Com. v. Gagnon

• Decision Date: 22 July 1983
• Parties: COMMONWEALTH v. Jean Marie GAGNON (and companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 686

449 N.E.2d 686

16 Mass.App.Ct. 110

COMMONWEALTH v. Jean Marie GAGNON (and companion cases ¹).

Appeals Court of Massachusetts Hampden.

Argued June 9, 1982.

Decided May 27, 1983.

Further Appellate Review Granted

July 22, 1983.

Virginia Nia Lee, Boston, for Jean Marie Gagnon.

Richard B. Klibaner, Wellesley, for Norman Gagne.

Robert L. Sheketoff, Boston, for Louis P. Bourgeois.

John T. McDonough, Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, KASS and SMITH, JJ.

KASS, Justice.

Highly competent police work resulted in the arrest and conviction of the defendants of armed robbery while masked of an employee of a bank, ² armed assault with intent to murder, ³ attempted murder, ⁴ assault and battery on a police officer, ⁵ and assault and battery by means of a dangerous weapon. ⁶ Regrettably, the trial was sufficiently tainted with error to require reversal of the judgments and a new trial.

We sketch an outline of facts which the jury could have found, leaving details to discussion of the particular points on appeal to which they are relevant. On June 10, 1977, shortly after 10 A.M., three men, gloved and masked, robbed a branch of the Shawmut First Bank in Springfield. Two, at least, were armed. One vaulted the tellers' counter, and the other two joined him there. The robbers took money out of the teller drawers and made their escape, with about $126,000, by a back or side door to an alleyway. While the robbery was in progress--it did not take more than three minutes--the branch manager activated a holdup alarm.

The first officer to respond was Edward Petrick, Jr., driving a marked cruiser. Petrick arrived on the scene as the branch manager emerged; the manager pointed to an alley, from which a sedan was emerging. In that vehicle were three men, one of whom was pulling off a stocking mask. Petrick gave chase in his cruiser and was answered with gunfire. At one point the getaway car had to stop in a line of traffic and two men, whom Petrick later identified as Gagne and Bourgeois, alighted and directed a fusillade of gunfire at Petrick. When Petrick's car, too, came to a stop, he scrambled out and was wounded by gunfire.

These events were scarcely calculated to avoid attention, and, indeed, several witnesses observed the escape car, a Ford LTD, and noted its license plate number. Two robbers switched from the LTD to a Ford Mustang; that car's license plate was also noted. Each plate evidenced a Quebec registration. Through motel registrations, the trial led to Bourgeois and Gagnon, who were Canadians. Further investigation led to Gagne and one Paquette, who is not a defendant in this case.

On February 4, 1978, Corporal Andre Dube, a Quebec police officer, searched a locker and apartment at 714 Sicotte Street, in the city of Quebec, and found guns, a road map of Springfield, a red knitted cap with two holes for eyes, a bullet proof vest, newspaper clippings about the Springfield holdup, over $1,000 in American money, photographs and other documents and items which linked the owner of the apartment to the Springfield affair. The apartment was leased to one Gilles DeNeuville which, it turned out, was an alias of the defendant Gagnon.

In addition to Petrick's in-court identification, a bystander, Maurer, identified Gagnon in court, and a motel maintenance man identified Gagne in court. Over $3,000 in American money found in the possession of Gagne and Paquette bore serial numbers traceable to the Springfield bank. We turn to the individual issues.

1. Prosecutorial error. During cross-examination of Officer Petrick on the tenth day of trial on which evidence was received, trial counsel for Gagne, Mr. Serota, probed for inconsistencies between Petrick's trial testimony and a written statement Petrick had made earlier. Petrick was an important witness for the prosecution on the issue of identification. The following colloquy occurred.

MR. SEROTA: "From the comma [referring to a page of Petrick's statement],--'I tried to run them down, and at the same time call in the information to the Station.' Now as to that phrase in your statement is that true?"

MR. RYAN [the district attorney]: "I object."

THE COURT: "The grounds, Mr. Ryan?"

MR. RYAN: "I object to the statement, is that true. I would assume any witness we put on here--"

MR. SEROTA: "I object to that statement."

MR. RYAN: "--we vouch for their credibility, and I don't think that that's the proper way to characterize a question."

THE COURT: "Side bench."

At the side bar defense counsel objected vociferously to the district attorney's vouching before the jury for the credibility of his witnesses, and Mr. Serota moved for a mistrial. Mr. Gordon, who represented Gagne, specifically requested that the jury be instructed that it was an improper remark. At the conclusion of the side bar conference, the judge said: "The jury will disregard comments of counsel completely. The question will go out, and if you heard an answer [none had been made], that goes out."

Assertion of personal opinion as to the credibility of a witness or as to the guilt of an accused is prohibited by S.J.C. Rule 3:07, DR # 7-106(C)(4), --- Mass. --- (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, 444 N.E.2d 374 (1983). For counsel to state a belief as to the credibility of a witness "is peculiarly unfortunate if one of them has the advantage of official backing." Greenberg v. United States, 280 F.2d 472, 475 (1st Cir.1960). See also Commonwealth v. De Christoforo, 360 Mass. 531, 545-547, 277 N.E.2d 100 (1971) (Tauro, C.J., dissenting). Compare Orebo v. United States, 293 F.2d 747, 749-750 (9th Cir.1961), cert. denied, 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 389 (1962).

Often, when improper statements of belief are argued, the question is whether, in context, the prosecutor was stating a personal opinion or commenting acceptably on the evidence. See, e.g., Commonwealth v. Stone, 366 Mass. 506, 516, 320 N.E.2d 888 (1974); Commonwealth v. Bradshaw, 385 Mass. 244, 275, 431 N.E.2d 880 (1982). Here, by contrast, there was a wholesale vouching for the credibility of all the prosecution's witnesses. "The point is that the representative of the government approaches the jury with the inevitable asset of tremendous credibility--but that personal credibility is one weapon he must not use." United States v. Gonzalez Vargas, 558 F.2d 631, 633 (1st Cir.1977). That asset is the more potent where, as here, the prosecutor is the district attorney himself, a figure likely to be known to the jurors. As in the Gonzalez Vargas case, there are none of the extenuating circumstances that cause courts to shrug off an excess of counsel, viz., provocation by opposing counsel (Mr. Serota's gambit of attacking Petrick's credibility by pointing out inconsistencies with prior statements was hardly an unusual tactic), "absence of an objection, or a timely curative instruction directed particularly to the prosecutor's comments." Ibid. "The jury will disregard comments of counsel completely," scarcely came to grips with the problem. Compare Commonwealth v. Hoppin, 387 Mass. 25, 28-32, 438 N.E.2d 820 (1982), where strong and precise instructions, although somewhat belated, did not neutralize a prosecutorial error. We are constrained to reverse and "do so unhappily." United States v. Gonzalez Vargas, 558 F.2d at 633. The court in Gonzalez Vargas was unhappy "because the trial was otherwise a good trial." Ibid. That cannot be said of the trial of the instant case, which was a ragged one. Nonetheless, we reverse with some reluctance because the evidence of guilt accumulated by the Commonwealth was so strong and so much trial time (thirty days) has already been spent. "[P]rosecutorial misconduct unnecessarily risks reversal of a conviction that otherwise might have been affirmed--all at great cost to the Commonwealth as well as to the defendants." Commonwealth v. Smith, 387 Mass. 900, 904, 444 N.E.2d 374 (1983).

Nor was this the only incident of the kind. Earlier, when Mr. Shulman, counsel for Gagnon, was cross-examining another prosecution witness, Micheline Roy, he began a question with the words, "is it true." The district attorney, in objecting to the question said, "Excuse me, I'm going to object, if your Honor please, to the prefacing of any question, 'is it true.' I would assume that everything she is saying is true." The judge observed, "Yes, my thought, too." Defense counsel did not object and rephrased the question.

During closing argument the district attorney stepped very close to, if indeed not over, the line several times by stating his views. On one occasion, he remarked, "Eddie Petrick isn't a liar. Eddie Petrick told you exactly what he saw." He said of two other witnesses respectively: "a very honest witness on the stand, who wants to help and tell you the truth" and "a very, very, very honest witness."

As to the witness Margaret Nelson, the district attorney told the jury in closing argument about things she had told him in an interview but which, he explained to the jury, could not be introduced because they were hearsay. This accomplished a double fault: it discussed testimony not in evidence and suggested the Commonwealth had more evidence in its quiver which would have been used, but for technical obstacles. See Commonwealth v. Ryan, 8 Mass.App. 941, 397 N.E.2d 1128 (1979). It is an inadequate justification for referring to Nelson's extra-judicial statements that some of the subjects they touched on had been referred to in a deposition of Nelson which one of the defendants put in evidence.

To none of these later remarks did the defendants object. Accordingly, claims of appeal based on them are lost, Commonwealth v. Underwood, 358 Mass. 506, 509, 265 N.E.2d 577 (1970), unless we consider them in order to avoid a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352...