Com. v. Bourgeois

Citation465 N.E.2d 1180,391 Mass. 869
PartiesCOMMONWEALTH v. Louis Philippe BOURGEOIS (and companion cases 1 ).
Decision Date16 May 1984
CourtUnited States State Supreme Judicial Court of Massachusetts

William T. Walsh, Jr., Asst. Dist. Atty., for the Com.

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

Virginia Lee, Boston, for Jean Marie Gagnon.

Richard B. Klibaner, Wellesley, for Norman Gagne.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

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. 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. 110, 449 N.E.2d 686 (1983). We allowed the Commonwealth's application for further appellate review. We affirm the convictions.

We summarize the facts. 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 car and another automobile used in the escape bore Canadian license plates. 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 in American money 5 in a man's handbag, 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. 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 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. 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. 9 We agree with the analysis of the Appeals Court, and with its conclusion that there was no error in denying the motions to suppress. See Commonwealth v. Gagnon, 16 Mass.App. 110, 122-126, 449 N.E.2d 686 (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, supra at 124, 449 N.E.2d 686, 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, 449 N.E.2d 686. 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, 87 S.Ct. 1056, 1061-1062, 18 L.Ed.2d 62 (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 16 Mass.App. at 125-126, 449 N.E.2d 686. In these circumstances, we conclude that the judge's failure to make an in camera examination of the report is not reversible error. 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, 387 N.E.2d 499 (1979), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). The defendants acknowledge that they did not object or create a record of prosecutorial abuse of peremptory challenges. Nevertheless 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,...

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