State v. Hairston, 298 Neb. 251

Background

On July 30, 2015, shots were fired into an Oldsmobile in Omaha; a disabled Saturn stopped nearby. Lafferrell Matthews ultimately admitted he was driving the Saturn and identified Dominique Hairston and Nico Wofford as passengers.
At consolidated trial, Matthews testified that Wofford fired from the back seat and Hairston leaned out the front passenger window and fired multiple shots; surveillance video and an enlarged/slow-motion redacted version of that video were admitted without objection and shown to the jury.
Hairston testified he was not in the Saturn at the time and that he did not fire a gun; a potential alibi witness, Kayla Cash, invoked the Fifth Amendment on advice of counsel and did not testify after being warned about perjury consequences.
After conviction on unlawful discharge of a firearm and use of a weapon to commit a felony, jurors informed defense counsel that during deliberations some jurors used a court‑provided laptop to view a mirror/reversed image of the surveillance video and perceived additional detail (an arm from the back seat; a front passenger in a white shirt).
Hairston moved for a new trial alleging (1) juror misconduct/extraneous prejudicial information from the mirrored video and (2) prosecutorial misconduct because the prosecutor warned Cash she could be prosecuted for perjury; the district court denied the motion and refused an evidentiary hearing.
The Nebraska Supreme Court affirmed, holding no abuse of discretion in denying a new trial or an evidentiary hearing on either claim.

Issues

Issue	Hairston’s Argument	State’s Argument	Held
Juror misconduct: jurors viewed reversed/mirrored surveillance video during deliberations	Mirroring constituted use of extraneous prejudicial information not presented at trial, warranting a new trial	The mirrored view did not alter or add to the evidence; it was a closer examination of an admitted exhibit	Court held no serious juror misconduct; laptop viewing was permissible critical examination of admitted evidence and not extraneous information
Denial of evidentiary hearing on juror misconduct	An evidentiary hearing was necessary because allegations tended to prove serious misconduct	The allegations did not tend to prove serious misconduct and the record showed no alteration of evidence	Court held trial court did not err in refusing an evidentiary hearing
Prosecutorial misconduct re: Cash (warning about perjury)	The prosecutor’s admonition coerced Cash to invoke the Fifth and deprived Hairston of exculpatory testimony	A warning about penalties for perjury is not per se misconduct; Cash refused on counsel’s advice and there was no threat to prosecute for other crimes	Court held the admonition was not improper intimidation; no prosecutorial misconduct shown
Denial of evidentiary hearing on prosecutorial misconduct	Hairston sought hearing to develop evidence that prosecutor intimidated Cash	State argued no evidence of threats beyond permissible warning and Cash’s counsel advised her not to testify	Court held no basis for an evidentiary hearing; denial not an abuse of discretion

Key Cases Cited

State v. Hoerle, 297 Neb. 840 (standard of review for new trial motions in criminal cases)
State v. Cardeilhac, 293 Neb. 200 (burden to prove jury misconduct and requirement for evidentiary hearing if allegations tend to show serious misconduct)
State v. Thomas, 262 Neb. 985 (definition of "extraneous prejudicial information")
State v. Ammons, 208 Neb. 797 (prosecutorial intimidation of defense witness can violate defendant’s right to present witnesses)
People v. Collins, 49 Cal. 4th 175 (juror’s use of personal computer to diagram evidence was permissible critical examination, not acquisition of new facts)
United States v. Risken, 788 F.2d 1361 (prosecutor may warn of perjury penalties but must not threaten or intimidate witness into silence)