State v. Hairston , 298 Neb. 251 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. HAIRSTON
    Cite as 
    298 Neb. 251
    State of Nebraska, appellee, v.
    Dominique H airston, appellant.
    ___ N.W.2d ___
    Filed December 1, 2017.   No. S-16-965.
    1.	 Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
    nal case, a motion for new trial is addressed to the discretion of the trial
    court, and unless an abuse of discretion is shown, the trial court’s deter-
    mination will not be disturbed.
    2.	 Criminal Law: Juror Misconduct: Proof. A criminal defendant claim-
    ing jury misconduct bears the burden of proving, by a preponderance
    of the evidence, (1) the existence of jury misconduct and (2) that such
    misconduct was prejudicial to the extent that the defendant was denied a
    fair trial.
    3.	 Juror Misconduct: Proof: Appeal and Error. When an allegation of
    jury misconduct is made and is supported by a showing which tends to
    prove that serious misconduct occurred, the trial court should conduct an
    evidentiary hearing to determine whether the alleged misconduct actu-
    ally occurred. If it occurred, the trial court must then determine whether
    it was prejudicial to the extent that the defendant was denied a fair trial.
    If the trial court determines that the misconduct did not occur or that it
    was not prejudicial, adequate findings are to be made so that the deter-
    mination may be reviewed.
    4.	 Prosecuting Attorneys: Appeal and Error. When considering a claim
    of prosecutorial misconduct, an appellate court first considers whether
    the prosecutor’s acts constitute misconduct.
    5.	 Prosecuting Attorneys: Witnesses: Perjury. It is not improper per
    se for a prosecuting attorney to advise prospective witnesses of the
    penalties for testifying falsely. But warnings concerning the dangers
    of perjury cannot be emphasized to the point where they threaten and
    intimidate the witness into refusing to testify.
    Appeal from the District Court for Douglas County: Duane
    C. Dougherty, Judge. Affirmed.
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    STATE v. HAIRSTON
    Cite as 
    298 Neb. 251
    William J. O’Brien for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Dominique Hairston appeals his convictions in the district
    court for Douglas County for unlawful discharge of a firearm
    and use of a weapon to commit a felony. Hairston claims the
    district court erred when it denied him a new trial based on his
    allegations of juror misconduct and prosecutorial misconduct.
    We reject Hairston’s claims and affirm his convictions.
    STATEMENT OF FACTS
    On July 30, 2015, police officers responded to reports of
    a shooting in the area of South 33d and Q Streets in Omaha,
    Nebraska. Police found a dark blue Oldsmobile parked near a
    convenience store on Q Street. Police learned that shots had
    been fired into the Oldsmobile from another vehicle that was
    passing it in an adjacent lane. Four adults and two children had
    been inside the Oldsmobile at the time, and one of the adult
    occupants was injured by a gunshot to the neck. Police found
    another vehicle, a silver Saturn, stopped a short distance away
    on South 33d Avenue; it appeared that the Saturn had been dis-
    abled after it struck the curb of a storm drain after turning onto
    South 33d Avenue from Q Street. Witnesses stated that three
    men had run from the Saturn after it stopped.
    The registered owner of the Saturn was Lafferrell Matthews.
    Officers investigating the shooting found Matthews in the area
    near South 33d and S Streets. When the officers approached
    Matthews, he told them he had been looking for police in order
    to report that his car had been stolen. In later questioning by
    police, Matthews initially repeated that his car had been stolen
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    STATE v. HAIRSTON
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    298 Neb. 251
    but he eventually admitted that he was driving the Saturn at
    the time the shooting occurred. Matthews further told police
    that Hairston and another man, Nico Wofford, were passengers
    in the Saturn.
    Hairston and Wofford were each charged with unlawful dis-
    charge of a firearm and use of a weapon to commit a felony,
    and the two were tried in a consolidated trial. Matthews,
    who was charged with the same offenses but whose case was
    not consolidated with the others, testified at Hairston and
    Wofford’s consolidated trial.
    Matthews testified that on July 30, 2015, he was driving
    his Saturn and Hairston and Wofford were passengers, with
    Hairston in the front passenger seat and Wofford in the back seat
    on the passenger side. Matthews first noticed the Oldsmobile in
    front of his Saturn when he was stopped at a light at the inter-
    section of South 30th and Q Streets. Matthews testified that
    Hairston said that he recognized the Oldsmobile. After going
    through the intersection of South 30th and Q Streets, Matthews
    moved into the left lane to pass the Oldsmobile, which was in
    the right lane. As he was passing the Oldsmobile, Matthews
    heard three or four shots coming from the back seat of his
    Saturn, where Wofford was located. Matthews testified that he
    then saw Hairston pull out a handgun, lean out the window,
    and fire six or seven shots.
    The State presented other evidence, including, inter alia,
    testimony by various police officers who had investigated the
    shooting. During the testimony of one of the officers, the State
    offered into evidence a DVD containing a surveillance camera
    video that was taken from a restaurant located near the site
    of the shooting. The video depicted the Saturn passing the
    Oldsmobile as the shooting occurred. The State also offered a
    DVD containing a redacted version of the video in which the
    image was slowed down and enlarged. Both DVD’s offered by
    the State were received into evidence without objection, and
    they were played for the jury while the State questioned the
    officer regarding what was being depicted in the videos.
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    STATE v. HAIRSTON
    Cite as 
    298 Neb. 251
    Hairston testified in his own defense as follows: On July
    30, 2015, Hairston rode with Matthews in Matthews’ car; the
    purpose of their trip was for Hairston to pick up marijuana at
    a location on South 30th Street. Matthews dropped Hairston
    off near the corner of South 29th and S Streets, and Hairston
    then walked to the location, where he purchased marijuana.
    Hairston returned to the spot where Matthews had dropped him
    off, but Matthews was no longer there. After a few minutes,
    Hairston decided that because Matthews had not returned, he
    would walk home. On the way, Hairston saw a friend, Kayla
    Cash, driving by; he waved her down, and she gave him a ride
    the rest of the way. Hairston testified that on July 30, he did
    not ride in Matthews’ car with both Matthews and Wofford, he
    did not shoot at another vehicle from Matthews’ car, and he did
    not shoot a gun at all that day.
    Hairston attempted to call Cash as a witness in his defense,
    but Cash invoked her Fifth Amendment right to remain silent.
    Cash had a pending charge of accessory to a felony related
    to Hairston’s and Wofford’s cases, and she invoked her Fifth
    Amendment rights upon the advice of her attorney.
    The case was submitted to the jury, and the jury rendered
    verdicts finding Hairston guilty on both counts. After the jury
    was dismissed, Wofford’s counsel was approached by a juror
    who told him that during deliberations, jurors had viewed a
    “mirror-image” of the surveillance video that had been played
    in court. Wofford’s counsel later spoke with the jury foreper-
    son, who said that he and another juror had used a feature
    on the laptop computer that had been provided to the jury to
    play a reversed or mirror image of the surveillance video. The
    foreperson further said that after viewing the mirror image,
    the two had called over other jurors to view the mirror image.
    The foreperson and another juror told counsel that when they
    viewed the mirror image, they could see an arm coming out of
    the back seat window of the vehicle and a front seat passenger
    in a white shirt and that they had not noticed these things when
    they had viewed the video in the original manner.
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    STATE v. HAIRSTON
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    298 Neb. 251
    Hairston thereafter filed a motion for a new trial in which
    he alleged three bases for a new trial. First, he alleged that
    there was prosecutorial misconduct because Cash had told
    Hairston’s counsel that before she decided to invoke her
    Fifth Amendment right to remain silent, the prosecutor told
    her that if she testified in Hairston’s defense, she could be
    prosecuted for perjury. Hairston argued that the prosecutor’s
    statement caused Cash to refuse to testify. Second, Hairston
    alleged that there was an irregularity in the proceedings,
    because during deliberations, the court provided the jury with
    a laptop device—rather than a television as requested by the
    jury—which allowed the jury to view a mirror image of the
    surveillance video. Finally, Hairston alleged that that there was
    juror misconduct because jurors viewed a mirror image of the
    surveillance video; he argued that the mirror image was extra-
    neous prejudicial information.
    Hairston attached to his motion for a new trial an affi-
    davit of Wofford’s attorney, and attached to the affidavit
    were transcriptions of that attorney’s conversations with two
    jurors. Hairston also attached an affidavit of his own attorney
    regarding his attorney’s conversation with Cash. At a hear-
    ing on the motion for a new trial, the district court received
    the attachments for the sole purpose of deciding the motion.
    After hearing argument by both parties, the court stated, with
    regard to the alleged juror misconduct, that “the evidence
    that went in was a video, and that . . . video wasn’t changed,
    altered, manipulated as far as changing the picture, . . . what
    it showed, what it was capable of showing.” The court deter-
    mined that there was not “any extraneous, prejudicial informa-
    tion that went in or any . . . outside influence.” With regard
    to the alleged prosecutorial misconduct, the court stated that
    it did not see any evidence that the prosecutor had “somehow
    influenced this witness to take her Fifth Amendment.” The
    court therefore overruled Hairston’s motion for a new trial and
    denied his request for an evidentiary hearing.
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    STATE v. HAIRSTON
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    298 Neb. 251
    The court thereafter sentenced Hairston to imprisonment
    for 20 to 30 years for unlawful discharge of a firearm and
    20 to 30 years for use of a weapon to commit a felony. The
    court ordered the two sentences to be run consecutively to
    one another.
    Hairston appeals his convictions.
    ASSIGNMENTS OF ERROR
    Hairston claims that the district court erred when it over-
    ruled his motion for a new trial and rejected his allegations
    of (1) juror misconduct relating to jurors’ viewing a mirror
    image of the surveillance video and (2) prosecutorial miscon-
    duct relating to the prosecutor’s comments to Cash regarding
    her potential testimony in Hairston’s defense. Hairston further
    claims that the court erred when it denied his request for an
    evidentiary hearing to further develop his allegations of juror
    misconduct and prosecutorial misconduct.
    STANDARDS OF REVIEW
    [1] In a criminal case, a motion for new trial is addressed
    to the discretion of the trial court, and unless an abuse of
    discretion is shown, the trial court’s determination will not
    be disturbed. State v. Hoerle, 
    297 Neb. 840
    , 
    901 N.W.2d 327
    (2017).
    ANALYSIS
    Alleged Juror Misconduct: Jurors’ Viewing of
    Reversed Image of Surveillance Video Did
    Not Expose Jurors to Extraneous
    Prejudicial Information.
    Hairston first claims that the district court erred when it
    overruled his motion for a new trial based on his allegation of
    juror misconduct related to the viewing of a reversed image
    of the surveillance video. He also claims that the court erred
    when it denied an evidentiary hearing to develop the allegation.
    We determine that Hairston’s allegation did not show serious
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    STATE v. HAIRSTON
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    juror misconduct, and we therefore conclude that the district
    court did not err when it determined that his allegations did
    not warrant an evidentiary hearing and did not abuse its dis-
    cretion when it overruled his motion for a new trial based on
    the allegation.
    [2,3] A criminal defendant claiming jury misconduct bears
    the burden of proving, by a preponderance of the evidence,
    (1) the existence of jury misconduct and (2) that such mis-
    conduct was prejudicial to the extent that the defendant was
    denied a fair trial. State v. Cardeilhac, 
    293 Neb. 200
    , 
    876 N.W.2d 876
    (2016). We have held that when an allegation of
    jury misconduct is made and is supported by a showing which
    tends to prove that serious misconduct occurred, the trial court
    should conduct an evidentiary hearing to determine whether
    the alleged misconduct actually occurred. If it occurred, the
    trial court must then determine whether it was prejudicial to
    the extent that the defendant was denied a fair trial. 
    Id. If the
    trial court determines that the misconduct did not occur or that
    it was not prejudicial, adequate findings are to be made so that
    the determination may be reviewed. 
    Id. In the
    present case, after hearing argument on Hairston’s
    motion for a new trial, the district court considered Hairston’s
    allegations, motion, and attachments, and it determined that
    the jurors’ use of the computer to display a reversed image
    did not change the evidence and did not constitute extraneous
    prejudicial information. The court therefore effectively deter-
    mined that Hairston had not made a showing that tended to
    prove that serious juror misconduct had occurred and that an
    evidentiary hearing was not necessary.
    We express no opinion whether the district court properly
    considered Hairston’s allegations regarding jurors’ statements
    to the extent such consideration was allowed under Neb. Rev.
    Stat. § 27-606(2) (Reissue 2016). Section 27-606(2) generally
    provides that in connection with an inquiry into the valid-
    ity of a verdict, a juror may not testify as to anything that
    occurred during deliberations or as to the effect anything had
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    on the juror’s decision. Section 27-606(2), however, allows a
    juror to testify “on the question whether extraneous prejudicial
    information was improperly brought to the jury’s attention or
    whether any outside influence was improperly brought to bear
    upon any juror.” Hairston offered the affidavit of Wofford’s
    attorney regarding jurors’ statements to the effect that they had
    used the laptop computer to view a reversed image of the sur-
    veillance video. The State in this appeal does not dispute that
    the court could consider these allegations to the extent they
    may indicate that extraneous prejudicial information may have
    been brought to the jury’s attention.
    We have stated that in the context of § 27-606(2), “extra-
    neous,” in the phrase “extraneous prejudicial information,”
    means “‘“‘existing or originating outside or beyond: external
    in origin: coming from the outside . . . brought in, introduced,
    or added from an external source or point of origin.’”’”
    
    Cardeilhac, 293 Neb. at 212
    , 876 N.W.2d at 884, quoting State
    v. Thomas, 
    262 Neb. 985
    , 
    637 N.W.2d 632
    (2002). In Thomas,
    we stated that when “[n]one of the jurors brought extraneous
    information to the jury or obtained extra information about
    the facts of the case,” then extraneous prejudicial information
    was not brought to the jury’s 
    attention. 262 Neb. at 1000
    , 637
    N.W.2d at 650.
    The items at issue consisted of two DVD exhibits, one
    of which contained the surveillance video and the other of
    which contained a redacted version of the video which was
    slowed down and enlarged. The DVD’s had been received
    into evidence without objection and were published to the
    jury in court. Although Wofford objected to allowing the
    redacted DVD to be provided to the jury during deliberations,
    the court overruled the objection and Hairston did not join in
    Wofford’s objection.
    Hairston argues that he should have been granted a new
    trial because jurors’ manipulation of the video image using the
    laptop computer resulted in the jury’s being exposed to extra-
    neous prejudicial information. He asserts that the computer’s
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    software allowed the jury to view the surveillance video in a
    way which was different from how it had been presented in
    court and that therefore the jury was allowed to rely on evi-
    dence that was not presented in court.
    We reject Hairston’s argument and instead agree with the
    district court’s determination that the jurors’ viewing of a
    reversed image of the surveillance video in this case did
    not constitute extraneous prejudicial information. Although
    the computer software allowed the jurors to view the video
    from a perspective which differed from its presentation in
    court, and although the jurors may have noticed things in the
    video that they had not previously noticed, there is nothing in
    Hairston’s allegations that indicates that such viewing altered
    or augmented the fixed content of the DVD’s in any manner
    that would constitute evidence extraneous to what had been
    received into evidence. The undisputed record does not suggest
    this jury engaged in misconduct.
    Our reasoning is consistent with other authorities. In People
    v. Collins, 
    49 Cal. 4th 175
    , 
    232 P.3d 32
    , 
    110 Cal. Rptr. 3d 384
    (2010), the Supreme Court of California rejected an argument
    that a juror had been exposed to extraneous prejudicial infor-
    mation when the juror used his personal computer to diagram
    events at issue in the case. The court in Collins reasoned that
    the juror’s use of the computer was “simply his own permis-
    sible thinking about the evidence received, and was not an
    experiment resulting in the acquisition of any new 
    facts.” 49 Cal. 4th at 252
    , 232 P.3d at 
    91, 110 Cal. Rptr. 3d at 454
    . The
    court noted that the juror had relied on evidence in the record
    to create his diagram. The court stated:
    The computer did not create evidence that was not
    already before [the juror]. The computer was simply the
    device that allowed [the juror] to draw his diagram with
    ease and accuracy in order to visualize the evidence.
    There was no showing that the computer or its software
    performed any analytical function or provided any out-
    side information.
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    Id. at 255, 
    232 P.3d at 
    93, 110 Cal. Rptr. 3d at 457
    . The court
    in Collins cautioned that a computer could be used to investi-
    gate a case, “[i]f, for example, a juror conducts an investiga-
    tion in which he or she relies on software that manipulates the
    data, subjecting it to presumptions written into the program,
    such use would likely constitute an improper 
    experiment.” 49 Cal. 4th at 256
    , 232 P.3d at 
    93, 110 Cal. Rptr. 3d at 457
    . The
    court in Collins concluded, however, that the juror’s use of the
    computer in that case was part of the juror’s critical examina-
    tion of the admitted evidence rather than an investigation that
    created new evidence.
    In People v. Turner, 
    22 Cal. App. 3d 174
    , 
    99 Cal. Rptr. 186
    (1971), the court rejected an argument that the jury had con-
    ducted an improper experiment that introduced new evidence
    when the jury used a magnifying glass to examine a photo-
    graph. The court reasoned that the jury was merely making
    a more critical examination of the evidence than was made
    at trial and that “[a]t most, the use of the magnifying glass
    involved an extension of the jury’s sense of sight . . . .” 
    Id. at 183,
    99 Cal. Rptr. at 191.
    Similar to the reasoning in these cases, we determine that
    the jurors’ use of the computer in this case to view a reversed
    image of the surveillance video did not expose the jury to
    extraneous information but instead allowed them to make a
    more critical examination of an exhibit that had been admitted
    into evidence. There is no indication that the computer was
    used to manipulate the video in a manner that altered or aug-
    mented what was already contained on the DVD and therefore
    no indication that new information was introduced. Instead,
    similar to the magnifying glass in Turner, the computer in this
    case was a tool that operated as an extension of the jurors’
    sense of sight and allowed them to critically examine evidence
    that had been admitted in the trial.
    Because Hairston did not make a showing which tended to
    prove that serious juror misconduct occurred, there was no
    need to conduct an evidentiary hearing to determine whether
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    the alleged misconduct actually occurred and, if so, whether it
    was prejudicial to the extent Hairston was denied a fair trial.
    We therefore conclude that the district court did not err when
    it denied Hairston an evidentiary hearing on the issue and
    when it overruled Hairston’s motion for a new trial based on
    his allegation of juror misconduct. We reject this assignment
    of error.
    Alleged Prosecutorial Misconduct: Prosecutor’s
    Alleged Comment Regarding Potential Perjury
    Charge Was Not Threat or Intimidation.
    Hairston next claims that the district court erred when it
    overruled his motion for a new trial without an evidentiary
    hearing, based on his allegation of prosecutorial misconduct
    related to Cash’s decision not to testify in Hairston’s defense.
    We determine that Hairston’s allegations did not show prosecu-
    torial misconduct, and we therefore conclude that the district
    court did not err when it determined that his allegations did
    not warrant an evidentiary hearing and did not abuse its discre-
    tion when it overruled his motion for a new trial based on this
    allegation.
    [4] When considering a claim of prosecutorial misconduct,
    we first consider whether the prosecutor’s acts constitute mis-
    conduct. State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
    (2016). Hairston argues that the prosecutor’s comments to
    Cash constituted misconduct because the comments put her
    under such duress that she was unable to make a clear and free
    choice whether to testify in Hairston’s defense. Hairston relies
    in large part on State v. Ammons, 
    208 Neb. 797
    , 
    305 N.W.2d 808
    (1981), in which we concluded that there was prosecutorial
    misconduct when the prosecution intimidated a witness for the
    defense and caused him to refuse to testify.
    We reasoned in Ammons that the “constitutional [due proc­
    ess] right of a defendant to call witnesses in his defense man-
    dates that they must be called without 
    intimidation.” 208 Neb. at 801
    , 305 N.W.2d at 811. In Ammons, the potential defense
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    witness had pled guilty to a separate charge pursuant to a plea
    agreement in which the prosecutor agreed to not bring charges
    against the witness for the robbery for which the defendant
    was being tried. At a hearing in which the witness ultimately
    decided to assert his Fifth Amendment rights and not testify
    for the defense, the prosecutor “stated for the record that the
    State would prosecute” the witness for the burglary if the wit-
    ness testified in the Ammons case; the prosecutor stated that
    “any agreement the prosecutor in [the witness’] case made
    was ‘out the window’ if [the witness] took the stand in the
    present case and testified in open court that he committed the
    
    robbery.” 208 Neb. at 800
    , 305 N.W.2d at 810. We concluded
    that the record in Ammons was “clear that the prosecutor’s
    threat to [the witness] caused [the witness] to refuse to testify
    and resulted in depriving the defendant of that 
    testimony.” 208 Neb. at 803
    , 305 N.W.2d at 812.
    One justice dissented without opinion in Ammons. Two other
    justices concurred in the result on the sole basis that “the State
    failed to honor . . . an enforceable plea bargain”; the concur-
    ring justices “[did] not want to suggest that a judge or prosecu-
    tor who warns a witness of the possibility of self-incrimination
    or of the penalties for perjury has engaged in witness intimida-
    tion.” 
    Id. [5] The
    Court of Appeals for the Eighth Circuit in United
    States v. Risken, 
    788 F.2d 1361
    (8th Cir. 1986) made a distinc-
    tion similar to that made by the concurring justices in Ammons.
    The Court of Appeals stated:
    “It is not improper per se for a . . . prosecuting attor-
    ney to advise prospective witnesses of the penalties for
    testifying falsely. But warnings concerning the dangers
    of perjury cannot be emphasized to the point where
    they threaten and intimidate the witness into refusing to
    testify.” United States v. Blackwell, 224 U.S.App.D.C.
    350, 
    694 F.2d 1325
    , 1334 (1982) (citations omitted).
    The prosecutor’s statements in the present case do not
    approximate the sort of governmental misconduct held
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    unconstitutional in the leading case of Webb v. Texas, 
    409 U.S. 95
    , 98, 
    93 S. Ct. 351
    , 353, 
    34 L. Ed. 2d 330
    (1972)
    (per curiam), in which the trial court gratuitously and at
    great length admonished only the defendant’s single wit-
    ness not to lie and warned him of the dire consequences
    of perjury, or in United States v. Smith, 156 U.S.App.D.C.
    66, 
    478 F.2d 976
    , 979 (1973), in which the prosecutor
    threatened to prosecute the prospective witness for past
    crimes if he took the stand and testified in a pending trial.
    Rather, the prosecutor’s statements in the present case
    constituted a constitutionally permissible “mere warning”
    about the dangers of committing perjury. See, e.g., United
    States v. 
    Blackwell, 694 F.2d at 1335
    ; United States v.
    Simmons, 216 U.S.App.D.C. 207, 
    670 F.2d 365
    , 371
    (1982) (per curiam); cf. United States v. Harlin, 
    539 F.2d 679
    , 681 (9th Cir.) (trial judge’s warning), cert. denied,
    
    429 U.S. 942
    , 
    97 S. Ct. 362
    , 
    50 L. Ed. 2d 313
    (1976). The
    prosecutor told [the potential witness] about the seri-
    ous consequences of perjury, including the possibility of
    prosecution and the range of punishment. The prosecu-
    tor’s remarks here were limited to warning [the potential
    witness] about the serious consequences of perjury in the
    context of [the potential witness’] testimony in this case;
    the prosecutor did not threaten to prosecute [the potential
    witness] for other crimes or to retaliate against him if he
    testified truthfully. See United States v. 
    Blackwell, 694 F.2d at 1334
    (citing cases involving threats of prosecution
    for other crimes, reindictment on dropped charges, revo-
    cation of probation).
    We note, however, that prosecuting attorneys should
    exercise considerable restraint when advising potential
    witnesses about the consequences of committing perjury.
    
    Risken, 788 F.2d at 1370-71
    .
    In the present case, Hairston attached to his motion for a
    new trial the affidavit of his attorney, who stated Cash told
    him that the prosecutor “had admonished her that if she
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    testified in defense of . . . Hairston, she could be prosecuted
    for perjury.” Hairston’s attorney further stated in his affidavit
    that when he attempted to call Cash as a witness in Hairston’s
    defense, “Cash stated in chambers before the trial judge and
    on the record that she would refuse to testify based on the
    advice of her attorney.” Hairston’s attorney further stated that
    Cash’s attorney had told him that “he was advising . . . Cash
    not to speak with affiant and not to sign any affidavit regard-
    ing what [the prosecutor] may have said to her.”
    Hairston’s allegations of prosecutorial misconduct therefore
    were merely that the prosecutor had “admonished” Cash of the
    potential penalties for perjury. Although Cash refused to testify
    in Hairston’s defense, there was no indication that her decision
    was the result of any threat or intimidation by the prosecutor.
    Hairston made no allegation that the prosecutor’s statement
    went beyond an accurate statement regarding potential penal-
    ties for perjury, and he made no allegation that the prosecutor
    threatened to prosecute her for some other crime if she testi-
    fied truthfully in Hairston’s trial. Instead, Hairston’s attorney’s
    affidavit indicates that Cash chose not to testify based on the
    advice of her attorney. We note that in an in camera hearing
    after Hairston attempted to call Cash as a witness, Cash stated
    to the court that she was invoking her Fifth Amendment rights
    on the advice of her counsel.
    We conclude that Hairston’s allegations did not show an
    improper threat or intimidation by the prosecutor; instead, it
    appears that the prosecutor advised Cash regarding the penal-
    ties for perjury and that Cash made her decision not to testify
    after consulting with her attorney. Because Hairston’s allega-
    tions did not show that the prosecutor improperly threatened
    or intimidated Cash to prevent her testimony, we conclude that
    the court did not err when it denied an evidentiary hearing on
    the issue and that it did not abuse its discretion when it over-
    ruled Hairston’s motion for a new trial based on the allega-
    tion of prosecutorial misconduct. We reject this assignment
    of error.
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. HAIRSTON
    Cite as 
    298 Neb. 251
    CONCLUSION
    We conclude that the district court did not err when it
    denied an evidentiary hearing on Hairston’s allegations of
    juror misconduct and prosecutorial misconduct and that it did
    not abuse its discretion when it overruled Hairston’s motion
    for a new trial on such bases. We therefore affirm Hairston’s
    convictions.
    A ffirmed.
    Wright, J., not participating in the decision.