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.
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.
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.
Prosecuting Attorneys: Appeal and Error. When considering a
claim of prosecutorial misconduct, an appellate court first
considers whether the prosecutor's acts constitute
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.
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
Neb. 252] William J. O'Brien for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
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.
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.
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
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 ...