860 N.W.2d 776 (Neb.App. 2015), A-13-887, State v. McSwine

Docket Nº:A-13-887
Citation:860 N.W.2d 776, 22 Neb.App. 791
Opinion Judge:Irwin, Judge.
Party Name:STATE OF NEBRASKA, APPELLEE, v. FREDERICK E. MCSWINE, ALSO KNOWN AS FREDERICK E. JOHNSON, APPELLANT
Attorney:Mark E. Rappl for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Judge Panel:IRWIN, INBODY, and PIRTLE, Judges.
Case Date:March 10, 2015
Court:Court of Appeals of Nebraska
 
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Page 776

860 N.W.2d 776 (Neb.App. 2015)

22 Neb.App. 791

STATE OF NEBRASKA, APPELLEE,

v.

FREDERICK E. MCSWINE, ALSO KNOWN AS FREDERICK E. JOHNSON, APPELLANT

No. A-13-887

Court of Appleals of Nebraska

March 10, 2015

Page 777

[Copyrighted Material Omitted]

Page 778

Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.

Mark E. Rappl for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

OPINION

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[22 Neb.App. 792] Irwin, Judge.

I. INTRODUCTION

Frederick E. McSwine, also known as Frederick E. Johnson, was convicted by a jury of terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. The district court subsequently sentenced McSwine to a total of approximately 57 to 85 years' imprisonment. McSwine here appeals from his convictions. On appeal, McSwine assigns several errors, including that the district court erred in overruling his motion for new trial, which motion was based on allegations of prosecutorial misconduct during closing arguments. McSwine also alleges that he received ineffective assistance of trial counsel in a variety of respects. Most notably, McSwine alleges that his trial counsel was ineffective in failing to object to improper statements made by the prosecutor during closing arguments.

Upon our review, we conclude that the prosecutor committed misconduct in knowingly providing false information to the

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jury during closing arguments. Such misconduct amounts to plain error which requires a reversal of McSwine's [22 Neb.App. 793] convictions. In addition, we conclude that McSwine received ineffective assistance of counsel when defense counsel failed to timely object to the prosecutor's false statements. Such ineffective assistance would also require reversal of McSwine's convictions. Because the evidence presented by the State was sufficient to sustain McSwine's convictions, we reverse the convictions and remand for a new trial.

II. BACKGROUND

The State filed a criminal complaint charging McSwine with terroristic threats, kidnapping, first degree sexual assault, and use of a weapon to commit a felony. The charges against McSwine stem from an incident which occurred between McSwine and C.S. in October 2012. McSwine and C.S. knew each other prior to October 2012 because McSwine had been employed at a gas station that C.S. had frequented. However, the extent of the relationship was disputed at trial.

Evidence adduced by the State established that on the morning of October 13, 2012, McSwine knocked on the door to C.S.' apartment and asked if he could come in the apartment and use the bathroom. This was not the first occasion that McSwine had come to C.S.' apartment and asked to use the bathroom. A few weeks prior to the day in question, McSwine had appeared on C.S.' doorstep with a similar request. On that day, C.S., who was entertaining friends, let him in the apartment. McSwine then left C.S.' apartment immediately after going into the bathroom.

On October 13, 2012, when McSwine again appeared on C.S.' doorstep requesting to use her bathroom, the only other person in her apartment was her boyfriend, who was asleep in her bedroom. She let McSwine into the apartment, and after he went into the bathroom, he returned to the doorway, threatened C.S. with a " sharp instrument," and forced her from the apartment and into his car. McSwine then drove to three separate, isolated areas where he forced C.S. to engage in various sexual acts. After keeping C.S. with him for approximately 5 hours, McSwine permitted C.S. to flee his car. She then ran to a nearby home where the residents called law enforcement.

[22 Neb.App. 794] McSwine disputed the evidence presented by the State. During his trial testimony, he testified that on the morning of October 13, 2012, C.S. accompanied him to his car willingly and consented to engaging in various sexual acts with him. He also testified that at some point during their encounter, C.S. became upset with him after she discovered that he had lied to her about having a charger for his cellular telephone in the car. After she became upset, she began to accuse McSwine of " using [her] for sex." She then asked to get out of his car, and McSwine stopped the car on the side of a road in order to permit her to leave. During closing arguments, McSwine's counsel argued that C.S. concocted the story about being kidnapped and sexually assaulted because she was angry with McSwine and because she did not want to get in trouble with her boyfriend or with her parents.

After hearing all of the evidence, the jury convicted McSwine of all four charges: terroristic threats, kidnapping, first degree sexual assault, and use of a weapon to commit a felony. The district court subsequently sentenced McSwine to a total of 56 years 8 months to 85 years in prison.

McSwine appeals his convictions here.

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III. ASSIGNMENTS OF ERROR

On appeal, McSwine assigns five errors. First, McSwine argues that the district court erred in overruling his motion for a new trial, which motion was based on his assertion that the prosecutor committed misconduct during closing arguments. Second, McSwine alleges that the district court erred in failing to admit evidence of a specific instance of C.S.' sexual behavior prior to the day of the assault. Third, McSwine alleges that the district court erred in overruling his motion for a mistrial which was based on allegations of juror misconduct. Fourth, McSwine alleges that the totality of all the errors committed during the proceedings below prohibited him from receiving a fair trial. Finally, McSwine alleges that he received ineffective assistance of trial counsel for a variety of reasons, including that his trial counsel failed to timely object to inappropriate statements made by the prosecutor during closing arguments.

[22 Neb.App. 795] IV. ANALYSIS

1. Prosecutorial Misconduct During Closing Arguments

We first address McSwine's assertions regarding prosecutorial misconduct during closing arguments, as these assertions are dispositive of this appeal. McSwine argues both that the district court erred in overruling his motion for new trial, which motion was based on the prosecutorial misconduct, and that his defense counsel provided ineffective assistance for failing to timely object to the prosecutorial misconduct.

(a) Standard of Review

Whether prosecutorial misconduct is prejudicial depends largely on the facts of each case. State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005). An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).

(b) Factual Background

At trial, the State introduced into evidence the substance of multiple text messages transmitted from McSwine to his wife and from McSwine to a friend. These text messages were sent on October 13, 2012, after C.S. left McSwine's car and ran to a nearby residence. Because these text messages are central to McSwine's assertions regarding prosecutorial misconduct, we briefly recount the substance of the messages here.

The first collection of text messages was sent from McSwine to his wife. In those messages, he tells her that he " messed up bad" and that " [c]ops are probably going to be looking for me [and] if they are I'm going to run." McSwine apologizes to his wife and indicates that he " [doesn't] deserve [her and wished he] didn't f*** everything up." In a later text message from McSwine to his wife, he asks her if she " would give [him] up even if [he] was dead wrong and did some foul s***." McSwine then discusses running away to Mexico or to a " reservation."

The second collection of text messages was sent from McSwine to a friend. In these messages, McSwine indicates [22 Neb.App. 796] that he got himself into trouble, that he " might be taking a trip," and that he doesn't know " what [he] was thinking." McSwine then states that he " f*** this all up."

During the trial, the State suggested that these text messages demonstrated McSwine's feelings of guilt and remorse about kidnapping and sexually assaulting C.S. The State's contentions can be summarized as follows: McSwine knew that C.S. had run to a residence and assumed that she would report everything that had

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happened to her that day to law enforcement. In addition, McSwine knew that C.S. could identify him, because of their prior interactions at the gas station where he worked. Accordingly, McSwine knew that it was only a matter of time before the police started to look for him and he was arrested.

Contrary to the State's suggestions about the text messages, during McSwine's testimony, he testified that the content of the text messages did not have to do with kidnapping or sexually assaulting C.S. Rather, he testified that his guilt, remorse, and concern about being arrested stemmed from an incident that occurred earlier in the day on October 13, 2012, and had nothing to do with C.S. McSwine testified that in the early morning hours of October 13, he was selling drugs to a friend of a friend when he became concerned that the buyer was going to rob him. McSwine hit the buyer and ran to a nearby house. An elderly woman confronted him when he entered the house, and he apologized and ran back outside. McSwine testified that at the time of this incident, he was high on methamphetamines. He testified that he assumed he would be facing multiple charges for this encounter and that, because he was on parole, the charges would probably be significant.

During the State's closing argument, the prosecutor specifically disputed McSwine's testimony about the motivation for the text messages. In fact, the prosecutor informed the jury that McSwine's testimony that he trespassed by walking...

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