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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Nolin, 373
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Richard M. Riley, Lynn (Thomas J. Valkevich,
Lynnfield, and Albert S. Conlon, Topsfield, with him), for defendant.
John C. Doherty, Asst. Dist. Atty., for the
Commonwealth.
Before [373
WILKINS, Justice.
Fifty
years ago last May, Leo Nolin was indicted by an
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[373
[1] A
motion for a new trial is addressed to the sound discretion of the lower court
judge. Commonwealth v. Gagne, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNa), 326 N.E.2d 907
(1975). If, however, "the original
trial was infected with prejudicial constitutional error," the judge has
no discretion to deny a new trial. Earl
v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498, 500 (1969). The motion judge did not focus specifically
on whether Nolin claimed any error of constitutional dimensions, but we find no
basis for valid objection to the motion judge's ruling because Nolin has not
established any violation of his constitutional rights.
[2] 1. Nolin argues that he was denied his
right to the effective assistance of counsel because his court‑appointed
counsel did not appeal his conviction.
We accept, of course, the principle that Nolin, who was represented by
court‑appointed counsel rather than retained counsel, might have been
entitled to counsel for his appeal, as a matter of constitutional right. See Commonwealth v. Gauthier, 361 Mass. 394,
399‑400, 280 N.E.2d 426, cert. denied, 409 U.S. 869, 93 S.Ct. 196, 34
L.Ed.2d 119 (1972); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9
L.Ed.2d 811, reh. denied, 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (1963),
made retroactive by Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d
1039 (1964). However, the record is far
from clear that Nolin can now succeed on any such claim. We might concede that it is likely that Nolin
was indigent at the time of his conviction.
However, there is no showing that Nolin wanted to appeal his conviction
or that he did not know that he could obtain appellate review at public
expense. The judge understandably made
no findings concerning Nolin's intentions and knowledge of his rights following
his conviction because no evidence was presented on these points. In an affidavit annexed to his amended
motion, Nolin asserted that at all times he desired to and attempted to
appeal. The lapse of forty‑five
years between Nolin's conviction and the filing of his first motion for a [373 Mass. 48] new trial suggests that Nolin's assertions in his affidavit
should not be accepted without question.
In this
circumstance, we think that Nolin must take the consequences of the
unavailability of a transcript of his trial, but we will review the record, as
he has been able to prepare it, as if the case were being heard on appeal. The result will be that the standard we apply
will be whether there was reversible error in Nolin's trial and conviction,
rather than the lesser standard whether the motion judge abused his discretion
in denying the amended motion for a new trial.
2. Nolin
claims that he was denied his constitutional right to a fair trial because of
extensive pre‑trial and trial newspaper publicity. The record contains copies of newspaper
articles in the Haverhill Gazette, published in March and April, 1927,
concerning the victim's identification of a picture of Nolin, the search for
Nolin, the victim's death, Nolin's arrest, his prior criminal record, the
arrest of his companions Mary Cwikla and Herman Reed, their arraignment, and
admissions made by Reed and Cwikla. A
later article, dated June 15, 1927, stated that Reed made an offer through his
counsel to plead guilty to manslaughter.
On
September 19, 1927, the day the trial commenced, the Lawrence Tribune reported
that Reed had moved for the exclusion of jurors from Haverhill, Groveland,
Georgetown, and Bradford because of the June 15, 1927 newspaper story concerning
Reed's alleged offer to plead guilty to a charge of manslaughter. The motion was denied. The Lawrence Tribune article repeated that
portion of the June 15, 1927 Haverhill Gazette article which reported that Reed
had offered to plead guilty to manslaughter.
The next day Reed moved for a mistrial on the basis of the Lawrence
Tribune article, but his motion was denied.
The jury
were not sequestered. Some of the jurors
came from the circulation areas of the Haverhill and Lawrence newspapers. In assessing the claim that Nolin was harmed
by pre‑trial publicity, we note that the jury found Reed not guilty.
[373 Mass. 49] [3] [4] [5] The burden is on Nolin to establish that he was
denied a fair trial by the pre‑trial and trial publicity. Delle Chiaie v. Commonwealth, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNb), 327 N.E.2d 696 (1975); Commonwealth v. Gilday, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNc), 327 N.E.2d 851 (1975); Murphy v. Florida, 421 U.S. 794, 799‑800,
95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
Here, Nolin did not move for a change in venue or for a continuance
because of publicity. He did not join in Reed's motion to exclude jurors
from certain municipalities nor in Reed's motion for a mistrial. Nolin made no challenge to any publicity
during trial. The judge was not obliged
to warn the jurors not to read newspapers (Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 298‑299, 275 N.E.2d
33 (1971), cert. denied sub nom. Farrell
v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683, and sub
nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct.
2433, 32 L.Ed.2d 689 (1972)), but he did several times. There is, of course, no showing that any
juror in fact did read any newspaper article.
There was a special venire and many persons were excused from
serving. The motion judge was correct in
concluding that Nolin had failed to prove that he was denied a fair trial by
reason of prejudicial newspaper publicity.
[6] 3.
Prosecution witnesses were permitted to testify concerning extrajudicial statements
inculpating Nolin made by Nolin's codefendants, Reed and Cwikla. Both Reed and Cwikla testified. Therefore, we are not dealing here with out‑of‑court
statements of a codefendant, who did not testify, inculpating of another
defendant. See Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive by Roberts
v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). When the declarant takes the stand and is
subject to cross‑examination, a denial of the constitutional right of
confrontation expressed in the Bruton case is not involved. Nelson v. O'Neil, 402 U.S. 622, 626‑630,
91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 164,
90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
[7] The
contention which remains is Nolin's argument that various statements made by
Reed and Cwikla should not have been admitted against him. Certainly, statements made by Reed and Cwikla
could not qualify under the coconspirator's exception to the hearsay rule. These statements were made after the
defendants had been arrested and, even if there had once been a conspiracy, the
statements[373 Mass. 50]
were not made in furtherance of or in the course of any joint
enterprise. Commonwealth v. White, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNd), 352 N.E.2d 904
(1976).
The
newspaper accounts do not indicate that the trial judge gave limiting
instructions to the jury on each occasion.
He did give such an instruction when an affidavit of Cwikla was read to
the jury. He gave a limiting instruction
when statements of Cwikla were introduced for the purposes of impeachment and
again when Reed was cross‑examined concerning prior statements. It is impossible, with the peculiar form of
the record in this case, to determine whether the trial judge may have given
limiting instructions on other occasions, as he appears to have done
voluntarily in certain instances. In any
event, the record does not show that Nolin ever objected to the admission of
Reed's and Cwikla's statements for general purposes, ever requested limiting
instructions concerning those statements, or even excepted to the trial judge's
rulings. We do know that Reed and Cwikla
did testify to substantially the same facts and were subject to cross‑examination.
[8] In the
absence of any demonstration that Nolin challenged the admission of Reed's and
Cwikla's statements, we find no basis to conclude that there was any error
which could have supported a reversal of his conviction.
4. Nolin
challenges the admission of evidence that the victim identified Nolin in a
photograph which was shown to him in the hospital.
[9] He
argues first that the circumstances do not permit the introduction of the
victim's hearsay statement as a dying declaration. The judge, who conducted a voir dire on the admissibility
of the identification, appears to have given careful attention to the
requirement for admissibility that the victim must have believed that he had no
hope of recovery. See Commonwealth v. Lacy, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNe), 358 N.E.2d 419 (1976); Commonwealth v. Dunker, 363
Mass. 792, 794, 298 N.E.2d 813 (1973).
The evidence tends to show that on the evening before he died, the
victim identified Nolin at a time when the victim was on an operating table after
a doctor had told him that he had no chance to live. The [373
Mass. 51] judge instructed the jury
that the victim's statement could be considered as evidence only if they found
that, when the victim made the statement, he knew that he was dying and had no
hope for recovery. The evidence was
properly admitted as a dying declaration.
[10] [11]
[12] Nolin argues further that the identification procedure was
constitutionally impermissible because a photograph of only Nolin was used in
the identification procedure. Of course,
a one‑to‑one confrontation, whether in person or by photograph, is
disfavored. Commonwealth v. Barnett,‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNf), 354 N.E.2d 879
(1976), cert. denied,‑‑‑ U.S. ‑‑‑‑,
97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Simmons v. United States, 390 U.S. 377,
383‑384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Commonwealth v. Dickerson, ‑‑‑
Mass ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNg), 364 N.E.2d 1052 (1977). Although
the use of a single photograph has not alone generally been an adequate ground
for exclusion of an identification (see Nassar v. Vinzant, 519 F.2d 798, 801
(1st Cir.), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975);
Model Code of Pre‑Arraignment Procedure s 160.2, Commentary at 440‑441
(1975)), such a practice presents an element of suggestiveness which calls for
a consideration of the entire circumstances of the identification
procedure. Manson v. Brathwaite,‑‑‑
U.S. ‑‑‑‑, ‑‑‑‑ ‑ ‑‑‑‑,
97 S.Ct. 2243, 52 L.Ed.2d ‑‑‑ (1977). The identification may be shown nevertheless
to be reliable. Ibid. Also, the circumstances may demonstrate a
justification for the procedure, such as a need for prompt identification. Commonwealth v. Chase, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNh), 363 N.E.2d 1105
(1977) and cases cited. Where the victim
is seriously incapacitated in a hospital, a prompt one‑to‑one
confrontation is generally permissible and may be imperative. Commonwealth v. Barnett, supra ‑‑‑ Mass. at ‑‑‑
(FNi), 354 N.E.2d 876. Stovall v. Denno,
388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Model Code of Pre‑Arraignment Procedure
s 160.5, Commentary at 450‑451 (1975).
Here, the victim was seriously wounded and near death, and the
perpetrator of the crime was still at large.
We find no due process violation in the circumstances.
5. We find
no error in the judge's instructions to the jury. There was no occasion for an instruction that
the jury could return a verdict of guilty of manslaughter. In [373
Mass. 52] the absence of the entire
charge to the jury, we are in no position to conclude that the judge improperly
handled any matter in his jury instructions, and there is no showing that
Nolin's counsel requested any particular instructions or objected to any
instructions which were given. Such
portions of the trial judge's one and one‑half hour charge as appear in
the Haverhill Gazette appear to be conscientious and fair.
[13] 6.
Nolin claims that confinement for fifty years constitutes cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the Constitution of
the United States. This issue is not one
which can be raised on a motion for a new trial. In any event, a sentence of life imprisonment
for conviction of murder in the second degree is not cruel and unusual
punishment, nor, we add, would it be cruel or unusual punishment under art. 26
of the
Declaration of Rights of the
Constitution of the Commonwealth.
7. An
appeal of a motion for a new trial is not an occasion for our consideration of
the case under G.L. c. 278, s 33E.
However, treating this proceeding as if it were an appeal, we see no occasion
to order a new trial nor to order a reduction in the verdict. The evidence indicates that Nolin shot the
victim, a storekeeper, in cold blood in the course of an attempt to rob him. We are impressed, as was the motion judge,
with the apparent fairness with which the trial judge conducted Nolin's trial.
Order
denying the amended motion for a new trial affirmed.
FNa.
Mass.Adv.Sh. (1975) 1207, 1217.
FNb. Mass.Adv.Sh. (1975) 1220, 1225‑1226.
FNc. Mass.Adv.Sh. (1975) 1135, 1162‑1164.
FNd. Mass.Adv.Sh. (1976) 1921, 1930.
FNe. Mass.Adv.Sh. (1976) 2631, 2638.
FNf. Mass.Adv.Sh. (1976) 2276, 2281.
FNg. Mass.Adv.Sh. (1977) 1344, 1351‑1352.
FNh. Mass.Adv.Sh. (1977) 1287, 1295.
FNi. Mass.Adv.Sh.
(1976) at 2282.