State v. Hairston, 298 Neb. 251

Background

July 30, 2015 shooting: a Saturn (registered to Lafferrell Matthews) passed an Oldsmobile; shots were fired into the Oldsmobile; one occupant was wounded.
Matthews ultimately told police he was driving the Saturn and that Hairston (front passenger) and Wofford (rear passenger) were in the car; Matthews later testified accordingly at the consolidated trial of Hairston and Wofford.
The State admitted and played two DVD exhibits of a surveillance video (one redacted/slow-motion) without objection; the jury was later given a laptop during deliberations.
After verdicts of guilty, jurors (per affidavits) told defense counsel they used the laptop to view a mirror/reversed image of the surveillance video and noticed details they had not seen before.
Hairston moved for a new trial on three grounds: (1) juror misconduct for viewing a mirrored image of the admitted video during deliberations (extraneous prejudicial information); (2) prosecutorial misconduct because the prosecutor warned prospective witness Kayla Cash she could be prosecuted for perjury if she testified, and Cash then invoked the Fifth; and (3) irregularity in providing a laptop rather than a TV.
The district court denied an evidentiary hearing and overruled the motion for a new trial; Hairston appealed and the Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror misconduct — viewing mirrored video	Jurors viewed a reversed image during deliberations, introducing extraneous prejudicial information that altered evidence and denied a fair trial	Viewing a reversed image was merely a closer examination of an exhibit already admitted; it did not add new evidence	Court held no serious juror misconduct; reversed image was not extraneous information; no evidentiary hearing required; motion denied
Denial of evidentiary hearing on juror misconduct	Hearing required because allegations tended to show serious misconduct	Court could decide on the record; allegations did not show serious misconduct warranting a hearing	Court held trial court did not abuse discretion by denying a hearing
Prosecutorial misconduct — warning re: perjury to Cash	Prosecutor’s admonition caused Cash to invoke the Fifth and withheld favorable testimony; constitutes intimidation	A prosecutor may warn witnesses about perjury penalties; no evidence of threats or improper intimidation; Cash declined after counsel’s advice	Court held warning about perjury penalties was not shown to be a threat or intimidation; no prosecutorial misconduct; denial of hearing proper
New trial based on alleged irregularity (laptop vs TV)	Providing a laptop enabled jurors to manipulate the video and view unpresented perspectives	The device merely allowed critical examination of admitted evidence; no alteration of exhibits	Court held no irregularity that produced extraneous prejudicial information; no new trial warranted

Key Cases Cited

State v. Cardeilhac, 293 Neb. 200 (2016) (standards for proving juror misconduct and when an evidentiary hearing is required)
State v. Thomas, 262 Neb. 985 (2002) (definition of "extraneous prejudicial information")
State v. Ammons, 208 Neb. 797 (1981) (prosecutorial intimidation of defense witness can violate defendant’s right to call witnesses)
State v. Hoerle, 297 Neb. 840 (2017) (motion for new trial is reviewed for abuse of discretion)
State v. McSwine, 292 Neb. 565 (2016) (first step in prosecutorial misconduct inquiry is whether acts constitute misconduct)
People v. Collins, 49 Cal. 4th 175 (2010) (juror’s use of computer to diagram or reexamine evidence is permissible critical analysis, not introduction of new facts)
People v. Turner, 22 Cal. App. 3d 174 (1971) (use of magnifying glass to inspect evidence is an extension of senses, not an improper experiment)
United States v. Risken, 788 F.2d 1361 (8th Cir. 1986) (warning witnesses about perjury penalties is permissible provided it is not coercive or threatening)