State v. McSwine, A-13-887

Background

Defendant Frederick E. McSwine was tried and convicted by a jury of terroristic threats, kidnapping, first-degree sexual assault, and use of a deadly weapon; sentenced to 57–85 years. The Nebraska Court of Appeals previously reversed based on alleged prosecutorial misconduct, but the Nebraska Supreme Court reversed that reversal and remanded for consideration of remaining claims.
The charged events occurred October 13, 2012; victim C.S. testified she was forced from her apartment and compelled to perform sexual acts; McSwine testified the sexual activity was consensual and that C.S. later fabricated the story.
At trial, C.S. testified (on cross-examination) she had never engaged in oral sex prior to October 13; defense sought to introduce specific prior-instance evidence contradicting that statement, which the district court excluded under Nebraska’s rape-shield statute.
During jury deliberations a juror reported another juror had said her husband read a newspaper article about the case; the court questioned jurors individually, found no evidence that extraneous facts were received or relayed, and denied a mistrial motion.
McSwine raised multiple ineffective-assistance claims about trial counsel’s preparation, strategic choices, and evidentiary omissions; some claims required factual development and others were rejected on the record.

Issues

Issue	McSwine’s Argument	State’s Argument	Held
Admissibility of evidence of a specific prior instance of C.S.’ oral sex	Excluding proof that C.S. had performed oral sex previously violated his Sixth Amendment confrontation right and was highly relevant to consent and credibility	Rape-shield statute bars evidence of prior sexual behavior unless constitutional rights require admission; the State did not open the door and the proffered evidence was collateral and not sufficiently probative	District court did not abuse discretion; exclusion upheld under §27-412 and precedent
Juror misconduct / mistrial	A juror’s statement that her husband read an article created a presumption of prejudice and warranted mistrial	The communication did not convey extraneous facts to a juror nor influence deliberations; no prejudice shown	Denial of mistrial affirmed; court reasonably inferred lack of prejudice
Cumulative error (denial of fair trial)	Aggregate errors (including prior alleged prosecutorial misconduct and other rulings) deprived him of a fair trial	Any errors were not prejudicial individually or in aggregate	No cumulative error; conviction affirmed
Ineffective assistance of counsel (various claims)	Counsel failed to investigate, present corroborating evidence, move to strike juror, obtain handwriting analysis, and object to certain evidence	Many choices reflect trial strategy; several claims require facts outside record; on-record claims lacked prejudice	Most ineffectiveness claims either lacked sufficient record to review or failed the Strickland test on prejudice; several specific claims denied

Key Cases Cited

State v. Lessley, 257 Neb. 903 (Neb. 1999) (Sixth Amendment confrontation may overcome rape-shield exclusion where State opened the door and evidence directly relates to consent)
State v. Johnson, 9 Neb. App. 140 (Neb. Ct. App. 2000) (prior sexual conduct that is collateral and not highly probative may be excluded under rape-shield and credibility rules)
State v. Thorpe, 280 Neb. 11 (Neb. 2010) (standards for juror misconduct, presumption of prejudice from improper communication, and trial-court factfinding)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
State v. Nesbitt, 279 Neb. 355 (Neb. 2010) (deference to counsel’s strategic decisions; ineffective-assistance review standards)
State v. Kern, 224 Neb. 177 (Neb. 1986) (cumulative-error doctrine governing new-trial analysis)
State v. Smith, 292 Neb. 434 (Neb. 2016) (discussing cumulative error/new trial standards)
State v. Collins, 292 Neb. 602 (Neb. 2016) (ineffective-assistance claims on direct appeal vs. remand for postconviction evidentiary hearing)
State v. Young, 279 Neb. 602 (Neb. 2010) (restating Strickland standards in Nebraska criminal appeals)