State v. McSwine
| Decision Date | 10 March 2015 |
| Docket Number | No. A–13–887,A–13–887 |
| Parties | State of Nebraska, appellee, v. Frederick E. McSwine, also known as Frederick E. Johnson, appellant. |
| Court | Nebraska Court of Appeals |
Mark E. Rappl, Lincoln, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Irwin, Inbod y, and Pirtle, Judges.
3. Trial: Appeal and Error.In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to improper remarks no later than at the conclusion of the argument.
4. Appeal and Error.Plain error may be found on appeal when an error, unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
5. Trial: Prosecuting Attorneys.Prosecutors are charged with the duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial.
6. Trial: Prosecuting Attorneys: Words and Phrases.Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.
7. Trial: Prosecuting Attorneys.Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper; it is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.
8. Trial: Prosecuting Attorneys: Due Process.Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infected the trial that the resulting conviction violates due process.
9. Trial: Prosecuting Attorneys: Appeal and Error.In determining whether a prosecutor's improper conduct prejudiced the defendant's right to a fair trial, an appellate court considers the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of evidence supporting the conviction.
10. Constitutional Law: Effectiveness of Counsel: Proof.To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution, and thereby obtain reversal of a conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability
that but for counsel's deficient performance, the result of the proceeding would have been different.
11. Appeal and Error.An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
12. Criminal Law: Evidence: New Trial: Double Jeopardy: Appeal and Error.Upon finding reversible error in a criminal trial, an appellate court must determine whether the total evidence admitted by the district court, erroneously or not, was sufficient to sustain a guilty verdict; if it was not, then double jeopardy forbids a remand for a new trial.
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 jury during closing arguments. Such misconduct amounts to plain error which requires a reversal of McSwine's
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.
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.
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.
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.
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.
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).
At trial, the State introduced into evidence the substance of multiple text messages transmitted from...
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State v. Martinez
...78, 88–89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) ; United States v. Forlorma, 94 F.3d 91, 93–94 (2d Cir.1996) ; State v. McSwine, 22 Neb.App. 791, 800–801, 860 N.W.2d 776 (2015). The prosecutorial improprieties in those cases, however, were far more egregious than the impropriety in the presen......
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State v. McSwine
...failure to timely object to the prosecutor's comments at issue, and we remanded for a new trial. See State v. McSwine, 22 Neb. App. 791, 860 N.W.2d 776 (2015) (McSwine I). That decision was reversed by the Nebraska Supreme Court. See State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016) (Mc......
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State v. McSwine
...fact are foul blows. So I think the Court of Appeals got it right. I would affirm the Court of Appeals' decision.1 State v. McSwine, 22 Neb.App. 791, 860 N.W.2d 776 (2015).2 Id. at 799–800, 860 N.W.2d at 784.3 State v. McSwine, supra note 1.4 State v. Williams, 282 Neb. 182, 802 N.W.2d 421 ......
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State v. McSwine
...committed prosecutorial misconduct in its closing argument and that such misconduct amounted to plain error. See State v. McSwine , 22 Neb.App. 791, 860 N.W.2d 776 (2015). We also found that McSwine's trial counsel was ineffective when he did not raise a timely objection to the State's clos......