COMMONWEALTH vs. LOUIS PHILIPPE BOURGEOIS (and companion cases [Note 1]).

ABRAMS, J. The defendants were convicted of armed robbery, while masked or disguised, of a bank employee; armed assault with intent to murder; attempted murder; assault and battery on a police officer; and assault and battery by means of a dangerous weapon. [Note 2] On the basis of errors at trial, the Appeals Court reversed the convictions and remanded for a new trial. Commonwealth v. Gagnon, 16 Mass. App. Ct. 110 (1983). We allowed the Commonwealth's application for further appellate review. We affirm the convictions.

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We summarize the facts. [Note 3] On June 10, 1977, three armed, masked men robbed a branch of the Shawmut First Bank in Springfield of approximately $126,000. In the course of the robbery, bank personnel were held at gunpoint. The robbers escaped through a side door, but not before a bank vice president, observing the robbery from behind his desk, dialed 911 and notified the police.

Officer Edward Petrick, Jr., of the Springfield police department was on the scene within two minutes. From his cruiser, he observed a man pointing to an alley. As the officer reversed the car's direction, he saw a dark colored, four-door sedan operated by a white driver coming from the alley. The police officer pulled behind the automobile, which was moving at a slow rate of speed. The automobiles were almost bumper to bumper when two men suddenly appeared in the rear seat. One of them slid out of the left rear window up to his waist and fired two bullets through the officer's windshield. On observing the person aiming the gun at him, the officer threw himself to the seat. He was not wounded. At trial, he identified the defendant Gagne as the man who had shot at him.

The police officer continued the chase. The getaway car was stopped by traffic, and the officer pulled up behind it. Two men came out of the back seat of the getaway car carrying guns, ran to the front of the cruiser, and opened fire. The police officer fell to the floor of the cruiser. When the shooting stopped, he sat up and saw one of the men, whom he identified as the defendant Gagne, returning to the getaway car, and the other, whom he identified as the defendant Bourgeois, in front of the cruiser, pointing his gun. The officer attempted to run over Bourgeois. Bourgeois fired and the police officer again dropped to the floor.

When the cruiser stopped, the officer pulled his gun and scrambled out of the car. As the officer landed on the ground, he dropped his gun. Then the officer looked up and saw Bourgeois firing at him. The police officer was wounded in the leg; his assailants escaped. Witnesses said that the getaway

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car and another automobile used in the escape bore Canadian license plates. [Note 4]

The police checked local motels and determined that three persons had been registered from June 2 through June 9 at a motel near Springfield. One registration card was signed "Gagnon, J. Ma." and initialed "J.M.G." The defendant Bourgeois was identified by a maintenance man as one of the persons at the motel during this period. Further, either Bourgeois or a friend was seen wearing a red bathing suit with a broad white stripe with the word "Canada" and a maple leaf on the side. On June 9, a person registered at a second motel. That person had an automobile with a Quebec plate, 991 S 523. The car was registered to Gagnon. On June 10, a witness saw two cars with Canadian plates at the motel, parked near some hedges. There were two people in one automobile, and one in the other. Both cars left and drove in the direction of Springfield.

On August 5, 1977, Constable Paul Robb of the Ontario Provincial Police observed two males driving an automobile with a Quebec license plate, number 858 T 523, the license plate number reported by the Springfield motel maintenance man and pieced together from accounts of persons who observed the getaway. The constable stopped the car, arrested Paquette and the defendant Gagne. The constable searched the automobile. Among the items found were more than $3,000

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in American money [Note 5] in a man's handbag, [Note 6] approximately $2,500 in Canadian currency, and a receipt from a Ford dealership indicating that $2,943 had been paid in cash for the car then being driven by Paquette. [Note 7]

After learning that cars bearing Canadian plates were used in the robbery, the Springfield police communicated with the Canadian police, Quebec Province. The Canadian police provided a photographic array. Officer Petrick selected Bourgeois's photograph as depicting one of the men who had shot at him. Bourgeois was arrested on August 29 by Detective Guy Dessureault of the Three Rivers, Quebec, municipal police.

Film taken by bank cameras from June 2, 1977, to June 10, 1977, was processed by the Springfield police. On September 1, Detective Dessureault received a photograph and a letter from the Springfield police. Detective Dessureault circled two of the persons pictured in the photograph whom he said that he knew and returned the photograph. On February 2, 1978, Detective Dessureault arrested the defendant Gagnon. At trial, he identified the defendants Bourgeois and Gagnon as being the men in the bank film.

On February 4, 1978, Corporal Andre Dube of the Quebec Provincial Police, on the basis of information from an informant, searched a locker and an apartment in the city of Quebec and found four handguns, posters with Gagnon's picture, pictures of Gagnon and Bourgeois, eight newspaper articles pertaining

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to the robbery, a bathing suit similar to the one observed at the motel in Springfield, two red ski masks, part of a bulletproof vest, a map of Springfield, a receipt showing a $200 transaction with the defendant Bourgeois, over $1,000 in American money, an address book with the telephone numbers of the attorneys that defended Gagnon and Bourgeois at trial and of the county jail that serves Springfield, a lease to the apartment, as well as items not relevant to these proceedings. Although the lease was in the name of Gilles DeNeuville, at trial it developed that Gagnon was using that name. [Note 8]

1. The motion to suppress. Prior to trial, the defendants filed motions to suppress the items found in Gagnon's apartment and locker on the ground that the search violated the defendants' rights under the Fourth Amendment to the Constitution of the United States to be free from unreasonable searches and seizures. The defendants claimed that the search was a joint venture with the Springfield police and thus subject to American standards. [Note 9] We agree with the analysis of the Appeals Court, and with its conclusion that there was not error in denying the motions to suppress. See Commonwealth v. Gagnon, 16 Mass. App. Ct. 110, 122-126 (1983).

2. Failure to allow inspection of the Dube report. At the hearing on the motions to suppress evidence, the defendants sought to obtain the report of Corporal Dube to discover the identity of the informant who had provided Quebec police with information leading to the search of Gagnon's apartment. "Defense counsel . . . were attempting to find enough linkage between Massachusetts and Canadian police to establish that the search had been a joint venture," Commonwealth v. Gagnon,

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supra at 124, and therefore subject to the warrant requirement of the Fourth Amendment.

Dube stated that the informant was a Canadian police officer, and, as the Appeals Court correctly observed, "[d]efense counsel did not manage more than an assertion of doubt about the existence [or nationality] of the informant." Commonwealth v. Gagnon, supra at 125. The defendants never sought the report with the name of the informant and facts relating to his or her identity deleted, and in view of the violence of these crimes, it clearly was within the judge's discretion to withhold the identity of the informant. We agree with the Appeals Court that "the judge heard enough so that he could perform his role of deciding whether he needed disclosure of the informant to gauge Dube's credibility." Id., citing McCray v. Illinois, 386 U.S. 300, 308-309 (1967).

Finally, "[e]ven if, as the defense urged at side bar, the identity of the informant might have established a link between Dube and the Springfield police, that, without more, showed little promise of establishing the very close collaboration which . . . would cause the Fourth Amendment to apply to a foreign search." Commonwealth v. Gagnon, supra at 125-126. In these circumstances, we conclude that the judge's failure to make an in camera examination of the report is not reversible error. [Note 10]

3. Peremptory challenges of jurors. The defendants allege that the prosecutor used his peremptory challenges to eliminate jurors of French-Canadian or French origin, thus falling within the prohibitions of Commonwealth v. Soares, 377 Mass. 461, 488-489, cert. denied, 444 U.S. 881 (1979). The defendants acknowledge that they did not object or create a record of prosecutorial abuse of peremptory challenges. Nevertheless

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they argue that, on the basis of juror and witness surnames, the list of peremptory challenges, and a statement by the prosecutor that he was interested in learning about nationality, we can and should conclude that the prosecutor improperly challenged jurors of possible French-Canadian or French national origin.

The defendants argue that at the time of their trial, Commonwealth v. Soares, supra, had not yet been decided, and the law was that peremptory challenges could be exercised "without a reason stated, without inquiry and without being subject to the court's control." Commonwealth v. Mitchell, 367 Mass. 419, 420 (1975), quoting Swain v. Alabama, 380 U.S. 202, 220 (1965). The defendants assert that we should determine that the presumption of the proper use of peremptory challenges has been rebutted because the record shows that "(1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership." Commonwealth v. Soares, supra at 490. The defendants, however, ignore the requirement that once the presumption has been rebutted, the allegedly offending party is entitled to an opportunity "to demonstrate, if possible, that the group members disproportionately excluded were not struck on account of their group affiliation." Id. at 491. If no objections or protests are lodged, opposing counsel is deprived of the opportunity to explain the rationale for the challenges. [Note 11] A record in which a party has not had an opportunity to explain

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the use of peremptory challenges is inadequate to raise a Soares violation. [Note 12]

4. Credibility vouching. The defendants objected to the district attorney's vouching for the credibility of the Commonwealth's witnesses during the cross-examination of the police officer by the defendant Bourgeois's attorney. [Note 13] As the Appeals Court correctly noted, "Assertion of personal opinion as to the credibility of a witness . . . is prohibited by S.J.C. Rule 3:07, DR 7-106 (C) (4), 382 Mass. 787 (1981), previously appearing as S.J.C. Rule 3:22, DR 7-106 (C) (4), 359 Mass. 822 (1971). Commonwealth v. Smith, 387 Mass. 900, 906 (1983)." Commonwealth v. Gagnon, 16 Mass. App. Ct. 110, 114-115 (1983). There is no per se rule requiring reversal of a defendant's conviction for a violation of the canons of professional ethics. Rather, we evaluate the prosecutor's offensive conduct in light of the entire trial.

Immediately after the colloquy at the side bar that followed the objection to the prosecutor's statement, the judge instructed

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the jury to "disregard comments of counsel completely." Defense counsel did not object to this instruction or request any additional instructions. In view of the length of the trial, the judge's immediate instructions to disregard counsel's comments and his final instructions to the jurors, [Note 14] we conclude that the prosecutor's conduct is not so prejudicial as to require reversal. [Note 15]

5. Identification of two defendants in bank photographs; circled pictures. At trial, Detective Dessureault of Canada testified that several days after he arrested the defendant Bourgeois the Springfield police mailed him a photograph taken by the bank cameras a few days before the robbery and requested that he identify any individuals whom he knew in the photograph. He circled two persons, wrote their names on the back of the photograph, and returned the photograph to the Springfield police. The officer identified Gagnon and Bourgeois as these two persons in the photograph. [Note 16]

Part of the defense strategy was to suggest that the identification of the three defendants had been coached and obtained by pressure and suggestion. The fact that a witness, who was removed from the pressure of the Springfield police and the district attorney's office, placed the defendants in the bank a few days before the robbery had significant probative value [Note 17] in rebutting defense strategies. Indeed, the defendants do not

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claim that the picture did not have probative value, merely that its prejudicial impact was greater than its probative value. The defendants Gagnon and Bourgeois claim that the picture indicates they were known to the officer and, hence, were "bad men." [Note 18] The judge weighed the competing claims and ruled the photograph admissible. While we might have ruled differently, "[w]hether such evidence is so prejudicial in nature as to outweigh its probative value and preclude its admission `is a question to be determined by the trial judge in the exercise of his sound discretion.' Commonwealth v. D'Agostino, 344 Mass. 276, 279, cert. denied, 371 U.S. 852 (1962)." Commonwealth v. Cruz, 373 Mass. 676, 692 (1977). See Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980) (autopsy photographs). See also Commonwealth v. Cobb, 379 Mass. 456, 468-469, vacated on other grounds sub nom. Massachusetts v. Hurley, 449 U.S. 809 (1980); P.J. Liacos, Massachusetts Evidence 410 (5th ed. 1981). We conclude the admission of the photograph does not amount to an error of law or an abuse of discretion.

We agree with the reasoning of the Appeals Court that there was no error in permitting the witness to identify Gagnon and Bourgeois as the men in the other bank photographs. See Commonwealth v. Gagnon, supra at 127-128.

6. Defendant Bourgeois's outburst at trial. On the afternoon of the fourth day of the trial, the defendant Bourgeois, in front of the jury, stood up, took a step in the direction of the defendant Gagne's attorney, and said to him, "Now hear me, and hear me good. . . . We're all in this together." The district attorney immediately requested a recess, which was granted. In the lobby conference that followed, counsel described the episode to the judge, and defense counsel moved for a mistrial or, in

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the alternative, severance of the defendant Bourgeois's trial from the other defendants' trial. The defendants were then brought into the courtroom, and the judge cautioned them that such comments would not be tolerated. At this point, the defendant Gagne requested new counsel. Although the defendant Gagne denied that he was influenced by the threats of one of his codefendants, his attorney expressed the view that the defendant Bourgeois's remarks had influenced Gagne's request.

Without referring to Bourgeois's specific remarks, the next morning the judge instructed the jury that the incident was not evidence. "You will not consider it in any way, shape, or fashion in your decision as to the innocence or guilt of these defendants." The judge spoke generally of the rights of defense attorney s and defendants to be free to pursue their own trial tactics without interference from codefendants and added, "so just put what happened yesterday out of your mind and forget about it." Defense counsel for Gagne renewed his motions for a mistrial and severance. The motions were denied and the defendant Gagne's exception was noted. [Note 19]

Relying on Bruton v. United States, 391 U.S. 123 (1968), the defendant Gagne alleges that, because the jury heard what amounted to a confession by the defendant Bourgeois that implicated the other defendants in the crime and because Bourgeois subsequently exercised the privilege of the Fifth Amendment and refused to testify, Bourgeois's codefendants were deprived of their Sixth Amendment right to confrontation. We do not agree. The instant case "does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation." Dutton v. Evans, 400 U.S. 74, 87 (1970). Further, "the statement contained no express

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assertion about past fact," id. at 88, but was merely a spontaneous outburst, apparently directed at Gagne's counsel because of trial tactics. [Note 20]

The trial judge was in the best position to judge the prejudicial impact of the statement and to forge a curative instruction that would stress the necessity of disregarding the remark without stressing the remark itself. The judge's instructions had the additional virtue of suggesting that the defendant Bourgeois's remark related to a dispute about trial tactics and not the robbery itself. In context, the remark, "We're all in this together," could have been interpreted as a disagreement between Bourgeois and Gagne's attorney about the correct way to try the case, particularly since the remark was directed toward Gagne's attorney.

The record indicates that the trial judge gave serious consideration to the potential prejudicial effect of the remarks and concluded that they could be minimized by curative instructions. "The judge was not required to declare a mistrial; such a determination is within the judge's discretion." Commonwealth v. Chubbuck, 384 Mass. 746, 753 (1981). See Commonwealth v. Barnett, 371 Mass. 87, 96 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Richards, 363 Mass. 299, 309-310 (1973). There was no abuse of discretion in denying the defendants' motions for mistrial and severance.

7. Impeachment of Gagne. Gagne claims that it was error to permit the prosecutor to impeach him with Canadian convictions because the prosecutor did not prove that he had counsel at the time of his convictions. We agree with the reasoning and result reached by the Appeals Court, that the defendant had the burden of showing that his convictions were obtained in proceedings which were fundamentally unfair. See Commonwealth v. Gagnon, 16 Mass. App. Ct. 110, 129-132 (1983). The defendant made no such showing. Further, we agree with the Appeals Court that "there is a certain arrogance in labelling as unfair and deficient a system which does not comport with

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the notions of judges and legislatures in this country." Commonwealth v. Gagnon, supra at 131. We conclude that Gagne's claim that his counsel was ineffective because he permitted Gagne to be impeached by these convictions is not meritorious. [Note 21]

8. Defendant Bourgeois's closing argument. The defendant Bourgeois argues that the trial judge improperly restricted his closing argument. We start with the proposition that a trial judge has broad discretion to limit lengthy, repetitious summations. Review of the transcript discloses that, although the judge did stop defense counsel's argument with respect to the genuineness of the signatures on some motel registration cards, he did not strike defense counsel's remarks. Those remarks were extensive and placed before the jury the same inferences that defense counsel now claims the defendant Bourgeois was prevented from presenting to the jury.

Further, counsel is not free to argue the genuineness of the signatures on the motel registration cards if defendants refuse to provide handwriting exemplars. "Counsel may argue as to the evidence and the fair inferences from the evidence." Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring). See Commonwealth v. Burke, 373 Mass. 569, 575 (1977). The argument suggested that the Commonwealth had failed in its proof because it did not provide handwriting exemplars for comparison with the signatures on the cards. However, the defendant did not raise this issue during the trial, and there was no record support from which the jurors could conclude that the Commonwealth had not attempted to

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obtain handwriting exemplars. [Note 22] Cf. Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Thus, the inference suggested was not a fair inference.

9. Instruction on joint venture. The defendant Gagne argues that the judge's instruction on joint enterprise was in error, noting that the trial transcript states that the judge instructed the jury that a "joint adventurer must share in the intent to commit the crime and almost participate to some extent in the commission of the offense" (emphasis supplied). Defense counsel did not object at trial. The record reflects that, after the instructions, the judge met with counsel. At that conference, Gagne's counsel asked for a further joint venture instruction (a claim not pursued on appeal). The judge stated that he believed he had met counsel's request by telling the jurors that "all must participate [in the joint venture] to some extent." Thus, it seems clear from context and from the conference that the word "almost" is a transcription error. We view the absence of an objection as supporting our conclusion that the word "almost" is a transcription error.

10. Prosecutor's closing argument. The defendants challenge a number of remarks made by the district attorney in his closing argument. The defendants lodged no objection to most of the comments appellate counsel now claim as error. [Note 23] "In these circumstances, the defendants are not entitled to appellate review of these allegedly improper remarks as of right. Commonwealth v. Baptiste, 372 Mass. 700, 712 (1977). Commonwealth v. Earltop, 372 Mass. 199, 203 (1977). However, we may review such alleged errors to determine if there was a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Shelley, 374 Mass. 466, 469 (1978); Commonwealth v. Earltop, supra at 203-204.

"In closing argument, counsel may argue the evidence and the fair inferences from the evidence. Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). Commonwealth v. Burke,

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373 Mass. 569, 574-575 (1977). In analyzing whether an improper remark is prejudicial or presents a risk of a miscarriage of justice, the remark must be considered in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial. See Commonwealth v. Earltop, [supra at] 203-204; Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 400-402 (1975); Commonwealth v. Nordstrom, 364 Mass. 310, 316 (1973); Commonwealth v. DeChristoforo, 360 Mass. 531, 536-539 (1971)." Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978).

Viewed in this light, the district attorney's closing and his conduct on occasions throughout the trial did not create a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). "We again attach significance to the fact that no objection was taken to the remarks at the time they were made, no exceptions were taken, and no curative instructions were requested. . . [T]he trial judge [must] be given a fair opportunity to correct ambiguous or misrepresentative statements at a time when such a correction could be achieved easily and without prejudice to either side. At this juncture, the remarks must be taken on their face and without the benefit of clarification by the prosecutor or the judge." Commonwealth v. Hooks, 375 Mass. 284, 296 (1978).

The charge on credibility was strong and accurate. In his final instructions, the judge on at least three occasions [Note 24] told the jurors that evaluating the credibility of witnesses was their sole responsibility, that "it's your decision [not counsel's decision] as to what interpretation and to what weight and value you should put on each witness' testimony." Thus, we are convinced that the prosecutor's comments as to the credibility of the witnesses could not "have materially influenced [the jurors] appraisal of the [witnesses]." Commonwealth v. Freeman, supra at 564. [Note 25]

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As in Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982), "most of the prosecutor's remarks were grounded in the evidence and the few extravagant remarks were responsive to equally extravagant defense tactics in final argument. The jury could be expected to take both arguments with a grain of salt. Commonwealth v. Coleman, 366 Mass. 705, 714 (1975). No substantial risk of a miscarriage of justice is created where `conflicting statements of opposing counsel, however inappropriate, probably served only to neutralize each other.' Commonwealth v. Daigle, 379 Mass. 541, 549 (1980)."

Judgments affirmed.