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STATE v. HAIRSTON

Cite as 298 Neb. 251

State of Nebraska, appellee, v. 

Dominique Hairston, appellant.

___ N.W.2d ___

Filed December 1, 2017. No. S-16-965.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/08/2017 09:10 AM CST
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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 
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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 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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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 foreperson, 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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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 extraneous prejudicial information.

Hairston attached to his motion for a new trial an affidavit 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 hearing 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 determined that there was not “any extraneous, prejudicial information 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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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 overruled 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 misconduct 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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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 discretion 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 misconduct 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 determined 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 validity 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 surveillance 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), “extraneous,” 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 extraneous 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 evidence 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 information 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 permissible 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 outside 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 investigate a case, “[i]f, for example, a juror conducts an investigation 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 examination 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 conducted an improper experiment that introduced new evidence 

when the jury used a magnifying glass to examine a photograph. 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 augmented 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 prosecutorial 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 discretion 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 misconduct. 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 process] right of a defendant to call witnesses in his defense mandates 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 witness 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 concurring justices “[did] not want to suggest that a judge or prosecutor who warns a witness of the possibility of self-incrimination 

or of the penalties for perjury has engaged in witness intimidation.” Id.

[5] The Court of Appeals for the Eighth Circuit in United 

States v. Risken, 788 F.2d 1361 (8th Cir. 1986) made a distinction similar to that made by the concurring justices in Ammons. 

The Court of Appeals stated:

“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.” 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 witness 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 serious consequences of perjury, including the possibility of 

prosecution and the range of punishment. The prosecutor’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, revocation 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 regarding 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 penalties for perjury, and he made no allegation that the prosecutor 

threatened to prosecute her for some other crime if she testified 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 penalties for perjury and that Cash made her decision not to testify 

after consulting with her attorney. Because Hairston’s allegations 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 overruled Hairston’s motion for a new trial based on the allegation of prosecutorial misconduct. We reject this assignment 

of error.
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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.

Affirmed.

Wright, J., not participating in the decision.