State v. Hairston, 298 Neb. 251

July 30, 2015 shooting: occupants of an Oldsmobile were shot at; a silver Saturn (registered to Lafferrell Matthews) was tied to the incident. Matthews later admitted he was driving with Dominique Hairston and Nico Wofford as passengers.
Matthews and other witnesses (including surveillance video from a nearby restaurant) implicated Hairston in firing shots from the Saturn; DVDs of the surveillance video and a redacted, slowed/enlarged version were admitted into evidence and published to the jury without objection.
Hairston testified he was not in the Saturn at the time and did not fire a gun. Defense witness Kayla Cash invoked the Fifth Amendment on advice of counsel and did not testify.
After verdicts finding Hairston guilty on unlawful discharge of a firearm and use of a weapon to commit a felony, jurors informed defense counsel they had used a laptop in the jury room to view a mirrored (reversed) image of the surveillance video and observed details they had not noticed during trial.
Hairston moved for a new trial asserting (1) juror misconduct/irregularity because jurors viewed a mirrored image of an exhibit during deliberations and (2) prosecutorial misconduct because the prosecutor allegedly warned Cash she could be prosecuted for perjury if she testified; the district court denied the motion and refused an evidentiary hearing.

Issue	Hairston’s Argument	State’s Argument	Held
Juror misconduct: jury viewed reversed/mirrored image of admitted surveillance video during deliberations	Mirrored view was "extraneous prejudicial information" because the laptop allowed the jury to view the video differently and thus rely on evidence not presented at trial; warrants new trial and evidentiary hearing	Jurors only examined an exhibit admitted at trial; reversing the image did not alter or add evidence and was a permissible critical examination of admitted evidence	Court held no serious juror misconduct; reversed viewing did not introduce extraneous information; no evidentiary hearing required; motion for new trial denied
Prosecutorial misconduct: prosecutor warned Cash she could be prosecuted for perjury, causing her to invoke the Fifth and not testify	Warning intimidated or threatened Cash and effectively deprived Hairston of defense testimony; merits new trial and evidentiary hearing	Prosecutor’s admonition about perjury penalties is not per se improper; no evidence of threats, retaliation, or promises to prosecute for unrelated crimes; Cash declined on counsel’s advice	Court held prosecutor’s comment (as alleged) was a permissible warning about perjury, not intimidation; no evidentiary hearing required; motion for new trial denied

State v. Cardeilhac, 293 Neb. 200 (discusses burden to prove juror misconduct and when evidentiary hearing is required)
State v. Thomas, 262 Neb. 985 (defines "extraneous" in context of juror inquiry)
State v. Ammons, 208 Neb. 797 (prosecutorial intimidation that causes defense witness to refuse to testify can require new trial)
People v. Collins, 49 Cal. 4th 175 (juror’s use of computer to diagram evidence was permissible critical examination, not acquisition of new facts)
United States v. Risken, 788 F.2d 1361 (distinguishes permissible perjury warnings from impermissible threats to intimidate prospective witnesses)