State v. McSwine
| Decision Date | 29 January 2016 |
| Docket Number | No. S–13–887,S–13–887 |
| Parties | State of Nebraska, appellee, v. Frederick E. McSwine, also known as Frederick E. Johnson, appellant. |
| Court | Nebraska Supreme Court |
Mark E. Rappl, Lincoln, for appellant.
Douglas J. Peterson and Jon Bruning, Attorneys General, and Kimberly A. Klein, Lincoln, for appellee.
Frederick E. McSwine, also known as Frederick E. Johnson, was convicted of terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. He was sentenced to a total of 57 to 85 years' imprisonment. On appeal, the Nebraska Court of Appeals reversed, concluding on plain error review that the State committed prosecutorial misconduct in its closing arguments.1 We granted the State's petition for further review. We reverse the decision of the Court of Appeals and remand the cause for further proceedings.
McSwine was charged with terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony. The charges arise from October 2012 allegations that McSwine abducted C.S. at knifepoint and drove her around rural Lancaster County, in an area near Waverly, Nebraska, periodically stopping to sexually assault her. McSwine and C.S. originally met because McSwine worked at a convenience store in Waverly, which store C.S. had frequented.
C.S. testified that McSwine knocked on her door the morning of October 13, 2012, and asked to use her bathroom. This was not the first time that McSwine had asked to use her bathroom; a week or two earlier, at a time when C.S. had guests, McSwine stopped to use the bathroom and left without incident. But according to C.S.' testimony, on this occasion, after purportedly using the bathroom, McSwine pulled out a pocketknife and forced C.S. out of the apartment. At the time, C.S.' boyfriend was sleeping in the apartment. C.S. was wearing a pair of pajama shorts under a pair of longer pajama pants, a sports bra, and a flannel shirt. C.S. was not wearing shoes. She also left her identification, money, and cell phone in her apartment.
C.S. testified that McSwine then drove around rural Lancaster County, near Waverly. On three occasions, McSwine allegedly drove into isolated areas and forced C.S. to engage in various sexual acts. After about 5 hours, McSwine allowed C.S. to leave his car. C.S. jumped over a guardrail near where McSwine let her out of the car and ran, still barefoot, to a nearby home, where law enforcement was notified. According to C.S., though McSwine originally let her leave the car, she later saw him head toward her as she knocked on the door of the home.
In addition to C.S.' testimony, the State offered the testimony of a friend of McSwine's. This witness testified that McSwine told him that he had abducted and sexually assaulted C.S. at knifepoint. His testimony largely corroborated the narrative to which C.S. testified. The witness' testimony was given as part of a cooperation agreement with the State.
The State also offered testimony of the nurse who performed C.S.' sexual assault examination. According to the nurse's testimony, there was a laceration to C.S.' vagina. The nurse testified that lacerations such as the one C.S. suffered were caused by blunt force trauma and were consistent with sexual assault and also with sexual penetration "if it's rough sex where there's a lot of force."
McSwine testified in his own behalf. McSwine did not contest that he had sexual contact with C.S. and agreed that those acts occurred in isolated areas surrounding Waverly. But McSwine testified that those acts were consensual. McSwine testified that C.S. became upset with him when she discovered that he had lied to her about having a charger for his cell phone. According to McSwine, C.S. then accused McSwine of being selfish, of lying to her, and of using her for sex. At this point, according to McSwine, C.S. insisted that he stop the car and let her out. McSwine testified that he did so.
McSwine's counsel argued in closing arguments that C.S. had concocted the story about McSwine's abducting and sexually assaulting her because she was angry at McSwine and because she did not want her parents or boyfriend to be upset with her because of her actions.
At trial, the State introduced certain text messages from McSwine to his wife and from McSwine to a friend. According to the State, these messages showed McSwine's feelings of guilt and remorse over his actions involving C.S. In summary, the State argued McSwine both knew that C.S. had run from his car directly to a residence and assumed that C.S. would inform law enforcement of McSwine's actions and could identify him because they had previously met.
In the messages from McSwine to his wife, McSwine indicated that he had "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 also apologized to his wife and stated that he "[did not] deserve [her and wished he] didn't f* * * everything up." In a later text message, McSwine asked his wife if she "would give [him] up even if [he] was dead wrong and did some foul s* * *." In these messages, McSwine discussed running away to Mexico or to a "reservation."
In the messages from McSwine to his friend, McSwine stated that he had gotten himself into trouble, that he "might be taking a trip," and that he did not know "what [he] was thinking." McSwine then stated that he "f* * * this all up."
But McSwine testified that the text messages did not indicate grief or remorse about kidnapping and sexually assaulting C.S., but instead were an indication of his concern about an incident that happened prior to the incident involving C.S. McSwine testified that in the early morning hours of October 13, 2012, he had been selling marijuana to the friend of a friend in Eagle, Nebraska. During the exchange, McSwine got nervous that the buyer was going to rob him, so he hit the buyer and ran into and through a nearby house. An elderly woman in the house confronted him; he apologized and ran back out.
McSwine testified that at the time of this incident, he had just finished smoking methamphetamine. McSwine explained that he assumed that because he was on parole, he would be facing significant charges for this encounter.
Other than McSwine's testimony, there was no evidence presented at trial that this trespassing incident occurred. On cross-examination, the State inquired whether McSwine knew if any reports had been filed on this incident. McSwine replied that he did not know.
During its closing argument, the State focused in part on McSwine's testimony about the motivation for the text messages. The prosecutor informed the jury that McSwine's testimony that he trespassed by walking into someone's house was In the prosecutor's rebuttal, he stated: There was no objection to either of these comments.
Following closing arguments, the jury was instructed and then retired to deliberate. During those deliberations, the jurors inquired of the court as follows: "Did [the prosecutor] say that there was no evidence ... including a police report ... of ... McSwine's presence in a local house ...?" The court responded to the jury's question by informing the jury that it had all of the evidence it was going to receive in the case and further directed the jury to one of its instructions. Neither the State nor McSwine's counsel objected to the court's handling of the question.
McSwine was ultimately found guilty. He filed a motion for new trial, alleging that the prosecutor's statements during closing arguments indicating that there was no evidence to support McSwine's testimony that he had trespassed through a house in the early morning hours of October 13, 2012, were misleading, because there was evidence of a trespass, supported by various police reports. The police reports were originally provided to the defense by the State, but were not offered by either side or otherwise admitted as evidence at trial.
In support of his motion for new trial, McSwine offered into evidence those police reports. According to the reports, at the time of the event, the homeowner identified McSwine as the trespasser based upon a picture obtained from the security camera of a convenience store located in Eagle. Months later, however, the homeowner was not able to identify McSwine from a photographic lineup. Also offered was an affidavit from McSwine's counsel averring that his failure to object was a mistake and not trial strategy and that he failed to object because, at the time, he believed the State was arguing that there was no such evidence " ‘presented at trial.’ "
McSwine's motion for new trial was overruled because counsel did not object to the comments. McSwine was sentenced to a total of 57 to 85 years' imprisonment. McSwine appealed to the Court of Appeals. Among other assignments of error, McSwine argued that the State committed prosecutorial misconduct in its closing arguments.
The Court of Appeals first noted that McSwine did not object to the prosecutor's statements at the time the statements were made. The Court of Appeals then reviewed the record for plain error and concluded that there was plain error in the State's closing arguments:
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