COMMONWEALTH vs. JOHN EDWARD GERMAIN.

ABRAMS, J. After trial by jury, the defendant, John Edward Germain, was convicted of armed robbery while masked, see G. L. c. 265, Section 17 (1984 ed.) (four complaints), and stealing by confining or putting in fear, see G. L. c. 265, Section 21 (1984 ed.) (four complaints). [Note 1] The defendant was sentenced to the Massachusetts Correctional Institution at Cedar Junction for concurrent terms of not less than twelve nor more than twenty years on these convictions. On appeal the defendant alleges error in the denial of his motion to suppress, and his motion for a required finding of not guilty. He also alleges error in the prosecutor's opening statements. We allowed the defendant's application for direct appellate review. We affirm.

We summarize the facts of the robbery. At approximately 10 A.M. on April 5, 1980, an armed, masked man entered the Zayre department store in Worcester and took the daily receipts (approximately $16,000). See note 2, infra. The store employees described the robber as a white male of slim build, approximately 5'10" tall with brown eyes and brown curly hair extending about three inches below the mask. Over his face he wore a brown suede mask tied in three places. The robber also wore a brown knit "kid's" hat with an orange stripe, a brown waistline vinyl jacket, a brown plaid shirt, blue worn dungarees, blue "jox" tennis shoes with stripes on the sides and brown work gloves.

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The robber carried a small, gray-colored handgun with rust spots on the top of the barrel which he used to force the store manager down stairs to the cash office. There he instructed the manager and four other employees to put white money bags into a cardboard box. [Note 2] After the employees followed his orders, he directed them to an office where the safe was located; there, he emptied the safe of petty cash funds and banded bills. The total amount taken was $11,000 in cash and various tickets and receipts valued at approximately $5,000. The robber left. On his way out, he pulled a telephone cord from the wall. A few minutes later, the employees left the office and called the police. The police arrived at approximately 10:30 A.M. and obtained descriptions of the robber and the details of the robbery.

On April 7 a Worcester police officer received a telephone tip from an anonymous person stating that the defendant was the person who robbed the Zayre store. The officer made an investigation and on April 8 sought and obtained a search warrant. The search of the defendant's apartment yielded several items which were similar to those used by the robber. [Note 3]

1. The motion to suppress. [Note 4] Prior to trial the defendant moved to suppress the items taken from his apartment because the affidavit in support of the warrant failed to meet the "two-pronged test" of Spinelli v. United States, 393 U.S. 410 (1969),

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and Aguilar v. Texas, 378 U.S. 108 (1964). See Commonwealth v. Upton, 394 Mass. 363 (1985). [Note 5] The defendant asserts that the affidavit barely passes the basis of knowledge test and totally fails the veracity test. We conclude that the supporting affidavit justified the issuance of the search warrant.

The affidavit sets forth the facts of the robbery and the description of the robber. See 414-415, supra. The affidavit also describes the items worn by the robber as follows: a brown knit hat, a suede mask, brown work gloves, brown waistline vinyl jacket, blue "jox" tennis shoes with white stripes on the sides. The affidavit describes the gun carried by the robber as a handgun, gray in color with numerous spots of rust on the top of the barrel.

The affidavit further states that an anonymous informant called a Worcester police officer on April 7, 1980, and told the officer that John Germain was living in Worcester at 9 Barclay Street, first floor; that Germain had committed a robbery at the Zayre department store; and that he was involved in two other armed robberies, at the Professional Pharmacy on Pleasant Street on the sixth and twenty-fourth of March, 1980. The informant said that he had seen in a brown cardboard box in the first floor apartment at 9 Barclay Street numerous white bank deposit bags containing a large amount of currency, a gray-colored handgun with rust stains on the top of the barrel, and a brown suede mask.

The affidavit states that the police spoke with one Amy Antinarella, the owner of the building at 9 Barclay St. She told police that on April 5, 1980, she rented the first floor apartment to the defendant for two months commencing April 1, 1980. The defendant paid $250 in cash. He paid with eight

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twenty-dollar bills and seven ten-dollar bills. [Note 6] Antinarella told police that on April 5, 1980, she had observed a large quantity of currency in the defendant's wallet. She also told the police she saw the defendant give his girl friend four hundred fifty dollars in cash to purchase dining room furniture from Antinarella's daughter. The affidavit states that a records check by the police disclosed that the defendant had an extensive criminal record including possession of a .32 caliber revolver and that on October 23, 1978, the defendant had been sentenced to nine months in a house of correction for possession of burglarious tools, breaking and entering in the daytime, and stealing controlled substances (sixteen counts).

"[T]o establish probable cause, an affidavit based on information from an unnamed informant must provide the magistrate with facts showing some of the underlying circumstances leading to the informant's knowledge, as well as his reliability. Commonwealth v. Upton, supra at 375. See Aguilar v. Texas, supra at 114. If the informant's tip fails to satisfy one of these portions of the Aguilar test, independent corroboration in the affidavit may supplement the informant's tip to support a finding of probable cause. Commonwealth v. Upton, supra. See Spinelli v. United States, supra at 415." Commonwealth v. Saleh, ante 406, 409-410 (1985). "Each prong of the Aguilar-Spinelli test -- the basis of knowledge and the veracity of the informant -- presents an independently important consideration." Commonwealth v. Upton, 394 Mass. 363, 375-376 (1985).

The defendant argues that there is no basis for concluding that the information provided by the informant is reliable. The defendant contends that the facts that he had cash, that he rented an apartment shortly after the robbery and paid the rent in cash, and that he made purchases with cash are consistent with innocence and these facts do not provide any reason to believe the informant's information was reliable. We do not agree.

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The second prong of the Aguilar-Spinelli standard may be satisfied by showing either the informant to be credible or his information to be otherwise reliable. Aguilar v. Texas, supra at 114. The police investigated the informant's information and corroborated the fact that on April 5, 1980, shortly after the robbery, the defendant was in Worcester, that he rented the apartment on the first floor of 9 Barclay Street (the address supplied by the informant), that he had large amounts of currency, and that he was making large cash purchases. Last, the police learned that the defendant had a record of similar crimes (i.e., crimes of theft, possession of a .32 caliber gun, possession of burglarious tools). [Note 7] Further, the informant's detailed description of the gun, clothing, and other items matched the detailed descriptions of the same items given to police by the victims and included in the affidavit. See Draper v. United States, 358 U.S. 307, 313 (1959). These facts together with the informant's observations support the magistrate's determination of probable cause.

An affidavit for a search warrant also "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion...[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 108-109 (1965). See Commonwealth v. Stewart, 358 Mass. 747, 750 (1971). The motion to suppress was correctly denied.

2. Denial of the defendant's motion for a required finding of not guilty. The defendant moved for a required finding of

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not guilty and the judge denied the motion. The defendant argues the circumstantial evidence was insufficient to support a finding of guilty beyond a reasonable doubt. The defendant contends that the evidence linking him with the robbery is too tenuous, since there is no identification of the robber, and too speculative, because others had access to the apartment where the items from the robbery were found. [Note 8] "It is not necessary to prove that no one other than the accused could have done the act...That another might have had the opportunity to do the act goes only to the weight of the evidence." Commonwealth v. Lussier, 364 Mass. 414, 421 (1973), quoting Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968). The weight of the evidence is a jury question. See Commonwealth v. Swartz, 343 Mass. 709, 713 (1962).

3. The prosecutor's opening. The defendant contends that the prosecutor's opening statement was improper because he referred to a composite drawing [Note 9] of the defendant which the judge later excluded from the evidence. [Note 10] Because defense counsel failed to object to these statements or to request a curative instruction, we limit our review to a determination of whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Campbell, 394 Mass. 77, 88 (1985). Commonwealth v. McGahee, 393 Mass. 743, 749 (1985).

As a general rule counsel is free to state in his opening anything that he expects to be able to prove. See Commonwealth v. Hartford, 346 Mass. 482, 486 (1963); Commonwealth v. Clark, 292 Mass. 409, 410 (1935). The record does not support

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the defendant's assertion that the opening was made in bad faith. The reference to the composite was not improper. See Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984). Before the prosecutor's opening and again before the closing arguments, the judge gave strong instructions that the statements of counsel were not evidence. We conclude that the prosecutor's opening did not create a substantial risk of a miscarriage of justice.

Judgments affirmed.