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State v. Hairston

Supreme Court of Nebraska

December 1, 2017

State of Nebraska, appellee,
v.
Dominique Hairston, appellant.

         1. Criminal Law: Motions for New Trial: Appeal and Error. 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.

         2. Criminal Law: Juror Misconduct: Proof. 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 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 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. 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.

         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.

         [298 Neb. 252] 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, Kelch, 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 disabled 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 [298 Neb. 253] 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 discharge 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 intersection 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 ...


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