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State v. McSwine

Court of Appeals of Nebraska

January 31, 2017

State of Nebraska, Appellee,
v.
Frederick E. McSwine, also Known as Frederick E. Johnson, Appellant.

         1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility.

         2. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

         3. Constitutional Law: Criminal Law: Sexual Misconduct: Evidence. Under Nebraska's rape shield statute, Neb. Rev. Stat. § 27-412(2)(a) (Reissue 2016), evidence of a victim's prior sexual behavior or sexual predisposition is not admissible in a criminal case except under limited circumstances, including when the exclusion of the evidence would violate the constitutional rights of the accused.

         4. Sexual Misconduct: Evidence: Appeal and Error. A court does not err in excluding evidence about a victim's sexual history prior to an assault when the State does not open the door to such evidence, when the evidence does not directly relate to the issue of consent, and when the evidence would not give the jury a significantly different impression of the victim's credibility.

         5. Motions for Mistrial: Juror Misconduct: Appeal and Error. When a defendant moves for a mistrial based on juror misconduct, an appellate court will review the trial court's determinations of witness credibility and historical fact for clear error and review de novo its ultimate determination whether the defendant was prejudiced by juror misconduct.

         6. Criminal Law: Juror Misconduct: Proof. A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance [24 Neb.App. 454] 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.

         7. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.

         8. Juror Misconduct: Proof. Extraneous material or information considered by a jury can be prejudicial without proof of actual prejudice if (1) the material or information relates to an issue submitted to the jury and (2) there is a reasonable possibility that it affected the jury's verdict to the challenger's prejudice.

         9. Juror Misconduct. Whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror.

         10. New Trial: Appeal and Error. While any one of several errors may not, in and of itself, constitute prejudicial error warranting a reversal, if all of the errors in the aggregate establish that the defendant did not receive a fair trial, a new trial must be granted.

         11. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

         12. ___: ____. To show prejudice under the prejudice component of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different.

         13. Effectiveness of Counsel: Presumptions. When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.

         14. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial counsel is afforded due deference to formulate trial strategy and tactics. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.

         Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Affirmed.

          Mark E. Rappl for appellant.

         [24 Neb.App. 455] Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Inbody and Pirtle, Judges.

          PER CURIAM.

         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. He was sentenced to a total of 57 to 85 years' imprisonment. We previously found that, during the trial, the State 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 closing argument. Id. As a result of these findings, we reversed McSwine's convictions. Id. The Nebraska Supreme Court granted further review and reversed our decision, finding that the State did not commit prosecutorial misconduct in its closing argument and that because there was no misconduct, McSwine's trial counsel was not ineffective when he failed to object to the State's closing argument. State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016). The Supreme Court remanded the cause to this court for us to consider and decide the other assignments of error that we had not addressed because of the result we reached in our first decision. Thus, the matter is now before us for consideration of McSwine's remaining assignments of error.

         The remaining assignments of error include McSwine's assertions that the district court erred in excluding certain evidence about the victim's prior sexual experiences pursuant to Neb. Rev. Stat. § 27-412 (Reissue 2016) and in failing to order a mistrial after an issue of juror misconduct was brought to the court's attention. McSwine also asserts that he received [24 Neb.App. 456] ineffective assistance of trial counsel in a variety of respects. For the reasons set forth herein, we affirm.

         II. BACKGROUND

         The following summary of the circumstances surrounding McSwine's convictions is taken from our original opinion. See State v. McSwine, 22 Neb.App. 791, 860 N.W.2d 776 (2015). Additional facts regarding the remaining assignments of error will be discussed as necessary in the analysis section below.

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 [24 Neb.App. 457] instrument, " and forced her from the apartment and into his vehicle. 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.

Id. at 793-94, 860 N.W.2d at 780.

         III. ASSIGNMENTS OF ERROR

         McSwine raises five assignments of error in this appeal. The first assignment of error alleged that the district court erred in failing to grant McSwine's motion for a new trial due to prosecutorial misconduct during closing arguments. This assignment [24 Neb.App. 458] of error has been conclusively resolved against McSwine by the Supreme Court. Therefore, there now remain four assignments of error for us to resolve.

         First, 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. Second, McSwine alleges that the district court erred in overruling his motion for a mistrial which was based on an allegation of juror misconduct. Third, 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. We note that one of McSwine's assertions of ineffective assistance of trial counsel alleges that trial counsel failed to timely object to inappropriate statements made by the prosecutor during closing arguments. This assertion has also been conclusively resolved against McSwine by the Supreme Court. As such, we focus only on McSwine's remaining allegations of ineffective assistance of trial counsel.

         IV. ANALYSIS

         1. Admissibility of Evidence of Specific Instance of C.S.:Past Sexual Behavior

         McSwine argues that the district court abused its discretion when it refused to allow him to introduce evidence of C.S.:sexual experiences prior to October 13, 2012. Specifically, McSwine asserts that the district court should have permitted him to introduce evidence that prior to October 13, C.S. had engaged in oral sex, contrary to her testimony at trial. McSwine asserts that such evidence is directly related to the question of whether C.S. consented to the sexual contact with McSwine on October 13 and is directly related to C.S.' credibility. Upon our review, we ...


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