State v. Hairston, 298 Neb. 251

July 30, 2015 shooting: occupants of an Oldsmobile were fired upon while a silver Saturn (registered to Lafferrell Matthews) passed; one occupant injured.
Matthews initially claimed his car was stolen but later admitted he was driving and that Dominique Hairston and Nico Wofford were passengers; Matthews testified that Hairston fired shots from the front passenger seat.
Two DVDs of a surveillance video (original and a slowed/enlarged redacted version) were admitted into evidence and played for the jury without objection by Hairston.
Hairston testified denying presence in the car at the time of the shooting; a defense witness (Kayla Cash) invoked the Fifth Amendment and did not testify after consulting counsel.
After verdicts of guilty on unlawful discharge of a firearm and use of a weapon to commit a felony, jurors told defense counsel they had used a jury laptop during deliberations to view a mirror (reversed) image of the surveillance video and claimed it revealed new details.
Hairston moved for a new trial alleging (1) juror misconduct because the jury viewed a reversed image of the admitted video (extraneous prejudicial information) and (2) prosecutorial misconduct because the prosecutor warned Cash she could be prosecuted for perjury if she testified; the district court denied a new trial and refused an evidentiary hearing. Hairston appealed.

Issue	Hairston’s Argument	State’s/Defense Position	Held
Juror misconduct — jury viewed reversed/mirror image of admitted surveillance video during deliberations	Viewing reversed image was extraneous prejudicial information that altered evidence and denied a fair trial; warranted evidentiary hearing and new trial	The laptop merely allowed jurors to reexamine admitted evidence; no indication the video was altered or that outside information was introduced	Court held no serious juror misconduct; reversed image was not extraneous information; no evidentiary hearing or new trial required
Prosecutorial misconduct — prosecutor warned potential defense witness (Cash) about perjury prosecution	Prosecutor’s admonition intimidated Cash into invoking the Fifth and deprived Hairston of defense testimony; warranted hearing/new trial	Warning about perjury penalties is permissible so long as it does not threaten or intimidate into silence; Cash declined to testify based on counsel’s advice, not threats	Court held statement did not amount to improper threat or intimidation; no evidentiary hearing required and no new trial

State v. Hoerle, 297 Neb. 840 (Neb. 2017) (standard of review: motion for new trial reviewed for abuse of discretion)
State v. Cardeilhac, 293 Neb. 200 (Neb. 2016) (defendant bears burden to prove jury misconduct and prejudice; evidentiary hearing required if showing tends to prove serious misconduct)
State v. Thomas, 262 Neb. 985 (Neb. 2002) (definition of "extraneous prejudicial information" in juror inquiry context)
People v. Collins, 49 Cal. 4th 175 (Cal. 2010) (juror’s use of personal computer to diagram evidence was permissible critical examination, not acquisition of new facts)
People v. Turner, 22 Cal. App. 3d 174 (Cal. Ct. App. 1971) (use of magnifying glass to inspect admitted photograph is permissible closer examination, not improper experiment)
State v. Ammons, 208 Neb. 797 (Neb. 1981) (prosecutorial threats that revoke plea bargains or coerce witnesses not to testify constitute misconduct)
United States v. Risken, 788 F.2d 1361 (8th Cir. 1986) (warning prospective witnesses about perjury penalties is permissible so long as it does not threaten or intimidate them into silence)