State v. McSwine ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. MCSWINE
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).
STATE OF NEBRASKA, APPELLEE,
V.
FREDERICK E. MCSWINE, APPELLANT.
Filed August 11, 2020. No. A-18-1082.
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)
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(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.
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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 the
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prosecutor’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 who was the brother of a law enforcement officer who had participated in the
investigation that led to McSwine’s arrest; and (5) failed to object to the State’s repeated attempts
to portray C.S. as sexually naive. We concluded that the record was insufficient to adequately
review claims 1 and 2 on direct appeal. We rejected assertions within claims 3, 4, and 5 above,
finding that McSwine could not show that he was prejudiced.
McSwine petitioned the Nebraska Supreme Court for further review of McSwine III, but
his petition was denied on March 23, 2017.
3. MOTION FOR POSTCONVICTION RELIEF
On March 21, 2018, McSwine, now represented by different counsel, filed a motion for
postconviction relief in which he alleged that his rights under the state and federal Constitutions
were violated. In addition to claiming actual innocence as to all of his convictions, McSwine also
raised a number of claims of ineffective assistance of trial counsel and appellate counsel. His
claims of ineffective assistance of counsel were: (1) trial counsel failed to support McSwine’s
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defense with evidence proving the trespass that prompted the text messages used against him by
the prosecution; (2) trial counsel failed to impeach C.S.’ testimony through use of Steven Blake’s
testimony, and appellate counsel failed to allege that ineffectiveness on direct appeal; (3) trial
counsel failed to impeach C.S.’ testimony through the use of the “note” with directions to
McSwine’s residence in C.S.’ penmanship, and appellate counsel failed to allege that
ineffectiveness on direct appeal; (4) trial counsel failed to impeach C.S.’ testimony by recalling
her to confront her with Deputy William Ziemer’s testimony that McSwine’s penis did not present
with any injury consistent with her account, and appellate counsel failed to allege that
ineffectiveness on direct appeal; (5) trial counsel failed to impeach C.S.’ testimony by recalling
her to confront her with N.B.’s testimony that C.S. told him a name after McSwine was allowed
into her residence, and appellate counsel failed to allege that ineffectiveness on direct appeal; (6)
trial counsel failed to secure an expert witness to establish C.S. as the author of the “note,” and
appellate counsel failed to allege that ineffectiveness on direct appeal; (7) trial counsel failed to
attempt to introduce evidence of McSwine’s prior sexual relationship with C.S. and trial counsel
prevented McSwine from answering the prosecution’s question about whether he had previously
had sex with C.S.; (8) trial counsel failed to ask the trial court to clarify the testimony stricken
from Deborah Schmucker, and appellate counsel failed to allege that ineffectiveness on direct
appeal; (9) trial counsel failed to object to witness Benjamin Isley testifying about McSwine trying
to obtain a firearm, “going to hold court on the street,” and the related questioning that followed,
and appellate counsel failed to allege that ineffectiveness on direct appeal; and (10) trial counsel
failed to move in limine and object to the State offering evidence concerning McSwine’s resistance
to law enforcement when he was arrested and in asking similar questions during direct examination
of McSwine, and appellate counsel failed to allege that ineffectiveness on direct appeal. McSwine
requested an evidentiary hearing on his claims.
In its response filed on May 25, 2018, the State conceded that the record was insufficient
to address McSwine’s first ineffective assistance of counsel claim--that trial counsel failed to
support McSwine’s defense with evidence proving the trespass; the State requested the district
court grant an evidentiary hearing on that issue. The State sought denial of an evidentiary hearing
on all the rest of McSwine’s claims on various legal grounds, i.e. he cannot show actual innocence,
his claims against trial counsel were procedurally barred because they were not raised on direct
appeal, and he failed to show that he was prejudiced by counsels’ performance.
In its October 25, 2018, order, the district court granted McSwine’s request for an
evidentiary hearing on his claim regarding evidence that should have been offered to support his
version of what prompted his text messages. However, the district court denied McSwine’s request
for an evidentiary hearing on the remaining claims. The district court found that McSwine’s claim
regarding the failure to secure an expert witness to establish that C.S. authored a “note” was
specifically raised and decided on direct appeal and, thus, was procedurally barred. As to
McSwine’s claim regarding his trial counsel’s failure to offer evidence of McSwine’s alleged prior
sexual relationship with C.S., which claim had been raised but not resolved on direct appeal, the
district court found that McSwine could not show that his trial counsel was ineffective. With
respect to McSwine’s remaining claims of ineffective assistance of counsel, the district court found
or otherwise implied that McSwine was procedurally barred from raising the ineffective assistance
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of trial counsel because such claims were not raised on direct appeal. And, as to McSwine’s claims
that appellate counsel was ineffective on direct appeal for failing to raise the ineffectiveness of
trial counsel claims, the district court found that there were no facts which overcame the
presumption that appellate counsel acted reasonably in raising all viable issues on appeal. The
district court also found that McSwine did not establish that he was actually innocent.
4. NOTICE OF APPEAL
On November 16, 2018, McSwine filed his notice of appeal from the district court’s
October 25 order.
III. ASSIGNMENTS OF ERROR
McSwine claims that the district court erred by (1) denying him an evidentiary hearing on
the issues raised in his motion for postconviction relief, (2) finding that he did not establish actual
innocence, and (3) denying him postconviction relief.
IV. STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
A defendant requesting postconviction relief must establish the basis for such relief, and
the findings of the district court will not be disturbed unless they are clearly erroneous. State v.
McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
V. ANALYSIS
1. POSTCONVICTION IN GENERAL
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. State v. Martinez, supra.A court must grant an evidentiary hearing to resolve the claims in a postconviction motion
when the motion contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution. State v. Martinez, supra. If a
postconviction motion alleges only conclusions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief, the court is not required to grant an
evidentiary hearing. Id.It is well established that, within a postconviction proceeding, an order granting an
evidentiary hearing on some issues and denying a hearing on others is a final, appealable order as
to the claims denied without a hearing. State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).
2. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
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 his or her
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counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Martinez, supra. To show prejudice under the prejudice component
of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or
her counsel’s deficient performance, the result of the proceeding would have been different. State
v. Martinez, supra. A reasonable probability does not require that it be more likely than not that
the deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. Id. The two prongs of this test may
be addressed in either order. Id.When a defendant’s trial counsel is different from his or her appellate counsel, all issues of
ineffective assistance of trial counsel that are known to the defendant or are apparent from the
record must be raised on direct appeal. See State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
If the issues are not raised, they are procedurally barred. Id.When a claim of ineffective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance
of counsel), an appellate court will look at whether trial counsel was ineffective under the
Strickland test. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). If trial counsel was not
ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the issue.
Id. Much like claims of ineffective assistance of trial counsel, the defendant must show that but
for counsel’s failure to raise the claim, there is a reasonable probability that the outcome would
have been different. See id.We review for error only the denied ineffective assistance of counsel claims for which
McSwine presents argument in his brief on appeal. See State v. Lotter, 301 Neb. 125, 917 N.W.2d
850 (2018) (alleged error must be both specifically assigned and specifically argued in brief of
party asserting error to be considered by appellate court). All claims before this court for review
were asserted against both McSwine’s trial counsel and appellate counsel. With one exception
explicitly noted below, the claims as alleged against McSwine’s trial counsel were not preserved
for postconviction review as they could have been litigated on direct appeal and, thus, were
procedurally barred (but those same claims as alleged against his appellate counsel were not
procedurally barred). See, State v. Dubray, supra; State v. Allen, supra.(a) Failure to Impeach C.S.’ Testimony
With Other Witnesses’ Testimony
The following three claims regard testimony from three State witnesses (Steven Blake,
Deputy Ziemer, and N.B.) that allegedly contradicted points of C.S.’ testimony. Those claims were
premised on the State having called C.S. before those three other State witnesses, and then neither
the State nor the defense ever recalling C.S. to testify. Referring to various parts of the record that
McSwine believed called C.S.’ version of events into doubt, McSwine claimed the establishment
of credibility was essential to the jury’s determination of guilt or innocence. Indeed, in
McSwine I, this court noted that credibility of the witnesses was a key factor and that the case
ultimately came down to a question of whether the jury believed C.S.’ version of events or
McSwine’s version.
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(i) Blake’s Testimony
In his motion for postconviction relief, McSwine claimed that his appellate counsel was
ineffective for failing to allege that trial counsel was ineffective for failing to recall C.S. and
impeach C.S.’ testimony with the testimony of Blake, who saw two people (McSwine and C.S.)
near his property during the occurrence of the events underlying McSwine’s convictions.
Blake testified that he saw a vehicle sitting at the end of a “dead end road” near his property.
He did not see the vehicle arrive at that location. He was “probably a quarter of a mile” away from
the vehicle and was not able to see any people in or around it so he rode his four-wheeler over to
the vehicle to investigate. When he drove up to the vehicle, there was nobody inside of it. So he
“drove off to the side and just pulled up beside the car” and then “noticed somebody come out of
the bush[es].” That man came out of the tree line (situated next to a harvested, open cornfield),
pulling up and buttoning and zipping up his pants. Blake recounted the conversation he then had
with that man, in which the man indicated he was present with another individual and Blake told
the man “‘you guys need to leave’” because they did not have permission to be there. Blake did
not see any other people at the time he had contact with the man. After talking to the man, Blake
turned around and slowly departed but “kept kind of looking over [his] shoulder” and saw two
people get in the vehicle, one of whom was the man he told to leave.
C.S. had previously testified that she and McSwine “got out of the trees and started walking
across the cornfield, and saw a gentleman riding up on a four-wheeler. And [McSwine] told [her]
to hide in the trees.” C.S. followed that directive “while [McSwine] went and talked to the
gentleman on the four-wheeler.” C.S. was not able to get a good look at the person on the
four-wheeler because he was “too far away.” C.S. watched through the trees as McSwine talked
to that man. McSwine told her that she could come back out from the trees after the man started to
drive away. C.S. saw the man on the four-wheeler look back over his shoulder a couple times after
C.S. exited the trees. On cross-examination, C.S. was asked, “When this man with the four-wheeler
approached, [McSwine] went out of the trees and talked with the man[?]” C.S. answered, “We
were already walking across the cornfield, and he had me go into the trees.”
In his postconviction motion, McSwine argued that trial counsel should have impeached
C.S.’ version that had C.S. and McSwine “walking across an open cornfield” in light of Blake’s
subsequent testimony “contradicting” C.S. McSwine argued that had he and C.S. “been walking
across the open cornfield, Blake would have seen both parties.” The district court found that
Blake’s testimony was not inconsistent with C.S.’ version of the events. We agree.
Even if C.S. was able to see Blake while she was in a cornfield, that does not necessarily
mean Blake saw C.S. (or McSwine) at that time. C.S. did not have personal knowledge to testify
about what Blake saw. See State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017) (lay witnesses
may testify only as to factual matters based upon their personal knowledge). It is not hard to
imagine that the State would have objected to C.S. testifying about Blake’s own observations or
that such an objection would have been sustained. McSwine’s claim that trial counsel should have
impeached C.S.’ testimony though use of Blake’s testimony fails. See State v. Collins, 299 Neb.
160, 907 N.W.2d 721 (2018) (counsel cannot be ineffective for failing to raise meritless argument).
Accordingly, McSwine cannot establish that his appellate counsel was ineffective in relation to
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this claim. See State v. Allen, supra (if trial counsel was not ineffective, then defendant was not
prejudiced by appellate counsel’s failure to raise issue).
(ii) Deputy Ziemer’s Testimony
In his motion for postconviction relief, McSwine claimed that his appellate counsel was
ineffective for failing to allege that trial counsel was ineffective for failing to impeach C.S.’
testimony by recalling her to confront her with Deputy Ziemer’s testimony that McSwine’s penis
did not present with any injury that was consistent with her account.
On cross-examination, C.S. was asked if she remembered, when being interviewed by
Deputy Ziemer on the date of the offense, that she told the deputy that she accidentally bit
McSwine’s penis. At first, C.S. did not remember telling the deputy that, but she then confirmed
that she had told the deputy that information on October 13, 2012. The question was generally
asked and answered the same way later on during the cross-examination. C.S. was also asked if
she remembered telling the sexual assault nurse examiner that she accidentally bit McSwine’s
penis and there was blood; C.S. answered, “Yes.” Near the end of the cross-examination of C.S.,
McSwine’s trial counsel asked if C.S. had opportunities to act out in different ways in response to
McSwine’s actions, and the following colloquy was had on the record.
Q [by McSwine’s trial counsel] You had opportunities to bite his penis hard?
A [by C.S.] Yes.
....
Q You had opportunities to hurt [McSwine] really bad by biting him?
A Yes.
Q And, even though you believed he was going to kill you, you didn’t take
advantage of any of those opportunities you had to yell, to scream, to run, to injure him,
did you?
A I was afraid that if I did anything to hurt him or to try and get away . . . he would,
in fact, hurt me with the pocket knife.
Q . . . [Y]ou didn’t take advantage of any of those opportunities you had?
A It did not cross my mind.
On cross-examination, the sexual assault nurse examiner who performed the exam of C.S. on
October 13, 2012, indicated she had asked C.S. if there were any injuries to the assailant that
resulted in bleeding. The sexual assault nurse examiner said C.S. answered that she “accidentally
bit his penis and there was blood.”
On cross-examination of Deputy Ziemer, McSwine’s trial counsel asked if the deputy had
examined McSwine’s penis when the deputy had contact with McSwine in the early morning hours
of October 14, 2012. Deputy Ziemer answered that he had done so but denied that he saw any kind
of injury or bleeding on McSwine’s penis.
On appeal, McSwine argues “the jury never had the chance to observe the conduct and
demeanor of [C.S.] while testifying and while being confronted with the inconsistencies in her
version that exposed her for lying and supported McSwine’s version.” Reply brief for appellant at
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7. McSwine notes that the “jury instruction provides guidance to the jury to make a credibility
determination at the time they [sic] are testifying.” Id. at 10.
But the jury was also instructed that it may consider seven other factors to make a
credibility decision, including “any other evidence that affects the credibility of the witness or that
tends to support or contradict the testimony of the witness.” Deputy Ziemer’s testimony on
cross-examination clearly contradicted C.S.’ report she recalled she had made to the sexual assault
nurse examiner about the matter at issue. The sexual assault nurse examiner’s testimony repeating
what C.S. remembered telling the nurse was then heard by the jury after the deputy’s testimony.
Notably, the trial record shows that C.S. was questioned regarding whether she actually bit
McSwine. McSwine’s trial counsel ended cross-examination of C.S. in such a way where C.S.
generally admitted that although she had the opportunity to do so, she did not take advantage to
do a number of things in response to McSwine’s actions, such as injuring him by biting him.
The trial record contained sufficient and appropriate evidence from which the jury could
assess C.S.’ credibility in relation to the reports she made on the date of McSwine’s offense about
whether she bit McSwine. The jury heard the testimony of all three witnesses and could weigh the
witnesses’ credibility for themselves. See State v. Carter, 241 Neb. 645, 489 N.W.2d 846 (1992)
(issue of witness’ credibility was one to be decided by jury at trial and postconviction motion could
not be used to relitigate that issue). Given that the contradiction was fully established during trial,
McSwine cannot show how his trial counsel confronting C.S. with Deputy Ziemer’s testimony
would have undermined confidence in the outcome of the trial. Therefore, he cannot establish that
appellate counsel was ineffective in relation to this claim. See State v. Allen, 301 Neb. 560, 919
N.W.2d 500 (2018) (if trial counsel was not ineffective, then defendant was not prejudiced by
appellate counsel’s failure to raise issue).
(iii) N.B.’s Testimony
In his motion for postconviction relief, McSwine claimed that his appellate counsel was
ineffective for failing to allege that trial counsel was ineffective for failing to impeach C.S.’
testimony by recalling her to confront her with N.B.’s testimony that C.S. told him “a name” after
McSwine was allowed into her residence whereas C.S. testified that she did not know McSwine’s
name. We note that by trial, C.S. had wed N.B., who was her boyfriend on October 13, 2012.
The prosecutor asked C.S. if, regarding the time of October 2012, she came to know “a
man by the name of Frederick McSwine.” C.S. answered, “Not by that name, no.” Later on direct
examination, C.S. denied that she knew what McSwine’s name was as of October 2012. N.B. later
testified as follows about what happened after he heard a knock on C.S.’ apartment door on
October 13, 2012.
Q [by McSwine’s trial counsel] So, after [C.S.] went to answer the door, a little bit
later she came back to the bedroom[?]
A [by N.B.] Correct.
Q And she said she was going to talk with someone[?]
A Correct.
Q And your recollection is that she used a person’s name?
A Correct.
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Q A specific name?
A What I remember, yes.
Q Okay. But you don’t recall what the name was?
A No.
McSwine’s claim as set forth in his motion for postconviction relief rests on trial counsel’s
failure to impeach C.S.’ version “not matching” or “contradict[ing]” N.B.’s version solely on the
matter of whether C.S. knew McSwine’s name. But C.S.’ testimony did not directly contradict
N.B.’s testimony. C.S. denied that she knew McSwine’s name in October 2012. All N.B. could
recall was that C.S. referred to the person at the door by using a specific name. He did not say C.S.
referred to McSwine’s name. All that could be reasonably deduced from N.B.’s testimony was that
C.S. referred to the person at the door by name, which could have been any name out of an infinite
pool of possibilities. McSwine’s trial counsel could not be deficient for failing to try to impeach
C.S.’ testimony that she did not know McSwine’s name in October 2012, with testimony that did
not contradict that statement. See State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018) (counsel
cannot be ineffective for failing to raise meritless argument). Therefore, he cannot prove appellate
counsel was ineffective for failing to raise the claim on direct appeal that trial counsel was
ineffective for failing to orchestrate that impeachment. See State v. Allen, supra.(b) Failure to Impeach C.S.’ Testimony With Note
In his motion for postconviction relief, McSwine claimed that his appellate counsel was
ineffective for failing to allege that trial counsel was ineffective for failing to impeach C.S.’
testimony through the use of exhibit 48.
Exhibit 48, which was received into evidence, is an unsigned and undated note of directions
to a location apparently near where McSwine said he lived at the time of October 13, 2012.
McSwine’s trial counsel questioned C.S. about the note as follows:
Q Do you recognize [exhibit 48]?
A It looks like a piece of paper.
Q With some directions?
A That’s correct.
Q Have you ever seen that before?
A No.
Q Is that your handwriting?
A It looks like it could possibly be, but I can’t say for sure.
Q So that looks similar to your handwriting?
A Similar, yes.
Q But you don’t remember ever writing that note?
A No.
Q But you’re saying it’s possible you did?
A It looks like my handwriting, but I -- I don’t even know where this goes to.
Q Okay. Well, where the directions go to, you mean?
A That’s correct.
- 11 -
In his postconviction motion, McSwine complained that C.S. was allowed to avoid the
question, “But you’re saying it’s possible you did?,” in regard to whether she had written the note.
McSwine argued the note would have supported his consent defense. He asserted that instead of
C.S. having a sharp instrument to her throat the entire time he was in her apartment, “C.S. was
taking down directions to an area near where [he] lived so as to find his place at a later time so
they could get together.” McSwine now suggests several questions that could have been asked of
C.S. about the note, such as if she wrote the note with her eyes closed or for an explanation of why
she wrote the note. But McSwine’s claim was not that trial counsel failed to ask how or why C.S.
wrote the note. Therefore, those suggested questions are irrelevant to McSwine’s claim raised in
his postconviction motion and seek to impermissibly broaden it. His claim as stated in his motion
was simply that C.S. should have been made to directly answer whether it was “possible” that she
wrote the note.
As to a similar claim regarding the note that was rejected by this court, we found that C.S.
“essentially admitted” during her testimony that the handwriting on the note matched her
handwriting. See McSwine III, 24 Neb. App. at 473, 890 N.W.2d at 533. Given our prior
determination about this testimony, we find that C.S. also essentially admitted that it was
“possible” that she wrote the note. McSwine’s trial counsel was not deficient for not making C.S.
directly answer the question at issue when it was implicitly established that it was possible that she
authored the note. Also, McSwine himself was able to testify that C.S. wrote the note on October
13, 2012. McSwine cannot show a sufficient probability to undermine confidence in the outcome
of trial and, thus, he has failed to show prejudice and his ineffective assistance of appellate counsel
claim fails in relation to the note. See State v. Allen, supra (if trial counsel was not ineffective,
then defendant was not prejudiced by appellate counsel’s failure to raise issue).
(c) Failures Related to Absence of Evidence of McSwine’s
Alleged Prior Sexual Relationship With C.S.
In his postconviction motion, McSwine claimed that his trial counsel was ineffective for
failing to attempt to introduce evidence of McSwine’s alleged prior sexual relationship with C.S.
and then preventing McSwine from answering the State’s question about that subject. This claim
was raised on direct appeal and preserved for later review. See McSwine III. In his postconviction
motion, McSwine contended that he made his trial counsel aware of his “secret sexual relationship”
with C.S. that “included having sexual intercourse with C.S. prior to the alleged events.” McSwine
alleged in his postconviction motion that “[n]ot only did trial counsel neglect to file timely notice
prior to trial that the defense intended to offer evidence of prior sexual conduct between C.S. and
[McSwine], but trial counsel closed the door to the opportunity that the prosecutor had opened.”
He claimed these actions fell below the standard of a lawyer with ordinary training and skill in
criminal law, and there was “no reasonable trial strategy that would justify not attempting to
establish the prior consensual sexual relationship between C.S. and [McSwine] or allowing it to
come in at the prosecutor’s doing.” McSwine contended that “[w]ith the lack of evidence
supporting C.S.’s version of events,” had this evidence come in, a “fair probability exists that the
outcome would have been different in favor of [McSwine] as C.S. would have been impeached
and at a minimum the presence of reasonable doubt would have resulted in not guilty verdicts.”
- 12 -
In denying McSwine relief on this claim, the district court acknowledged that this court
had concluded in McSwine III that McSwine’s claim that his trial counsel was ineffective for not
introducing evidence of a prior sexual relationship between McSwine and C.S. could not be
adequately reviewed on direct appeal. However, the district court found that “upon closer
examination,” the record was sufficient to decide the issue without an evidentiary hearing. See
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019) (when appellate court finds, on direct appeal,
that record is not sufficient to resolve claim of ineffective assistance, it should not be
misunderstood as finding that claim will necessarily require evidentiary hearing if raised in motion
for postconviction relief, because that determination is governed by entirely different standard;
postconviction court is not precluded from later finding existing record affirmatively refutes claim,
particularly since specific allegations of prejudice were not required to be made on direct appeal).
We agree with the district court’s denial of relief on this issue without an evidentiary hearing for
the following reasons.
Prior to trial, the State filed a motion in limine that was addressed at a hearing that McSwine
personally attended. During the hearing, McSwine’s trial counsel indicated that a paragraph of the
State’s motion regarded the “Rape Shield.” Defense counsel stated, “I don’t intend to offer any
evidence of prior specific instances . . . of sexual behavior.” The State’s motion was granted. The
district court ordered counsel to request a sidebar conference if something came up during trial
that led a party to believe there was a need to go into something covered by the motion.
During trial on direct examination, McSwine said he knew C.S. from when he worked at
the gas station that C.S. frequented. He denied having any contact with C.S. outside of the gas
station when he worked there. At one point, McSwine referred to C.S. by an incorrect last name.
On cross-examination, McSwine denied that he knew C.S. by her first and last name on October
13, 2012; he knew her by a shortened version of her first name. He said C.S. “probably” knew his
first and last name but also said he knew C.S. knew his first name. He worked at the gas station
from May 21, 2011, to January 13, 2012. C.S. would “maybe” go to the gas station three times a
week. His contact with C.S. was minimal “[a]t first.” He believed that he and C.S. became friends.
McSwine said C.S. gave him her telephone number but he did not put it in his telephone because
he had previously been caught cheating by his wife. He denied ever giving C.S. his number or
calling her. The State then asked McSwine, “[P]rior to October 13th, 2012, you had never had sex
with [C.S.] before[?]” Before McSwine answered, his trial counsel requested and was allowed to
approach the bench with opposing counsel where defense counsel argued that the State could not
“walk into” a rape shield issue and complain about the answer received. Defense counsel predicted
McSwine’s answer would be that “he did have sex with her once before.” Defense counsel argued,
“I don’t want to hear [the State] complaining about me not doing anything with rape shield,
because I didn’t ask the question or go anywhere near that.” The State withdrew its question.
In its order denying postconviction relief on this issue, the district court stated, “Any
evidence pertaining to specific instances of past sexual behavior of the victim, C.S., had been ruled
inadmissible at trial pursuant to the State’s Motion in Limine under Neb. Rev. Stat. § 27-412,”
which had been previously granted. “Thus, even if a prior sexual relationship existed, it was not
admissible at trial unless the defendant had first made a showing outside the presence of the jury.”
- 13 -
Under Nebraska’s rape shield statute in effect at the time of McSwine’s trial, evidence of
a victim’s prior sexual behavior or sexual predisposition was not admissible except under the
following limited circumstances in a criminal case:
(i) Evidence of specific instances of sexual behavior by the victim offered to prove
that a person other than the accused was the source of semen, injury, or other physical
evidence;
(ii) Evidence of specific instances of sexual behavior of the victim with respect to
the accused offered by the accused to prove consent of the victim if it is first established to
the court that such behavior is similar to the behavior involved in the case and tends to
establish a pattern of behavior of the victim relevant to the issue of consent; and
(iii) Evidence, the exclusion of which would violate the constitutional rights of the
accused.
Neb. Rev. Stat. § 27-412(2)(a) (Cum. Supp. 2012). Nebraska’s rape shield statute serves two
purposes: (1) it protects rape victims from “grueling cross-examination about their past sexual
behavior or sexual predisposition that too often yields testimony about questionable evidence,”
and (2) it prevents the use of evidence of the witness’ past sexual conduct “from which to infer
consent or undermine the witness’ credibility.” State v. Swindle, 300 Neb. 734, 751, 915 N.W.2d
795, 809 (2018). “The rape shield statute is not meant to prevent defendants from presenting
relevant evidence, but to deprive them of the opportunity to harass and humiliate the complaining
witness and divert the jury’s attention to irrelevant matters.” Id. A party intending to offer evidence
under § 27-412(2) was generally required to file a written motion at least 15 days before trial
specifically describing the evidence and stating the purpose for which it was offered and to serve
a motion on all parties and notify the victim or the victim’s guardian or representative. See
§ 27-412(3)(a). Before admitting the evidence, the court had to conduct an in camera hearing. See
§ 27-412(3)(b).
In its order denying McSwine an evidentiary hearing on this issue, the district court pointed
out that “[t]here is no record of any such filing by [McSwine] prior to trial,” and that to the contrary,
“trial counsel affirmatively stated at the pretrial hearing that [McSwine] would not include any
evidence of past sexual behavior of the victim.” The district court noted that “when the State asked
[McSwine] whether he had engaged in sex with C.S. before, defense counsel properly asked to
approach the bench.” Therefore, McSwine’s counsel “cannot be held to be ineffective for
following the Court’s ruling.” The district court added that McSwine’s trial counsel was
“well-versed” on how to present evidence under § 27-412(2).
The district court found the record supported a determination that “defense counsel
consciously chose not to present evidence of a prior sexual relationship between [McSwine] and
C.S.” The district court pointed out that in addition to affirmatively stating he would not present
evidence of C.S.’ past sexual behavior at trial, defense counsel also prevented McSwine from
answering the State’s question about prior sex with C.S., knowing that McSwine would say he did
have sex with her once before. “Thus, [McSwine’s] trial counsel was well aware of [McSwine’s]
potential testimony on this issue. Yet, he did not move to have this evidence admitted as part of
- 14 -
[McSwine’s] consent defense. Clearly, this was a strategic decision made by [McSwine’s] trial
counsel.”
Citing to State v. Johnson, 243 Neb. 758, 502 N.W. 477 (1993), the district court noted that
“[t]actical or strategic defense decisions of trial counsel will not be second-guessed on a motion
for postconviction relief unless the defendant meets his burden of proof showing deficient
representation and prejudice.” Quoting from Nix v. Whiteside, 475 U.S. 157, 166, 106 S. Ct. 988,
89 L. Ed. 2d 123 (1986), the district court also noted that a counsel’s duty of loyalty to his client
and duty to advocate his client’s cause “‘is limited to legitimate, lawful conduct compatible with
the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful
means to attain the objectives of the client, counsel is precluded from taking steps or in any way
assisting the client in presenting false evidence or otherwise violating the law.’” The district court
also quoted from Murph v. U.S., 12 F. Supp. 3d 557 (E.D.N.Y. 2014), where the court refused to
find that failing to suborn perjury constituted ineffective assistance of counsel or a cognizable basis
of prejudice under Strickland, supra.The district court concluded that there were valid reasons why defense counsel “could have
chosen not to present evidence of a past sexual relationship between [McSwine] and C.S.,” such
as determining that the evidence available was simply not admissible under the rape shield statute.
The district court noted that evidence of C.S.’ past sexual behavior to prove consent was only
admissible if it was similar to the behavior involved in the present case and tended to establish a
pattern of behavior by C.S. Notably, C.S. testified that when she was forced to leave her apartment
she was not wearing shoes and left behind her identification, money, and cell phone.
McSwine did not plead in his postconviction motion, nor does he argue on appeal, that the
alleged prior sexual encounter between McSwine and C.S. involved similar facts or somehow
constituted a pattern of behavior by C.S. McSwine argues only that if the jury heard that he and
C.S. had an “ongoing secret relationship with prior sexual relations, it would not have been as
unlikely that passion and secrecy would have led C.S. to leave in a hurry and without gathering
the usual things.” Brief for appellant at 22. He claims he had “at least one prior consensual sexual
act” with C.S. Id. at 21. Again, even if that is true, McSwine does not assert any circumstances of
that alleged prior instance to shed light on whether C.S. responded to it in the same way as C.S.
did here, leaving her apartment barefoot and without important personal items.
McSwine offers only a conclusory argument that the evidence at issue was “permitted and
covered” under § 27-412(2)(a)(ii) and (iii). Reply brief for appellant at 11. He has made no
allegation that there was an established pattern of behavior of C.S. relevant to the issue of consent
in this case; one alleged prior and undescribed instance of sexual contact between McSwine and
C.S. is insufficient to meet the requirements of the rape shield statute. See § 27-412(2)(a)(ii)
(evidence of specific instances of sexual behavior of victim with respect to accused and sought to
be offered by accused must tend to establish pattern of behavior of victim relevant to issue of
consent). If a postconviction motion alleges only conclusions of fact or law, no evidentiary hearing
is required. See State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019). That basis alone is
enough to defeat McSwine’s claim regarding the denial of an evidentiary hearing on trial counsel’s
failure to offer the evidence at issue. See id.- 15 -
(d) Failure to Object to Jailhouse Informant’s Testimony
In his motion for postconviction relief, McSwine claimed that his appellate counsel was
ineffective for not alleging that his trial counsel was ineffective for failing to object to certain
testimony of Benjamin Isley, a jailhouse informant, set forth below.
During direct examination, Isley recounted that while he and McSwine were in custody in
October 2012, McSwine talked about the circumstances of his (McSwine’s) arrest, surrounding
his interaction with C.S. Isley did not describe McSwine having related anything about a
trespassing incident. Isley said McSwine told him that he (McSwine) went to his wife’s house after
assaulting C.S. McSwine said he had given his clothes to his wife, his wife was furious and had
been trying to contact him, and McSwine “snapped” at his wife and said, “‘Listen, the police are
going to be here. I can’t tell you what’s going on. I’m not going to tell you what happened, but get
rid of these clothes. Burn them.’” Regarding where McSwine went after that, Isley said McSwine
knew he needed to get to a place to “hide out.” McSwine had been trying to contact Isley “that
whole week” and McSwine “didn’t know where he was going to go.” McSwine “knew that
[another friend] had a firearm on him and [McSwine] wanted to try to get the firearm from [that
friend]” because “if he was in a situation where he was going to get arrested or was confronted by
the police, the way that he described it, he was going to hold court on the street. He wasn’t going
to prison or to jail.” When asked what “holding court in the street” meant, Isley said it meant that
“you’d rather die in the streets tha[n] be put in prison by the police.” McSwine allegedly felt that
the “police were going to be after him, pretty short coming or pretty soon coming” because
McSwine saw C.S. run to a stranger’s house and “pound” on the door in a “frantic or hysterical”
way.
In his postconviction motion, McSwine argued that the “inflammatory” statements he
allegedly made portrayed him very unfavorably and “whether the criminal offenses were
committed or not, suggest that [he] is an unstable and dangerous person that is a threat to law
enforcement.” He asserted that his trial counsel should have objected on “403, relevancy, and
volunteering information grounds” and moved to strike the testimony.
Isley’s testimony was relevant to whether McSwine committed the charged offenses and
whether his consent defense was truthful. See State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524(2018) (to be relevant, evidence must be probative and material). The testimony allowed the jury
to reasonably infer, without reliance on speculation or propensity reasoning, that McSwine had
consciousness of guilt related to his contact with C.S. on October 13, 2012. The testimony
corroborated C.S.’ account that she did not consent to leaving with and engaging in sexual acts
with McSwine that day.
McSwine’s alleged statements were relevant to show his consciousness of guilt given the
time they were made, the context in which they were made as far as subject matter of the
conversation, and the apparent plan to evade an arrest and become threatening or violent if located
by law enforcement. See, State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016) (State can show
defendant’s consciousness of guilt from defendant’s inculpatory statements; statements should
reasonably support inference of defendant’s guilty knowledge of charged crime); State v. Ely, 287
Neb. 147, 841 N.W.2d 216 (2014) (after victim shot and killed during perpetration of robbery,
- 16 -
defendant went to different city where he talked to two friends about robbery and being in trouble
due to shooting; evidence supported reasonable inference that defendant had guilty conscience and
was attempting to avoid apprehension); State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991)
(after deputies identified themselves and shouted their presence inside house, they discovered
defendant who was hiding in crawl space; hiding evidenced defendant’s guilty conscience about
marijuana located on premises which were under his control).
Under Neb. Rev. Stat. § 27-403 (Reissue 2008), relevant evidence may be excluded if its
probative value is substantially outweighed by danger of unfair prejudice. Most, if not all, evidence
offered by a party is calculated to be prejudicial to the opposing party. State v. Oldson, supra.Unfair prejudice means an undue tendency to suggest a decision on an improper basis. Id.Consciousness of guilt is perhaps the strongest evidence that a person is indeed the guilty doer.
See id. When the evidence is sufficient to justify an inference that the defendant acted with
consciousness of guilt, the fact finder can consider such evidence even if the conduct could be
explained in another way. Id. But if the State’s circumstantial evidence only supports an inference
through speculation or only supports two equally speculative inferences, a trial court should
exclude it when a party has properly invoked § 27-403. See State v. Oldson, supra. We note the
probative value of Isley’s testimony at issue and that speculation was not required to infer that
McSwine’s alleged statements related to his actions upon C.S. on October 13, 2012, for which he
was later charged, tried, and convicted.
Although McSwine says the testimony portrayed him as a “lethal threat to the police,” reply
brief for appellant at 12, the testimony was only about statements Isley said McSwine made, not
McSwine’s actual attempted or carried out actions. The district court would have overruled any
objection to Isley’s testimony as unfairly prejudicial given the highly probative nature of evidence
of consciousness of guilt. Trial counsel could not be ineffective for failing to raise a meritless
argument. See State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018). Also, McSwine cannot
show he was prejudiced by trial counsel’s failure to object on grounds of Isley volunteering
information, because even a sustained objection to a narrative would not have stopped the
prosecutor from simply asking questions to elicit the same testimony. Therefore, appellate counsel
cannot be ineffective for failing to raise these claims. See State v. Allen, 301 Neb. 560, 919 N.W.2d
500 (2018) (if trial counsel was not ineffective, then defendant was not prejudiced by appellate
counsel’s failure to raise issue).
(e) Failures Related to Evidence of McSwine’s Arrest
In his postconviction motion, McSwine claimed that his appellate counsel was ineffective
for failing to allege that trial counsel was ineffective for failing to move in limine and object to the
State offering evidence about his resistance to law enforcement upon arrest and for asking
McSwine similar questions.
Deputy Bradley Sturdy testified that he had several conversations with McSwine when
McSwine worked at the gas station. McSwine would address the deputy as “Deputy Sturdy.” Near
the beginning of his night shift on October 13, 2012, Deputy Sturdy was advised of a current sexual
assault investigation in which McSwine was a suspect. Around 12:45 a.m. on October 14, the
deputy located a person “immediately” recognizable as McSwine but asked McSwine to identify
- 17 -
himself anyway. “There was a long pause, and [McSwine] said, ‘Anthony.’” Deputy Sturdy had
been notified that McSwine was in possession of “an edged weapon, or a knife.” The deputy
noticed that McSwine’s “right hand was going towards his pocket” so the deputy drew his service
handgun and held McSwine at gunpoint, commanding him to get on the ground. McSwine refused
to comply and did not “keep his hands up”; Deputy Sturdy “noticed [McSwine’s] right hand kept
coming down towards his waistline, like if he was going to get something out of his pocket.” But
the deputy did not see a weapon on McSwine at any time. Deputy Sturdy contacted other deputies
for help. Once they arrived, Deputy Sturdy still had McSwine at gunpoint. Deputy Sturdy
described how McSwine continued to refuse to comply with requests so the deputies “placed him
on the ground” and handcuffed him. After that, McSwine informed that he had a knife in his right
pocket. Deputy Sturdy searched McSwine’s person and was unable to find the knife.
Deputy Amanda Krause recalled arriving to the scene. She testified, “Deputy Sturdy was
attempting to place [McSwine] into custody, and had him against a fence and was trying to get
him into custody, but he wasn’t complying.” McSwine was “kind of pulling away.” Deputy Krause
agreed that at some point McSwine had to be taken to the ground; another deputy helped Deputy
Sturdy do that.
McSwine’s trial counsel generally asked McSwine to explain the testimony that he was not
compliant with law enforcement. McSwine testified about his version of how the arrest unfolded.
He described being compliant and having reached in his pockets after being asked for
identification. He said the officer asked him if he had any weapons and that he (McSwine) said he
had a knife but that the officer did not find a knife on him.
In his postconviction motion, McSwine argued that his resistance to law enforcement
portrayed him negatively. However, the district court noted McSwine’s admission that “the jury
was aware he was a felon who had been to prison and was presently on parole” and we note that
the jury would have already heard Isley’s testimony about McSwine’s alleged plan to evade an
arrest. That all reflected negatively on McSwine.
McSwine also argued that the testimony was not relevant and was unfairly prejudicial.
However, McSwine’s resistance to arrest in the early morning hours of October 14, 2012 (close in
time to his offending acts upon C.S.), was relevant to show consciousness of guilt for the crimes
later charged in this action. See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016) (defendant
exhibited consciousness of guilt when he attempted to sneak onto bus leaving Nebraska and then
gave false information to security employee and police officer to avoid arrest). Evidence of
McSwine’s noncooperation with law enforcement under the circumstances allowed the jury to
make reasonable inferences from which to consider the veracity of McSwine’s consent defense.
Further, an objection under § 27-403 to the deputies’ testimony about McSwine’s resistance to
arrest would have been overruled given the highly probative nature of that evidence and other
admissible evidence that already called McSwine’s compliance with the law and law enforcement
into question. Trial counsel could not be ineffective for failing to raise a meritless argument. See
State v. Collins, supra.Because an objection to the deputies’ testimony would have been overruled, defense
counsel’s decision to ask McSwine about the arrest was a reasonable strategic way to provide
McSwine an opportunity to rebut the deputies’ testimony; we cannot say that decision was one of
- 18 -
ineffective assistance. See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018) (reasonable
strategic decision to present particular evidence will not, without more, sustain finding of
ineffective assistance of counsel). McSwine’s claims of ineffective assistance of trial counsel fail
with regard to his arrest. Necessarily, he failed to establish his appellate counsel was ineffective
for not assigning those claims on direct appeal. See State v. Allen, supra (if trial counsel was not
ineffective, then defendant was not prejudiced by appellate counsel’s failure to raise issue).
3. ACTUAL INNOCENCE CLAIM
McSwine claimed that the evidence offered at trial, in pretrial and in camera hearings, and
within the discovery materials, establish that he is actually innocent of the crimes for which he was
convicted. The essence of a claim of actual innocence is that the State’s continued incarceration of
such a petitioner without an opportunity to present newly discovered evidence is a denial of
procedural or substantive due process. State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
The threshold to entitle a prisoner to an evidentiary hearing on such a postconviction claim is
extraordinarily high. Id. Such a petitioner must make a strong demonstration of actual innocence
because after a fair trial and conviction, the presumption of innocence vanishes. Id.McSwine’s actual innocence claim as set forth in his motion for postconviction relief and
on appeal consists of referring to his trial testimony and allegations formed from that to support
his version of what happened on October 13, 2012, and pointing out alleged or actual
contradictions in C.S.’ trial testimony to her prior statements or other witnesses’ trial testimony
(he cites to the trial record when referring to C.S.’ contradictions in his appellate brief). In his reply
brief on appeal, McSwine suggests that if the jury would have heard the in camera evidence, then
that would have made a difference in that the jury would have known how McSwine would have
answered the question “about his past sexual relationship with C.S.” Reply brief for appellant at
13. In McSwine III, this court concluded that the district court did not err when it prohibited the
defense from introducing the evidence that was the subject of the in camera hearing (generally,
whether C.S. had previously engaged in oral sex with a nonparty to this action); if admitted, it
would not have conclusively proved McSwine’s actual innocence. As to the exclusion of that
evidence, this court noted:
Other evidence elicited by both the State and the defense demonstrated that C.S. had a
tendency to be untruthful about her past sexual experiences. Accordingly, even if the jury
believed that C.S. had lied about never having performed oral sex prior to the day of the
assault, such information would probably not have resulted in the jury’s forming a different
impression of her credibility. And, whether C.S. had previously engaged in oral sex was a
collateral issue that did not have any significant bearing on whether she consented to sexual
contact with McSwine on the day of the assault.
McSwine III, 24 Neb. App. at 466, 890 N.W.2d at 529.
Further, in his postconviction motion, McSwine conceded that the “physical evidence
would have been the same under either version [(his or the State’s version)].” McSwine’s main
argument for actual innocence, that C.S.’ account of the events cannot be believed, is refuted by
the record. The jury heard both the State’s and McSwine’s versions of events and had sufficient
- 19 -
relevant evidence from which to assess the credibility of those conflicting versions; the jury clearly
believed the State’s version of the events was credible and, thus, found McSwine guilty as charged.
McSwine has not met the extraordinarily high standard to gain an evidentiary hearing on
his actual innocence claim. He alleged no new facts that would support it. If his claim was intended
to challenge the sufficiency of the evidence at trial, the time has passed for those arguments. See
State v. Dubray, supra (claims of insufficiency of evidence that were or could have been raised on
direct appeal are procedurally barred from being raised in postconviction action; merely attempting
to relitigate issues decided at trial and affirmed on appeal does not make viable actual innocence
claim). The district court did not err by denying an evidentiary hearing on this claim.
4. DENIED POSTCONVICTION RELIEF
McSwine claims that the district court erred by denying him postconviction relief without
an evidentiary hearing on all but one claim. He argues that he would have been able to present
evidence on each of the allegations raised in his motion. We disagree. We already concluded that
all of McSwine’s claims of ineffective assistance of counsel at issue in this appeal failed. The
district court did not err by denying an evidentiary hearing on those claims. See State v. Martinez,
302 Neb. 526, 924 N.W.2d 295 (2019) (no evidentiary hearing required if postconviction motion
alleges only conclusions of fact or law, or if records and files in case affirmatively show defendant
is entitled to no relief). We also noted that the remaining denied claims are not before us as they
were not specifically argued on appeal; we will not consider a conclusory assertion that he could
have presented evidence to support those claims. See State v. Lotter, 301 Neb. 125, 917 N.W.2d
850 (2018) (alleged error must be specifically argued in appellate brief).
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s order dated October 25, 2018.
AFFIRMED.
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