State v. McSwine
292 Neb. 565
| Neb. | 2016Background
- McSwine was convicted of terroristic threats, kidnapping, first-degree sexual assault, and use of a deadly weapon to commit a felony and sentenced to 57–85 years.
- Court of Appeals reversed on plain-error grounds, holding prosecutorial misconduct in closing arguments requiring new trial.
- Supreme Court granted State’s petition for review and reversed the Court of Appeals, remanding for further proceedings.
- Key factual backdrop: CS abducted at knifepoint near Waverly, coerced into sexual acts over ~5 hours; nurse documented vaginal laceration; McSwine claimed acts were consensual.
- State’s closing argued there was no evidence supporting McSwine’s trespass explanation; police reports about the trespass existed but were not admitted at trial.
- McSwine sought a new trial arguing prosecutorial misconduct and ineffective assistance of counsel; the district court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether closing arguments constituted prosecutorial misconduct | State contends no misconduct or prejudice | McSwine contends closing was misleading and prejudicial | Not misconduct; arguments did not mislead or unduly influence the jury |
| Whether any alleged misconduct prejudiced the defendant's due process right | State disputes that prejudice occurred | McSwine argues prejudice to fair trial | No due-process prejudice; strong evidence supported conviction |
| Whether trial counsel was ineffective for failing to object | State asserts no ineffective assistance | McSwine asserts failure to object was ineffective | Counsel not ineffective; no prejudice shown |
| Whether the trial court abused its discretion in denying the motion for a new trial | State argues no abuse; plain error not established | McSwine argues denial was error | No abuse; plain error not established; remand to address remaining issues |
Key Cases Cited
- State v. Dubray, 289 Neb. 208 (2014) (prosecutorial misconduct and prejudice standards in closing arguments)
- Barfield, 272 Neb. 502 (2006) (duty of prosecutors to conduct fair trials)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor's duty to be truthful; cannot present false/undisclosed facts as if they are evidence)
- State v. Alarcon-Chavez, 284 Neb. 322 (2012) (limits on prosecutorial arguments and plain-error analysis)
- State v. McCulloch, 274 Neb. 636 (2007) (prosecutorial misconduct standards)