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07/07/77 COMMONWEALTH v. LEO NOLIN

July 7, 1977

COMMONWEALTH
v.
LEO NOLIN



Essex. Amended motion for a new trial filed in the Superior Court on November 24, 1975. The proceeding was heard by Donahue, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, New trial, Assistance of counsel, Appeal, Fair trial. Constitutional Law, Confrontation of witnesses. Evidence, Common criminal enterprise, Dying declaration. Identification.

The opinion of the court was delivered by: Wilkins

The record of a 1927 murder trial did not support the defendant's claim that his court-appointed counsel's failure to appeal his conviction constituted ineffective assistance of counsel; although there was no stenographic record of the defendant's trial, this court nevertheless reviewed the record prepared by the defendant from newspaper accounts as if the case were being heard on appeal. [47-48]

Where a defendant in a murder trial did not move for a change in venue or for a continuance because of extensive pre-trial and trial newspaper publicity and he did not join in a codefendant's motion to exclude jurors from certain municipalities nor in the codefendant's motion for a mistrial, the defendant failed to prove he was denied a fair trial by reason of prejudicial publicity. [48-49]

In the absence of any demonstration in the record of a 1927 murder trial that the defendant challenged the admission of two coconspirators' statements against him, there was no basis to conclude that there was any error which could have supported a reversal of his conviction. [49-50]

Evidence at a murder trial warranted a finding that the victim's hearsay identification of the defendant was admissible as a dying declaration. [50-51]

At a murder trial, there was no error in the admission of an out-of-court identification of the defendant by the victim who was shown only one photograph where the victim was seriously wounded and near death and the defendant was still at large. [51]

In the record of a 1927 murder trial which consisted solely of newspaper accounts of the trial, no error appeared in the Judge's instructions to the jury. [51-52]

There was no merit in a claim by a defendant who was sentenced to life imprisonment for second degree murder in 1927 that his confinement for fifty years constituted cruel and unusual punishment. [52]

Fifty years ago last May, Leo Nolin was indicted by an Essex County grand jury for the murder of William H. Griffin. Counsel was appointed for Nolin, and, on October 4, 1927, after a trial lasting fourteen trial days, Nolin was found guilty of murder in the second degree and sentenced to a mandatory term of imprisonment for life in the State prison at Charlestown. No appeal was taken from Nolin's conviction. Including his pre-trial detention, he has been incarcerated for more than fifty years.

In 1972, Nolin filed a motion for a new trial on which, for some unexplained reason, no action was taken. In October, 1975, counsel was appointed for Nolin who shortly thereafter presented an amended motion for a new trial. After almost half a century the preparation of a record on which to argue a motion for a new trial presented substantial problems. No stenographic record was available. However, newspaper accounts of the victim's death, of the search for and apprehension of Nolin and his companions, and of the trial are substantial. The daily proceedings at trial were reported in the Haverhill Gazette in significant detail, at times purporting to present verbatim accounts of the testimony. The Judge who heard the motion for a new trial accepted newspaper articles as a partial record of the trial of the case. Although the newspaper stories are far more detailed than those customarily seen today, they do not purport to be a full record of the trial. In this circumstance, the extent of any prejudice to the defendant is often difficult to assess, even if one were to accept one or more of his claims that the trial Judge erred in particular respects.

The motion Judge concluded that the evidence against the defendant had been overwhelming, that he "received a fair trial even by today's more stringent standards," and that, if Nolin had appealed, he would not have been successful in obtaining a new trial. Acting in his discretion under G. L. c. 278, ยง 29, the Judge denied Nolin's amended motion for a new trial. We agree ...


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