# Commonwealth v. Gagnon

> Massachusetts Appeals Court · May 27, 1983 · 16 Mass. App. Ct. 110

URL: https://www.frixlaw.com/law-library/cases/9735688

## Case

- **Full name:** Commonwealth vs. Jean Marie Gagnon (And Companion Cases)
- **Court:** Massachusetts Appeals Court
- **Decided:** May 27, 1983
- **Citations:** 16 Mass. App. Ct. 110; 449 N.E.2d 686; 1983 Mass. App. LEXIS 1349
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Perretta, Kass, Smith
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Commonwealth v. Bourgeois, 391 Mass. 869 (1984).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735688

## Opinion text

Smith, J.
(dissenting). I respectfully dissent from the
holding of the majority that there must be a new trial. Their conclusion is based on certain conduct of the prosecutor which they consider to be egregious, purported error by the judge in regard to the admission of certain evidence, and challenges by the prosecutor of prospective jurors which the majority perceive to have been a violation of Commonwealth v. Soares, 377 Mass. 461 (1979). I believe that any misconduct by the prosecutor was harmless and cured by instruction to the jury by the judge, that the error by the *133 judge was harmless, and that the record is inadequate to show and in any event does not show a Soares violation.
Under the heading “[pjrosecutorial error,” the majority opinion cites a single statement made by the prosecutor, early in the trial, as one reason for their conclusion that the convictions must be reversed. The utterance by the prosecutor, which of course should never have been made, vouched for the credibility of the Commonwealth’s witnesses. Defense counsel objected to the statement and moved for a mistrial, which was denied by the judge. The judge, instead, gave an instruction to the jury to disregard the statement. The majority state that the judge’s instruction “scarcely came to grips with the problem.” But that observation is at odds with the reaction of defense counsel, who did not object to the judge’s instruction. Their conduct is of signal importance for they, unlike us, were present and could actually hear and assess the impact of the instruction. By contrast, our knowledge of the worth of the instruction is limited to what we may ascertain from the printed page. In view of their vigilance and aggressiveness in challenging the conduct of the trial throughout its duration, 1 one can only conclude from their silence in the face of the judge’s instruction that they were satisfied that the trial was back on an even course by the manner of the judge’s delivery of the instruction, its content and its reception by the jury. 2 In addition, weeks after the comment by the prosecutor, the judge in his closing instructions informed the jurors that they were the sole judges of the credibility of the witnesses.
*134 Under the same heading, the majority opinion cites other instances or purported prosecutorial misconduct that occurred during the long trial. None of these examples was the subject of objection, and apparently the majority do not hold that even considered cumulatively they require a new trial. In any event, any excess by the prosecutor in his closing argument was cured by the judge in his charge to the jury.
The majority find reversible error in the admission in evidence of a marked photograph. A detective of the Three Rivers (Canada) police department testified that he had received the picture from the Springfield police with an inquiry whether he recognized any of the faces in the picture. The inked and intialized identification of Gagnon and Bourgeois had been his response. Timely objection to the introduction of the photograph was made by defense counsel on the ground that the picture was not necessary and would show “that Bourgeois and Gagnon were known to the Canadian police and inferably, were bad men.” I agree with the majority that the introduction in evidence of the marked photograph was error, 3 but I believe that it was harmless error in light of the overwhelming evidence against the defendants. Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982).
The majority find that there was also a violation of the principles enunciated in Commonwealth v. Soares, 377 Mass. 461 (1979). 4 In Soares , the Supreme Judicial Court held that the exercise of peremptory challenges to exclude members of certain discrete groups from the jury “solely on *135 the basis of bias presumed to derive from [their] membership in the group” violated the defendants’ right to a trial before a jury of their peers as guaranteed by art. 12 of our Declaration of Rights. Id. at 488 . The court included “national origin” as part of “those generic group affiliations which may not permissibly form the basis for juror exclusion,” id. at 488-489 , and I agree with the majority that persons who are French-Canadians are members of a discrete group for the purposes of Soares . My disagreement with the majority is two-fold: (1) Soares does not apply because of the limited record in this case; and (2) if Soares does apply, there was no violation.
In Commonwealth v. Soares, supra, the court addressed the problem of retroactivity and fashioned a two-prong test that had to be met before the Soares principles would be applied. The court held that the rule in Soares applies to a case, (1) that was pending on direct appeal on March 8, 1979, the date of the Soares decision, and (2) where the record is adequate to raise the issue. 377 Mass. at 493 n.38. 5 The trial in this case concluded some 270 days before March 8, 1979, and was on direct appeal when Soares was decided; therefore, the first prong of the test is satisfied. It is my view, however, that the record is inadequate to raise the issue.
In order properly to assess whether there was a Soares violation, it is necessary to obtain from the record information with regard to certain factors. These factors “include not only the numbers and percentage of group members excluded, but also common group membership of the defendant and the jurors excluded, and of the victim and remaining jurors.” Commonwealth v. Robinson, 382 Mass. 189, 195 (1981).
*136 The record discloses that the defendants are of French-Canadian ancestry. The victims in the indictments are two bank tellers and a police officer. The record is silent as to their nationality. Of the 105 prospective jurors who were declared to be satisfactory by the judge, the Commonwealth challenged forty-three persons, and the defendants exercised forty-six challenges. 6 There were sixteen persons sworn as jurors. However, there is nothing in the record as to the ancestry of the jurors. I believe, therefore, that the record is not adequate to raise the issue before us. Commonwealth v. Mahdi, 388 Mass. 679, 690 (1983).
Even if there were an adequate record, I am of the opinion that there was no Soares violation. The crux of the majority’s holding that there was such a violation is that “[tjhere were twenty-three persons with names that were arguably French called from the venire, and the prosecution challenged nineteen of them” (supra at 118). I agree with the majority that names are less than a “totally reliable badge of ethnic identity” (supra at 119); and that is the reason that I rely on the record. Of the twenty-three persons with “arguably” French names, there is nothing in the record as to the ancestry of eleven of them. But as to twelve of the twenty-three persons, the record indeed shows that *137 they are of French or French-Canadian ancestry. 7 Of these twelve persons, the majority agree that the Commonwealth was correct in challenging two of them. Of the remaining ten, the Commonwealth stated that it was satisfied with three prospective jurors who spoke French, two of whom had close ties to French Canada. 8 But each defendant challenged these prospective jurors. The actions of the defendants in challenging three individuals, one of known French and two of known French-Canadian ancestry, are astonishing in view of the claims made by the defendants on appeal that they were denied a fair jury because of the actions of the prosecutor in excluding persons with French surnames from the jury.
I repeat that the record is inadequate for us to decide the issue. Further, because of the actions of the defendants in challenging three persons of known French or French-Canadian ancestry, I believe it would be “a perverse misuse of the [Scores] doctrine to apply it” to this trial. Commonwealth v. Whitehead, 379 Mass. 640, 646 (1980).
The record discloses that the interests of the several defendants were zealously guarded by aggressive, experienced, and skillful trial counsel. As to their vigilance, as the majority opinion notes, 245 objections were taken by defense counsel during the course of the trial.
The majority’s opinion invites a comparison between the judge’s instruction in this case and the judge’s instruction in Commonwealth v. Hoppin, 387 Mass. 25, 28-32 (1982), “where strong and precise instructions, although somewhat belated, did not neutralize a prosecutorial error” (supra at 15). The court in Hoppin specifically stated that the timing of the judge’s instruction was one of the primary reasons for the reversal. Id. at 31 . Here, the curative instruction was timely.
The majority in their opinion state, “[I]t is hard to see what purpose the marked picture and Dessureault’s explanations of the markings could have had other than to brand Bourgeois and Gagnon as ‘pros,’ the characterization which the district attorney applied to them in closing argument” (supra at 128-129). The prosecutor did not refer to the marked photograph in his closing argument. He did characterize the defendants as “pros,” but only in the sense that they prepared beforehand to rob the bank.
The right to be tried by an impartial jury is so basic that its infraction can never be treated as harmless error. See Commonwealth v. Soares, 377 Mass. at 492 .
By contrast, in the leading case of People v. Wheeler, 22 Cal. 3d 258 , 283 n.31 (1978), the Supreme Court of California decided to apply its rule retroactively only in those cases where the defendant was under a sentence of death, and in all other cases the rule was limited to voir dire proceedings conducted after the Wheeler decision became final.
There was no objection by the defendants to the manner in which the Commonwealth exercised its challenges. Contrast the defendants’ lack of objections in this case with the actions of defense counsel in Commonwealth v. Soares, 377 Mass. 461 (1979), and other cases that involved the Soares principle and were on direct appeal at the time of that decision. In Soares , the point was raised by defense counsel objections to each Commonwealth peremptory challenge of a prospective black juror. Id. at 473 n.8. Also see Commonwealth v. Clark, 378 Mass. 392 , 407 n.17 (1979), where defense counsel objected to the prosecutor’s use of a peremptory challenge to remove a prospective black juror. In Commonwealth v. Walker, 379 Mass. 297, 300 (1979), the defendant noted, for the record, the prosecutor’s peremptory challenge of prospective black jurors and raised the question by a motion for a new trial after the Soares decision. In Commonwealth v. Whitehead, 379 Mass. 640 646 (1980), the Supreme Judicial Court refused to consider an alleged Soares violation in a case on direct appeal and cited as one reason the failure of the defendant to protest.
Clues to the twelve persons’ ancestry came about in the following manner. Interpreters were necessary in order to translate the proceedings from English to French. The judge asked each prospective juror if he or she understood or spoke French. If the prospective juror so indicated, the judge would instruct the juror, following dictates of Commonwealth v. Festa, 369 Mass. 419, 430 (1976), that it was the interpreted testimony in English that controlled. During the course of the interrogation of the twelve jurors, their French or French-Canadian ancestry was disclosed.
All three spoke French. One prospective juror, accepted by the Commonwealth but challenged by the defendant, stated that his grandparents and his mother and father came from Canada. He was challenged by the defendant Gagne. Another prospective juror stated that his mother came from Canada. He was challenged by the defendant Gagnon. The third prospective juror who stated that his father and mother were French was challenged by the defendant Bourgeois. The defendants, as the majority note, challenged four jurors who had names that sounded French-Canadian, but I have considered only the three whose French or French-Canadian origins were commented upon.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735688. Public record. Not legal advice.