Docket Exhibits - Mass. Injustice.Org

WORCESTER, SS. 

COMMONWEALTH OF MASSACHUSETTS 

VS. 

MICHAEL G. ELBERY, 

Defendant 


SUPERIOR COURT DEPARTMENT 

CRIMINAL ACTION NO: WOCR93-00135 

MOTION TO SEQUESTER WITNESSES 

! I 

i i The defendant, Mlchael G. Elbery, hereby moves this 

Honorable Court that all witnesses in the above entitled case be 

sequestered, includlng but not llmited to that portion of the 

trial related to opening statements. 

MICHAEL G. ELBERY 

BY HIS ATTORNEY 

/ ; -':-;'"" 

"- 

Lo i.$, P. 

SHUMWAY, GIGUERE, BYRNE, FOX 

& ALOISE, P.C. 

19 Cedar Street 

worcester, MA 01609 

/ (508) 756-2323 

B.B.O. No.: 016040 

Dated: June 21, 1993.

.. 

, the defendant and, as such, are by definition not disorderly 

I conduct. 

-2 


BY HIS A'r TO RN EY 

L Ll i . A 0 i s e, Es qu ire 



19 cedar street 

worcester, MA 01609 

(508) 756-2323 

B.B.O. No,: 016040 

Dated: ,July I, 1993.

-3 

is more consonant with the interest of justice. See 

commonwealth vs. Gaulden, 383 Mass. 543, 420 N.E. 2d 905 

(1981). In Gaulden, the Court stated "the trIal jUdge actIng 

under Rule 25(b)(2), should be gUided by the same consideratIons 

that have gUided this Court in the exercise of its powers and 

duties under §33E to reduce the verdIct." The Tria1 Cou r t , 

I therefore, is not limited to acting wIthin the same restrictions 

as It must in considering a MotIon for ReqUIred Finding of Not 

Guilty. See Commonwealth v. Millyan, 399 Mass. 171, 503 N.E. 2d 

934 (1987); Commonwealth v. Keough, 385 Mass. 314, 431 N.E. 2d 

915, (1982). 

In considering this motIon, the defendant asks this Court to 

further consider the legal arguments made which are contained 

WIthIn his Motion for a ReqUired Finding of Not GUIlty, a copy 

of which is attached and made a part of this motion. 


BY HIS ATTORNEY

-2 

the defendant and, as such, are by definitlon not disorderly 

conduct. 






Worcester, MA 01609 

(508) 756-2323 

B.B.O. No.: 016040 

Dated: July 1, 1993.

" 

I 

-2 

The following facts were uncontested and uncontroverted. 

!i There was no question that when the defendant entered the 

Winner's Circle ln the early morning of September 29, 1992, he 

did not harbor any animus toward the alleged Victim, Thomas 

King. In point of fact, Mr. King and Mr. Elbery dld not know 

each other on the morning in question and had never been in each 

other's company and had had no past dealings, or relationship 

prior to the incident. It was also clear from the eVidence that 

I Jeffrey Schlener, the bartender, instigated the verbal 

confrontation With Mr. Elbery. As the Court may recall, Mr . 

. i 

i; 

, Schlener went further in expressing that he was primarily 

: ! 

" responsible for the verbal altercation and was sorry then, and 

; i 

Ii 

i i at the time of trial, for the remarks he made toward the 

i I 

", 

Ii 

I[ defendant. It was also uncontroverted that Mr. King voluntarily 

! 

;t and Without provocation confronted Mr. Elbery. Neither 11r. 

Schlener, nor anyone else in the Winner's Circle, asked Mr. Klng 

to interfere. No witness testified that they were disturbed by 

the arguing between Mr. Schlener and Mr. Elbery with the 

exception of Mr. King. Focusing exclusively on King's 

testimony, it was also uncontrovered that Mr. Elbery, subsequent 

to the bottle breaking, hastily left the bar and did not take 

any action consistent with provoking or continuing a verbal 

and/or physical confrontation with Thomas King. The only 

logical conclusion to be drawn from Mr. Elbery's actions in 

leaving the bar, was that he feared physical harm if he

-------- 

, 

, [ 

", I , 

, , 

I 

Accordingly, it is respectfully requested that the motion be 

allowed and the defendant admitted to bail under terms and 

-3 

conditlons deemed approprlate by this court. 



oui . A oise, Esqulre 





(508) 756-2323 

B.B.O. No.: 016040 

Dated: July 14, 1993.

- 2 

CERTIFICATE OF SERVICE 

I hereby certify that on February 23, 1994, a true copy of 

the above document was served upon the parties to this action in 

hand, addressed as follows: Assistant District Attorney 

Michael Ball, Two Main Street, Room 220, Worcester, MA 01608, 

and by mail, postage prepaid, addressed as follows: Michael G. 

Elbery, 31B Chilmark Street, Worcester, MA 01604. 

Louis P. Aloise, Esquire

worcester,ss. 



VS. 


Superior Court Department 

Indictment No. 93-00135-1-2-4 

AFFIDAVIT IN SUPPORT OF MOTION TO WITHDRAW 

I, Louis P. Aloise, on oath depose and say as follows: 

1. I am an attorney licensed to practice law in the 

commonwealth of Massachusetts and presently have offices at 19 

Cedar st., Worcester, MA. 

2. At all times material hereto, I have been the counsel of 

record for Michael G. Elberty regarding the above entitled case. 

3. Mr. Elbery has informed my office that he does not wish 

me to continue representing him regarding the above entitled 

case presently on appeal from a conviction in the Worcester 

Superior Court in June, 1993. 

4. It is my understanding that Mr. Elbery plans to obtain 

new counsel to handle the appeal. 

5. It is also my understanding that the transcript of the 

trial in the above entitled case was filed by Court Reporter 

Ronald Francecone on or about February 18, 1994. 

6. Based upon conversations by and between Mr. Elbery and 

members of my office, it is apparent that Mr. Elbery lacks 

confidence in my abilities to handle this appeal on his behalf. 

7. By letter dated February 23,1994, I have informed Mr. 

Elbery that I plan to file this Motion to Withdraw and to have 

it heard on the date and time indicated in the body of the 

Motion. 

Signed under the pains and penalties of perjury this 23rd 

day of February, 1994. 

Louis P. Aloise, Esquire 





(508) 756-2323 

B.B.O. No.: 016040 

Dated: -February 23, 1994.

COMMONWEALTH OF MASSACHUSElTS 

WORCESTER, ss. SUPERIOR COURT 

CRIMINAL ACTION 

NO. 93-00135 

COMMONWEALTH 

vs. 


ORDER 

Treating defendant's January 17, 1995 letter as a Motion to Correct a Mistake in the 

Mittimus (See Reporter's Notes, Rule 29, Mass. R. Crim. P.; Bolduc v. Commissioner, 355 

Mass. 765 (1969)), the motion is DENIED, because both the contemporaneous 

endorsement by the clerk on the indictment and this court's recollections demonstrate that 

the Mittimus' recitation of the sentence (Yib 10 years, MCI Concord) is a correct record of 

the sentence imposed. 

DATED: Januaryz,..7 , 1995. 

[ckg] 

Daniel F. Toomey 

Justice of the Superior Cou

94-P-740 Appeals Court 

COMMONWEALTH vs. MICHAEL G. ELBERRY. 

No. 94-P-740. January 26, 1995. 

Practice. Criminal, Argument by prosecutor, Confrontation of 

witnesses, Instructions to jury. Evidence, Consciousness of 

guilt. Assault with Intent to Maim. 

The defendant, Michael Elberry, appeals from convictions of 

acting as a disorderly person (G. L. c. 272, § 53), assault and 

battery (G. L. c. 265, § 13A) , and assault with intent to maim 

(G. L. c. 265, § 15). \Y (A count of assault with a dangerous 

weapon, G. L. c.'265, § 15B[12L was dismissed at trial.) The 

defendant complains here about a statement made by the prosecutor 

in his closing speech to the jury, and about two passages in the 

judge's instructions. We affirm. 

The jury could reasonably have found the following. Elberry 

was forty-two years old, formerly employed as a certified public 

accountant but for the last nine years the owner of a bar in 

Worcester called Mulcahy's. Mulcahy's closed down a few months 

before the criminal episode. Elberry walked into the Winners 

Circle bar in Worcester toward midnight or later on September 

28/29, 1992. Starting, apparently, with some mocking remarks by 

the bartender about Elberry's losing his business, an argument 

broke out between Elberry and the bartender, with others joining 

in. At one point Thomas King, a Worcester police detective 

present as a patron, tried to intervene and quiet things. 

Elberry offered to fight King outside. After a few moments' 

quiet, the argument grew again, and in apparent anger Elberry 

broke his beer bottle against a pole, retaining the neck. Some 

shards flew and struck the face of Christina Mann, a patron 

nearby, drawing blood (she later required stitches above and 

below an eye). For a half minute Elberry menaced other people 

with the broken bottle. Then he fled from the bar. 

King ran after Elberry with two other patrons following. 

King, on account, particularly, of the injury to Mann, wanted to 

detain Elberry until the police came .. As King overtook Elberry 

and grappled to hold him, the pair scuffled. Elberry stuck his 

'::/ The defendant was sentenced to ten years' imprisonment at 

M.C.I., Concord, on the maiming charge, the judge expressing his 

intention that the defendant serve one year. Concurrent sentences 

of a year's probation were to be served after the maiming sentence.

with other witnesses or anything they observed in the courtroom. 

Of course, the defendant, who was a witness in this case, was 

here during the testimony of other witnesses, but he's got every 

right to be here, too. But you should take everything into 

consideration in determining credibility, but there is nothing 

untoward about the_gefendant being present when other witnesses 

are testifying." V Upon ending his charge, the judge asked 

counsel whether they had any objections or requests for further 

instructions. Both counsel answered in the negative. This 

disposed of the matter. 

To revert to the Person case, there the judge overruled 

defense counsel's objection and gave only a general charge on 

credibility. So there was uncorrected error. (In fact the 

prosecutor had blundered still further in citing the defendant's· 

immediate recourse to his attorney after the event as evidence of 

his consciousness of guilt. Commonwealth v. Person, 400 Mass. at 

138-140.) 

2. Although no objection was taken below, the defendant 

argues on the appeal that the judge's charge on consciousness of 

guilt was improper. The defendant cannot say that the charge was 

defective in content, for it was in the conventional terms of 

Commonwealth v. Toney, 385 Mass. 575, 585 (1982). Rather he says 

there was no factual basis for it, because the flight, which 

alone could provide a basis for the charge, occurred before, not 

after, the commission of the crimes found by the jury. We need 

not explore the ramifications of the supposed anomaly. The crime 

of acting as a disorderly person was committed wholly or at least 

in part before the flight. Cf. Commonwealth v. Feigenbaum, 404 

Mass. 471, 474 (1989). 

3. Again in absence of an objection below, the defendant 

contends that the judge's instruction on the crime of assault 

with intent to maim or disfigure was incomplete because it did 

not state expressly that the defendant was charged with intending 

to put out or destroy King's eye, thus raising the danger, 

according to the defendant, that the jury may have convicted even 

if they believed that the defendant only II intend [ed] to cause a 

superficial laceration" to King's eye. 

'J 

The defendant criticizes the sentence ln the charge 

beginning "But you should take everything into consideration in 

determining credibility," suggesting that these words indicated, 

after all, that the thrust of the prosecutor's statement was 

correct. The words, not objected to, were simply reiterating that 

evaluation of credibility involved an all-things-considered 

judgment. The sentence ends with a reaffirmation: "but there is 

nothing untoward about the defendant being present when other 

witnesses are testifying." 

3

The statute, G. L. c. 265, § 15, condemns one who "assaults 

another with intent . . . to maim or disfigure his person in any 

way described in the preceding section"; and the preceding § 14 

reads, "Whoever, with malicious intent to maim or disfigure, 

. puts out or destroys an eye . "The jUdge in his 

instructions spoke of assault and specific intent to maim or 

disfigure, see Commonwealth v. Robinson, 26 Mass. App. Ct. 441, 

445 (1988); see also Commonwealth v. Davis, 10 Mass. App. Ct. 

190, 196 (1980), and then varied the expression, referring to 

"cause bodily disfigurement" and to a "disabling or disfiguring 

injury." We may be quite sure that the jury could not have 

emerged with the view that evidence of an intent to inflict a 

"superficial laceration" would be enough to support a conviction. 

Beth. ,:::ol1nsel, 'i.n.ri.eec1, "inc1i.cated that ·r-he quest:icn for thp. jury 

was whether the defendant wanted to "take out" or "put out" 

King's eye. 

We add that, if there was error in the instructions attacked 

on the appeal, it did not raise a substantial risk of a 

miscarriage of justice. 

Judgments affirmed. 

Robert L. Sheketoff for the defendant. 

Patricia C. Smith, Assistant District Attorney, for the 

Commonwealth. 

4

Loring P. Lamoureux 

Clerk of the Courts 

Room 21 Court House 

2 Main st. 

Worcester, Mass. 01608-1176 

Dear Sir: 

Michael Elbery 

168 Fairfield st. 

Needham,Mass. 02192 

617-444-7324 

2-25-97 

Please find enclosed for immedate filing and review by Judge Daniel 

Toomey DEFENDANT'S MOTION FOR ALLOWANCE OF FORTY ADDITIONAL PAGES 

TO COMPLETE MOTION FOR NEW TRIAL. 

Respectfully submitted, 

IJd.J"etLy 

Michael Elbery


Worcester, ss. 

Worcester Superior Court 

Criminal Docket #93-0135 

Commonwealth 

v 


MOTION FOR ALLOWANCE OF FORTY ADDITIONAL PAGES TO COMPLETE MOTION 

FOR NEW TRIAL 

The defendant moves the court for leave from Superior Court 

Rule 9A-b-4 which limits a motion memoranda to 20 pages. This 

pro se litigant asks the Court for leave to submitt an additional 

40 pages. I can not present all factual claims, all being U.S. 

Constitutional violations, on 20 pages. 

Each factual claim not only requires statement of fact, legal 

authority and argument but also requires an explanation of resulting 

prejudice. At this point I have 12 factul claims each containing 

subsets of additional violations of law and related factual .claims. 

To exclude any of these factual claims allowed by Rule 30 

would be an injustice. Each claim not only depicts a constitutional 

violation but rises to a miscarriage of justice, all claims must 

be presented in order that this pro se litigant can fairly 

present the injustices surrouding his conviction on 7-2-93.

COMBINED MOTION TO WITHDRAW DEFENDANT'S MOTION FOR ALLOWANCE OF FORTY ADDITIONAL 

PAGES TO COMPLETE MOTION FOR NEW TRIAL AND MOTION TO CORRECT ERROR OF LAW 

The defendant moves to withdraw motion attached. expansion of new trial moton 

to 40 pages. 

The defendant was in error; in that Rule 9A of Sup. Ct. applies only to civil cases.: 

Evidently the defendant was in good company as the Court's staff did not pjck up 

this error . 

The defendant withdraws the motion attached and maintains the status quo. as 

Massachusetts Law allows • there is no page limit under a Rule 30 motion. 

168 Fairfield St. 

Needham. Mass. 02192 

617--444-7324

Supreme Judicial Court of Massachusetts 

New Court House, Pemberton Sq. 

Boston, Mass.02108 

RE: Com. v. Michael Elbery 93-0135; Petition under C. 211 s.3 

Dear Sir: 

Please fmd enclosed, 



Needham, Mass. 02492 

7-7-99 

Petition for Relief Under General Superintendence of all the Courts to Prevent Abuses of 

thank you. 

Lower Courts 

Massachusetts C. 211 s. 3

SUPREME JUDICIAL COURT OF MASSACHUSETTS 

Michael Elbery, pro se Mass. C. 211 s. 3 

v. 

petitioner 

Judge Dan Toomey 


Worcester District Attorney's Office 

Massachusetts Attorney General's Office 

respondents 


Lower Courts 

Massachusetts C. 211 s. 3

1. This defendant/petitioner, Michael Elbery, (hereinafter defendant) was illegally convicted in 

Worcester Superior Court before Judge Dan Toomey on 7-2-93 and sentenced to 10 years in 

state prison. That criminal case was Com. v. Elbery 93-0135. See Ex. M ofEx 5. 

2. This defendant has filed, on 7-6-99, a meritorious Motion for New Trial under M.R.C.P. 30, 

see Ex. 5. 

3. This defendant in 1997, as a result ofbeing incorrectly advised by a bar-attorney/relative, 

motioned Judge Dan Toomey to allow additional pages to comprise his anticipated motion for 

new trial. See Ex. #1. 

4. This defendant realizing that he was incorrect, via Ex. 1 above, as a matter oflaw, that there is 

no page limit to Criminal Motions under Superior Court Rule 9 or 9b, motioned to withdraw his 

motion in paragraph #3. See Ex. #2. 

5. Regardless ofthe law and this defendant's motion in paragraph #4 above Judge Dan Toomey 

maintained, in Violation ofDue Process ofLaw, the 60 page limit to this defendant's motion for 

new trial, this including exhibits. See Exs. #3 and #4. 

ARGUMENT 

2

There is no discretion for Judge Dan Toomey to limit this defendant's Motion for New 

Trial to 60 pages or any other amount. There is no such provision under M.R.C.P. - Rule 30 or 

Mass. Rules of Superior Court Rule 9 or 9b. The attachments or exhibits, alone, to this New Trial 

Motion are over 60 pages. 

The Supreme Judicial Court has jurisdiction to stop this illegal discretion by Toomey via 

Mass. C. 211 s. 3. There is no other remedy available to prevent this limitation by Toomey of 

this defendant's Due Process ofLaw under the Fourteenth Amendment ofthe U.S. Constitution. 

This page limit by Toomey is arbitrary. 

As per Ex #5 the trial ofthe conviction ofthis defendant was one giant miscarriage of 

justice and a continuum ofviolations ofthis defendant's Constitutional Rights under the U.S. 

Constitution. There were so many illegalities during that trial that it requires over 100 pages of 

factual Memorandum ofFact and Law in order that justice can be served. 

This defendant asks the Supreme Judicial Court ofMassachusetts to prevent further abuse 

ofthis defendant's rights by ordering Judge Toomey to obey the law and remove his page limit 

regarding this defendant's Motion For New Trial. 

The pages in excess of60, as per Ex. # 5, is required to present the injustice ofthat 

conviction. Without these pages (all), per Ex. 5, this defendant's rights will once again be 

violated. The Federal government will deem such a state procedure illegal for the purposes of 

habeas corpus ad subjiciendum. Messer v. Roberts c.A. 10 (Kan.) 1996, 74 F. 3d 1009, Calderon 

v. U.S. Dist. Court for Eastern Dist. ofCalf. C.A. 9 (Cal) 1996, 96 F 3d 1126, (state procedures 

must be applied in even handed manner and consistently enforced, the state procedures must be 

regular and adequate). 

3


Worcester, ss. 

Worcester superior Court 


Commonwealth 

v 



FOR NEW TRIAL 









subsets of additional violations of law and related £actual .claims.· 






Mass. Attorney General's Office 

I Ashburton Place 

Boston, Mass. 02108 

RE: Com v. Elbery 93-0135 : Petition under C. 211 s. 3. 

Dear Attorney General: 

Please find enclosed Petitioner's, 




7-7-99 

781-444-7324 


Lower Courts 

Massachusetts C. 211 s. 3 

Also enclosed is exhibit #5 to the petition which will document the activities that transpire in your courts.

Certificate of Service 

I the defendant, Michael Elbery, sent this 211 s. 3 Petition to the Mass. SJC at Pemberton SQ., Boston, Mass., hand 

delivered on 7-8-99 and the Mass. Attorney General's Office via U.S. mail on 7-7-99 to I Ashburton Place, Boston, 

Mass. and to the Clerk - Worcester Superior Court at 2 Main St., Worcester, Mass. and to the Worcester District 

Attorney's Office at 2 Main St., Worcester, Mass. both hand delivered on 7-6-99.

Commonwealth 

v. 


Certificate of Service... 1 page 

DOCUMENT LISTING 

Worcester s.s. 

Criminal action 

93-0135 

Defendant's Motion for New Trial & Discovery and Evidentiary Hearing, Com. v. Elbery 93 

0135, ... 2 pages. 

Defendant's Memorandum ofProcedural Background, Com. v. Elbery 93-0135,...3 pages. 

Defendant's Affidavits in Support ofMotion For New Trial Under Rule 30, Com. v. Elbery 93 

0135 ...6 pages. 

Memorandum ofFact and Law in Support ofDefendant's , Elbery, Motion for New Trial, ... 114 

pages. 

EXHIBITS 

Exhibit A- Tom King's medical report from Medical Center ofCentral Mass. for 

treatment on 9-29-92,...5 pages. 

Exhibit B- Investigation and readable deciphering ofKing's medical records ofExhibit 

A. ..5 pages. 

Exhibit C- Dr. Hull's affidavit in support ofDefendant's New Trial- A medical experts 

opinion of Tom King's eye injury as per the medical records in Exhibit A.... 4 pages. 

Exhibit D-Worcester Police Incident Report regarding the Incident of9-29-92 on 

Shrewsbury St., near the Winner's Circle Bar and arrest ofMichael Elbery, plus 

Supplement Report...2 pages each. 

Exhibit E-Letter from ADA Michael Salloum to Attorney Louis P. A10ise dated 11-30 

92... 1 page. 

Exhibit F-Complaint at Worcester District Court of9-29-92 against Michael Elbery for 

mayhem etc., ... 1 page. 

Exhibit G-1-21-92 article Worcester T&G, Judge raps Cop... l page. 

1

Exhibit H-The Bolton Report, Reporting officer Tom King,.. .4 pages. 

Exhibit I-Defendant's Potential Witness List, ... 2 pages. 

Exhibit J-Footnote 1- Tom King's Injuries...5 pages. 

Exhibit K-Footnote 3-Mann's Injuries...3 pages. 

Exhibit L-Footnote 4-Bottle Incident transcript citings...9 pages. 

Exhibit M-Docket activity thru 3-22-94, Com. v. Elbery 93-0135 ...3 pages. 

Exhibit N-Eviction Notice/Legal Documents - Celularo v. Elbery... 2 page. 

Exhibit O· ADA Morris Bergman Note... l page. 

Exhibit P-Transcript pages from Deposition ofElbery v. Hester...2 pages. 

Exhibit Q-Elbery's Additional Medical Reports...3 pages. 

Exhibit R-Com. v. Elbery 93-0135, Motion 25-2-b...9 pages. 

TRANSCRIPTS 

Trial Transcript ofCom. v. Elbery 93-0135,5 volumes 1302 pages. 

Grand Jury Transcript Com. v. Elbery, March 3, 1993, 10 pages. 

Probable Cause Hearing Transcript, Com. v. Elbery, NO. 9262CRI0017-January 20, 1993 

1 volume 266 pages. 

TABLE OF ABBREVIATIONS 

Ex.=Exhibit, PC=Probable Cause Hearing Transcript, TR=Trial Transcript, Af£=affidavit, 

O/S=Opening Statement, GJ=Grand Jury Transcript 

2


I the defendant, Michael Elbery, sent this Motion for New Trial hand delivered to the Clerk - Worcester Superior 

Court at 2 Main St., Worcester, Mass. and the Worcester County District Attorney's Office at 2 Main St., Worcester, 

Mass. on July 6, 1999.


Worcester ss Worcester Superior Court 

Commonwealth Criminal Action 

v. 


93-1035 

AMENDED CLAIM TO ELBERY'S MOTION FOR NEW TRIAL 

Amended Claim No. 1. - Judicial Misconduct - Causing a Violation ofDue Process and a Trial 

that was Unfair. 

This claim is in addition to the existing 18 claims in Elbery's Memo in Support ofhis Motion for 

New Trial regarding case 93-0135. 

Toomey's knowledge ofthe falsified eye injury evidence regarding off-duty police officer Tom 

King. 

Elbery was sentenced to 10 years in state prison as a result an attempted mayhem 

conviction (no weapon involved) after a Mass. District Judge found no probable cause on that 

and 2 other charges. As indicated by the supporting Motion for New Trial and related trial 

transcripts the evidence causing this conviction was that ofthe alleged victim's eye injury. As 

indicated by Factual Claims I, II, III ofElbery's Memo in support ofhis Motion for New Trial all 

the evidence about the victim's eye injury was false and knowingly so by both the defense 

attorney and the prosecutor. However, Judge Toomey viewed and approved the victim's medical 

reports and allowed them into evidence as exhibits. 

It should have been plain to Toomey that what was on those medical records (the portions 

that could be read) was entirely different from what the prosecution witnesses were testifying to. 

It should have struck Toomey as odd that the alleged victim, off-duty police officer Tom King, 

was allowed to be the sole medical witness concerning claims as outrageous and serious as 

vitreous fluid and blood dripping from a human eyeball.

As to the portions ofthe medical records that could not be read the law requires that the 

medical person writing the record allow the jury to know what the medical report discloses in 

terms ofthe victims claimed injuries. Toomey knew that Arinella's report (Exhibit A-2) was 

unreadable. Toomey had a duty to step in during trial and make sure that the law was obeyed and 

that Elbery received a fair trial even ifhis defense attorney was helping to railroad him. 

It should have been plain to Toomey, during that trial during 6-28-93 through 7-2-93 of 

Elbery, that King was fme at trial 9 months after claiming his eye was almost gouged out ofhis 

head and that there was no mention at trial ofsurgery or long term care for such an injury as 

King and his witness-friends testified to at trial. 

Ifall the above avoided any notice by Toomey then he should have heard ADA Ball 

leading his own witnesses at trial to produce the desired, by Ball and conspirators, perjury, see 

Motion claim II ofthe Memo, concerning the victim's alleged eye injury. 

Six years after that guilty verdict against Elbery it is now documented that King, Ball and 

Aloise and the prosecution witnesses conspired to perjure in order to convict Elbery via, in part, 

the falsified evidence ofeye injuries to King. IfToomey had done his job by acting on what was 

obvious and before him, as summarized above, there would not have been a phony conviction 

against Elbery or a 1O-year jail sentence. 

Toomey was even reminded by defense attorney Aloise, see Ex. R ofthe Memo and page 

5 ofthe Memo, that all the evidence ofKing's eye injury was fabricated. However, the jury was 

not allowed to know this. How can Toomey possibly claim he had no knowledge that the eye 

injury evidence at trial used to frame Elbery was not false? For Toomey to claim a lack of 

knowledge about the falsification ofKing's eye injuries at trial is to plead total incompetence. 

Toomey acknowledges he knew the King's eye injury evidence was false. 

At trial sidebar, TR 851-20 through 852-8, Toomey confrrms that he and Aloise 

understood what the alleged victim's medical records disclosed. They confrrm during this sidebar 

that the prosecution's evidence ofmayhem at trial was entirely different from the alleged victim's 

medical records. Doesn't a Superior Court Judge have a duty to stop a defendant from being 

railroaded in his court? Toomey had a duty to make sure the jury knew what was on the medical 

records and that they were totally the opposite ofthe prosecution's evidence.

Toomey declines to enforce Massachusetts law concerning citizen's arrest. 

All Massachusetts judges have a duty to know Massachusetts law. At Elbery's trial 

Toomey chose to ignore/malign the most important legal issue ofthe entire trial- Mass. law of 

citizen's arrest. See Memo claim V- page 39. 

Toomey knew citizen's arrest was an issue at trial (see page 41-42 ofthe Motion Memo), 

but he chose to do exactly the opposite ofwhat Mass. law requires concerning the right ofa 

citizen to make an arrest. As per claim V ofthe Memo, if Toomey had done as Mass. law 

requires he would have instructed the jury that there was no right to make a citizen's arrest by 

King. Further, instead ofconspiring with Aloise and Ball and the prosecution witnesses, Toomey 

should have suppressed the prosecution's evidence ofassault charges against Elbery, as per 

Mass. law not only did King have no right to pursue Elbery 100 yards down Shrewsbury St. but 

King was assaulting Elbery. 

IfToomey had done his job concerning the Mass. law ofcitizen's arrest there would have 

been no trial ofElbery on 6-28-93 let alone a conviction and a la-year jail sentence. 

Toomey concerning this issue ofcitizen's arrest at Elbery's trial was either a knowing co 

conspirator or a complete incompetent as a judge. 

The Falsifiedjustificationsfor King's citizen's arrest ofElbery. 

At trial the prosecution used two falsified events to justify King's pursuit ofElbery 100 

yards down Shrewsbury Street. First, was the alleged facial mutilation ofa girl named Quintessa 

Mann. Secondly, an alleged broken beer bottle assault by Elbery upon the entire bar for 30 

seconds. See claims IV and VI respectively. 

These two knowingly false events by the prosecution should have been obviously 

troubling to Toomey. It should have been clear to Toomey, as a well-seasoned judge, that there 

was something wrong about the prosecution's claim regarding these two events. 

Mann's Injury 

The reasons given in Elbery's Motion for New Trial - claim IV ofthe Memo for the 

falsification ofMann's injury should not have escaped Toomey's attention at trial. Specifically, 

should not Toomey have been alerted there was something wrong going on in his court when 

Mann claimed to have glass cuts on her face requiring stitching and there were no scars on her 

face. The prosecution would have made a major issue out ofthese facial scares to this little girl's

face ifthere had been any. There was no medical evidence presented regarding this girl's alleged 

face cuts and stitching. 

It may be to much to expect out ofa judge to read exhibits at trial, but Ex. D ofthe Memo 

which is the Worcester Police Report ofthe incident resulting in Elbery's arrest clearly indicates 

that the Worcester Police found no record ofany girl going to any and all area hospitals for such 

injuries as Mann described. 

Toomey should have questioned why Elbery did not get charged with a crime for this 

cutting ofthe girl's face. Instead Toomey chose to ignore the obvious or participate in a 

conspiracy. 

The 30 second bottle assault 

Judge Dan Toomey will deny ever reading the probable cause hearing transcript 

regarding this case. He will probably deny knowing that there was no probable cause found on 

the same charges at the District Court level (which is not believable or more incompetence). 

However, Toomey can not deny that King was the only witness at trial that claimed Elbery used 

a broken beer bottle for 30 seconds while menacing an entire bar. Although defense attorney 

Aloise refused to cross-examine King on this point or question the other witnesses regarding this 

beer bottle attack and highlight the discrepancies in testimonies, the absence oftestimony by the 

other witnesses and friends ofKing's regarding the bottle assault should have alerted Toomey 

that a fraud was taking place in his court. 

Instead ofexposing and correcting the fraud committed by King at trial regarding the 

falsified bottle assault Toomey directed a verdict ofnot guilty on the assault charge with the 

broken beer bottle. Toomey simply told the jury to forget that charge, see p. 57-58 ofclaim VI. 

Toomey even while directing a not guilty verdict on that charge maintained the masquerade and 

dismissed it for all the wrong reasons, see TR 840 through 850. 

Toomey knew King was drinking on duty and allowed King to lie about it. 

Per claim VII ofthe Memo, p. 58, at a minimum Toomey knowingly conspired with 

Aloise and the prosecution to conceal the fact that King was drinking on duty before he got into 

controversy/fracas with Elbery on 9-29-92, see p. 60. To add insult to injury he gave jury 

instructions that compounded this Due Process violation by Toomey causing the jury to believe 

only Elbery had a motive in the outcome ofthe trial. See page 63 ofthe Memo.

Toomey allowed his biased clerk- John O'Connor to officiate at trial. 

As per Elbery's Motion, claim IX ofthe Memo, Toomey allowed reporting-clerk, John 0' 

Connor, to officiate during Elbery's trial. 0' Connor's son, Dennis- a prosecution witness, 

testified that he was the one who single-handedly subdued Elbery on the street. This is assault 

and battery. 

This bias ofToomey's clerk may explain Toomey's conspiracy and unlawfulness at 

Elbery's trial. A judge's clerk has great influence over a judge. 

Toomey witnesses Aloise confirm and adopt the prosecution's case. 

Per Memo claim XI, Aloise at trial's length advocated the prosecution's story, also see 

claim X-A-4. IfToomey did not catch this at trial he should not be ajudge. Toomey let this 

happen knowing Elbery was receiving no defense. The law is Toomey is supposed to see justice 

is done in his courtroom and stop injustices. 

The prosecutor's Opening and Closing Statements. 

Per claim XVI, p. 106, ofthe Memo the prosecutor performed with reckless abandon in 

order to get his conviction. Toomey heard all this and did nothing. Also see the statement made 

by the prosecutor in closing that was raised as an issue in the direct appeal ofthis case, (the 

direct appeal included with attached documents). These statements were not just isolated but 

repeated and Toomey condoned them all. 

Toomey's Instructions 

Per claim XVII, p. 111, ofthe Memo Dan Toomey did a stella job instructing the jury 

including defming maiming as a "wound" and substituting a "consciousness ofguilt" instruction 

for the required "citizen's arrest" instruction. 

Toomey jails Elbery on the second day oftrialfor no reason other than vindictiveness. 

During the second day oftrial at lunch break Toomey jailed Elbery although the record 

reveals Elbery had done absolutely nothing wrong. Toomey claimed, TR 363-10, I thought he

was about to get out ofhand. This type oftyrannical behavior at Elbery's trial only serves to 

underscore Toomey's conspiracy to falsely convict Elbery. See also p.97 ofthe Memo. 

The ADA Morris Bergman Incident. 

Toomey chose to ignore Bergman's perjury at trial, see claim XII-p.95. This illegal 

activity at Elbery's trial by Bergman was not just perjury but was intended to scuttle the little 

defense Aloise presented via witness John Hayes. Moe Bergman got caught lying under oath 

during the voire dire ofElbery's trial and Toomey looked the other way. 

Facial Grimaces - Toomey's main concern. 

Instead ofexposing the perjury, conspiracy and other mob activities at Elbery's trial Dan 

Toomey worried about Elbery's facial grimaces. See Memo claim XVI-p.llO. For Toomey to 

direct his energy during Elbery's trial to facial grimaces that were caused by the prosecutor 

sticking his fmger in Elbery's face while Toomey was watching can only lead to one conclusion, 

Toomey was a knowing co-conspirator to violate Elbery's Constitutional Rights and illegally 

convict him. 

Major Discrepancies at Trial went unnoticed by Toomey? 

The trial ofMichael Elbery at Worcester Superior Court on 6-28-93 resulted from the 

activities ofElbery, King and the other friends ofKing's who exited the Winner's Circle Bar on 

to Shrewsbury St. causing a fight/chase scenario allegedly ending in King being seriously 

injured. This whole incident that took place on 9-29-92 resulting in Elbery serving a lO-year 

prison sentence, only took, at most, a little over a minute. This time element was acknowledged 

by all who testified. 

Yet, nobody, the prosecution witnesses or defense witnesses (all friends ofKing's accept 

Elbery) testified to even a remotely close set offacts regarding the exiting ofthe bar and chase 

fight (p. 105 and p.39 ofMemo) on Shrewsbury St. or about how King received what turned out 

to be a minor bump in the eye, p. 13 ofthe Memo. 

no police investigation 

Even Toomey was taken off guard in his conspiratorial role when the prosecutor, Ball, 

claimed there was no investigation, see p. 18 ofthe Memo, (ofcourse there was an investigation,

how else would Toomey and Aloise know what was written by Dr. Arinella via King's medical 

report Ex. A-2). 

Isn't it reasonable that a Superior Court Judge would be alerted, as result ofthese trial 

discrepancies and claimed lack of investigation, that there was something VvTong with the case 

before him and that he should be all the more circumspect regarding the conduct ofthe state 

actors and the evidence at trial. This all compounded by the fact that a few months prior there 

was no probable cause found on the same case by a district judge. 

LAW- The Judge's role during a trial. 

A judge has the power and duty to exercise control over the proceedings ofhis court to 

the extent necessary to insure each litigant a fair trial, and to maintain the order and dignity of 

the judicial process. His power and duty extends to the regulation oforder and behavior in the 

courtroom. He cannot permit the processes ofthe court to be grossly abused. C.IS. Vol. 48A p. 

643. 

It is the function ofthe judge to see that justice is accomplished, and it is within the 

powers and duties ofa judge to take proper action in order to enforce the law and to promote 

justice. id. at 642. 

Judges "have an inherent power to do whatever may be done under the general principles 

ofjurisprudence to insure to the citizen a fair trial. Crocker v. Justices ofthe superior Court, 208 

Mass. 162, 179,94 N.E. 369 (1911), Beit v. Probate and Family Court 385 Mass. 854,434 N.E. 

2d. 642, 646. Further, "every judge must exercise his inherent powers as necessary to secure the 

full and effective administration ofjustice". id. 

Rule 38 ofthe M.R.C.P. require a judge to ensure the integrity ofthe trial process. Com. 

v. Trapp 396 Mass. 202, 485 N.E. 2d. 162, 170. 

Toomey's orchestration ofconspiracy to frame Elbery at trial was one big violation of 

Due Process under the Fourteenth Amendment ofthe U.S. Constitution. 

A trial before an unbiased and competent Judge is essential to Due Process under the U.S. 

Constitution's Fourteenth Amendment. Johnson v. Miss. ('71) 403 U.S. 212, 29 LEd. 2d 423,91 

S.Ct. 1778.

Conclusion - Judge Dan Toomey was the pivot man in the conspiracy to falsely convict and 

imprison Elbery with perjury and falsified evidence. 

The above highlights Judge Dan Toomey's conspiracy to maliciously prosecute Elbery at 

Worcester Superior Court on 6-28-93. The endless and detailed evidence ofthis conspiracy is 

contained in the initial Memo to Elbery's Motion for New Trial and the attached transcripts as 

indicated. Without Toomey's key role in that conspiracy to violate Elbery's Constitutional Rights 

it would have been impossible to accomplish. 

As in the above law, Toomey did not do what he was, as a matter oflaw, required to do. 

Toomey's illegal conduct as summarized and highlighted in this amended claim violated Elbery's 

Constitutional Rights under the Fourteenth and Sixth Amendment. This would be Elbery's right 

to Due Process and a Fair Trial. As a result ofToomey's illegalities/conspiracy during the trial of 

93-0135 a new trial is required. 


168 Faifield St. 


781-444-7324 

7-24-99


I the moveantldefendant mailed this Amendment claim to 93-0135 Motion for New Trial to the Clerk-Criminal at 

Worcester Superior Court, 2 Main St., Worcester Mass. 01608 and to the Worcester District Attorney's Office at the 

same address all on 7-28-99 via U.s. certified mail.


SUFFOLK, ss. SUPREME JUDICIAL COURT 

FOR SUFFOLK COUNTY 

No. SJ-1999-0308 

COMMONWEALTH 

VB. 

MICHAEL ELBERY 

JUDGMENT 

This matter came before the Court, Ireland, J., presiding, 

on a petition pursuant to G.L. c. 211, s. 3, and upon 

consideration thereof, it is ORDERED that the petition be, and 

the same hereby is, depied 

Entered: August 4,1999

"< J /) (...,

TABLE OF CONTENTS 

STATEMENT OF JURISDICTION 2 

STATEMENT OF ISSUES PRESENTED 2 

STATEMENT OF CASE 3 

SUMMARY OF ARGUMENT 4 

ARGUMENT 4 

CONCLUSION 5 

ABBREVIATION TABLE 

App. = Appendix, MRCP=Mass. Rules ofCriminal Procedure 

Certificate ofService 6 

APPENDIX 6 

TABLE OF AUTHORITIES 

Mass. R.A.P. 10 2 

Mass. C. 211 s. 3 3,2 

Rule 9 ofRules ofSuperior Court 5,4 

Rule 30 ofthe Massachusetts Rules ofCriminal Procedure 5,4,3,2 

Fourteenth Amendment ofthe United States Constitution 4,2

STATEMENT OF JURISDICTION 

This is an appeal from a decision ofa single justice ofthe Massachusetts S.J.C., see app. 

A & B, regarding a petition under C. 211 s. 3 by Michael Elbery, (hereinafter the defendant)" see 

app. C. The full court ofthe S.J.C. has jurisdiction to hear this appeal via C. 211 s. 3 and the 

Mass. R.A.P. 10. 

STATEMENT OF ISSUES PRESENTED 

1. Should a Massachusetts Superior Court Judge be allowed to limit a defendant's Motion for 

New Trial, Rule 30 ofthe MRCP, to 60 pages including exhibits and appendix where there is no 

such provision in Massachusetts law that allows for a limitation on a Motion for New Trial under 

Rule 30? 

2. Should a Superior Court Judge be allowed to violate a criminal defendant's right to Due 

Process ofLaw under the Fourteenth Amendment by limiting the number ofpages that a 

criminal defendant can present via a Motion for New Trial under Rule 30 ofthe MRCP? 

3. Should a criminal defendant be deprived ofDue Process ofLaw in violation ofthe Fourteenth 

Amendment by limiting the number ofpages that defendant can produce via a Motion for New 

Trial under Rule 30 ofthe MRCP where far more pages are required in order to properly raise all 

claims ofthe unconstitutional activity that occurred at the underlying trial that caused the 

conviction? 

2

STATEMENT OF CASE 

This appeal results from an order ofalleged discretion by Superior Court Judge Daniel 

Toomey limiting this defendant's Motion for New Trial under the MRCP - Rule 30 to 60 pages 

including exhibits, appendix and addendum to that motion, see app. C-ex. 3 & 4. This is 

continuance ofthe illegalities via conspiracy that infested this defendant's trial at Worcester 

Superior Court on 6-28-93 through 7-2-93. Judge Dan Toomey attempts via this limitation of 

Due Process and pages to this defendant's Motion for New Trial to eliminate most ofthe 

meritorious claims this defendant makes via his Motion for New Trial. This defendant originally 

petitioned a single justice under Mass. C. 211 s. 3, see app. C, regarding this limitation by 

Toomey ofthis plaintiffs Motion for New Trial and was denied, see app. A. 

As per the attached Petition to the Single Justice, app. C, there is no provision under 

Mass. Law that allows Toomey to limit a Motion for New Trial under Rule 30. In fact, the theory 

ofpost conviction activity under MRCP Rule 30 is that the defendant must present all issues and 

claims that would cause and allow for a new trial and present it once. In other words Rule 30 is a 

"one shot deal" by which you must present every claim you have, once, in order to obtain a new 

trial. To limit this procedure, Rule 30, via page limitation would be contrary to that theory of 

"all" in "one shot". 

3

SUNIMARY OF ARGUMENT 

ARGUMENT 

The order by Judge Toomey limiting this defendant's Motion for New Trial to 60 pages 

including exhibits, appendix, and addendum, is a violation ofMRCP 30, Superior Court Rule 9 

and Due Process ofLaw under the Fourteenth Amendment ofthe U.S. Constitution. 

1. There is no allowance in Massachusetts law for Toomey to limit this defendant's Motion for 

New Trial to 60 pages including exhibits, appendix and addendum. In fact, the law is that a 

Motion for New Trial under MRCP - Rule 30 has no page limit. Further, Massachusetts Superior 

Court Rule 9 does not allow for a limit on pages regarding criminal motions. See app. D & E. 

What Toomey is attempting to do by his order ofpage limits on this defendant's Motion 

for New Trial is to violate this defendant's Due Process Rights under the Fourteenth Amendment. 

Toomey has an interest in limiting this defendant's Motion for New Trial in order to limit 

exposure ofthe constitutional violations that took place at the defendant's underlying 

trial/conviction. 

To allow Toomey to review this defendant's Motion for New Trial with the beliefthat he 

can limit the pages to 60 is a miscarriage ofjustice. The appeal process does not compensate for 

this injustice as the appeals Court will at most order a remand on the appeal ofthe Motion for 

New Trial and in so doing further consume this defendant's life needlessly. This defendant's 

Motion for New Trial was filed with Toomey on July 6, 1999 and contains 115 pages ofmerit, 

4

1. This defendant/petitioner, Michael Elbery, (hereinafter defendant) was illegally convicted in 

Worcester Superior Court before Judge Dan Toomey on 7-2-93 and sentenced to 10 years in 

state prison. That criminal case was Com. v. Elbery 93-0135. See Ex. M ofEx 5. 

2. This defendant has filed, on 7-6-99, a meritorious Motion for New Trial under M.R.C.P. 30, 

see Ex. 5. 

3. This defendant in 1997, as a result ofbeing incorrectly advised by a bar-attorney/relative, 

motioned Judge Dan Toomey to allow additional pages to comprise his anticipated motion for 

new trial. See Ex. #1. 

4. This defendant realizing that he was incorrect, via Ex. 1 above, as a matter oflaw, that there is 

no page limit to Criminal Motions under Superior Court Rule 9 or 9b, motioned to withdraw his 

motion in paragraph #3. See Ex. #2. 

5. Regardless ofthe law and this defendant's motion in paragraph #4 above Judge Dan Toomey 

maintained, in Violation ofDue Process of Law, the 60 page limit to this defendant's motion for 

new trial, this including exhibits. See Exs. #3 and #4. 

ARGUMENT 

2

There is no discretion for Judge Dan Toomey to limit this defendant's Motion for New 

Trial to 60 pages or any other amount. There is no such provision under M.R.C.P. - Rule 30 or 

Mass. Rules of Superior Court Rule 9 or 9b. The attachments or exhibits l alone, to this New Trial 

Motion are over 60 pages. 

The Supreme Judicial Court has jurisdiction to stop this illegal discretion by Toomey via 

Mass. C. 211 s. 3. There is no other remedy available to prevent this limitation by Toomey of 

this defendant's Due Process ofLaw under the Fourteenth Amendment ofthe U.S. Constitution. 

This page limit by Toomey is arbitrary. 

As per Ex #5 the trial ofthe conviction ofthis defendant was one giant miscarriage of 

justice and a continuum of violations ofthis defendant's Constitutional Rights under the U.S. 

Constitution. There were so many illegalities during that trial that it requires over 100 pages of 

factual Memorandum ofFact and Law in order that justice can be served. 

This defendant asks the Supreme Judicial Court ofMassachusetts to prevent further abuse 

ofthis defendant's rights by ordering Judge Toomey to obey the law and remove his page limit 

regarding this defendant's Motion For New Trial. 

The pages in excess of 60, as per Ex. # 5, is required to present the injustice ofthat 

conviction. Without these pages (all), per Ex. 5, this defendant's rights will once again be 

violated. The Federal government will deem such a state procedure illegal for the purposes of 

habeas corpus ad subjiciendum. Messer v. Roberts C.A. 10 (Kan.) 1996, 74 F. 3d 1009, Calderon 

v. U.S. Dist. Court for Eastern Dist. ofCalf C.A. 9 (Cal) 1996,96 F 3d 1126, (state procedures 

must be applied in even handed manner and consistently enforced, the state procedures must be 

regular and adequate). 

3

Loring P. Lamoureux 

Clerk of the Courts 

Room 21 Court House 

2 Main St. 

Worcester, Mass. 01608-1176 

Dear Sir: 



Needham,Mass. 02192 

617-444-7324 

2-25-97 

Please find enclosed for immedate filing and review by Judge Daniel 

Toomey DEFENDANT'S MOTION FOR ALLOWANCE OF FORTY ADDITIONAL PAGES 

TO COMPLETE MOTION FOR NEW TRIAL. 

Respectfully submitted, 

:-. / /! ql'f/ 

1);;{4u'LeJ(/' C VJ&7 

Michael Elbery


Worcester, S8. 



Commonwealth 

v 



FOR NEW TRIAL 









subsets of additional violations of law and related factual .claims. 






Supreme Judicial Court for the Commonwealth of Massachusetts 

1412 Courthouse, Boston, Massachusetts 02108 

(6171 557-1020 

TO: Michael Elbery 

168 Fairfield Street 

Needham, MA 02492 

RE: No. SJC-08126 

COMMONWEALTH 

va. 


NOTICE OF ORAL ARGUMENT 

Dated: June 14, 2000 

This is one of a small number of cases being scheduled 

for hearing at a special sitting of the Supreme JUdicial 

Court to be held on Wednesday, June 28, 2000. 

Please indicate in writing within 7 days of the date of 

this notice whether you will appear on this date. This 

sitting ,will not be repeated. If you cannot appear, the 

case will be submitted on your brief. 

Oral argument will be limited to 10 minutes per side and 

will begin promptly at 9:00 a.m. in the courtroom on the 

thirteenth floor of the Pemberton Square Courthouse in 

Boston. 

Susan Mellen, Clerk 

To: Michael Elbery 

Hon. Daniel F. Toomey 

Worcester Dist. Atty's Office 

Office of the Attorney General

Commonwealth Worcester s.s. 

Criminal action 

93-0135 

v. 


Defendant's Motion to Mark-Up for Hearing 

Defendant's Motion For New Trial 

1. The defendant Motioned for New Trial regarding the above docketed action on July 6, 1999, 

as filed in the Clerk's Office ofthe Worcester Superior Court. 

2. Almost One Year has past and this defendant/moveant has heard nothing regarding the above 

docketed case. 

WHEREFORE 

The defendant/moveant asks the Court to mark-up for hearing the above Rule 30 Hearing 

and related hearing for evidentiary issues and discovery as asked per the defendant's Motion For 

New Trial. 


I the defendant, Michael Elbery, sent this motion to mark-up to Clerk-Criminal- Worcester 

Superior Court, 2 Main St., Worcester, Mass. 01608 and the Worcester County D.A.'s Office at 

2..Main St., Worcester, Mass. 01608 all on 5-24-00 via U.S. mail.

Worcester ss 

Commonwealth 

v. 



Supreme Judicial Court 

SJC 

Petition for Relief Under G.L. C. 211 s. 3 

• 

The petitioner/defendant, Michael Elbery, asks the Mass. SJC to 

exercise its gerneral superintendence powers granted to it by 

M.G.L. C. 211 S. 3 regarding the criminal case Commonwealth v. 

Michael Elbery 93-1035 at Worcester Superior Court. 

The petitioner/defendant was convicted of "assault with intent to 

maim" and 2 related misdemeanors in Worcester Superior Court in 

July of 1993. See Exhibit 1 (docket entries). 

The petitioner/defendant filed a pro se "Motion for New Trial" 

under Rule 30b of M.R.C.P. on July 6, 1999 regarding that convic 

tion. 

The Mass. S. J. C. has a copy of tha t "Motion for New Trial" via a 

prior petition under 211 s. 3 by this petitioner regarding that 

same "Motion for New Trial". See SJC - 08126. 

This inordinate delay of lQ months to review this petitioner's 

-"Motion for New Trial" is unjustified, even though the motion 

ju is not the trial judge. See wells v. Marshall,885 F. Supp . 

. Mass. '95), where the Federal Court gave the new motion

judge a total of 20 months (assignment of Jan. '94 through deadline 

of August 31, '95) to review Well's "Motion for New Trial" before 

futility of Mass. post - conviction process was determined. 

This petitioner's "Motion for New Trial" has been filed,without 

any action by the motion judge, 10 months in excess of that 20 

month deadline in Wells. 

This unjust delay in reviewing of this petitioner's motion causes 

the Massachusetts system to be ineffective to protect this petitioner's 

rights. As a result of this unjust delay there is an absence of 

available corrective process for this petitioner regarding post 

conviction relief on the above conviction. 

WHEREFORE, 

the petitioner asks the Mass. SJC to stop the injustice 

and order the Worcester Superior Court who was assigned to the 

above petitioner's "Motion for New Trial" to review it and make 

a decision on that meritorious motion in the near future or sooner. 

Michael Elbery, pro se 

SECC Prison 

12 Administration Rd. 

Bridgewater, Mass. 02324 

12-4-01 

2 of 2

\VORCESTER, SS. 

COMMON\VEALTH OF MASSACHUSETTS 

COMMONWEALTH 

VS. 


SUPERIOR COURT 

CRIMINAL ACTION 

NO. 93-0135 

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 himselfpro se, the defendant now 

moves for a new trial pursuant to Mass. R. Crim. P. 30(bl In addition, the defendant seeks an 

evidentiary hearing and further discovery as allowed by Mass. R. Crim. P. 30 regarding the 

The defendant was sentenced to ten (10) years' imprisonment at M.C:!., Concord, on the maiming charge. 

At the sentencing the judge, Toomey, 1., expressed his intention that the defendant serve one (l) year. The 

defendant was also sentenced to concurring one (I) year's probation for the other two convictions to be served after 

the maiming sentence. 

Despite a 60-page limit ordered by Judge Toomey, the defendant submitted a lIS-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 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 ofthe 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).

mjuries he allegedly sustained by Thomas King. Following are the grounds upon which the 

defendant primarily relies: ineffective assistance oftrial counsel 3 and appellate counsel 4 , judicial 

misconductS, prosecutorial misconduct 6 , that the verdict was against the weight of the evidence 

(insufficient evidence)?, inadequate jury instructions 8 , inadmissible evidence admitted during 

trial 9 , and duplicative sentencing 10 . 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. 

facts: 

BACKGROUND 

The trial transcript indicates that the jury could have reasonably found the following 

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, JeffSchlener. 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 

10 

See Counts I - XV, excluding III. 

See Count XVIII. 

See Counts IX and Count I ofthe amended motion. 

See Counts II, IV, VI, VIII, X, XII, and XVI. 

See Counts VI and VIII. 

See Count XVII. 

See Count III. 

See Count XIV. 

2

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 assisted by another 

patron who happened to be a chiropractor, and was later taken by a friend to a 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

.l1ultiple 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 himselffrom 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 instructions. I I On January 26, 1995, the Appeals Court affirmed the convictions in a written 

decision. 12 Commonwealth v. Elberry (sic), 38 Mass. App. Ct. 912 (1995), rev. denied, 419 

Mass. 1107 (1995). 

I. Motion for a New Trial Standard 

DISCUSSION 

"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 

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 ofthe crimes were sufficient. 

A

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. 'Vaiver 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 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." rd. (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." ld. "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. ,,, rd. (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

ju.stice. 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 ofjudicial misconduct, 

prosecutorial misconduct, that the verdict was against the weight of the evidence (insuftlcient 

evidence), inadequate jury instructions, inadmissible evidence admitted during trial, and 

duplicative sentencing were all areas of the law that 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. 

III. 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 171-173; see also Commonwealth v. Egardo, 426 Mass. 48, 49 

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 

'umealistic 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 Egardo, 426 

Mass. at 49-50 ("[b]ecause trial and appellate counsel were associates in the practice ofcriminal 

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.l 

(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 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, 1.). Consequently, 

this Court has reviewed the trial transcript to determine whether the defendant received 

ineffective assistance of counsel 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 ofdefense." 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, lIS (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 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 lIS-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 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!l225 13 ) 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. 11127. 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 Alloum 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 

13 

Citations to the Trial Transcript references are indicated as "Tr. Vol.," followed by the volume and page 

number. 

q

defendant to shoyv: (1) witness was available at time of trial; (2) the testimony \vould have been 

sufficient to raise the issue of self-defense; and (3) that testimony would likely have made a 

material difference in the trial). 

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."J4 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/1219)). 

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. 15 For these reasons, it was also 

14 

15 

Worcester District Court Proceedings, January 20,1993, page 9. 

Worcester District Court Proceedings, January 20, 1993, page 39.

unnecessary for Aloise to file a motion to suppress 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 rep01i 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). 

Elbery claims that Aloise failed to object to Assistant District Attorney Ball expressing 

11

his OViD 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 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 wrdict and, therefore, there YVas 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/l225), and arguing that 

Elbery was acting in self-defense (Tr. Vol. V/122l-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 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

"am 1right" 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 proving his case beyond a 

reasonable 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. 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 

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, A10ise 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 also proper. 

E. Miscellaneous 

E1bery 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 Commonwealth's witnesses and repeatedly 

called the Commonwealth's rendition of the facts of the case "patently absurd." (Tr. Vol. 

VI1221-24). 

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)16, assault with intent to maim (G.L. c. 265, §15)17, and being a disorderly person 

(G.L. c. 272, §53)18. Contrary to Elbery's allegations, assault and assault and battery are not the 

lesser included offenses of assault with intent to maim. Elbery also claims that he was sentenced 

16 

17 

18 

G.L. c. 265, §13A states: 

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. 

G.L. c. 265, §15 states: 

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 injail 

for not more than two and one half years. 

G.L. c. 272, §53 states: 

Common night walkers, common street walkers, both male and female, common railers and 

brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of 

the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly 

persons, disturbers ofthe peace, keepers of noisy and disorderly houses, and persons guilty of 

indecent exposure may be punished by imprisonment in jailor house of correction for not more 

than six months, or by a fine of not more than two hundred dollars, or by both such fine and 

imprisonment. 

15

to one year for being a disorderly person when the maximum sentence is only six months. 

However, Elbery was sentenced to serve one year for the assault with intent to maim charge and 

one year probation for the assault and battery and disorderly conduct convictions which were to 

run concurrently. His probation was to begin after his release from jail. Thus, Elbery was not 

sentenced for longer than his convictions mandated. 

Also, contrary to Elbery's contentions, there is no evidence that Aloise sponsored 

Assistant District Attorney Ball to lie about the bottle assault, nor that Perma (a fellow cop), De 

Pasquale (an acquaintance of King) or Mann lied on the stand as witnesses. There is also no 

evidence that the pictures admitted at trial were falsified or duplicative. Nor did Aloise have the 

responsibility, nor the capacity, to file criminal charges against King for the injuries he allegedly 

caused Elbef)T. There is also no evidence that Aloise abandoned his client. 

For the aforementioned reasons, the defendant has failed to show that trial counsel's 

representation was seriously deficient and that he was deprived of an otherwise available 

material ground of defense. Since there was competent representation by the trial attorney, 

appellate counsel was not ineffective for failing to argue on appeal that the defendant's trial 

counsel rendered ineffective assistance. See Breese, 415 Mass. at 252. 

IV. Evidentiary Hearing Not Warranted 

In addition to his request for a new trial, the defendant requests an evidentiary hearing 

and fUlther discovery. A judge has broad discretion to deny a motion for new trial upon review 

of the motion and affidavits without conducting an evidentiary hearing. Commonwealth v. Rice, 

427 Mass. 203, 207 (1998); see also Commonwealth v. Lopez, 426 Mass. 657, 663 (1998). 

16

"[T]he judge may decide a rule 30(b) motion based solely on affidavits; may discredit 

untrustviOrthy affidavits; and need only proceed to evidentiary hearing 'where a substantial issue 

is raised [by the motion or affidavits] and is supported by a suhstantia1 evidentiary showing.'" 

Lopez, 426 Mass. at 663, citing Commonwealth v. Stewart, 383 Mass. 253, 260 (1981); Mass. R. 

Crim. P. 30(c)(3) ("[t]he judge may rule on the issue or issues presented by such motion on the 

basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised 

by the motion or affidavits"). The court need only hold an evidentiary hearing if a substantial 

issue is raised by the motion and affidavits and is supported by a substantial evidentiary 

showing. Id. In determining whether the defendant has raised a 'substantial issue' meriting an 

evidentiary hearing under Rule 30, the court looks at the seriousness of the issue asserted and to 

the adequacy of the defendant's showing on the issue raised. Commonwealth v. DeVincent, 421 

Mass. 64,67 (1995). Further, the defendant must show that an evidentiary hearing is necessary 

to provide the judge with additional information not already contained in affidavits. See id. at 

68. Here, the defendant has not demonstrated that substantial issue exists which would require 

additional information not already contained in the defendant's submission or the record. 

Consequently, the defendant's request for an evidentiary hearing is denied. 

17

Jttl Commonwealth of Massachusetts 

II County of Worcester 

ft/ The Superior Court 

,/-/{P 

,- CRIMINAL DOCKET# WOCR1993-00135 

RE: Commonwealth v Elberry et al 

TO:Michael C57634 Elbery 

SECC 

12 Administration Road 

Bridgewater, MA 02324 

CLERK'S NOTICE 

This is to notify you that in the above referenced case the Court's action on 

03/06/2002 is as follows: 

Defendant's motion for supplement to motion to reconsider Denial of Motion fo new trial 

(Judge Hillman) 

Motion (P#44) denied (Hillman, Justice). Copies mailed to Deft 

Dated at Worcester, Massachusetts this 6th day of March, 2002. 

Location: Rm 204 (Worcester) 

Loring P. Lamoureux, 

Clerk of the Courts

SUMMARY OF ARGTlMENT 

ARGUMENT 

The defendant's motion proves not only that he did not receive a fair 

trial, but that he was innocent of the crimes convicted and further that he 

was framed for the crimes he was imprisoned for 10 (TEN) years. 

ARGUMENT I 

None of the defendant's motion claims are waived because they are either 

"Bradyrr-violations, or factual issues not appearing on the trial record, or 

claims that should have been raised by the defendant's appellate counsel, or 

claims of miscarriage of justice. 

The court per memo has found that all the defendant's motion claims are 

waived for review under Rule 30b, except for the trial attorney's ineffective 

assistance claims not raised by appellate counsel, see p. 7 of memo. The 

defendant agrees that claims of ineffective assistance of trial counsel that 

could have been raised by the defendant's appellate counsel are a "waiver 

exception" and properly included in a motion for new trial. Com. v. Miranda, 

490 N.E. 2d 1195, 1200, 22 Mass. App. 10 ('86), Com. v. Sowell, 609 N.E. 2d 

492, 494 ('93), 34 Mass. App. Ct. 229. Contrary to the court's memo p. 7, 

(court claims the defendant raised his claim of ineffective assistance of 

appellate counsel only to the extent of failure to raise on direct appeal 

ineffective assistance of trial defense counsel), the defendant raises a 

claim of ineffective assistance of appellate counsel, claim XVIII, because 

some of the motion claims should have been raised on direct appeal. Evitts

v. Lucey, 469 U.S. 387, 105 S. Ct. 830 ('85), Gray v. Greer, 800 F2d 644 (7th 

Cir. '85) (there is a constitutional guaranteed right to effective assistance 

of appellate counsel). Constitutional law does not limit the right to appellate 

counsel to only claims of ineffective assistance of trial counsel. id., Evitts 

id. 

None of the defendant's motion claims are waived for review, via Rule 30b, 

because all the defendant's motion claims fit into one of 4 groups that, per 

Mass. law, are properly raised in the first instance in a motion for new trial, 

or are a recognized "issue waiver exception". Rule 30b is properly used for 

more than "newly discovered evidence" and "issue waiver exceptions", as a 

matter of law. 

1. The first category of claims raised by the defendant that are not waived 

for review under Rule 30b are the numerous "Brady" violations. All the "Brady" 

violations in the defendant's motion are of the third category mentioned in 

United States_v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 ('76), "knowing use by 

the prosecution of perjured/false evidence". Corn. v. Tucceri, 412 Mass. 401, 

409, 589 N.E. 2d 1216, 1219 ('92) - ftnt. 3. These type of claims, obviously, 

raise factual evidence not of the trial record. The appellate counsel is 

only able to raise issues on direct appeal that appear on the trial record. 

White v. White, 662 N.E. 2d 230, 232, 40 Mass. App. Ct. 132, 133 ('96) & 

M.R.A.P. - Rule 8 (record of lower court is record for appeal). 

Per Tucceri at 1221,"there is no reason why a non-disclosure issue could 

not be advanced by a motion for new trial to which the regular principles of 

M.R.C.P. 30b, 378 Mass. 900 ('79) 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 

cornmon law or constitutional grounds," .. id.

2. The defendant also raised other motion claims, that like "Brady" claims, 

are based on factual issues not appearing on the trail recorn. This category; 

that can only be raised on a motimfor new trial under Rule 30b, includes 

ineffective assistance of trial counsel claims based on facts not appearing 

on the trial record. 

Per the Mass. S.J.C. in Gibney v. Comm., 375 Mass. 146, 148 375 N.E. 2d 714 

('78), constitutional arguments raised by the petitioner that are based on 

factual questions are best left for resolution in the first instance by a 

trail judge on a motion for new trial. 

Moving for a new trial is the customary practice in situations involving 

ineffective assistance of counsel. Com. v. Frisina, 488 N.E. 2d 51, 54 21 Mass. 

App. Ct. 551 ('86). " A claim of ineffective assistance of counsel may be 

resolved on direct appeal of the defendant's conviction when the factual 

basis of the claim appears undisputedly on the trial record. But when the 

trial record provides an insufficient factual basis for appellate review, 

the claim of ineffective assistance of trial counsel is best left for resolu 

tion in the first instance by the trial judge on a motion for new trial." 

Com. v. Adamides, 37 Mass. App. Cr. 339, 344, 639 N.E. 2d 1092, 1076 ('94), 

Com. v. Cross, 4 Mass. App. Ct. 54, 57, 340 N.E. 2d 923, ('76). 

3. The third category of claims in the defendant's motion that avoid waiver, 

via presentation in a motion for new trial, are issues that should have 

been raised by the appellate attorney on direct appeal or ineffectiveness 

of appellate counsel. As above, the court agrees, per p. 7 of memo, with 

the defendant on this point. 

A recognized exception to the issue waiver rule is when both the trial 

and direct appeal counsel were ineffective. Corn. v. Miranda, at 1200, Corn. 

v. Sowell at 494. A claim of ineffectiveness of counsel on appeal must raised 

in the first motion for new trial. Com. v. Le Fave, 430 Mass. 169, 173 ('99)

In his motion, Elberry also claimed ineffective assistance 

of both his trial and appellate counsel. 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 counsel's 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 

2

Mass. Appeals Court 

Judge Laurence 

RE: Rule 27 Petition for Rehearing 

Appeal 02-P-318, Elbery v. Com. 

Court/Senior Judge Laurence: 




617-444-7324 

3-18-03 

I do not come to you begging for justice, rather I demand 

justice regarding my conviction in 1993 in Worcester Superior 

Court for assault with intent to maim and assault and battery 

for which I was condemned to 10 (TEN) years in state prison. 

On 3-10-03 you affirmed the denial of my motion for new 

trial. 

First, I direct your attention to the evidence the 

prosecution used to convict me. That evidence was the cause 

and extent of the alleged victim's, King's, eye injury. 

Review my appeal brief - Argument II, the evidence of cause 

and extent of King's eye injury presented to the jury was 

flat out perjury; it was big perjury. I presented 4 pages of 

this perjury taken from trial transcript testimony of the

various trial witnesses, see the record appendix 142-146. The 

Worcester D.A. 's Office, per appellee brief, never addressed 

any of this perjury given to the jury at trial. 

The Worcester D.A. never addressed the medically documented 

fact that King lied to the jury about the cause of his 

"injury". 

The Worcester D.A., per appellee brief, has never addressed 

the fact that King admitted to his treating physician, per 

medical report, that his "injury" was caused by "catching a 

finger in the eye". King told the jury that I repeatedly 

thumb gouged King and was trying to take his eye out of his 

head. There is good reason why the Worcester D.A. refused to 

address the perjury presented to the jury about King's eye 

injury. Not even the Worcester D.A. 's Office would argue 

about medically documented evidence that proves to a 

scientific certainty that I was prosecuted/framed via 

perjury. 

Per appellee brief p. 41, the Worcester D.A. agrees with my 

expert medical witness, Dr. Hull, who read King's deciphered 

medical report and disclosed that King had merely a "red" or 

"inflamed eye." Dr. Hull also disclosed that King's medical 

report contained no evidence that King sustained any of the 

various bloody brutal eye injuries presented to the jury 

about his eye. 

2

The Worcester D.A., per appellee brief p. 40, claim Dr. 

Hull's affidavit is cumulative of King's medical record as 

written by King's treating physician, Dr. Arinella. Hence, 

the Worcester D.A. is admitting that the content of Dr. 

Hull's affidavit and King's medical record are the same. The 

Worcester D.A. is, as a result, admitting that King's medical 

record proves the jury was lied to regarding King's "injury". 

Ms. Kennedy says, "King's medical records are readable". 

The Worcester D.A. 's biggest argument (say-so), per appellee 

brief, is that King's medical report was legible (say-so) and 

presented as an exhibit at trial, so that the jury could sort 

out the truth from the perjury given by the prosecution at 

trial regarding King's eye. The Worcester D.A., per appellee 

brief, insists that my alleged defense attorney, Louise P. 

Aloise, prosecutor, Mike Ball, and Judge Toomey (Toomey Trio) 

could all read and knew exactly what King's medical report, 

they submitted to the jury, contained. 

Problem is the Worcester D.A. 's (Ann Kennedy's) say-so is 

worthless. I don't disagree that the "Toomey Trio" knew 

exactly what King's medical record contained/disclosed. Ms. 

Kennedy states, (say-so), on page 39 of her appellee brief, 

"they were legible". Kennedy is of course referring to King's 

medical record. There was good reason why my appellate 

attorney had to hire an investigator to get King's medical 

3

ecord deciphered - those records are not legible. The jury 

could not read King's medical record as presented to them 

during the trial that falsely convicted me. 

There was also good reason that once my appellate attorney 

had his investigator get King's medical record deciphered he 

had to hire a physician to explain the medical jargon - No 

one but physicians understand that medical jargon, including 

the jury. 

The jury accepted King's unreadable medical record/exhibit as 

a confirmation of the perjury they heard at trial because 

Aloise never challenged one word of the perjury about the 

cause and extent of King's eye injury presented to the jury 

at trial. Aloise never presented any contrary evidence to 

that perjury and the jury had no idea what King's medical 

record contained, nor under the circumstances of the trial 

would they attempt to find out. 

Ms. Kennedy's say-so, per appellee brief p. 39, that "they 

were legible" is a highlight of the absurdity of this case 

that has been alive and getting bigger for over 10 years. 

That is the only counter the D.A. 's Office offers to my claim 

that is supported by medically documented evidence to a 

scientific certainty that the jury was lied to regarding the 

evidence of King's eye injury. Well you look at those 

documents in the record appendix, RA 120 & 123, and are you 

4

willing to tell the world that you could read and understand 

those respective documents? What do you think the jurors will 

say when they find these documents on the Internet beside the 

truth, that they were lied to and King only had a boo-boo. 

What Ms. Kennedy and the Worcester D.A. 's Office don't want 

to admit is that even if the jury could read King's medical 

record the Supreme Court says I get a new trial because the 

prosecutor has a duty to correct all perjury known to him at 

trial. Since, the Worcester D.A. (appellee brief p. 39-41) 

claims Mike Ball (the trial prosecutor) could read King's 

medical record and agrees that the content of King's medical 

record and Hull's affidavit are the same, then Ball knew all 

the evidence about King's eye was perjury. Remember that 

Hull's affidavit discloses that King's medical record reveals 

only a "red" or inflamed eye caused by, as King admitted to 

his treating physician, minutes after the incident, from 

"catching a finger in the eye". 

It's not surprising that Kennedy's only tactic, per appellee 

brief, was say-so; the conviction is say-so. 

More misstatement of Fact & Law by the D.A.-Ms. Kennedy 

Per p. 22 of the appellee's brief, Ms. Kennedy claims that my 

claims of prosecutorial misconduct are waived because the 

evidence and law were clearly available when the direct 

appeal was filed. She then cites U.S. v. Agurs, 427 U.S. 97 

5

(76) as her authority. First, Agurs does not address state 

waiver rules. Second, if, as Kennedy states in her brief, 

that the law and facts surrounding prosecutorial misconduct 

were clearly available why didn't A.D.A. Mike Ball correct 

the perjury presented in my motion claims? He was required to 

correct all perjury at trial. Further, regardless of what my 

attorney's knew I have the right under the U.S. Constitution 

to Effective Assistance of Counsel at trial and appeal. I am 

not crusading the cause of my appellate attorney, but my 

motion claim, that the evidence at trial concerning King's 

eye was perjury, could not be raised on direct appeal because 

the real facts (King had a red eye caused by catching a 

finger) were not on the trial record. Remember, my appellate 

lawyer found out the truth about King's eye a year after the 

trial through an investigation; King's medical records had to 

be deciphered and interpreted via this investigation. So 

there was no waiver, particularly on the eye evidence claim. 

But see my appeal brief-Argo I. 

Per page 26 of the appellee's brief, Ms. Kennedy claims there 

lS no evidence that the prosecutor knew perjury was presented 

at trial. Yet, Ms. Kennedy insists, per her appellee brief p. 

39-41, that Aloise, Prosecutor-Ball, and the judge knew 

exactly what King's medical records contained. Ms. Kennedy 

also admits Dr. Hull's affidavit is correct, appellee's brief 

6

p. 40-41, and is the same as King's medical record. Remember 

she claimed that Hull's affidavit was cumulative of King's 

medical record. Hull's affidavit, which discloses the true 

content of King's unreadable medical report, undisputedly 

shows that the trial evidence surrounding King's eye injury 

was pure lies/perjury. So the prosecutor, Ball, knew, 

according to Kennedy, that the jury was being lied to 

concerning King's eye injury. But the evidence does not have 

to be that strong. Agurs and other cases like it state that 

the law of the land is that the prosecutor only should have 

known there was perjury. It is presumed Ball knew the content 

of King's medical record. u.s. v. Agurs, 427 U.S. 110. Ball 

had KingTs medical record and submitted that unreadable 

document as a trial exhibit; he should have known what it 

said even if Ms. Kennedy doesn't insist that he knew what 

King's medical record said. Since, it is undisputed by the 

worcester D.A. 's appellee brief that Ball knew the content of 

King's medical record and that King's medical record, via Dr. 

Hull, shows that the trial evidence about King's eye was 

perjury, then Ball knew all the testimony at trial about 

King's eye "injury" was a big fat lie/perjury. That's only 

one claim of prosecutorial misconduct I raised, the rest are 

as overwhelming. 

What if the jury Knew the truth? 

7

If the jury was told the truth, that King caught a finger in 

the eye after chasing me down with his "gang of six" and that 

he had merely a bloodshot eye the jury would have been 

bewildered as to why there was a trial. Probably one of the 

reasons why Judge Raphelson found no probable cause for the 

charges. Oh, then the Worcester D.A. IS Office went and got 

rid of all their witnesses except for the lying cop, Tom 

King. With those witnesses went all the exculpatory evidence 

and with King more and bigger lies to the grand jury. Also 

known as impairment of the grand jury process. See the record 

appendix page 64-71. 

The other motion claims- A manual of injustice 

One the most outrageous motion claims I make is that King 

citizen's arrest was by Mass. law a false arrest and assault 

and battery. Judge Raphelson knew the law, he was the first 

to point out that King acted illegally, see P.C. 264-266. 

Even if you want to believe King acted on his own (the motion 

judge-Hillman believed King acted with his gang of six- see 

Hillman's Memo p.3), you can't chase me 100 yards down the 

street and physically stop me and claim you made a citizen's 

arrest. The D.A. wants to give King special privilege or the 

"relaxed standard" of the "in fact test" in order to legalize 

King's actions. It is undisputed that King never identified 

himsel f as cop; no wonder, he was causing all the drunken 

8

trouble. Besides, the Probable Cause Judge found there was no 

probable cause for any the charges against me, so even if you 

illegally want to allow King the "relaxed standard," needing 

only probable cause of a felony, he fails in his claim of 

citizen' s arrest making me the victim and King and his gang 

the bad guys. Noteworthy, King claimed a "girl" was injured 

and at trial a "girl" claimed her face was cut and stitched 

because I allegedly broke a bottle before King's chase. 

Strange the D.A.'s Office in Worcester never charged me with 

such a crime when they were willing to fabricate all the 

other charges. The "girl" had no medical documents/proof or 

scars on her face. Look at the Worcester Police Report, 

record appendix p. 129-132, the police confirm no "girl" went 

to any hospital for such treatment/injury. 

Look at the other claims on my appeal and motion, all use 

documentary & transcript evidence (the best evidence) to 

prove to a scientific certainty that the prosecutor knowingly 

used perjury to convict me and my attorneys did everything 

they could to help convict me with those lies and preserve 

those lies. 

Social Duty - Courts Need Reform 

This case ain't going away and it will haunt you. Justice 

don't end in your Court system. I'm giving you people a 

chance to react/correct something that isn't supposed to 

9

happen in an American Court room. Gone are the parole and 

D.O.C. stooges, you have no control over me, I will make 

another Sacco & Vanzetti out of this case. The evidence is 

too simple - you won't be able to confuse the citizenry with 

your laws in order to avoid responsibility. I will hold one 

personally responsible as I have Toomey and Aloise. This case 

has destroyed both their careers. Aloise when he ran for 

Worcester District Judge and Toomey when he ran for SJC in 

September of 1999. See front page Boston Globe, 9-27-99. 

You will have a hard time explaining why the Mass. Executive 

acted on my innocence twice and yet you, the Mass. Judiciary, 

refuse to act on the same medical documented truth that 

proves the jury was lied to and I was framed. 

Your police have made numerous attempts to frame me so that 

will be harmless behind bars on more false charges so that 

you can point and say, "see more crime". I had no convictions 

of a crime before this case, and even though the police in 

conjunction with the Mass. authorities have tried to 

convict/frame me on more of their fabrications, they were 

defeated. Sacco & Vanzetti were murdered, I remain free to 

tell all the truth and point fingers at all responsible. You 

will not be able to defend this injustice. 

I 

10

Clerk- Mass. Appeals Court 

Boston, Mass. 

RE: Elbery v. Com. - Appeal #02-P-318 

Dear Clerk: 

Please find, enclosed, the original copy and 7 copies ofthe appellant's/defendant's, 

Petition for Rehearing under Rule 27 ofthe M.RC.P. 

Thank you. 



Needham, mass. 02492 

3-21-03


I the defendant/appellant, Michael Elbery, sent this Rule 27 Petition to the Clerk-Mass. Appeals Court - Boston, 

mass. - Hand delivered and to the Worcester D.A. ,2 Main St., Worcester, Mass. via 1st class - prepaid U.S. mail all 

on 3-24-03.

Docket Exhibits - Mass. Injustice.Org

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