State v. McSwine
860 N.W.2d 776
Neb. Ct. App.2015Background
- McSwine was convicted by a jury of terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony.
- District court sentenced McSwine to 56 years 8 months to 85 years imprisonment.
- Appeal centers on prosecutorial misconduct during closing arguments and related issues of ineffective assistance of counsel.
- Prosecutor claimed there was no evidence supporting McSwine’s testimony about trespass and other acts; defense did not timely object.
- Evidence included text messages from McSwine and his testimony about reasons for the messages; the state argued the texts showed guilt/remorse.
- Nebraska Court of Appeals reversed and remanded for a new trial, finding plain error and ineffective assistance of counsel, while noting sufficient evidence to sustain convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct plain error | McSwine | McSwine | Plain error; reversible due to misleading statements |
| Ineffective assistance for failing to object | McSwine | McSwine | Deficient performance prejudiced defense; reversal warranted |
| Remand vs. double jeopardy and sufficiency | State maintained sufficiency; remand allowed | State/McSwine | Total evidence sufficient; double jeopardy not bar remand; remand for new trial |
Key Cases Cited
- State v. Faust, 269 Neb. 749 (2005) (standard for prejudice in prosecutorial misconduct)
- State v. Castor, 257 Neb. 572 (1999) (abuse of discretion review for new trial in misconduct)
- State v. Watt, 285 Neb. 647 (2013) (timeliness of objections to closing arguments)
- State v. Godinez, 190 Neb. 1 (1973) (contemporaneous objection rule and plain error framework)
- State v. Dubray, 289 Neb. 208 (2014) (prejudice from prosecutorial misconduct in closing)
- State v. Draper, 289 Neb. 777 (2015) (double jeopardy and sufficiency of total evidence)
- United States v. Young, 470 U.S. 1 (1985) (plain error standard for prosecutorial misconduct)
- State v. Barfield, 272 Neb. 502 (2006) (limitations on prosecutorial misconduct review)
- State v. Alarcon-Chavez, 284 Neb. 322 (2012) (plain-error doctrine and fairness of trial)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Clausen, 247 Neb. 309 (1995) (prejudice要 showing in ineffective assistance)