State v. McSwine

STATE OF NEBRASKA, APPELLEE, v. FREDERICK E. MCSWINE, APPELLANT.

No. A-18-1082.

NEBRASKA COURT OF APPEALS

August 11, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.

Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

BISHOP, Judge.

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. McSwine now appeals from an order of the Lancaster County District Court denying his request for an evidentiary hearing on all but one of his postconviction claims. We affirm.

II. BACKGROUND

1. FACTUAL BACKGROUND

In McSwine's direct appeal, this court reversed his convictions due to prosecutorial misconduct and defense counsel's failure to timely object to the prosecutor's comments at issue, and we remanded for a new trial. See State v. McSwine, 22 Neb. App. 791, 860 N.W.2d 776 (2015) (McSwine I). That decision was reversed by the Nebraska Supreme Court. See State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016) (McSwine II). On remand to this court, we affirmed McSwine's convictions. See State v. McSwine, 24 Neb. App. 453, 890 N.W.2d 518 (2017) (McSwine III). The following factual summary is from McSwine I:

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 instrument," and forced her from the apartment and into his car. 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.

Id. at 793-94, 860 N.W.2d at 780. McSwine filed a motion for new trial after the jury returned its guilty verdict; that motion was denied. Thereafter, the district court sentenced McSwine to a total of 56 years 8 months to 85 years in prison. McSwine appealed to this court.

2. DIRECT APPEAL

(a) McSwine I

On direct appeal, McSwine was represented by new counsel and assigned five errors, including ineffective assistance of his trial counsel. See McSwine I. This court addressed claims that the district court erred in overruling McSwine's motion for new trial, which motion was based on alleged prosecutorial misconduct, and that his trial counsel was ineffective by failing to timely object to the alleged misconduct. The evidence relevant to these claims were multiple text messages sent from McSwine to his wife and his friend on October 13, 2012, after C.S. left his car and ran to a nearby residence. We described those messages in McSwine I:

The first collection of text messages was sent from McSwine to his wife. In those messages, he tells her that he "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 apologizes to his wife and indicates that he "[doesn't] deserve [her and wished he] didn't f*** everything up." In a later text message from McSwine to his wife, he asks her if she "would give [him] up even if [he] was dead wrong and did some foul s***." McSwine then discusses running away to Mexico or to a "reservation."

The second collection of text messages was sent from McSwine to a friend. In these messages, McSwine indicates that he got himself into trouble, that he "might be taking a trip," and that he doesn't know "what [he] was thinking." McSwine then states that he "f*** this all up."

McSwine I at 795-96, 860 N.W.2d at 781.

During trial, the State suggested the text messages indicated McSwine's feelings of guilt and remorse about kidnapping and sexually assaulting C.S. But McSwine testified that the messages had nothing to do with C.S., rather, the messages were about his unrelated trespassing incident at a residence earlier on October 13, 2012.

During closing arguments, the prosecutor specifically disputed McSwine's testimony about the motivation for the text messages, and on two separate occasions told the jury that there was no evidence to support McSwine's testimony that he had trespassed through a residence. McSwine's counsel did not object to the prosecutor's comments. This court found that the prosecutor's comments were false and misleading and constituted prosecutorial misconduct. Although no evidence of the trespass was offered or admitted at trial, the prosecutor knew there was evidence of such because during discovery, the prosecutor forwarded to defense counsel police reports that McSwine was a suspect in a trespassing incident after having been identified by the homeowner. Thus, the prosecutor's statements that there was no evidence to support McSwine's testimony about the trespass were misleading in that they made it appear to the jury as though McSwine's explanation about why he sent the incriminating text messages lacked any credibility, when, in fact, there was evidence the McSwine had committed other criminal acts on October 13, 2012, which in no way involved C.S. We ordered a reversal of McSwine's convictions due to the plain error of the prosecutorial misconduct and to defense counsel's failure to timely object to theprosecutor's statements at issue. Without addressing McSwine's other claims, we remanded for a new trial.

(b) McSwine II

The State petitioned for and was granted further review of McSwine I by the Nebraska Supreme Court. See McSwine II. The Supreme Court noted that the evidence to support McSwine's position about what the text messages referred to was not offered into evidence. Although agreeing that the State had knowledge of the police reports about the trespassing incident, the Supreme Court disagreed that the jury was misled or unduly influenced by the prosecutor's closing argument because "the jury was well instructed as to what 'evidence'" meant within the context of the trial. McSwine II, 292 Neb. at 576, 873 N.W.2d at 414. The Supreme Court concluded that the prosecutor's statements were not misconduct, but even if they were, those statements were not so prejudicial as to violate McSwine's due process rights. The Supreme Court concluded that because the prosecutor's statements were not misconduct, defense counsel could not be deficient for failing to object to those statements. The McSwine I decision was reversed, and the cause was remanded back to this court for consideration of any remaining assignments of error.

(c) McSwine III

On remand, this court affirmed all of McSwine's convictions. See McSwine III. We also addressed McSwine's remaining assignments of error, including that his trial counsel was ineffective for a number of reasons. McSwine claimed that his trial counsel was ineffective because counsel: (1) failed to adequately prepare his defense by not deposing C.S. prior to trial and not obtaining video surveillance of McSwine's previous encounters with C.S. from the gas station where he worked; (2) failed to offer evidence relevant to McSwine's consent defense, including evidence of a prior sexual relationship between McSwine and C.S., sufficient evidence that McSwine committed trespass on the morning of the assault, and evidence that a friend and fellow inmate who testified against him had access to police reports about the assault; (3) failed to subject C.S. to a handwriting analysis to prove that she wrote a note; (4) failed to strike from the jury a prospective juror...