NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Bresnahan, 462 Mass. 761 (2012)

CONTRIBUTING EDITOR: ERIN HYSELL I. Procedural History

A jury convicted the defendant for operating a motor vehicle while under the influence of alcohol (OUI).1 A year later, he moved for a postverdict inquiry of the jurors, claiming that the trial judge influenced the jurys decision by speaking with the jurors ex parte during jury deliberations.2 Following evidentiary hearings, the district court ordered a new trial, which the Commonwealth appealed.3 The Appeals Court vacated and remanded the case.4 The Supreme Judicial Court granted the defendants application for further appellate review.5 II. Facts One year after the defendants conviction for OUI, a friend of the defendant repeatedly spoke to a juror who served on the defendants trial.6 The defendants friend then reported these conversations to the defendants appellate counsel. The defendants friend informed counsel that the juror reported that, during deliberations, the trial judge entered the deliberation room and stated that the jury needed to stay until they reached a decision.7 Appellate counsel thereafter moved to withdraw from the case and successor counsel submitted the former counsels affidavit with a motion for post-verdict juror inquiry.8 Counsel did not include

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Commonwealth v. Bresnahan, 462 Mass. 761, 761 (2012). Id. at 761-762. Id. at 762. Id. Id. Id. at 763-764. Commonwealth v. Bresnahan, supra at 764. Id.

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affidavits of the defendants friend or the juror with whom she spoke.9 Ultimately, the trial court held multiple evidentiary hearings on the issue. Four jurors from the defendants case, as well as the trial judge, the defendant, the prosecutor, and three court officers testified at the hearings.10 The motion judge granted the defendant a new trial, finding that the trial judge did enter the jury room during deliberations without the knowledge of the prosecution or defense counsel and made statements that may have led the jury to believe they had to reach a consensus.11 III. Issues Presented 1. Is a judge precluded from hearing or considering evidence of an alleged extraneous influence on a jury if the evidence was procured through improper jury contact?12 2. How must the court balance a Fidler violation with a colorable showing of extraneous influence on a jury?13 IV. Holdings and Reasoning A strict exclusionary rule that would prevent a judge from considering evidence of an alleged extraneous influence on a jury if the information is gained improperly is not necessary under Fidler.14 When a defendants right to a fair trial has been jeopardized, the court must consider evidence that the jurys deliberations were impacted by outside influence.15 Even though a strict exclusionary rule is not appropriate, the judge must still investigate claims that jurors were contacted improperly and balance this Fidler violation against the evidence presented regarding the extraneous influence on jurors.16 The judge must conduct an inquiry into the alleged Fidler violation and weigh both claims to determine if the defendants motion for jury inquiry.17 This inquiry may require a full evidentiary hearing.18 If the inquiry leads the judge to determine that the Fidler principles were violated by someone on behalf of the defendant (or by the defendant himself) then the judge must balance this violation

Id. Id. at 764, 768. 11 Id. at 762, 768. 12 See id. at 769. 13 Commonwealth v. Bresnahan, supra at 769. 14 Id. at 771 (citing Commonwealth v. Fidler, 377 Mass. 192, 196-197 (1979)). 15 Id. at 771. 16 Id. at 772-773. 17 Id. 18 Id. at 773.
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against the information that suggests extraneous jury influence.19 The balance is highly dependent on the facts of the each case.20 Because the motion judge in this case did not conduct the proper inquiry, the case was remanded for further inquiry under the balancing test and a new determination as to whether the defendant is entitled to a new trial.21

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Commonwealth v. Bresnahan, supra at 773. Id. Id. at 773-775.