction, used

force to effectuate an arrest of defendant. (D.Br. 25-

35).6 As the trial judge and defense counsel

 

6 The prosecutor did pursue this theory at trial on the basis

that King could have effectuated a valid citizen's arrest of

defendant because King witnessed an assault and battery with a

dangerous weapon on Ms. Mann, and defendant assaulted Mr.

King and the other people in the bar with a dangerous weapon.

The trial judge directed a verdict on the assault with a dangerous

                                             - 9-

determined, the instruction was not warranted,

therefore, counsel was not ineffective for failure to

request the instruction.

A prerequisite to an instruction on citizen's arrest

is that the "citizen" use force to effectuate the arrest.

See Model Jury Instructions for Use in Superior

Court, 3.16.2 (1999) (citing Commonwealth v. Klein,

372 Mass. 823, 830-31 (1977)). No view of the

evidence established that King used force to effectuate

an arrest. [33]

The Commonwealth's evidence showed that

defendant threw at least one punch at King and then

King wrestled with defendant. (Tr.II 200-01). Knowing

that he was out of his jurisdiction, King never

intended to physically touch, arrest, or restrain

defendant but instead followed him in order to inform

the police of defendant's whereabouts. (Tr.II 213, 386-

93). King simply told defendant that he was not going

anywhere until the Worcester Police arrived because

defendant had hurt a woman in a bar. (Tr.II 199, 219).

King used no force on defendant. (Tr.II 200-01, 213,

393). At this point, defendant threw several punches

at King, one of which connected. (Tr.II 200). King

then put his arms around defendant in an effort to

stop defendant from continuing his assault. (Tr.II

201). Defendant jammed his thumb into King's eye.

(Id.). Mr. King eventually pulled the thumb out and

tackled defendant to the ground in an effort to stop

the assault. (Tr.II 20 1-02). Defendant then stuck his

thumb back into Mr. King's eye. (Tr.II 202). Mr. King

pulled defendant's thumb out and rolled away from

defendant. (Tr.II 202) Because King did not use force

on defendant to [34] effectuate an arrest, the

instruction on citizen's arrest was not warranted.

 

 

weapon charge. (Tr.IV 850). Defendant was not indicted for

assault and battery with a dangerous weapon as Ms. Mann's

identity and whereabouts were unknown until one month before

the trial of this matter. (Tr.I 248-254).

                                              - 10-

By contrast, defendant testified that King decided

he was going to give defendant "a whooping" when he

saw defendant yell at Jeff Schlener. (Tr.IV 1035).

King, with two individuals "flanking" him, then

approached defendant. (Tr.IV 1036-37). One of the

individuals then started wrestling with defendant,

who accidentally broke a beer bottle in the affray.

(Tr.IV 1039-40). Defendant then ran out of the bar

with a "gang" pursuing him. (Tr.IV 1044-45). King and

another then tackled defendant and a tussle ensued.

(Tr.IV 1048). When defendant was subdued and on

the ground, King went over to defendant and gouged

him in the eye. (Tr.IV 1056). Thus, defendant's

version of events does not establish that King was

trying to make a citizen's arrest, but, if believed,

simply established King as the initiator of combat.

Accordingly, the trial judge correctly labeled this a

"classic self-defense" case. (Tr.II 216). A citizen's

arrest instruction not being warranted, counsel was

not ineffective for failure to ask for one. See

Commonwealth v. McCormick, 48 Mass. App. Ct. 106,

109-10 (1999) (counsel not ineffective for [35] failure

to request limiting instruction, where instruction

would have been inappropriate or the request for one

denied), rev. denied, 430 Mass. 1113 (2000).

Even if the evidence supported a citizen's arrest

instruction, defendant's cause would not have been

aided if the judge had given it. Defendant asserts that

as a matter of law, King's citizen's arrest was unlawful

because defendant had not in fact been convicted of a

felony. (D.Br. 25-35). Defendant is incorrect.

"A private citizen may lawfully arrest someone who

has in fact committed a felony. (Generally the 'in fact

committed' element must be satisfied by a

conviction.)" Commonwealth v. Claiborne, 423 Mass.

275, 280 (1996) (parenthetical in original). This

requirement, however, is relaxed in the case of a

police officer acting out of his jurisdiction. Id. at 280-

81. In that case, only probable cause is required to

arrest. Id. The evidence clearly established that Mr.

                                    -11-

King, a Westboro Detective, had probable cause to

arrest defendant for the commission of a felony, either

assault and battery with a dangerous weapon or

assault with a dangerous weapon. See Model Jury

[36] Instructions for Use in Superior Court, (1999),

2.20, 2.22.2 (outlining the elements of these offenses).

Mr. King witnessed defendant smash a beer bottle

up against a pole or on the bar with patrons in the

vicinity. Pieces of flying glass cut Ms. Mann above

and below her eye, causing her to bleed and receive

butterfly stitches in that area. After shattering the

base of the bottle, defendant held the bottle in a

jabbing manner toward the bartender and, other

patrons. This evidence "was 'sufficient to warrant a

person of reasonable caution in believing that the

defendant had committed . . . a crime.'"7 Claiborne,

423 Mass. at 281 (quoting Commonwealth v. Gullick,

386 Mass. 278, 283 (1982)). Because the evidence

established that probable cause existed for Mr. King

to arrest defendant, the omission of the citizen's

arrest instruction had a minimal effect, if any, upon

the jury, and counsel was not ineffective for failing to

seek the instruction. [37]

Defendant also claims that his counsel was

ineffective for failure to move to suppress all the

evidence gained as a result of the purported unlawful

citizen's arrest. Because a citizen's arrest did not

occur and, in any event, Mr. King had probable cause

to arrest defendant, such a motion would not have

been, successful. See Commonwealth v. Harris, 11

Mass. App. Ct. 165, 172 rev denied, 383 Mass. 890

(1981). Accordingly, counsel was not ineffective for

failure to file such a motion. Commonwealth v. Pike,

52 Mass. App. Ct. 650, 656 (2001).

 

 

7 The jury's verdict makes clear that they rejected defendant's

version of events that he did not commit any crime in the bar and

was attacked by Mr. King and his alleged cohorts. See

Commonwealth v. Sirois, 437 Mass. 845, - - - n.13 (2002) (verdict

showed that jury rejected defendants version of events).

                                               -12 -

C. Counsel rendered effective assistance

when he permitted the introduction of the

victim's medical records in lieu of eliciting

expert opinion Interpreting the records and

attempted to use the records to show that

the victim exaggerated his injuries.

 

In one breath defendant claims that his counsel was

ineffective for failure to call a medical expert to

decipher the purportedly illegible medical records

because they assisted his claim that the victim

exaggerated his eye injury to the jury. (D.Br. 21). In

the next breath, defendant claims that his counsel

was ineffective for failure to oppose the admissibility

of these medical records. (D.Br. 16-20). Because

there is no evidence that the medical [38] records

were illegible and no indication that there were

inadmissible, and counsel's decision to agree to their

admission was strategically sound, defendant has not

shown that counsels assistance was ineffective.

First, the victim's medical records were admissible.

While it is true that illegible portions of medical

records (either due to abbreviations and technical

jargon or indecipherability) should be redacted,

"[i]llegibility is a relative matter and there must be

broad discretion in the trial judge to determine in a

particular case whether writing in a hospital record

can be read and decoded." Commonwealth v. Baldwin,

24 Mass. App. Ct. 200, 203, rev. denied, 400 Mass.

1102 (1987). The judge did not abuse his discretion

when he admitted the records into evidence, because

they were legible.

During the victim's testimony the prosecutor

sought to introduce the victim's medical records. (Tr.II

446-53). During the lengthy sidebar on this matter, it

is clear that the prosecutor, trial counsel, and the

judge had no problems deciphering the records. (Id.).

Counsel succeeded in convincing the judge to redact

certain portions of the records, including the victim's

report that he had vitreous [39] fluid coming from his

                                         -13-

eye. (Tr.II 450, 452). While looking at the records, the

judge also redacted other portions that were hearsay

not falling within any exception that would render

them admissible. (Tr.II 450-52). Implicit in this

discussion about the content of the records is the

judge's opinion that the records were legible. As the

motion judge found, defendant forwarded no evidence

in his motion for new trial that they were otherwise.

(Def. Addendum 11). Accordingly, the trial judge did

not abuse his discretion when he admitted the

medical records into evidence and trial counsel was

not ineffective for failure to object to their

admissibility. See Commonwealth v. McLeod, 39

Mass. App. Ct. 461, 463-64 (1995) (counsel not

ineffective for failure to object to admission of

evidence that was not "clearly objectionable"), rev.

denied, 422 Mass. 1101 (1996).

Similarly, counsel was not ineffective for failure to

call an expert witness to interpret the medical

records, as any information to which he would have

testified was cumulative of that before the jury, and

his testimony would not have been dispositive of

whether defendant had the intent to gouge out Mr.

King's eye. [40]

In his motion for new trial, defendant provided the

affidavit of Dr. Joseph Hull. (R.A. 126-27). Dr. Hull

averred that King's medical records revealed that King

suffered from a superficial abrasion to the lids and a

small laceration to the conjunctiva and that there was

no bleeding and the injuries were consistent with

being poked in the eye. (R A. 126-27). The laceration

and abrasion information, however, was contained in

the medical records' before the jury. Trial counsel

also presented John Hayes, who, unlike Dr. Hull, saw

Mr. King right after the incident, and testified that he

did not see any blood or fluid coming from King's eye

and that his injury did not look serious. (Tr.IV 916-

18). He further testified that Mr. King stated that he

must have gotten "poked in the eye." (Tr.IV 918).

Based on this information trial counsel argued that

                                     -14-

King greatly exaggerated his eye injury. (Tr.V 1224-

25). Because the additional testimony would have

been cumulative of the evidence counsel had already

presented at trial and not as convincing given the Dr.

Hull did not see King after the incident, defendant has

not shown how his counsels performance was

deficient or deprived him of a substantial ground of

defense. See [41] Commonwealth v. Sarmanian, 426

Mass. 405, 407 (1998) (counsel not ineffective for

failure to present additional witnesses that would

have been cumulative of evidence already presented

at trial). Accordingly, defendant's assertion that his

counsel was ineffective for failure to object to the

admission of the medical records or call an expert to

interpret the records for the jury, fails.

 

D. The prosecutor properly commented on

the evidence in his summation.

 

Lastly, defendant asserts that the motion judge

erroneously denied his motion for new trial because

the prosecutor's opening statement and closing

argument were purportedly rife with every type of

prosecutorial error. (D.Br. 49-50). Defendant's claim

is frivolous.

First, defendant attempts to incorporate into his

brief those portions of his motion for new trial alleging

prosecutorial error in this regard. (D.Br. 49-50).

Those issues not directly addressed in his brief are

waived and should not be addressed by this Court.

Mass. R. App. P. 16(a)(4).

Second, in his brief, defendant addresses one

claim, namely, that the prosecutor referred to facts

not in evidence when he stated in his closing

argument that defendant admitted/testified that he

gouged Mr. King in the eye. (D.Br. 50). Viewing the

closing argument in its entirety, Commonwealth v.

Degro, 432 Mass. 319, 325-26 (2000), the prosecutor

did not misstate the evidence.

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The prosecutor stated as follows:

 

And then [defendant] takes the stand

and he tells you this story. Remember

when he said he gouged King's eye?

Did that make sense to anybody? I'm

sorry, he said, King gouged his eye.

Does that make sense to anybody? That

King came over to him while he was on

the ground and gouged his eye. Those

were his words, 'He gouged my eye.'

 

(Tr.V 1234 (emphasis added)). As is demonstrated

above, the prosecutor immediately recognized his

misstatement, apologized for it and corrected it. This

correction, in conjunction with the judge's repeated

instructions that closing arguments and statements of

counsel are not evidence, ensured that the

prosecutor's argument did not create a substantial

risk of a miscarriage of justice. Commonwealth v.

Maynard, 436 Mass. 558, 570-7 1 (2002). Accordingly,

the motion judge correctly rejected this claim. [43]

Conclusion.

For the reasons set forth above, the denial of

defendant's motion for new trial should be affirmed.

Respectfully Submitted,

 

JOHN J. CONTE,

District Attorney

For the Middle District,

ANNE S. KENNEDY,

Assistant District Attorney

BBO #635653

Courthouse, Room 220,

Two Main Street,

Worcester, MA 01608

(508) 757-2786

OCTOBER 2002 [44]

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