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COMMONWEALTH vs. John W. BRESNAHAN
COMMONWEALTH vs.
John W. BRESNAHAN.
No. 07-P-1927.
March 1, 2011. - April 27, 2011.
Jury and Jurors. Evidence, Relating to deliberation by jurors. Practice, Criminal, Deliberation of jury.

COMPLAINT received and sworn to in the Nantucket Division of the District Court Department on November 8,
2005.

The case was tried before Joseph I. Macy, J., and following a stay of appeal to allow for postverdict jury inquiry, a
motion for a new trial, filed on July 17, 2008, was heard by Robert V. Greco, J.

Thomas G. Shack, III, Assistant District Attorney, for the Commonwealth.

Russell Fuller for the defendant.

Present: Grasso, Graham, & Hanlon, JJ.

GRASSO, J.

The convoluted proceedings that underlie this appeal exemplify the pitfalls of engaging in a postverdict inquiry of
jurors without first carefully applying the principles set forth in Commonwealth v. Fidler, 377 Mass. 192 (1979), and
its progeny. Because the motion judge engaged in a postverdict examination of jurors prematurely and without
affording the Commonwealth the opportunity to explore whether the defendant's claim of an extraneous jury influence
was orchestrated by a surrogate acting on behalf of the defendant, we vacate the order allowing the defendant's motion
for a new trial and remand for further proceedings.

1.
Background. On December 5, 2006, the defendant was tried before a jury of six in the Nantucket District Court on the charge of operating a motor vehicle while under the influence of intoxicating liquor. The trial judge instructed the jury at approximately 4:15 P.M., and the jury commenced deliberations at 4:20 P.M. At 5:50 P.M., the jury returned a verdict of guilty. Based on the defendant's extensive record of convictions, the judge sentenced him to two and one

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