Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/26/2018 09:13 AM CST




                                                        - 251 -
                                  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.
                               - 252 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        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
                              - 253 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 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.
                              - 254 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       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.
                              - 255 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 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.
                              - 256 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 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
                              - 257 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 298 Neb. 251

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
                              - 258 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 298 Neb. 251

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
                              - 259 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 298 Neb. 251

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.
                               - 260 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. HAIRSTON
                         Cite as 298 Neb. 251

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
                              - 261 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. HAIRSTON
                        Cite as 298 Neb. 251

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
                               - 262 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. HAIRSTON
                         Cite as 298 Neb. 251

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
                               - 263 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. HAIRSTON
                         Cite as 298 Neb. 251

     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
                               - 264 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. HAIRSTON
                         Cite as 298 Neb. 251

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.
                             - 265 -
          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.
