# Petition for Writ of Certiorari — Elbery v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2029%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 949 ## Text I Se NP AP NTF I 4 No. O08 296 AUG 21 2003 ee In the Supreme Court of the Anited States MICHAEL ELBERY, Petitioner Vv. COMMONWEALTH OF MASSACHUSETTS, Respondent On Petition for a Writ of Certiorari to the Massachusetts Court of Appeals PETITION FOR A WRIT OF CERTIORARI Michael Elbery, pro se 168 Fairfield St. Needham, Mass. 02492 781-444-7324 | aia Questions Presented for Review 1. Where the U.S. Constitution guarantees the defendant effective assistance of appellate counsel were the Massachusetts courts in conflict with the Due Process Clause of the 14th Amendment of the U.S. Constitution and the Supreme Court of the United States by waiving the defendant's "motion for new trial" claims based on the state procedural "Mass. issue waiver rule"”’ 2. Whether the state courts may arbitrarily apply Massachusetts law in order to evade Constitutional issues raised by the defendant and escape a miscarriage of justice? 3. Where the Commonwealth admits the evidence the prosecution used at trial to convict the defendant was perjury, but claims it was permissible to allow the jury to sort out that perjury, were the state courts in conflict with the 14th Amendment Due Process Clause of the U.S. Constitution and the Supreme Court of the United States by not deciding the prosecution had a duty to correct the perjury they knowingly used at trial? Bk Bh ek el i a TABLE OF CONTENTS TABLE OF AUTHc.» .TIES IV TABLE OF ABBREVIATIONS v1 OPINION BELOW ] JURISDICTION ] CONSTITUTIONAL AND STATUTORY PROVISIONS 2 STATEMENT OF CASE 4 A. Undisputed Background Facts 4 B. The prosecution admits the evidence of the extent and cause of the alleged victim's eye injury, which was the evidence used to convict the defendant of "assault with intent to maim" and "assault and battery", was perjury. 7 C. The defendant raised claims the prosecution fabricated three events in order to justify the alleged victim's, King's, "citizen's arrest". 13 D. The Mass. Appeals Court's arbitrary decision on Mass. "citizen's arrest" law in order to evade Constitutional issues raised by the defendant. 14 =a Ss (Se es tae 2s eS Oe oe Se REASONS FOR GRANTING THE PETITION 18 I. The "Mass. issue waiver rule" is in conflict with the Supreme Court, Evitts, and th: Due Process Clause of the F ourteenth Amendment. 18 II. The state courts violated their own laws in order to evade the defendant's claims that his Constitutional Rights under the Due Process Clause of the 14th Amendment of the U.S. Constitution had been violated. 22 Ill. There has been a gross miscarriage of justice. 26 CONCLUSION 27 APPENDIX TABLE OF AUTHORITIES CASES: Federal Brady v. Maryland, 373 U.S. 83 (1963)............... 10, 26 Barr v. City of Columbia, 378 U.S. 146 (1964)......... 23 Coleman v. Thompson, 501 U.S. 722, (1991)........... 25 Evitts v. Lucey, 469 U.S. 387 (1985)...7, 18, 19, 20, 21 Giglio v. United States, 405 U.S. 150 (1972)......11, i4, 17, 26 Gray v. Greer, 800 F2d 644, (1985).......................88 19 Howlett v. Rose, 496 U.S. 356 (1990)....................... 25 In Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, Papert dinnictierseicniail’ nalnassduttadae padaenaanbieniieasaanaiaaieed aa 25 Lawrence v. State Tax Commission, 286 U.S. 276, SE bikincrhictccnneeduniiinccmmaimiducabiialeduniiieianiauiineaoeiia 25 Michigan v. Long, 463 U.S. 1041 (1983)...........000..... 24 Mullaney v. Wilbur, 421 U.S. 684 (1975).................. 11 Murch v. Mottram, 409 U.S. 41 (1972).................... 18 Napue v. Illinois, 360 U.S. 264, (1959)..................... 17 Staub v. City of Baxley, 355 U.S. 313, (1958)........... 25 Strickland v. Washington, 466 U.S. 668 (1984)....... 10, 20, 25 Thompson v. City of Louisville, 362 U.S. 199 (1960).26 U.S. v. Agurs, 427 U.S. 97 (1976)................. 10, 21, 26 U.S. v. Bagiey, 473 U.S. G67 (19BS)........cecccescosssesess 19 Ward v. Board Cty. Commrs. of Love County, 253 U.S. Ea inks icestatainiatesaenissbishindatadeneciamiataeainales 25 Mass: Broussard v. Great A&P Teas Co., 324 Mass. 323, 86 FE EE Ri cncedisuntenecsadilinapreniusimsansaianboneuman 17 Commonwealth v. Adamides, 37 Mass. App. Ct. 339, Se Fe RO Be i erik sa st sesndiccetteetiniernsserel 21,23 Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, ee ee ie, Bi irxdisaccsacinscabavaiwcdausacusinsatanaisanentatie’ 8 Commonwealth v. Chase, 433 Mass. 293, 741 NE2d re SRE EE hc nisavncdcnnsnnnsssacionsisninenensiiatenakamimhaien 7,18 OA LENO OE ate Sk Ra aa Ts narra Ce ee Commonwealth v. Clairborne, 423 Mass. 275, (1996) savnasssiucvibthineweneninetedeieeanalan abel ncennta ssn 14,15, 16 Commonwealth v. Elbery, 9462-JC-3067...............0... 6 Commonwealth v. Elbery 02-P-318 (2002)............. 1,6 Commonwealth v. Elbery 38 Mass. App. Ct. 912, 645 SE Bg Be ei enikcnacanesinccecudeeoscseastelteipaeaancmal 1,6 Commonwealth v. Ennis, 2 Mass. App. Ct. 864, 314 PR Fe EE insxjatancianacitenteanenataneenane 8 Commonwealth v. Harris, 11 Mass. App. Ct. 165, 415 PORE ee OF I Eine nck cennsdacindcbantisncteysaarsic 15, 24 Commonwealth v. Hoppin, 387 Mass. 25, 438 N.E.2d SE 08 ep istissicsencecciscceiapasess apna 10 Commonwealth v. Kerr, 409 Mass. 284, 565 NE2d BED We WE iichcnisicisctieresanedvsiginedibbaeaiaaiedeaane 16 Commonwealth v. Juvenile, 409 Mass. 49, 564 N.E.2d SES USE eiicccchuinicaseulaniapescideatenesoedsaaiaananeies 16 Commonwealth v. LeBlanc, 407 Mass. 70, 551 NE2d | Ne ena ner NEE 6: 26 Commonwealth v. McLaughlin, 364 Mass. 211, 303 FORE SUP CRUE Dis ccnrinekanicimebbndcdsnisesehusaasauiaesimenmedicl 21 Commonwealth v. Moreira, 388 Mass. 596, 447 NE2d Re Ce ie heessinssacicnntenennicentonaisnietinciale cane cee 16 Commonwealth v. Stokes, 374 Mass. 583, 374 NE2d Be CR WET dncirsissisansxasecnsscssscnecgasaheastuncnonaecuaaaan 11 Commonwealth v. Tucceri, 412 Mass. 401, 589 NE2d Rape UF iiscksincdicvecsptbrieugeniendianaaadanneice 10, 23 Gibney v. Comm. 375 Mass. 146, 375 NE2 714 (1978) neupennnaasnendednuneheewehestereahethabiaessasaebeaeelaanaanmel 22 White v. White, 40 Mass. App. Ct. 132, 662 NE2 230 [Fira ai scocnsissssnsketimuaundsieseaeseunsbebiadumesuaeeniammamaubeane 22 CONSTITUTION AND FEDERAL STATUTES: Fourteenth Amendment of the United States Constitution....... 2, 4, 11, 12, 14, 17, 18, 19, 20, 21, 25 Sixth Amendment of the United States Constitution.2, 20 iD Witiide OST ticsscedelietaietinee ee 2 vi STATE PROCEDURAL RULES: Rule 8 of Mass. Rules of Appellate Procedure........... 22 Rule 28c of Mass. Rules of Criminal Procedure........ 19 Rule 30b of Mass. Rules of Criminal Procedure..12, 22 STATE STATUTES: eis ite A Wik: De iiaaacsssedcasdncuavescuesesenanieuinuen 3,5 Eatin: on Gee ik. “D tbkiankndaniscasenchataunsneronaiqaaensena 3,4 is Gs: See Ok Ribinaikcissinsckenbeciabeneaneasloaeanendeal 2,9 ean: Ke Se ay BAD bbkasniccsencchesaconsaneasiiialenenne 3,5 Eels Sie TREE Oh Bei ecabctinccascotsearonisietiestebatieinions 3,4 OTHER AUTHORITIES: Wright, Miller, Cooper, Federal Practice and Procedure, BG. 2d, VOl. IGE, TGGG....cccsccccsseccesesecsses 23 TABLE OF ABBREVIATIONS A.D.A. Assistant District Attorney App. Appendix Arg. Argument CBr. Commonwealth's Appeal Brief (02-P-3 18) DBr. Defendant's Appeal Brief (02-P-318) DRb. Defendant's Reply Brief (02-P-318) D.A. District Attorney/Commonwealth on appeal PC Probable Cause Hearing Transcript PD Police Dept. RA Record Appendix (motion for new trial) T&G Telegram and Gazette TR Trial Transcript WPD Worcester Police Dept. SUPREME COURT OF THE UNITED STATES Michael Elbery, petitioner v. Commonwealth of Massachusetts PETITION FOR A WRIT OF CERTIORARI TO THE MASSACHUSETTS APPEALS COURT The Petitioner, Michael Elbery, (hereinafter defendant) respectfully petitions for a writ of certiorari to review the judgment of the Massachusetts Appeals Court in the case Commonwealth v. Elbery 02-P-318. OPINION BELOW The judgment of the Mass. Appeals Court, App. C, on the appeal of the denial of the defendant's motion for new trial was not reported. The decision of the Mass. Superior Court motion judge, App. E, on the defendant's motion for new trial was not reported. The decision of the Mass. Appeals Court on _ the defendant's direct appeal is reported in 38 Mass. App. Ct. 912, rev. denied, 419 Mass. 1107 (1995). JURISDICTION The decision of affirmation by the Mass. Appeals Court on the defendant's appeal of the denial of his motion for new trial was entered on March 10, 2003, App. C. The defendant on 3-31-03 filed a timely Application for Further Appellate Review to the Mass. Nm SJC. The Mass. SJC exercised their discretion not to review the defendant's appeal, application was denied on June 5, 2003. App. A. The defendant waived his optional Petition for Rehearing before the Mass. Appeals Court. App. B. The jurisdiction of the Supreme Court of the United States is invoked under 28 U.S.C. s. 1257a. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Fourteenth Amendment - Due Process; The Due Process Clause of the Fourteenth Amendment provides in relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor any State deprive any person of life, liberty, or property, without due process of law." U.S. Constitution Amendment XIV Section 1. Sixth Amendment - Right to Counsel; In all criminal prosecutions, the accused shall enjoy the right....... , and to have the Assistance of Counsel for his defence. U.S. Constitution Amendment VI. M.G.L. C. 265 s. 15. Assault; intent to murder or maim; Whoever assaults another with intent to commit murder, or to maim or disfigure his person in any way described in the preceding section, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and one half years. M.G.L. C. 265 s. 14. Mayhem; Whoever, with malicious intent to maim or disfigure, cuts out or maims the tongue, puts out or destroys an eye, cuts or tears off an ear, cuts slits or mutilates the nose or lip, or cuts off or disables a limb or member, of another person, and whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person, and whoever is privy to such intent, or is present and aids in the commission of such crime, shall be punished by not more than 20 years in state prison, or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and half years. M.G.L. C.265 s.15Bb. Assault with dangerous weapon; Whoever, by means of a dangerous weapon, commits an assault upon another shall be punished by imprisonment in the state prison for not more than five years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one-half years. M.G.L. C. 265 s. 13A. Assault and Battery; Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than two and one half years in a house of correction or by a fine of not more than five hundred dollars. M.G.L C. 272 s. 53. Penalty for Certain Offenses - "Disorderly Person"; vevand idle and disorderly persons, disturbers of the peace....may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars or both. STATEMENT OF THE CASE This case is about how the Massachusetts Courts used the unconstitutional "Mass. issue waiver rule" to avoid the defendant's "motion for new trial" claims that proved to a medically documented certainty that the evidence used to convict the defendant was perjury. In so doing, the Mass. Courts violated the defendant's right under the 14th Amendment to Due Process of Law. A. Undisputed Background Facts 1. The citizen's arrest-initial criminal charges. The defendant entered a bar in Worcester on 9-29-92 at 1:30am at last call and was served, and never asked to leave. TR 1081-12. A verbal argument between the bartender and the defendant ensued, shortly after. App. 23a. An off-duty out of jurisdiction Westboro police officer, Tom King, took the side of his friend the bartender. App. 23a. It is undisputed that King and his friends pursued the defendant down the street after the defendant fled the bar. App. 24a. Although the trial testimonies of all witnesses were substantially different, as to how and what happened when King actually reached the defendant, King testified and documented, RA 139 (Westboro PD report-last 4 ), he made a citizen's arrest. App. 3la. King testified and documented he prevented the defendant from escaping, RA 39. It was undisputed at trial that no contact occurred between King and the defendant until after King pursued the defendant 100 yards down the street. DBr. 25 & App. 24a. The Worcester Police arrived and charged the defendant with "disorderly conduct" (M.G.L. C. 272 s. 53) at about 1:47a.m. on 9-29-92 while the defendant was laying face down in the street outside the Winner's Circle Bar under the weight of three men, RA 129 (WPD incident report) and PC 162-23, PC 159-7. By 8:00am the charges were increased to include "mayhem" (M.G.L. C. 265 s.14) (taking out King’ s Ga, Ca ae ey eye), "assault dangerous weapon" (M.G.L. C. 265 s. 15Bb) (broken beer bottle), "assault and battery" (M.G.L. C. 265 s. 13A)(a punch). RA 134. The prosecution would claim the defendant committed these crimes after King's citizen's arrest. App. l4a & 24a. 2. No Probable Cause Found by Worcester District Judge. A probable cause hearing was held regarding those charges in Worcester District Court before Judge Milton Raphelson on 1-20-93. The prosecutor reduced the charge of "mayhem" to "assault with intent to maim" (hereinafter -"attempted mayhem" (M.G.L. C. 265 s. 15) (attempting to take out King's eye) before the start of that probable cause hearing, RA 159 (docket 93-0135), PC 3. After five hours of testimony from five witnesses and none by the defendant, Judge Raphelson found there was no probable cause to arrest the defendant for the four charges before him. Raphelson explained that the off- duty Westboro police officer and alleged victim, Tom King, had no right under Mass. law to pursue and stop the defendant because the defendant had committed no felony in the bar or prior to King's alleged "citizen's arrest" of the defendant 100 yards from the Winner's Circle Bar. RA 135 (Worcester T&G 1-21-93) & PC 265-266. See App. 40a. 3. Indictment. In March of 1993 the Worcester D.A.'s Office rid themselves of all witnesses and exculpatory evidence produced at the probable cause hearing and indicted the defendant with the sole testimony of the alleged-victim and off-duty, out of jurisdiction Westborough police officer, Tom King. King's testimony before the Grand Jury was substantially the same as at trial, infra. RA 65. The defendant raised an issue in his motion for new trial that the Worcester DA's Office impaired the grand jury process. RA 65 (motion claim VIII). 4. Trial & Conviction. After a five-day trial, starting on 6-28-93, the jury convicted the defendant of the three charges before them after the deliberating for less than an hour. The charge of assault dangerous weapon was directed not guilty by the trial judge. RA 159 (docket 93-0135). 5. 10 (TEN)Year Prison Sentence & "Stay of Sentence”. On 7-15-93 the defendant was sentenced to 10 (TEN) years in state prison on the assault with intent to maim charge ("attempted mayhem") and 1 year probation, on and after, on the two misdemeanor charges. RA 160 (docket entry 13). The defendant was then allowed to walk out the front door of the courthouse on a "stay of sentence pending appeal". RA 160 (docket entry 13). The stay was revoked 13 months later due to a false arrest that resulted in a disposition of not guilty on all charges at a trial. See Com. v. Elbery 9462-JC-3067 Worcester District Court. 6. Post Conviction. There was a direct appeal filed by the defendant's appellate attorney in July 1994. See Com. v. Elbery 38 Mass. App. Ct. 912. The defendant raised a claim in his "motion for new trial", RA 114, and its appeal, that his appellate attorney was ineffective in his assistance of counsel. On July 6, 1999 the defendant filed his Pro-se "motion for new trial" in Worcester Superior Court. The Worcester D.A.'s Office filed no response. That motion was denied by the motion judge, without evidentiary hearing, on 12-26-01, 2 1/2 years later. App. 39a. The defendant timely filed an appeal brief, docket 02-P- 318, and reply brief with the Mass. Appeals Court regarding that denial. The trial judge had recused himself from the case. The defendant was released from prison April 2002. 7. "Waiver" of motion claims. Both the motion judge, App. 25a, and the Mass. Appeals Court, App. 3a-4a, waived the defendant's claims of prosecutorial misconduct and ineffectiveness of trial attorney due to a violation of a state procedural rule called the "Mass. issue waiver rule" also referred to as the "waiver doctrine”. The "Mass. issue waiver rule" (hereinafter - "Mass. waiver rule") requires that those constitutional claims be raised on direct appeal or forever lost. Com. v. Chase, 433 Mass. 293, 297-299 (2001). See App. 26a & App. 5a-6a. Both did however, review the _ defendants claims of ineffective assistance of appellate counsel only to the extent the defendant claimed that the appellate counsel failed to raise ineffectiveness of trial counsel. App. 4a, & App. 27a, respectively. The defendant alerted both the motion judge RA 114 and the Appeals Court, App. 41a, that none of his motion claims were waived because the defendant had a right to effective assistance of appellate counsel via the 14th Amendment. Evitts v. Lucey, 469 U.S. 387, 395-398 ('85). B. The Prosecution admits the evidence of the extent and cause of the alleged victim's eye injury, which was the evidence used to convict the defendant of "assault with intent to maim" and "assault and battery", was perjury. DBr.- Arg. II & DRb. - Reply #3-#4-#5-#6 - RA 1-30. The alleged victim and prosecution's witness-in- chief, Tom King, testified at trial as to the cause and extent of his eye injury. This evidence caused the defendant convictions for "attempted mayhem" (attempting to take out King's eye) and "assault and battery” and a 10 (TEN)-year prison sentence. Tom King, alleged victim, testified he suffered these serious injuries to his eye. RA 2 (p. 2 of motion). 1. a cut eyeball, TR 204-1, 468-9. 2. a lacerated eyeball, TR 203-24, 385-12 440-15, 479-3. 3. bleeding from his eyeball, blood coming out of his eye, TR 202-24, 203-1, 468-14. 4. vitreous fluid was leaking out of his eye, TR 202-24, 203-1, 468-14, 486-14. 5. King claimed permanent eye damage, TR 204-3, 204-10. 6. Repeated testimony by King that he almost lost his eye, TR 203-9, 469-17, 468-24, 405-15. 7. Eye blind, TR 203-3, 426-9, 468-11, 381-5, 202-2, 383-23, 437-10. Five trial witnesses, all friends of King's, confirmed and enlarged this testimony by King about King's eye injury. RA 142-146, See App. 60a-66a. As per RA 4, King claimed that these serious eye injuries were caused by repeated thumb gougings by the defendant, King testified, TR 201-17 - TR 202-14 "He (Elbery) took his thumb and jammed it into my eye. On the outside of my eye he jammed it in almost behind the eye and kept pushing the thumb in real hard. He (second thumbing) jammed that thumb back into my eye on the inside of my eye and kept pushing the thumb into my eye, TR 431-22, harder and harder and harder with his thumb nail, TR 432-5. It is undisputed that King went to the hospital 10 minutes after the incident. RA 120 & App. 67a. King's treating physician, Dr. Arinella, authored an unreadable medical record, App. 67a, that undisputedly shows that the evidence produced at trial about the cause and extent of King's eye injury was a fabrication, 1.e., perjury. That illegible and unintelligible medical record, App. 67a, was an exhibit at trial. Illegible medical records are inadmissible, Com. v. Baldwin, 24 Mass. App. 200, 203 ('87) and so are records containing unintelligible medical jargon. Com. v. Ennis, 2 Mass. App. 864, 865 ('74). Senen tn eS A year after trial, the defendant's appellate attorney had King's medical record, App. 67a, deciphered by Dr. Arinella's office through an investigator, RA 123 & App. 68a, and, in 1996, interpreted by a physician, Dr. Hull, RA 126-128 & App. 69a-7la. That appellate attorney would never present the resulting evidence he discovered, see below, either on direct appeal or the motion for new trial he was paid for in advance. Upon review of the deciphering, App. 68a, of King's medical report, App. 67a, medical expert, Dr. Hull, disclosed that King sustained a_ superficial abrasion to his eyelid and a small conjunctiva (outmost mucous membrane covering the eye) laceration causing a "red eye" or inflammation. See App. 69a-71la. Dr. Hull discloses per affidavit, App. 69a-7 la, that King's medical record reveals King’s eye was not bleeding, not leaking vitreous fluid, and that King's eyeball was not cut or lacerated. Hull states, App. 69a-7la, that King's superficial injury was consistent with being poked in the eye, not repeated thumb gougings. But the jury never knew this was true extent of King's "injury". RA 1-30. Per the readable deciphering of King’s medical record, App. 68a, Dr. Arinella documented that King claimed that his "eye injury" was caused by "catching a finger in the eye". See interview sections of App. 67a and its deciphering, App. 68a. But the jury was never alerted that King had told his physician that was the real cause of injury. RA 1-30. The defendant's trial attorney never challenged the perjury as to the cause and extent of King’s eye injury nor did he present the true content of King's medical record to the jury. RA 1-30. No medical expert was at trial. RA 1-30. The defendant's trial attorney did make some comments in his closing argument, TR 1224, TR 1225, that showed he knew the real content of King's medical record without presenting that evidence to the jury. See App. 30a & 10a. Closing 10 argument is not evidence at trial. Com. v. Hoppin, 387 Mass. 25, 30, (1982). The jury never knew that King only had a "red eye" from, as he admitted to his doctor, "catching a finger in the eye". RA 1-30. The defendant's trial attorney was ineffective, Strickland v. Washington, 466 U.S. 668 '84. The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury. Brady v. Maryland, 473 U.S. 83, 86 ('63). It is presumed the prosecutor knew the perjury was presented at trial because he had possession of King's medical record. U.S. v. Agurs, 427 U.S. 97, 103-110. "A new trial is required if there is any reasonable likelihood that the prosecution's knowing use of false evidence could have affected the judgment of the jury". Com. v. Tucceri, 412 Mass. 401, 405, ftnt. 3. RA 16-20. 1. Prosecution admits the evidence was perjury but claims the jury could sort it out from the truth. The D.A., per Commonwealth's brief, does not deny that the eye injury evidence at trial was perjury. App. Sa-20a. The D.A. never addressed the 4 pages of perjury by prosecution witnesses, App. 60a-66a. The D.A. agrees, CBr.-41(lines 1-9)/App. 18a, with Dr. Hull's affidavit showing that King only had a 'red eye", caused from, as King told Dr. Arinella, "catching a finger in the eye". The D.A. agrees that Dr. Hull's affidavit accurately reflects the ‘content of King's medical record and King's "injury" as produced by Dr. Arinella. CBr. 41 (1-9)/App. 18a. The D.A. never denies that Dr. Hull's affidavit reflects the true content of King's medical record. The D.A. instead claims that Dr. Hull's affidavit is cumulative evidence of King's medical record, CBr. 40 (18-23)/App. 18a & CBr. 41/App. 19a, because the jury had the medical record —" _—- Aaa 1] and the D.A. claims it was legible. CBr. 40/App. 18a. In effect, the D.A. agrees King's eye evidence at trial was perjury, since Hull's affidavit and the medical record are the opposite of the prosecution's evidence at trial. The D.A. claims, CBr. 27-28 (line 13-21) /App. 9a-10a & CBr. 40-41/App. 18a-19a, that the jury should be "left to its fact finding function" to sort out "any discrepancy in the evidence as to the extent of King's eye injury” at trial because they had King's medical record. Thus admitting that King’s medical record and the trial evidence were in opposite. Because the jury could not read or understand King's medical record, App. 67a, although it, App. 67a, was an exhibit at trial, Dr. Hull's affidavit, App. 69a-7 la, cannot be cumulative evidence. 2. Prosecutor admits he knew the content of medical record Outrageously, the Commonwealth insists that the prosecutor, and defense counsel could read and understand King's medical records, CBr p.39-40/App. 17a-18a. The question is, how? This is another admission by the prosecution that they knowingly presented perjury to the jury, as King’s medical report and the testimony at trial, App. 60a-66a, are opposite. The prosecution had a duty to correct the perjury. The Due Process Clause of the 14th Amendment mandates the prosecutor had a duty to correct the perjury at trial, App. 60a-66a, regarding King's injury, regardless of the readability of King's medical record. Giglio v. United States, 405 U.S. 150, 153 ('72). DBr-Arg. fi p.19 & DRb p.16. The prosecution has a duty to prove beyond a reasonable doubt every fact necessary to constitute the crime charged and facts that would otherwise mitigate criminal culpability. Mullaney v. Wilbur, 421 U.S. 684, 697-98 ('75), Com. v. Stokes, 374 Mass. 583, 590 ('87). RA 8 & 14. The prosecution used this false evidence to prove excessive force, specific intent, 12 ~ and deadly force by the defendant and falsely defeat the defendant's claim of self-defense. Again, the prosecution violated the defendant's 14th Amendment Right to Due Process. Where federal question was raised & passed _ state courts. As above indexed; the defendant raised this claim of knowing use of perjury by the prosecution and related ineffective assistance of trial counsel in his motion claim I, II, III at Worcester Superior Court, RA 1-30. The motion court waived those claims, via the "Mass. waiver rule,” ruling they should have been raised in the direct appeal. See App. 25a-27a. The defendant appealed to the Mass. Appeals Court and first raised a claim, Argument I of his appeal brief, App. 4la, that he had a Constitutional Right under the Due Process Clause of the 14th Amendment to effective assistance of appellate counsel and that if this claim, or any claim, was missed by his appellate counsel then he, the defendant, had a right to raise all issues missed by the appellate counsel on a motion for new trial under Rule 30b of M.R.C.P.; in that same appeal argument the defendant reminded the court that factual issues not of the trial record could not be raised on direct appeal. In that appeal argument-I, App. 4la-43a, the defendant reminded the Appeals Court the evidence, App. 68a-71la, discovered by his appellate attorney a year after trial, proving that the evidence of King's injury, that convicted him, was perjury could not be raised on direct appeal because those facts did not appear on the trial record. The defené»nt raised the claim that the prosecution knowingly used perjured evidence at trial as to the cause and extent of King's eye injury and that his trial attorney was ineffective, regarding the same evidence, in Argument II of his appellant's brief and in Arguments III, IV, V, VI of his reply brief. The Tbe SN). OWS at Bee G88 “ 13 Appeals Court held that all claims of prosecutorial misconduct and ineffectiveness of trial counsel were waived, due to the "Mass. waiver rule", and should have been raised on direct appeal. App. 3a-4a. C. The defendant raised claims the prosecution fabricated three events in order to justify the alleged victim's, King's, "citizen's arrest’. 1. Prosecution witnesses change their testimonies. The defendant raised a motion claim X, RA 73-89, that the prosecution knowingly allowed their witnesses to change their probable cause hearing testimonies to inculpate the defendant at trial. At the PC hearing various witnesses testified the defendant was minding his business not bothering anyone, that it was the bartender that started the argument in the bar. The bartender apologized to the defendant on the witness stand for starting the argument. PC 111-3. These same witnesses testified it was the prosecution's alleged victim, King, who picked the fight with the defendant inside the bar and that it was King that had to be restrained while the defendant remained seated. However, at trial these same witnesses testified the opposite (perjury). On appeal this claim was raised in DBr.-Arg. VI, see App. 50a-53a. 2. The bottle assault. In order to justify King's citizen's arrest, the prosecutor knowingly presented false evidence to the jury that the defendant used a bottle as a weapon inside the bar, motion claim VI-RA 46-58, & DBr. Arg. IV, see App. 45a-50a. The prosecution witnesses admitted at the probable cause hearing that the defendant did not use a bottle as a weapon. DBr. 35-36, See App. 45a-46a. 3. A "girl" was injured. The prosecution claimed the plaintiff injured a "girl," causing her to be stitched in the face after being cut by glass from a broken beer bottle. There was never a criminal charge for this. The ae Tn 14 defendant raised a motion claim IV-RA 30-39, DRb. ) Reply #1, that this was another fabrication. See App. ; 93a-59a. 4. Prosecutor lead witnesses. The defendant claimed that the prosecutor lead his witnesses, without objection, in order to produce testimonies causing i these various fabrications of evidence at trial. RA 21- ; 24, RA 142-158. 5 Knowing use by the prosecution to obtain a , conviction is a violation of the 14th Amendment's Due Process Clause. The prosecutor had a duty under the Due Process Clause of the 14th Amendment to correct that perjury at trial. Giglio, 405 U.S. 150, 153. Both the motion judge, App. 26a-27a, and Appeals Court, App. 3a, decided that these claims of knowing use of perjury by the prosecution were waived due to the "Mass. waiver rule". D. The Mass. Appeals Court's arbitrary decision on Mass. "citizen's arrest" law in order to evade Constitutional issues raised by the defendant. 1. Trial. At trial it was undisputed by the prosecutor, judge, and defense attorney that King acted as a citizen while pursing and stopping the defendant with no powers or jurisdiction of a police officer. DBr. p.28. It was also undisputed at trial that King never f identified himself as a police officer. DRb. p.8 & App. 9 12a. 5 2. Motion New Trial. The defendant raised an issue in his motion for new trial, RA 39-46,motion claim V, that King had no right pursuing and stopping the defendant; that King's citizen's arrest was illegal. It is - wa undisputed the defendant did not commit a felony prior to King's arrest of the defendant. App. 3la. In order to justify a citizen's arrest the citizen must point to a felony committed by the arrestee prior to the citizen's arrest. Com. v. Clairborne, 423 Mass. 275, 15 280 ('96). Further, Mass. law requires that the "in fact test" be passed to have a valid citizen's arrest. Com. v. Harris, 11 Mass. App. 165, 170 ('81). The "in fact test" requires that the felony allegedly justifying the citizen's arrest results in a felony conviction in a court of law. id. The defendant further argued that King's undisputed pursuit and stop of the defendant was a crime, not a citizen's arrest, and that the defendant was the victim. id. The defendant raised constitutional issues in that claim V of his motion for new trial that both his trial and appellate counsels were ineffective for not raising this issue and that the prosecution deceived the jury to believe King's pursuit, stop, and assault of the defendant was perfectly legal instead of telling the jury King had no right under Mass. law doing so. There was no citizen's arrest instruction at trial. App. 13a. The motion judge decided that any claim of prosecutorial misconduct was waived, due to the "Mass. waiver rule," and s0uld have been raised on the defendant's direct appeal, App. 25a-26a. The motion judge relieved the defense attorneys of ineffectiveness by deciding King did act legally as a citizen without giving any further explanation. App Sla. 3. Appeal. The defendant appealed this issue, DBr.- Argument III, raising the same undisputed facts and the same law while also claiming that both his defense counsels were ineffective and the prosecution deceived the jury that King's citizen's arrest was legal. Reversing their position at trial, the Commonwealth, via appellee brief, App. 13a-16a, argued that King was a police officer while he was drinking in the bar and during the underlying incident not a citizen. The prosecution argued that as an out of jurisdiction police officer King was entitled to the "relaxed standard" of the "in fact test” under Mass. law. Clairborne, 423 Mass. 275, 280. The "relaxed eR ee nnn nnn en ene ALA SAAMI... SATE aS AOE TAIT B TE ONE EES RETEST INSPITE EMD Mehmet nn enrages | 16 standard” requires an out of jurisdiction police officer only have probable cause of a felony to make an arrest. id. The Commonwealth argued that probable cause existed for King's "arrest" due to a "girl's" injury and an alleged bottle assault by the defendant inside the bar. App. 16a. The defendant argued in reply, per Reply #2 - DRb. 7-8, that King could not be considered a police officer as a matter of Mass. law because it was undisputed he did not identify himself as an officer. App. 12a. Com. v. Moreira, 388 Mass. 596, 601, '83; that an out-of-jurisdiction, off-duty police officer is only a citizen with no police powers. Com. v. Kerr, 409 Mass. 284, 287, '91. And that because King was drinking in a bar, and concealed his identify as a police officer, he did not comply with the "responsible action of legitimate law enforcement” required for the "relaxed standard". Clairborne, 423 Mass. at 280. That the "relaxed standard” in Clairborne applies only to out of jurisdiction police while on duty. id. The defendant, DRb. 9-11, further argued that even if you consider King a police officer, although he did not identify himself as such and was off-duty and out of jurisdiction, there was found to be No Probable Cause, PC 265-266 & App. 40a, of a felony for any of the conduct by the defendant before King's citizen's arrest. A probabie cause finding is not appealable. Com. v. Juvenile, 409 Mass. 49, 51('91). The D.A. documented in an 11-30-92 letter there was no probable cause of felony - "....reason for King’s pursuit was defendant's alleged disorderly conduct in bar". DRb. p. 2 & RA 133. It is undisputed that there were never any criminal charges brought regarding a girl being injured in the bar. King admitted at the probable cause hearing he did not know a girl was injured. PC 53-6, DRb. 10. The prosecutor admitted no probable cause of a felony, TR 133 -A.D.A. Ball-"there isn't a crime for that, not a felony for girl's cutting". DRb. 11. eV ghee >. A 6 SY ea aa N Ss CE MLS gy = = 17 The defendant replied, DRb. p. 10, that the indictment for "assault dangerous weapon" yielded no probable cause because King testified at trial that the defendant did not assault anyone with a bottle, App. 46a, and then told the grand jury the opposite. App. 47a. Thus the prosecution gained that indictment by fraud. Broussard v. Great A&P Teas Co., 324 Mass. 323, '49. Federal Issues. As in his motion claim V, the defendant also claimed, DBr. 31, that the prosecutor violated the defendant's Due Process Rights under the Fourteenth Amendment because he deceived the jury to believe that King acted legally by pursuing and stopping the defendant; that the prosecutor had a duty to alert the jury that under Mass. law King had no right pursuing and "arresting" the defendant. "A lie is a lie and if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth”. Napue v. Illinois, 360 U.S. 264, 270 ('59). Deliberately deceiving a jury by presentation of known false evidence is incompatible with the rudimentary demands of justice. Giglio, 405 U.S. at 153. The defendant's defense at trial was self-dense. First, the Mass. Appeals Court ruled that all claims of prosecutorial misconduct were waived, due to the "Mass. waiver rule," and should have been raised on direct appeal. App. 3a. This would include the prosecutor's misconduct relating to citizen's arrest. The Mass. Appeals Court, App. 4a, addressed the citizen's arrest issue only to the extent of addressing ineffectiveness of the defendant's appellate attorney. The Mass. Appeals Court, App. 4a, simply agreed with the motion judge's decision on citizen's arrest, App. 3la, when they agreed with the motion judge's determination that the appellate attorney, to the extent of raising claims of trial attorney's effectiveness, was not ineffective. App. 37a. However, the motion judge found that King acted only as a private citizen and made a legal citizen's arrest. App. 3la. The motion judge did not address. the requirement under Mass. law that a citizen's arrest pass the "in fact test". As above, the D.A. argued that King acted as a police officer not a citizen, App. 13a- l6a, the opposite of the motion judge. See II-B- "decision citizen's arrest", infra. REASONS FOR GRANTING PETITION I. The "Mass. issue waiver rule" is in direct conflict with the Supreme Court, Evitts, and the Due Process Clause of the Fourteenth Amendment. The decisions of the Mass. Courts, supra, to waive, via the "Mass. issue waiver rule,” the defendant's "motion for new trial" claims and their appeal are in direct conflict with the decisions of the Supreme Court of the United States, and the Due Process Clause of the 14th Amendment of the U.S. Constitution which holds the defendant has a right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396-98, ('85). The state courts decided, App. 3a-4a & App. 25a-27a, that most of the defendant's claims and all of the defendant's claims of prosecutorial misconduct and ineffective assistance of trial counsel claims, as raised on the defendant's "motion for new trial" and its appeal, were waived and forever lost, due to a state procedural law called the "Mass. issue waiver rule", and should have been raised by the defendant's appellate attorney in the defendant's direct appeal. Com. v. Chase, 433 Mass. 293, 297-299 (2001) (citing Murch v. Mottram, 409 U.S. 41, 45, '72, to support the "Mass. waiver rule"). However, the Supreme Court of the United States held there is a Constitutional right under the 14th Amendment Due Process Clause RIDA ist tas in Vtg tank! ePrints kt lt siete SARL tery ——___________ 19 to effective assistance of appellate counsel. Evitts, 469 U.S. at 396. Failure to comply with state appellate procedures causes an appellate attorney to be ineffective in his assistance of counsel. Evitts, 469 U.S. at 392. This waiver decision by the state courts resulted in no review of over a dozen motion claims the defendant raised on his motion for new trial that the state courts have decided should have been raised by the defendant's appellate attorney on direct appeal. All those dozen motion claims raised violations of the defendant's rights under the U.S. Constitution. Six of those waived motion claims that raised an issue that the prosecutor knowingly used perjury at trial to gain the conviction were also presented in the defendant's appeal of the denial of his motion for new trial. See Statement of Case, supra, for those six claims of prosecutorial misconduct also raised on _ the defendant's appeal of the denial of his motion for new trial. An appellate attorney is ineffective when he fails to raise issues that would have resulted in a reversal of the criminal conviction. Gray v. Greer, 800 F2d 644, '85. Each of those waived motion claims would have resulted in a new trial, due to their meritorious showing that the defendant's Constitutional Rights to Due Process of Law were violated, and more specifically that the prosecutor knowingly~ used perjury at trial to obtain the conviction of the defendant. The best example of merit is that the prosecution knowingly used perjury as to the cause and extent of the victim's eye injury, see Statement of Case-B. A conviction must be set aside if there is any reasonable likelihood that perjury knowingly used by the prosecutor could have affected the jury verdict. U.S. v. Bagley, 473 U.S. 667, 678, (85). In Mass. there is a guaranteed right to a direct appeal of a criminal conviction. Rule 28c-MRCP. A direct appeal as of right must comport with the Due 20 Process Clause of the 14th Amendment. Evitts, 469 U.S. 393. The defendant had a Due Process right under the 14th Amendment to effective appellate counsel regarding his direct appeal. Evitts, 469 U.S. 396. If, as the state courts claim, his appellate attorney, on direct appeal, should have raised many the defendant's motion claims, then the defendant's appellate attorney was ineffective. The only place for the defendant to raise those claims missed by the appellate attorney, and raise a claim that the defendant's appellate attorney was ineffective in his assistance of counsel, is on a motion for new trial. The defendant claimed his appellate attorney was ineffective in motion claim XVIII, RA 114. The defendant raised a claim that his appellate attorney was ineffective with each appeal argument that should or could have been raised on direct appeal. The state courts were reminded by the defendant, per motion claim XVIII, RA 114, and appeal argument-I, App. 41a, that there was no waiver of his motion claims due to Evitts. By waiving the prosecutorial misconduct and ineffective assistance of trial counsel claims the state courts never addressed the defendant's most potent claim; that King's eye injury evidence at trial was knowing prosecutorial perjury. And that defendant's trial counsel was ineffective regarding that same eye evidence in violation of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 ('84). The state courts reviewed the performance of the defendant's appellate counsel to the extent that the defendant's trial attorney was ineffective, but the defendant never raised a claim that his appellate attorney was ineffective regarding King’s eye injury evidence. The appellate attorney could not be heid responsibie for that claim on direct appeal because the evidence, App. 68a-71a, through his investigation came more than a year after the trial. Factual claims not appearing on the trial record must be raised on a RPL I EET REN FI LEE MAGUS ORI motion for new trial. Com. v. Adamides, 37 Mass. App. Ct. 339, 344 ('94). The state's decision to waive the defendant's motion claims based on Mass. procedural law, the "Mass. issue waiver rule,” is in conflict with Evitts and the defendant's Constitutional Rights to Due Process per the 14th Amendment that guarantees the defendant effective assistance of appellate counsel. Evitts, at 396. Per Evitts, none of the defendant's 18 motion claims, which were all constitutionally grounded, should have been waived. RA 1-115 & App. 4la. Because the Mass. "waiver rule" is unconstitutional those waived motion claims should be reviewed resulting in a reversal of the jury's verdict and a new trial because of ineffective assistance of trial counsel and prosecutorial misconduct. The "Mass. waiver rule" causes a defendant to lose, forever, constitutionally grounded claims that the appellate counsel fails to raise on direct appeal. As per App. 25a-27a & App. 5a-6a, the "Mass. waiver rule" has been used for decades in Massachusetts causing an injustice to criminal defendants , whereby, their right under the 14th Amendment's Due Process Clause to effective assistance of appellate counsel is ignored. See Com. v. McLaughlin, 364 Mass. 211, 229 (1973)(citing cases back to the 1920's that used the "Mass. waiver rule" or "waiver doctrine"). See also App. 6a, the Commonwealth citing U.S. v. Agurs, 427 U.S. 97, as legal support for the "Mass. waiver rule." 22 Il. The state courts violated their own laws in order to evade the defendant's claims that his Constitutional Rights under the Due Process Clause of the 14th Amendment U.S. Constitution had been violated. A. Factual claims not on the trial record not treated "even handedly." The state courts violated their own procedural law by waiving, via the "Mass. waiver rule," the defendant's motion claims. App. 3a-4a. Some of those motion claims waived by the state courts presented factual claims of prosecutorial misconduct and ineffectiveness of trial attorney that were grounded on facts not appearing on the trial record making it impossible to raise those claims on direct appeal. Those claims include motion claims I], II, Ii], RA 1-30, argument II on appeal, see Statement of Case - B, supra, showing that the prosecution knowingly presented perjury at trial regarding the victim's cause and extent of eye injury and that the defendant's trial attorney was ineffective regarding this same eye injury evidence. 1. Raising Factual claims not on trial record. In Mass., a direct appeal of a criminal conviction may only raise factual issues that appear on the trial record. White v. White, 662 NE2 230, 232, 40 Mass. App. Ct. 132, 133 ('96) & MRAP-Rule 8 (record of lower court is record for appeal). "Constitutional arguments raised by the petitioner that are based on factual questions are best left for resolution in the first instance by a trial judge on a motion for new trial". Gibney v. Comm., 375 Mass. 146, 148, 375 NE2 714 ('78). This Massachusetts law is not surprising since an appeals court is a court of review. DBr. Arg. I. See App. 42a- 43a. iS 2 3 rd = o ee ee RT eS eR NE te a al a ee 23 2. Knowing use of Perjury by Prosecutor. Mass. law further requires that factual claims, specifically relating to non-disclosure type prosecutorial misconduct claims, should be raised on a motion for new trial via Rule 30b of the MRCP. There is no reason why claims of prosecutorial misconduct (non- disclosure type claim) could not be advanced by a motion for new trial to which the regular principles of MRCP 30b apply. "Even if an undisclosed evidence is not "newly discovered", the failure of a prosecutor to furnish exculpatory evidence in his possession is a proper basis for a new trial motion based on common law or constitutional grounds". Tucceri 412 Mass. 408-409. DBr. Arg. I. See App. 42a. 3. Ineffective Assistance of Counsel. "When the trial record provides an insufficient factual basis for appellate review, the claim of ineffective assistance of trial counsel is best left for resolution in the first instance by the trial judge in a motion for new trial." Com. v. Adamides, 37 Mass. App. Ct. 339, 344 ('94). See App. 43a. Regardless of its unconstitutionality, the "Mass. issue waiver rule" has never been used by the Mass. courts to exclude "factual claims” that did not appear on the trial record from being reviewed on a motion for new trial. State procedural requirements, which are not strictly or regularly followed, cannot deprive the Supreme Court of the right to review. Barr v. City of Columbia, 378 U.S. 146, 149 (1964). State procedural requirements not applied evenly do not constitute an adequate state ground barring Supreme Court review of the federal issue. id. The state courts cannot violate their own law in order to evade the defendant's Constitutional Rights and deny Due Process of Law. "Due Process includes enforcement of state rights, as well as, federal rights- state procedure can never be independent of the requirements of Due Process". Wright, Miller, Cooper, ee | oe nee ESAS: Cee RRR ee 24 Federal Practice and Procedure, Vol. 16B, 2d Ed. 1996, 16B p. 375. The defendant's factual claims that could not be raised until a motion for new trial should be reviewed. This would include all motion claims appealed by the defendant with the exception of "citizen's arrest" which was a strictly legal issue. B. Decision - "Citizen's Arrest" The decision of the Appeals Court on citizen's arrest, App. 4a, was arbitrary and ambiguous and provided no adequate and independent state-law ground for its decision on the defendant's claim that King did not act legally via his arrest. Although lacking much discussion, per App. 4a, it appears that the Appeals Court agrees with the motion judge's finding that King acted only as a citizen and that King's citizen's arrest was legal. App. 3la. That finding by the motion judge is in conflict with the D.A. who claims King acted as a police officer and was entitled under Mass. law to be treated as such. App. 15a-16a. Regardless, the Appeals Court, App. 4a, found against the defendant's citizen's arrest argument, which also claimed that King acted only as a citizen as a matter of Mass. law, see Statement of Case - D. Since the Appeals Court is agreeing with the defendant that King acted as a citizen, and it is undisputed King failed the "in fact" test required by Mass. law, that makes King's arrest and the conviction of the defendant illegal. Com. v. Harris, 11 Mass. App. 170. Ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by the Supreme Court of the validity under the federal constitution of state action. Michigan v. Long, 463 U.S. 1032, 1041, '83. By denying the defendant's citizen's arrest claim the Appeals Court has changed the law of citizen's arrest for the purpose of the defendant's appeal via that unpublished decision. Mass. citizen arrest law remains as it was, per published opinions, for decisions of future cases. That makes it an arbitrary decision of state law that resulted in evading the defendant's federal claim that the prosecutor had deceived the jury that King's arrest of the plaintiff was perfectly legal rather than an assault on the defendant, and that the defendant's attorneys were ineffective regarding citizen's arrest. The Appeals Court decision on citizen's arrest lacks fair or substantial support via precedent state law or reason causing it to be inadequate resulting in a violation of Due Process, Ward v. Board Cty. Commrs. of Love Cty, 253 U.S. 17, 22-23, 1920; and in effect an evasion of federal law. In Memphis Nat. Gas Co. v. Beeler, 315 U.S. 649, 653-654, 1942. The requirement of adequacy applies. to substantive as well as procedural state law. Coleman v. Thompson, 501 U.S. 722, 729 ('91). The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which the Supreme Court may review de novo. Howlett v. Rose, 496 U.S. 356, 366 ('90). The state ground, to be adequate, must also be a tenable one. In other words Supreme Court review cannot be evaded by reliance on a state ground "so certainly unfounded that it properly may be regarded as essentially arbitrary, or a mere device to prevent a review of the decision upon the federal question". Lawrence v. State Tax Commission, 286 U.S. 276, 282 (1932). The Mass. Appeals Court's arbitrary and irregular application of citizen's arrest law cannot prevent review by the Supreme Court of the underlying federal issue that the prosecutor deceived the jury that King’s pursuit and stop (arrest) of the defendant was perfectly legal. Staub v. City of Baxley, 355 U.S. 313, 318-319 ('58). (Supreme Court will review nonfederal ground, which defeats’ the enforcement of federal rights). The defendant's claim that King's citizen's arrest was actually a false arrest and assault and battery on the defendant and the _ related ”~ a eaeaanstentateaitmsamtacesiesssimamsanacitesienacvutisn ta isssatinenanionpioniudlincmmsarisinse iii 26 constitutional issues, see Statement of Case - D should be reviewed resulting in a new trial. Since King had committed a false arrest the alleged evidence of assault by the defendant should have _ been suppressed. Com. v. LeBlanc 407 Mass. 70, 75 (1990). The suppression would result in no evidence of a crime; this causing the conviction to be a violation of the 14th Amendment's Due Process’ Clause. Thompson v. City of Louisville, 362 U.S. 199, 200 (1960). Ill. There has been a gross miscarriage of justice. The Mass. Appeals Court referred to page 20-43 of the Commonwealth's brief, in making their decision. See App. 3a-4a. As per Statement of Case-B, supra, the Commonwealth, per appeal brief, agreed that the evidence of King’s injury, used to convict the defendant was medically documented perjury, and the prosecutor knew it. The perjury regarding King's injury was huge not slight. The Commonwealth, per that appeal brief-App. 10a, claim it was permissible to leave the perjury (D.A. calls perjury a discrepancy) presented at trial to the jury's fact-finding function and have the jury sort out the perjury. The jury was never presented any evidence or testimony at trial that allowed them to know the content of King’s medical record. They were only presented the prosecution's perjury. RA 1-30. Had the jury not been deceived about Mass. citizen's arrest law they would have learned that the defendant was the victim. Supporting the defendant's defense of self-defense. The Mass. Appeals Court was alerted to this miscarriage of justice. 27 That decision by the Mass. Appeals Court violates Brady and progeny that holds that knowing use of perjury by the prosecution at trial is a violation of the Due Process Clause of the Fourteenth Amendment. U.S. v. Agurs, 427 U.S. 97, 103. The prosecutor is responsible for all evidence at trial that he knew or should have known to be perjury. id. The prosecutor has a duty to correct all perjury known to them at trial. Giglio v. United States, 405 U.S. at 153. Conclusion: The writ of certiorari should be granted. There has been a miscarriage of justice - the conviction of Michael Elbery should never have happened in a U.S. courtroom. The Massachusetts courts arbitrarily used state law to evade the defendant's post-conviction constitutional issues. The Massachusetts courts for decades have used the state procedural "Mass. issue waiver rule" to eliminate criminal appellant's Due Process Right to effective assistance of appellate counsel, in direct conflict with Supreme Court law, resulting- in years of mass injustice. In Massachusetts, due to the use of the "Mass. issue waiver rule," the criminal appeal procedure continues to be a meaningless ritual not protected by Due Process of Law. In view of the conflict of the decision below with past decisions of this Court, the Court may wish to consider a summary reversal. Respectfully submitted, Michael Elbery, pro se 168 Fairfield St. Needham, Mass. 02492 781-444-7324 August 1, '03 APPENDIX TABLE OF CONTENTS APPENDIX A Notice of Denial of F.A.R.~ - Massachusetts Supreme Judicial Court, dated June 5, 2003 APPENDIX B Notice of Withdrawal Petition for Rehearing -- Massachusetts Appeals Court, dated May 1, 2003 Memorandum and Order Pursuant to Rule 1:28- Massachusetts Appeals Court, dated March 10, Commonwealth's Appellee Brief - pages 20-44, dated October 2002 APPENDIX E Memorandum and Decision on Motion for New Trial - Superior Court Motion Judge, dated December 21, 2001 APPENDIX F Probable Cause Hearing Decision of January 20, 1993 - Worcester District Judge Milton Raphaelson ... 40a APPENDIX G Defendant's Appeal Arguments I, IV, VI, IGE FT Wh itensessnncencvnspeccnsduesipienssecceseess 4la APPENDIX H Exhibit J of defendant's motion for new trial - Trial transcript cites of evidence presented to trial jury regarding Tom King's eye injury.............. 60a APPENDIX I Dr. Arinella's Medical Report - Tom King ... 67a Deciphering of Dr. Arinella's Medical Report - AIDS Investigation..................... 68a Dr. Hull's Affidavit - Interpretation of Dr. PRI ee SI Reda csnetccncnctoventunavednenndeasenie 69a la APPENDIX A Supreme Judicial Court for the Commonwealth of Massachusetts 1412 Courthouse, Boston, Massachusetts 02108 (617) 557-1020 Michael G. Elbery 168 Fairfield Street Needham, MA 02492 RE: Docket No. FAR-13357 COMMONWEALTH vs. MICHAEL G. ELBERY Worcester Superior Court No. WOCR1993-00 135 A.C. No. 2002-P-0318 NOTICE OF DENIAL OF F.A.R. APPLICATION Please take note that on 06/05/03, the above- captioned Application for Further Appellate Review was denied. Susan Mellen, Clerk Dated: June 5, 2003 To: Harry D. Quick, III, A.D.A. Michael G. Elbery APPENDIX B COMMONWEALTH OF MASSACHUSETT'S APPEALS COURT CLERK'S OFFICE 1500 NEW COURT HOUSE BOSTON, MASSACHUSETTS 02108 (617) 725-8106 May 1, 2003 Michael G. Elbery 168 Fairfield Street Needham, MA 02492 RE: No. 2002-P-0318 COMMONWEALTH vs. MICHAEL G. ELBERY NOTICE OF DOCKET ENTRY Please take note that, with respect to the Notice of withdrawal of petition for rehearing, filed by Michael G. Elbery. (Paper #31), on May 1, 2003, the following order was entered on the docket of the above-referenced case: RE#31 Noted. As the petition has been withdrawn, no further action will be taken on the petition. (Laurence, Gelinas, Mills, JJ.) Notice. Very truly yours, The Clerk's Office Dated: May 1, 2003 To: Harry D. Quick, III, A.D.A. Michael G. Elbery 3a APPENDIX C COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 02-P-318 COMMONWEALTH vs. MICHAEL G. ELBERRY.! MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 We affirm the motion judge's denial of Elberry's motion for a new trial and request for an evidentiary hearing. The facts in this case are set forth in succinct manner in our decision affirming the defendant's conviction on direct appeal. Commonwealth v. Elberry, 38 Mass. App. Ct. 912 (1995). The motion judge determined that certain of the defendant's claims, (claims of judicial misconduct, prosecutorial misconduct, inadequate jury instructions, errors in the admission of evidence, errors in sentencing, and claim that the verdicts were against the weight of the evidence), were waived, as they had not been raised in his direct appeal. For the reasons and upon the authorities set forth in the motion judge's memorandum of decision, and in the Commonwealth's brief, especially at pages twenty through twenty-three, we agree that the defendant's claims were waived by his failing to raise them in his direct appeal. In his motion, Elberry also claimed ineffective assistance of both his trial and appellate counsel. ' Although the defendant, in his pro se brief, spells his name "Elbery," we follow our editorial convention of adhering to the spelling in the indictment. eee ge geen See SSS SS ee eran ree 4a The motion judge found that he had waived any claim to ineffective assistance of trial counsel, again, because that claim was not raised in his direct appeal. We agree. See Commonwealth v. Chase, 433 Mass. 293, 298-299 (2001). With regard to the defendant's claim of ineffective assistance of appellate counsel, the motion judge appropriately reviewed the trial record to determine whether trial counsel was in fact ineffective and thus appellate counsel would have been ineffective if he failed to raise trial counsels ineffectiveness on appeal. Our review of the trial record leads us the same conclusion as that reached by the motion judge: that trial counsel was not ineffective, and therefore appellate counsel had no reason to raise the issue on direct appeal. For the reasons and upon the authorities set forth in the motion judge's memorandum of decision, and for those set forth in the Commonwealth's brief, especially at pages twenty-three through forty-three, we affirm the motion judge's denial of the defendant's motion in this regard. We further conclude that there was no abuse of discretion in the motion judge's refusal to grant an evidentiary hearing, as the defendant raised no substantial issue. See Mass.R.Crim.P. 30(c)(3), 378 Mass. 901 (1979). Order denying motion for new trial affirmed. By the Court (Laurence, Gelinas & Mills, JJ.), Clerk Entered: March 10, 2003. ee Sa APPENDIX D 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 6a 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] Ta 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 * 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). 8a 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 9a 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 probablethe 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). 10a 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 awitness 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, lla 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.1I 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 932; 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. he RSET ee en A ee ELLE LLL TT LTE INLET LET PERNT EA: LE: LT ITE EE 12a 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 13a 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).© 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 eee —___ l4a 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). lSa 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 2 "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 denieaj, 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 l6a 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.'"” 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). E fd 17a 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, "{ijllegibility 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." Commonweaith 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 Lney 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 } 18a 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 anda 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 19a 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. mip i a 20a 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 (S08) 757-2786 OCTOBER 2002 [44] 2la APPENDIX E COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CRIMINAL ACTION NO. 93-0135 COMMONWEALTH vs. MICHAEL ELBERY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL AND REQUEST FOR AN EVIDENTIARY HEARING On July 2, 1993, after a five-day jury trial, the defendant, Michael Elbery, was convicted of assault and battery (G.L. c. 265, §13A), assault with intent to maim (G.L. c. 265, §15), and being a disorderly person (G.L. c. 272, §53).! A fourth count of assault with a dangerous weapon (G.L. c. 265, §15B(b)) was dismissed at trial. The defendant's convictions were affirmed on appeal. 38 Mass. App. Ct. 912. Representing himself pro Se, the defendant now moves for a new trial pursuant to Mass. R. Crm. P. 30(b)?. 1 The defendant was sentenced to ten (10) years' imprisonment at M.C.I., Concord, on the maiming charge. At the sentencing the judge, Toomey, J., expressed his intention that the defendant serve one (1) year. The defendant was also sentenced to concurring one (1) year's probation for the other two convictions to be served after the maiming sentence. 2 Despite a 60-page limit ordered by Judge Toomey, the defendant submitted a 115-page memorandum of fact and law and an eight-page amendment to the original memorandum in support of his motion for new trial. Specifically, Judge Toomey's February, 28, 1997 order stated that, "Defendant's memorandum shall not exceed 60 pages including items of appendix, addendum LT TT TT ATTRA TT 22a In addition, the defendant seeks an evidentiary hearing and further discovery as allowed by Mass. R. Crim. P. 30 regarding the injuries he allegedly sustained by Thomas King. Following are the grounds upon which the defendant primarily relies: ineffective assistance of trial counsel? and appellate counsel‘, judicial misconduct, prosecutorial misconduct®, that the verdict was against the weight of the evidence (insufficient evidence)’, inadequate jury instructions§, inadmissible evidence admitted during trial?, and duplicative sentencing!°. For the following reasons, it is hereby ORDERED that the defendant's motion for a new trial and request for an evidentiary hearing are DENIED. ‘ and copies of documents as to which Defendant makes reference in the memo." The defendant filed a petition for relief to the Supreme Judicial Court from the Superior Court order limiting his memorandum in support of his motion for new trial to 60 pages. In a decision dated July 13, 2000, a single justice of the Supreme Judicial Court denied the petition, and the defendant appealed. The Supreme Judicial Court held that the defendant had another available remedy and, thus, was not entitled to extraordinary relief. Elbery v. Commonwealth, 432 Mass. 1007, 1007-1008 (2000). 3 See Counts I - XV, excluding III. 4 See Counts XVIII. 5 See Counts IX and Count I of the amended motion. 6 See Counts II, IV, VI, VIII, X, XII, and XVI. 7 See Counts VI and VIII. 8 See Count XVII. 9 See Count III. 10 See Count XIV. 23a BACKGROUND The trial transcript indicates that the jury could have reasonably found the following facts: At the time of the incident at issue, Michael Elbery was 42 years old. He had previously owned a bar in the city of Worcester. On the evening of September 28, 1992, he stopped by the Winner's Circle bar located on Shrewsbury Street in Worcester. Elbery was acquainted with the bartender of that evening, Jeff Schlener. He did not know any of the other 10-15 patrons in the bar at the time. The Winner's Circle is a small establishment and all of the patrons were seated at the semi-circle shaped bar. Elbery was served two beers that evening, finishing approximately one of them before the incident occurred. He was not intoxicated. Among the other patrons in [21] the bar were two off-duty doormen employed by the bar, two young women who had stopped by after working a waitressing shift at the Ground Round, and Thomas King, an off-duty detective for the Westborough Police Department. King had consumed approximately two cocktails, but was not intoxicated. An argument ensued between Elbery and Schlener. Schlener was poking fun at the fact that Elbery had lost his bar establishment and was drinking cheap beer. King, a friend of Schlener, came to the bartender's defense and told Elbery to back off. Although voices rose, there was_ no physical confrontation at this point and everyone returned to their seats. Approximately one half of an hour passed and again an argument ensued. While it is not entirely clear from the record, the jury could have reasonably found at this point that Elbery became quite upset and smashed a beer bottle on the bar or a nearby pole. The bottle shattered and Elbery was left holding the barrel of the bottle. A shard of glass flew and struck Christina Mann, one of the waitresses, under her eye causing her to bleed. Mann was | 24a assisted by another patron who happened to be a chiropractor, and was later taken by a friend toa nearby hospital. Within about a minute of the bottle breaking, Elbery left the bar. King yelled at him to stop and wait for the Worcester Police to arrive as someone had been injured inside. Elbery testified that he intended to get into his car and leave. However, King testified that he did not see keys in Elbery's hands and did not see Elbery reach for his pocket. Once outside the bar, King pursued Elbery down the street. In addition to King, the two off-duty doormen and between one and three other patrons of the bar also followed Elbery. It appears that King was in the front of the group since he testified that he did not realize others had followed him out of the bar. Although it is unclear exactly what happened at this point, the jury reasonably could have found that King caught up to Elbery and an altercation ensued. King testified that Elbery threw [3] multiple punches at him and then, in response, King tackled him. As both of them were on the ground, Elbery stuck his finger in King's eye doing serious damage. The group assisted the injured King by holding Elbery on the ground thereby allowing King to free himself from the altercation. Prior to the police arriving, King was brought to a nearby hospital by two men in a passing car. The Worcester Police arrived shortly thereafter and arrested Elbery. Following his July 2,1993 jury trial, the defendant received a sentence of one (1) year's imprisonment on the maiming charge and concurrent sentences of one (1) year's probation for the other two convictions to be served after the maiming sentence. The defendant's sentence was stayed on July 15, 1993, pending an appeal of his convictions. With new counsel Robert C. Sheketoff, Esq. representing him, the defendant appealed his convictions based on a prejudicial statement made by the prosecutor during closing arguments and on improper and incomplete jury 25a instruction.!! On January 26, 1995, the Appeals Court affirmed the convictions in a written decision. !2 Commonwealth v. Elberry (sic), 38 Mass. App. Ct. 912 (1995), rev, denied, 419 Mass. 1107 (1995). DISCUSSION I. Motion for a New Trial Standard "The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30(b). The standard is purposely broad as the disposition of a "motion for new trial is addressed to the sound discretion of the judge." Commonwealth v. Moore, 408 Mass. 117, 125 (1990). "[O]nce the regular procedures have run their course the presumption tilts heavily toward finality." Commonwealth v. Amirault, 424 [4] Mass. 618, 637 (1997). "New trials should not be granted except for substantial reasons." Id, quoting Commonwealth v. Tucceri, 412 Mass. 401, 406 (1992). "The mere fact that, if the process were redone, there might be a different outcome, or that some lingering doubt about the first outcome may remain, cannot be a sufficient reason to reopen what society has a right to consider closed." Id. II. Waiver of Claims As mentioned previously, this motion for a new trial comes after the conviction has already been affirmed on direct appeal. Consequently, "[t]he concern for 11 The defendant was represented by Louis P. Aloise, Esq. at trial. 12 The Appeals Court found that the prosecutor's statement was prejudicial but the corrective instruction used by the trial judge was adequate. The Appeals Court also determined that the trial judge's instructions concerning the elements of the crimes were sufficient. 26a finality demands that a defendant present every claim and argument he might fairly have had available to him the first time around.” Amirault, 424 Mass. at 639. Therefore, "absent extraordinary circumstances the defendant who had a fair opportunity to raise [an issue] may not belatedly invoke that right to reopen a proceeding that has already run its course." Id. (citations omitted). Furthermore, "if [the defendant] had an opportunity to invoke the right and failed to avail himself of it, the claim is waived and may not be raised for the first time on collateral attack." Id. "The test for waiver is whether the 'theory on which his argument is premised has been sufficiently developed to put him on notice that the issue is a live issue." Id. (citations omitted). In addition, the doctrine of waiver "applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial." Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting Commonwealth v. Deeran, 397 Mass. 136, 139 (1986). The "motion judge's discretion under Rule 30(c)(2) to grant relief from such a waiver is limited if the conviction has already received appellate review." Commonwealth v. LeFave, 430 Mass. 169, 174 n.5 (1999). If the issue has been waived, the judge may not consider it, unless in the exercise of discretion the judge determines there is a substantial risk of a miscarriage of [5] justice. See id. at 173-174. The judge's discretion in granting relief from waiver should not be exercised lightly, and should only be exercised if "upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 513 U.S. 1091 (1995). Here, the defendant's claims of judicial misconduct, prosecutorial misconduct, that the verdict was against the weight of the evidence (insufficient evidence), inadequate jury instructions, inadmissible evidence admitted during trial, and duplicative sentencing were all areas of the law that ; a 4 AI B ‘ 27a were sufficiently developed at the time of his appeal to put the defendant on notice that these issues were live issues. Consequently, all of the above claims could have been raised on direct appeal but were not. Therefore, the above issues are waived. If. Ineffective Assistance of Appellate Counsel The defendant's ineffective assistance of counsel claims are also subject to the waiver rule. See Lefave, 430 Mass. at 17 1-173; see also Commonwealth v. Evardo, 426 Mass. 48, 45,50 (1997). In situations where the defendant has been represented by the same attorney at trial and on direct appeal, that defendant may seek review of the trial counsel's performance, even though no ineffective assistance of counsel claim was asserted on direct appeal. See Egardo, 426 Mass. at 49. The reasoning behind this exception to the waiver rule is "that it would be ‘unrealistic to expect [the defendant's] first attorney to have raised a claim calling his own competence into question.” Id., quoting Commonwealth v. Lanoue, 409 Mass. 1, 3-4 (1990). In situations where the defendant has had new appellate counsel, the defendant's "first opportunity" to raise the issue of trial counsel's ineffectiveness would be on direct appeal. See Egardyu, 426 Mass. at 49-50 ("[b]ecause trial and appellate counsel were associates in the practice of criminal law, the second attorney thus furnished the defendant his ‘first opportunity’ to raise the issue of [6] trial counsel's effectiveness"); see also Breese v. Commonwealth, 415 Mass. 249, 250 n. 1 (1993). In this case, the defendant's first opportunity to raise an ineffective assistance of trial counsel was on direct appeal since the defendant had different representation at that time. Therefore, the defendant's ineffective assistance of trial counsel claim is waived. However, the defendant also claims that his appellate counsel was ineffective because he ) | | 28a failed to argue on appeal that his trial counsel rendered ineffective assistance. This is the defendant's first opportunity to raise an ineffective assistance of appellate counsel. Therefore, the question of whether the defendant's appellate counsel was ineffective necessarily depends on whether he actually received ineffective assistance at his trial. See Breese, 415 Mass. at 252; Commonwealth v. Van Zant, 1999 WL 823745 n.6 (Super. Ct. 1999) (Neel, J.). Consequently, this Court has reviewed the trial transcript to determine whether the defendant received ineffective assistance of coun:el at trial which, in turn, would also answer whether or not the defendant's appellate counsel was ineffective by failing to bring an ineffective assistance of trial counsel claim on direct appeal. The defendant bears a heavy burden in establishing ineffective assistance of counsel such that a new trial is required. See Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 631 (1992), rev'd on other grounds, 416 Mass. 97 (1993). In order to support a claim of ineffective assistance of counsel, the defendant must show serious incompetency, inefficiency, or inattention of counsel falling "measurably below that which might be expected from an ordinary fallible lawyer" and that such inadequacies "likely deprived [the defendant] of an otherwise available, substantial ground of defense." Commonwealth v. Clark, 44 Mass. App. Ct. 502, 512 (1998), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To succeed on a claim of [7] ineffective assistance of counsel, the defendant must show that better work by trial counsel might have accomplished something material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Counsel's tactical judgments must be "manifestly unreasonable" to constitute ineffective assistance. See Commonwealth v. White, 409 Mass. 266, 273 (1991). "Judicial scrutiny of counsel's performance must be highly deferential, 'indulg[ing] a — ee ee ee ert sae) Fee RHA SRS IONS ea sat i ata 29a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Commonwealth v. Florentino, 396 Mass. 689, 690 (1986) (citation omitted). At bar, there is no evidence that trial counsel's performance was ineffective nor that it deprived the defendant of an otherwise available substantial ground of defense. The trial counsel's performance fell well within the realm of what may be expected from an ordinary fallible attorney. In his 115-page memorandum of fact and law in support of his motion for new trial, Elbery claims multiple instances of ineffective assistance of counsel on the part of his attorney at trial, Louis P. Aloise. The defendant makes a series of allegations which either are not grounded in the record or do not amount to ineffective assistance of counsel. Generally, Elbery claims that Aloise conspired with the prosecution to withhold the truth about the evidence upon which he was convicted. However, there is no evidence of any conspiracy. Most of Elbery's contentions arise from strategic decisions on the part of his trial counsel that did not impact the strong case the Commonwealth had against him. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (strategic trial decisions do not constitute ineffective assistance of counsel unless they are "manifestly unreasonable"). See also Commonwealth v. Finstein, 426 Mass. 200, 203 (1997); Commonwealth v. Roberts, 423 Mass. 17, 20 (1996). The following issues are being raised solely for the purpose of determining whether a new trial is warranted based upon [8] ineffective assistance of trial counsel. A. Failure to Introduce Evidence There is no evidence that Aloise conspired to withhold pertinent information from the jury. Elbery alleges that Aloise conspired with the prosecution to withhold from the jury the true cause of King's eye 30a - injuries. There is no evidence that this occurred. Aloise described King's eye injury in a manner advantageous to Elbery by noting that the injury was a "superficial abrasion" (Tr. Vol. V/ 122513) and that if the facts occurred as King described them, "Mr. King would not have his eye in the head today." Tr. Vol. V/ 1224. Elbery also alleges that his trial counsel failed to highlight to the jury the fact that there was no police investigation, and that he was attacked by a "gang of six." Contrary to this contention, in his opening statement, Aloise questioned whether an adequate investigation had been conducted because it essentially consisted of a dispatch. Tr. Vol. 1/127. In addition, in his closing statement, Aloise stated that Elbery was being chased by six or seven individuals. Tr. Vol. V/1218. Elbery also claims that Aloise was ineffective because he failed to call certain witnesses which would have assisted his case. However, there is no merit to this contention. There is no evidence that calling Dr. Stephen Sawyer as a witness would have provided Elbery with a substantial ground of defense because he would not lie on the stand and thus upset the alleged conspiracy between Aloise and the prosecution. There is also no evidence that calling Alice Arsenault (a friend of Mann), Don Wynne, or Assistant District Attorney Michael Salloum as witnesses would have provided a material defense for Elbery. See Commonwealth v. Epsom, 422 Mass. 1002, 1003 (1996) (at hearing on motion for new trial based on ineffective assistance of counsel where lawyer failed to call witness providing evidence of self- defense, court required [9] defendant to show: (1) witness was available at time of trial; (2) the testimony would have been sufficient to raise the issue of self- defense; and (3) that testimony would likely have made a material difference in the trial). 13 citations to the Trial Transcript references are indicated as "Tr. vol," followed by the volume and page number. 3la Elbery alleges that King testified at the probable cause hearing at the Worcester District Court on January 20, 1993, that there was no assault with a beer bottle and that Aloise failed to introduce this evidence to the jury. However, King did in fact testify during the proceedings that there was an assault with a beer bottle. In response to Assistant District Attorney Todd Mathieson's direct examination of King, King stated that "Mr. Elbery was holding the neck of the bottle in a threatening gesture, yelling."!4 Moreover, Aloise did raise doubt during the trial as to whether there was a breaking of a beer bottle at all ("Mr. Taraskiewicz didn't see the bottle break. Nobody saw the bottle break" (Tr. Vol. V/ 1217); "Mr. Schlener said that he didn't see the bottle break, he heard it... he said he lied to the police in that he was assaulted with that beer bottle” (Tr. Vol. V/12 19)). Elbery claims that Aloise was also ineffective because he failed to admit Elbery's medical records regarding his injuries and evidence regarding the clothing he wore during the incident. However, Aloise did admit Elbery's medical records from Hahnemann Hospital as Exhibit 23. Tr. Vol. V/1196. Further, Aloise introduced photographs B, C, D, and E for identification which pictured Elbery's alleged injuries on the event in question. Tr. Vol. IV/812-816. Elbery also claims Aloise was ineffective because there was an illegal citizen's arrest by King which Aloise failed to make clear to the jury. However, there was not an illegal citizen's arrest. Aloise did, in his cross- examination of King, elucidate the fact that King was off-duty and acting in the capacity of a private citizen that night.!5 For these reasons, it was also [10] unnecessary for Aloise to file a motion to suppress 14 Worcester District Court Proceedings, January 20, 1993, page 9. 1S Worcester District Court Proceedings, January 20, 1993, page 39. iii 32a evidence from the alleged illegal citizen's arrest of Elbery. Elbery claims that Aloise failed to subpoena Mann's medical records which Elbery believes would show the true nature of her injuries. However, the extent of Mann's injuries were not at issue in this case since Elbery's convictions related to the injuries inflicted on King. Elbery alleges that Aloise also failed to subpoena evidence from the Westborough Police Department regarding King's demotion and drinking on duty which he believes created a motive for King to lie. There is no evidence that this created a motive to lie nor that it deprived Elbery of a substantial ground of defense. Compare Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 322-323 (1999) (although counsel's failure to obtain police chemist's report and/or police chemist's testimony regarding the absence of sperm or seminal fluid in a rape case did fall below what was expected from an ordinary fallible lawyer, it did not deprive the defendant of a substantial, available defense where it corroborated the defendant's testimony). B. Failure to Object Elbery alleges that Aloise failed to object to certain evidence which was prejudicial. However, there is no evidence that Aloise's alleged failures to object deprived Elbery of a material ground of defense. Elbery contends that Aloise failed to object to the admission of King's medical report which he asserts was inadmissible due to its references to liability as well as illegible and hyper-technical content. See G.L. c. 233, §79. However, there is no evidence that the medical report suffered from this condition. Any references to liability in the medical report do not necessitate retrial because they do not add anything to the testimonies at trial. See Commonwealth v. Brattman, 10 Mass. App. Ct. 579, 586 (1980). mesos suis phe TSA gS ta eee: He STAN LSE a EON RN ie BE i a al 33a Elbery claims that Aloise failed to object to Assistant District Attorney Ball expressing [1 1] his own opinion and misstating facts and testimony in his opening and closing arguments. There is no evidence that Assistant District Attorney Ball's opening and closing arguments contained such errors. The prosecutor may comment on evidence developed at trial and draw inferences from such evidence. See Commonwealth v. Bradshaw, 385 Mass. 244, 275 (1982); Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). The prosecutor may also make a fair response to an attack on the credibility of a government witness. Chavis, 415 Mass. at 713, citing Commonwealth v. Simmons, 20 Mass. App. Ct. 366, 371 (1985); see Commonwealth v. Smith, 404 Mass. 1, 7 (1989). The judge also provided curative instructions in stating that "[t]he opening statements and the closing statements that we just heard from counsel are not a substitute for evidence. They are only intended to assist you in understanding the evidence and the contentions of the parties." Tr. Vol. V/ 1257-58. Elbery also states that Aloise failed to object to various inappropriate instructions or to the fact that certain instructions were absent. Again, there is no evidence that the instructions were improper or deficient. Among other things, the trial judge instructed the jurors on their role as fact-finders and the importance of focusing solely on the evidence, the difference between direct and circumstantial evidence, inferences, the Commonwealth's burden of proof beyond a reasonable doubt, consciousness of guilt, disorderly conduct, assault and battery, assault with intent to maim, intoxication, and self-defense. (Tr. Vol. V/ 1251-1294). There was nothing improper about the instructions to the jury. See Commonwealth v. Melton, 47 Mass. App. Ct. 904, 905 (1999) (counsel's failure to request a more forceful curative instruction concerning opinion testimony did not amount to error). Since there was no reason to 34a object, Aloise's failure to object was justified. Compare Commonwealth v. Nunes, 430 Mass. 1, 7 (1999) (failure to object to three infractions by the Commonwealth on cross of defendant, although improper, [12] would not have affected jury verdict and, therefore, there was no ineffective assistance of counsel). C. Conflicts of Interest Although Elbery alleges that there are various conflicts of interest which deprived him of a fair trial, there is no substantiation on the record for his allegations. For instance, he alleges that Aloise's secretary is "best friends" with bartender Schlener 's wife and that Aloise was ineffective because he failed to stop Aloise 's secretary from passing along confidential information to her friend's husband, Schlener. However, there is no evidence on the record that any such conflict of interest existed nor that any such acts occurred. Elbery also alleges that because Aloise asked Elbery to take a lie detector test it shows that Aloise had a conflict of interest because he was repeatedly reinforcing the prosecution's arguments. Again, there is no such evidence. Aloise represented Elbery effectively and countered the prosecution's version of the facts in terms of describing the events as a mere "barroom fight" (Tr. Vol. V/ 1229), downplaying King's injuries as a "superficial abrasion" (Tr. Vol. V/ 1225), and arguing that Elbery was acting in self-defense (Tr. Vol. V/ 1221-22). There is also no conflict of interest merely because the prosecuting Assistant District Attorney Ball may have been a former police officer. D. Misleading Use of Terms Elbery contends that Aloise used certain incorrect terms and failed to object to certain terms that allegedly confused the jury. Elbery claims that Aloise b ———————————— 35a adopted the prosecution's facts and theory of the case by using terms such as "right, "am I right,” and other expressions during cross-examination of the Commonwealth's witnesses which misrepresented Elbery and made the jury put Elbery in a bad light. These allegations are not valid since phrases such as "right" and [13] "am I rights," especially with leading questions during cross-examination, are typical trial practice techniques. Elbery also claims that the judge's use of the phrase "moral certainty" in his jury instructions obscured for the jurors the defendant's standard for i proving his case beyond areasonable doubt. However, case law has determined that use of the phrase does not render the instructions improper. In : Victor v. Nebraska, 511 U.S. 1, 14 (1994), cert. 4 denied, Calderon v. Sandoval, 122 S.Ct. 322 (2001), : the Supreme Court decided that although "moral certainty,’ standing alone, might not be recognized by modern jurors as a synonym for ‘proof beyond a 3 reasonable doubt'.. .it does not necessarily follow that the...instruction is unconstitutional." Id. The Supreme Court reasoned that the "moral certainty language [could] not be sequestered from its surroundings." Id. at 16. Thus, Aloise was not ineffective for failing to object to the judge's use of the term "moral certainty.” He was also not ineffective for failing to object to the judge's use of the phrases "whether or not" and "basic fact" in the jury instructions, because those terms are 2 also proper. E. Miscellaneous Elbery also alleges various other instances of ineffective assistance of counsel which are unfounded. For instance, Elbery claims that Aloise failed to impeach witnesses with perjurious prior inconsistent statements and aided the prosecution with false testimony. However, Aloise did point to discrepancies in the testimonies of the SAC RES eae ental ER EE ee ee i id 36a Commonwealth's witnesses and repeatedly called the Commonwealth's rendition of the facts of the case "patently absurd.” (Tr. Vol. V/ 122 1-24). [14] In addition, Elbery alleges that Aloise failed to argue double jeopardy with Elbery's convictions of assault and battery and assault with intent to maim. Elbery believes that assault and assault and battery are the lesser included offenses of assault with intent to maim. There is no double jeopardy with regard to Elbery's convictions. Double jeopardy refers to the Fifth Amendment prohibition against a "being prosecuted twice for substantially the same offense. Black's Law Dictionary 506 (7th ed. 1999); see Breed v. Jones, 421 U.S. 519. In the instant case, Elbery was convicted of three distinct charges with distinct elements: assault and battery (G.L. c. 265, §13A)!6, assault with intent to maim (G.L. c. 265, §15)!7, and being a disorderly person (G.L. c. 272, §53) 18. 16 G.L. c. 265, §13A states [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2029%3A1. Public record. Not legal advice.