State v. McSwine ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/31/2017 08:08 AM CST
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McSWINE
Cite as 24 Neb. Ct. App. 453
State of Nebraska, appellee, v. Frederick E. McSwine,
also known as Frederick E. Johnson, appellant.
___ N.W.2d ___
Filed January 31, 2017. No. A-13-887.
1. Rules of Evidence. In all proceedings where the Nebraska Evidence
Rules apply, admissibility of evidence is controlled by the Nebraska
Evidence Rules, not judicial discretion, except in those instances under
the rules when judicial discretion is a factor involved in determin-
ing admissibility.
2. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of
the trial court, the admissibility of evidence is reviewed for an abuse
of discretion.
3. Constitutional Law: Criminal Law: Sexual Misconduct: Evidence.
Under Nebraska’s rape shield statute, Neb. Rev. Stat. § 27-412(2)(a)
(Reissue 2016), evidence of a victim’s prior sexual behavior or sexual
predisposition is not admissible in a criminal case except under limited
circumstances, including when the exclusion of the evidence would vio-
late the constitutional rights of the accused.
4. Sexual Misconduct: Evidence: Appeal and Error. A court does not
err in excluding evidence about a victim’s sexual history prior to an
assault when the State does not open the door to such evidence, when
the evidence does not directly relate to the issue of consent, and when
the evidence would not give the jury a significantly different impression
of the victim’s credibility.
5. Motions for Mistrial: Juror Misconduct: Appeal and Error. When a
defendant moves for a mistrial based on juror misconduct, an appellate
court will review the trial court’s determinations of witness credibility
and historical fact for clear error and review de novo its ultimate deter-
mination whether the defendant was prejudiced by juror misconduct.
6. Criminal Law: Juror Misconduct: Proof. A criminal defendant claim-
ing jury misconduct bears the burden of proving, by a preponderance
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of the evidence, (1) the existence of jury misconduct and (2) that such
misconduct was prejudicial to the extent that the defendant was denied a
fair trial.
7. Criminal Law: Juror Misconduct: Presumptions: Proof. In a crimi-
nal case, misconduct involving an improper communication between a
nonjuror and a juror gives rise to a rebuttable presumption of prejudice
which the State has the burden to overcome.
8. Juror Misconduct: Proof. Extraneous material or information consid-
ered by a jury can be prejudicial without proof of actual prejudice if (1)
the material or information relates to an issue submitted to the jury and
(2) there is a reasonable possibility that it affected the jury’s verdict to
the challenger’s prejudice.
9. Juror Misconduct. Whether prejudice resulted from jury misconduct
must be resolved by the trial court’s drawing reasonable inferences as to
the effect of the extraneous information on an average juror.
10. New Trial: Appeal and Error. While any one of several errors may not,
in and of itself, constitute prejudicial error warranting a reversal, if all of
the errors in the aggregate establish that the defendant did not receive a
fair trial, a new trial must be granted.
11. Effectiveness of Counsel: Proof. 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
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
12. ____: ____. To show prejudice under the prejudice component of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, the petitioner must demonstrate a reasonable probabil-
ity that but for his or her counsel’s deficient performance, the result of
the proceeding would have been different.
13. Effectiveness of Counsel: Presumptions. When considering whether
trial counsel’s performance was deficient, there is a strong presumption
that counsel acted reasonably.
14. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and
Error. Trial counsel is afforded due deference to formulate trial strategy
and tactics. When reviewing a claim of ineffective assistance of counsel,
an appellate court will not second-guess reasonable strategic decisions
by counsel.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
Mark E. Rappl for appellant.
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STATE v. McSWINE
Cite as 24 Neb. Ct. App. 453
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Inbody and Pirtle, Judges.
Per Curiam.
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. He was sentenced to a total of 57 to 85 years’ impris-
onment. We previously found that, during the trial, the State
committed prosecutorial misconduct in its closing argument
and that such misconduct amounted to plain error. See State
v. McSwine, 22 Neb. Ct. App. 791, 860 N.W.2d 776 (2015). We
also found that McSwine’s trial counsel was ineffective when
he did not raise a timely objection to the State’s closing argu-
ment. Id. As a result of these findings, we reversed McSwine’s
convictions. Id. The Nebraska Supreme Court granted further
review and reversed our decision, finding that the State did
not commit prosecutorial misconduct in its closing argument
and that because there was no misconduct, McSwine’s trial
counsel was not ineffective when he failed to object to the
State’s closing argument. State v. McSwine, 292 Neb. 565, 873
N.W.2d 405 (2016). The Supreme Court remanded the cause to
this court for us to consider and decide the other assignments
of error that we had not addressed because of the result we
reached in our first decision. Thus, the matter is now before
us for consideration of McSwine’s remaining assignments
of error.
The remaining assignments of error include McSwine’s
assertions that the district court erred in excluding certain
evidence about the victim’s prior sexual experiences pursuant
to Neb. Rev. Stat. § 27-412 (Reissue 2016) and in failing to
order a mistrial after an issue of juror misconduct was brought
to the court’s attention. McSwine also asserts that he received
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ineffective assistance of trial counsel in a variety of respects.
For the reasons set forth herein, we affirm.
II. BACKGROUND
The following summary of the circumstances surrounding
McSwine’s convictions is taken from our original opinion.
See State v. McSwine, 22 Neb. Ct. App. 791, 860 N.W.2d 776
(2015). Additional facts regarding the remaining assignments
of error will be discussed as necessary in the analysis sec-
tion below.
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 relation-
ship 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.’ door-
step 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
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instrument,” and forced her from the apartment and into
his vehicle. McSwine then drove to three separate, iso-
lated areas where he forced C.S. to engage in various
sexual acts. After keeping C.S. with him for approxi-
mately 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 morn-
ing 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 discov-
ered 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: terroristic threats, kidnap-
ping, first degree sexual assault, and use of a weapon
to commit a felony. The district court subsequently sen-
tenced McSwine to a total of 56 years 8 months to 85
years in prison.
Id. at 793-94, 860 N.W.2d at 780.
III. ASSIGNMENTS OF ERROR
McSwine raises five assignments of error in this appeal. The
first assignment of error alleged that the district court erred in
failing to grant McSwine’s motion for a new trial due to prose-
cutorial misconduct during closing arguments. This assignment
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of error has been conclusively resolved against McSwine by
the Supreme Court. Therefore, there now remain four assign-
ments of error for us to resolve.
First, McSwine alleges that the district court erred in fail-
ing to admit evidence of a specific instance of C.S.’ sexual
behavior prior to the day of the assault. Second, McSwine
alleges that the district court erred in overruling his motion
for a mistrial which was based on an allegation of juror mis-
conduct. Third, McSwine alleges that the totality of all the
errors committed during the proceedings below prohibited him
from receiving a fair trial. Finally, McSwine alleges that he
received ineffective assistance of trial counsel for a variety of
reasons. We note that one of McSwine’s assertions of ineffec-
tive assistance of trial counsel alleges that trial counsel failed
to timely object to inappropriate statements made by the pros-
ecutor during closing arguments. This assertion has also been
conclusively resolved against McSwine by the Supreme Court.
As such, we focus only on McSwine’s remaining allegations
of ineffective assistance of trial counsel.
IV. ANALYSIS
1. A dmissibility of Evidence of
Specific Instance of C.S.’
Past Sexual Behavior
McSwine argues that the district court abused its discretion
when it refused to allow him to introduce evidence of C.S.’
sexual experiences prior to October 13, 2012. Specifically,
McSwine asserts that the district court should have permit-
ted him to introduce evidence that prior to October 13, C.S.
had engaged in oral sex, contrary to her testimony at trial.
McSwine asserts that such evidence is directly related to the
question of whether C.S. consented to the sexual contact with
McSwine on October 13 and is directly related to C.S.’ cred-
ibility. Upon our review, we conclude that the district court did
not abuse its discretion in prohibiting McSwine from eliciting
such evidence about C.S.’ prior sexual experiences.
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(a) Standard of Review
[1,2] In all proceedings where the Nebraska Evidence Rules
apply, admissibility of evidence is controlled by the Nebraska
Evidence Rules, not judicial discretion, except in those instances
under the rules when judicial discretion is a factor involved in
determining admissibility. State v. Lessley, 257 Neb. 903, 601
N.W.2d 521 (1999). See, also, State v. Podrazo, 21 Neb. Ct. App.
489, 840 N.W.2d 898 (2013). When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion
of the trial court, the admissibility of evidence is reviewed for
an abuse of discretion. State v. Podrazo, supra.
(b) Background
During its direct examination of C.S., the State questioned
her regarding specific details of the assault. During this line of
questioning, C.S. testified that after McSwine took her to the
first isolated area, he told her to take off her clothes and he
pulled his pants and underwear down around his ankles. C.S.
testified that at that point, she was not sure what McSwine
wanted her to do. She indicated that McSwine then told her to
“put [his penis] in [her] mouth and suck on it.” C.S. testified
that she told McSwine that she “didn’t know how” to perform
oral sex. She testified that McSwine forced her to perform oral
sex on him anyway and that at some point, he told her to “stop
sucking on it and to finish with [her] hands, which he also had
to tell [her] how to do.”
C.S. also testified, upon questioning by the State, that prior
to October 13, 2012, she had engaged in sexual intercourse
with her boyfriend, and that the last time she had sexual
intercourse was approximately a month prior to the day of the
assault. She admitted that when she was initially questioned
by the police, she had lied about whether she had previously
had sexual intercourse. C.S. testified that she lied because her
mother was with her during her initial interview with police
and she did not want her mother to know that she and her boy-
friend had a sexual relationship.
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During the cross-examination of C.S., defense counsel
questioned her further about her prior sexual experiences.
Specifically, counsel asked her whether she was being truthful
with McSwine when she told him that she did not know how
to perform oral sex. C.S. responded that she was being truth-
ful and that she had never engaged in oral sex prior to October
13, 2012. Defense counsel also questioned C.S. about whether
she lied to police about anything other than her prior sexual
experiences. C.S. indicated that initially she had not told police
that her boyfriend was sleeping in her bedroom when she was
abducted from her apartment. She testified that neither her par-
ents nor her boyfriend’s parents would approve of them spend-
ing the night together.
After C.S.’ testimony, defense counsel made a motion to
admit evidence of a specific instance of C.S.’ prior sexual expe-
rience, which would contradict her trial testimony. Specifically,
defense counsel wished to offer evidence that prior to October
13, 2012, C.S. had engaged in oral sex. After a hearing, the
district court denied the motion, finding:
Whether [C.S.] performed oral sex on a male prior
to October 13th, 2012, has no bearing on whether, on
that date, she consented to perform — and “that date”
being October 13th, 2012 — she consented to perform
oral sex on . . . McSwine. . . . In fact, as I noted, it
would be offered to attack her credibility, and I find
there has been sufficient evidence already introduced . . .
on that issue, that additional evidence [about her prior
sexual experiences], even if found to be credible, would
be repetitive.
McSwine appeals from the district court’s decision to
exclude evidence that C.S. had engaged in oral sex prior to
October 13, 2012.
(c) Analysis
[3] Under Nebraska’s rape shield statute, § 27-412(2)(a),
evidence of a victim’s prior sexual behavior or sexual
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predisposition is not admissible in a criminal case except
under limited circumstances, including when the exclusion
of the evidence would violate the constitutional rights of
the accused.
This court has previously explained the rationale for the
protections provided by the rape shield statute:
The rape shield law is designed to protect people from
being “assaulted” in the courtroom by their sexual his-
tory. We believe that its philosophical underpinnings are
that consent to sex with one person is not consent to sex
with all people, nor is consent on one occasion consent
for all occasions. The rape shield law seeks to bring those
notions into our rules of evidence by restricting a defend­
ant’s examination of a victim’s sexual history.
State v. Johnson, 9 Neb. Ct. App. 140, 153, 609 N.W.2d 48, 58
(2000). With this context in mind, we address McSwine’s spe-
cific assertions.
On appeal, McSwine centers his assertions around
§ 27-412(2)(a)(iii). He argues that when the district court
prohibited him from introducing evidence that C.S. had previ-
ously engaged in oral sex, it violated his right to confront his
accuser under the Sixth Amendment to the U.S. Constitution.
The Sixth Amendment provides that “‘[i]n all criminal pros-
ecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him; [and] to have compulsory
process for obtaining witnesses in his favor . . . .’” State v.
Lessley, 257 Neb. 903, 908, 601 N.W.2d 521, 526 (1999).
Specifically, McSwine argues that evidence that C.S. had
engaged in oral sex prior to October 13, 2012, was admis-
sible because it was highly relevant to the issue of consent.
McSwine asserts that if the jury believed that C.S. had never
engaged in oral sex prior to the assault, it would be less
likely that the jury would believe McSwine’s defense that
C.S. had “consent[ed] to such a sexual act” with him. See
supplemental brief for appellant at 4. McSwine also argues
that this evidence was highly relevant to the jury’s analysis of
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C.S.’ credibility, because she testified during defense counsel’s
cross-­examination that she never engaged in oral sex prior to
the day of her assault. We separately address McSwine’s asser-
tions that the excluded evidence should have been admitted to
demonstrate (1) consent and (2) C.S.’ lack of credibility.
To support his assertion that the district court should have
permitted evidence of C.S.’ prior sexual experiences because
it was relevant to the issue of consent, McSwine relies on the
Nebraska Supreme Court’s decision in State v. Lessley, supra.
In Lessley, the Supreme Court found that certain evidence con-
cerning the victim’s prior sexual experiences was admissible
on constitutional grounds because of a defendant’s right to
confront his accuser.
In that case, the victim testified, during her direct examina-
tion by the State, that she was a lesbian. Despite this evidence
of the victim’s sexual preferences, the trial court refused to
allow the defendant to introduce evidence to contradict the
victim’s denial that she told a coworker that she had engaged
in anal intercourse with men prior to the assault. Id. On appeal,
the Nebraska Supreme Court ruled that the defendant’s Sixth
Amendment right to confront his accuser on the dispositive
issue of consent required that he be allowed to explore this
matter, because the “direct examination regarding [the vic-
tim’s] sexual preference and experience permitted the jury
to draw an inference that [as a lesbian,] she did not consent
to sexual relations” with the defendant. State v. Lessley, 257
Neb. at 911, 601 N.W.2d at 528. Finding that the evidence the
defendant wanted to offer would have made this critical infer-
ence less probable and that the State had “‘opened the door’”
to the victim’s sexual past, the Supreme Court reversed the
trial court’s decision not to allow its admission. Id. at 912, 601
N.W.2d at 528.
Upon our review, we conclude that the facts of this case are
distinguishable from those present in State v. Lessley, supra.
First, in this case, C.S.’ testimony that she had not engaged
in oral sex prior to October 13, 2012, was elicited during
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defense counsel’s cross-examination, rather than during the
State’s direct examination. During its direct examination, the
State merely asked C.S. if she “protest[ed]” after McSwine
told her to “put [his penis] in [her] mouth and suck on it.”
C.S. responded that she told McSwine that she “didn’t know
how” to perform oral sex. While this statement could imply
that C.S. had never before engaged in oral sex, it could also
simply indicate that C.S. was trying to avoid performing oral
sex on McSwine or trying to delay the impending assault.
The State did not question C.S. further on this topic. Defense
counsel, on the other hand, elicited additional information on
this topic during the cross-examination of C.S. Counsel spe-
cifically asked C.S. if she was telling McSwine the truth when
she said that she did not know how to perform oral sex. C.S.
then testified that she had never engaged in oral sex prior to
October 13.
Because C.S.’ testimony that she had never engaged in oral
sex prior to the assault was elicited during defense counsel’s
cross-examination and not during the State’s direct examina-
tion, we conclude that the State did not open the door to this
issue like it opened the door to the victim’s sexual preferences
in State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). In
Lessley, the State specifically elicited evidence that the victim
was a lesbian. And, because the State elicited this informa-
tion, the Supreme Court found that it could not thereafter
“hide” behind the rape shield statute to exclude evidence which
would contradict the implication that the victim would never
consent to having sexual contact with a man. Id. at 908, 601
N.W.2d at 526. Here, defense counsel elicited testimony about
the victim’s sexual history and then tried to capitalize on that
testimony to admit additional evidence that would ordinarily
be irrelevant and prohibited by the rape shield statute. Upon
our review, we conclude that the State’s nominal role in elicit-
ing evidence about C.S.’ prior experiences with oral sex was
not sufficient to warrant the loss of the protection of the rape
shield statute.
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In his brief to this court, McSwine also asserts that the
State opened the door to the evidence about C.S.’ prior experi-
ence with oral sex when it “introduced a large amount of evi-
dence surrounding [C.S.’] propensity for ‘pureness’ and naïveté
regarding sexual acts.” Brief for appellant at 44. Essentially,
McSwine asserts that the State made the issue of C.S.’ prior
sexual experience highly relevant when it admitted “a large
amount of evidence” which tended to show that C.S. would not
consent to having any sexual contact with McSwine. Upon our
review, we conclude that, contrary to McSwine’s assertions, the
State did not offer a significant amount of evidence about C.S.’
propensity for pureness or innocence.
As we discussed above, the State did question C.S. about
whether she had ever had sexual intercourse prior to the day of
the assault. She responded that she had. Then, the State ques-
tioned her about why she lied to police about this fact during
her initial interview. C.S. explained that her mother was with
her and that she did not want her mother to know that she and
her boyfriend had a sexual relationship. While this evidence
may indicate that C.S. was embarrassed or uncomfortable dis-
cussing her past sexual experiences in front of her mother, it
does not necessarily portray her as pure or innocent. And, cer-
tainly, it does not portray such characteristics so significantly
that it would open the door to the defense offering evidence
about C.S.’ prior sexual history.
In addition to finding that the State did not open the door to
the excluded evidence to the extent it did so in State v. Lessley,
supra, we also find that the excluded evidence here does not
relate to whether C.S. would have consented to engaging in
oral sex with McSwine in the same way and to the same degree
as the suggestion in Lessley that “lesbians do not have consen-
sual sex with men” bears upon and refutes a defense of consent
when the victim is a lesbian. C.S. testified during the defense’s
cross-examination that she had not engaged in oral sex prior
to October 13, 2012. She did not testify that she would never
engage in oral sex. The Supreme Court’s decision in State v.
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Lessley, supra, was based on the direct correlation between the
excluded evidence and consent. We do not find that same direct
correlation present in the facts of this case. We conclude that
the district court did not abuse its discretion in deciding that
the evidence offered by McSwine was not highly relevant to
the issue of consent such that it should be admitted despite the
protections of the rape shield statute.
McSwine also asserts that the evidence that C.S. had previ-
ously engaged in oral sex was highly relevant to her credibility
and that, as a result, the evidence should have been admitted
on that basis. The State, relying on this court’s decision in State
v. Johnson, 9 Neb. Ct. App. 140, 609 N.W.2d 48 (2000), disagrees
with McSwine’s assertion.
In State v. Johnson, supra, we concluded that the district
court’s decision to exclude evidence of the victim’s prior
sexual conduct was proper because such evidence related only
to the victim’s credibility in a peripheral and collateral matter.
In that case, the victim was assaulted by her former boyfriend’s
roommate. In the State’s direct examination of the victim, it
asked her whether she and her former boyfriend had engaged
in sexual intercourse during their relationship. The State’s
question about the victim’s relationship with the boyfriend was
apparently meant to establish that the victim understood what
sexual intercourse was and could therefore testify that the inci-
dent with the defendant involved sexual intercourse.
During the cross-examination of the victim, defense coun-
sel attempted to question her further about her prior sexual
experiences, including about a prior, specific incident when
she and her boyfriend were engaged in sexual intercourse
and she invited the defendant “to watch them.” Id. at 146,
609 N.W.2d at 54. Defense counsel argued that this evidence
was relevant to disprove the victim’s prior testimony that she
was “uncomfortable” with the defendant’s interest in her and
sexual advances toward her. Id. The district court did not per-
mit this line of questioning, and we affirmed that decision.
We stated:
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The cross-examination does not address [the victim’s]
consent to have sex with [the defendant], nor does it so
directly impact and relate to [the victim’s] credibility
that it must be admitted. In the words of State v. Privat,
251 Neb. 233, 248, 556 N.W.2d 29, 38 (1996), the cross-
examination would not give a reasonable jury a “signifi-
cantly different impression of [the victim’s] credibility”
if [the defendant] had been allowed to pursue this line
of questioning. In State v. Earl, 252 Neb. 127, 135, 560
N.W.2d 491, 497 (1997), the court said that rejected evi-
dence of the victim’s “prior sexual behavior [was not]
so relevant and probative that [the defendant’s] constitu-
tional right to present it would be triggered.”
State v. Johnson, 9 Neb. Ct. App. at 152, 609 N.W.2d at 57-58.
In this case, we do not find that the excluded evidence
concerning C.S.’ prior experience with oral sex would have
given the jury a significantly different impression of her
credibility, nor do we conclude that the excluded evidence
was so probative and relevant that the Constitution required
that it be admitted. 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 col-
lateral issue that did not have any significant bearing on
whether she consented to sexual contact with McSwine on
the day of the assault.
[4] The district court did not err in excluding evidence
about the victim’s sexual history prior to the assault when the
State did not open the door to such evidence, when the evi-
dence did not directly relate to the issue of consent, and when
the evidence would not have given the jury a significantly dif-
ferent impression of the victim’s credibility.
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2. Juror Misconduct
Next, McSwine argues that the district court erred when it
denied his motion for a mistrial after the court became aware
that one of the jurors received extraneous information about
the case. Upon our review of the record, we conclude that
McSwine’s assertion has no merit.
(a) Standard of Review
[5] When a defendant moves for a mistrial based on juror
misconduct, we will review the trial court’s determinations of
witness credibility and historical fact for clear error; we review
de novo the trial court’s ultimate determination whether the
defendant was prejudiced by juror misconduct. State v. Thorpe,
280 Neb. 11, 783 N.W.2d 749 (2010).
(b) Background
After the case was submitted to the jury, a juror informed
the district court that another juror may have received infor-
mation about the case that was not admitted into evidence at
the trial. Specifically, the juror informed the court that another
juror had come back from a lunch break and stated to other
members of the jury that “her husband had told her about
an article about this case.” That juror then stated, “‘I’ve got
some insight.’” The juror who reported this incident to the
court indicated that although the other juror had not specifi-
cally said what was in the article, this juror definitely had a
particular “stance.”
After the court received this information, it decided to speak
to each juror individually about this incident. Three of the
jurors indicated to the court that they had no recollection about
the incident and that they did not hear anyone talking about
an article written about the case. Six of the jurors indicated
they remembered a juror making a comment that her husband
saw an article in the newspaper about the case. None of these
jurors indicated that the juror said she read the article or that
she relayed what was in the article to anyone else. One juror
told the court that she remembered another juror come into
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the deliberation room and tell other jurors that her husband
informed her there was an article about the case in the news-
paper. She also remembered that juror saying that she had told
her husband she was a juror for a rape case.
The juror who was alleged to have received extraneous
information about the case also spoke to the court. That juror
admitted that her husband had told her there was an article in
the newspaper about the case. However, she said that she had
never looked at the article. She also said that she had never
indicated to any other juror that she had special insight into
the case.
After the court spoke with all of the jurors, McSwine
moved for a mistrial on the basis of juror misconduct. He
argued that there was an improper communication between a
juror and her husband and that this communication amounted
to juror misconduct. The court denied McSwine’s motion.
The court found that there was clear and convincing evidence
which demonstrated that a juror told other jurors that her hus-
band had read an article about this case. However, the court
also found there was no evidence to suggest that this juror
was provided with any information from the article or that she
relayed any information from the article to other jurors. The
court concluded:
I find that there was no juror misconduct in this case,
and I further find, even presuming for purposes of argu-
ment there was juror misconduct by [the juror] mentioning
her husband had read . . . an article, and that’s all I find
she did, that surely was not prejudicial to . . . McSwine.
McSwine appeals from the district court’s denial of his
motion for a mistrial.
(c) Analysis
[6-9] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence, (1)
the existence of jury misconduct and (2) that such misconduct
was prejudicial to the extent that the defendant was denied
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a fair trial. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749
(2010). In a criminal case, misconduct involving an improper
communication between a nonjuror and a juror gives rise to
a rebuttable presumption of prejudice which the State has the
burden to overcome. Id. Extraneous material or information
considered by a jury can be prejudicial without proof of actual
prejudice if (1) the material or information relates to an issue
submitted to the jury and (2) there is a reasonable possibility
that it affected the jury’s verdict to the challenger’s prejudice.
Id. Whether prejudice resulted from jury misconduct must be
resolved by the trial court’s drawing reasonable inferences
as to the effect of the extraneous information on an average
juror. Id.
In this case, the district court found that one of the jurors
had been informed by her husband that there was an article
in the newspaper about the case and that this juror told other
jurors about the existence of the article. However, the court
also found that this communication between the juror and her
husband and between the juror and the other members of the
jury did not amount to juror misconduct. The court based this
decision on its finding that the juror was not provided any
information from the article and that, as a result, she did not
provide any information to other jurors.
Upon our review of the record, we do not find that the
district court erred in determining there was no juror mis-
conduct. There was no evidence which demonstrated that any
juror received extraneous information about the specifics of
this case. And, as the district court stated, even if we were to
assume that there was some sort of misconduct in the juror’s
communications, McSwine was not in any way prejudiced by
the juror’s actions. A juror’s knowledge that an article about
the case appeared in the local newspaper, without any addi-
tional information, would not affect the average juror’s ability
to remain impartial.
The district court correctly denied McSwine’s motion for
a mistrial.
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3. Cumulative Effect
of Trial Errors
[10] McSwine also contends that the cumulative effect of
the other errors he assigned deprived him of a fair trial. While
any one of several errors may not, in and of itself, constitute
prejudicial error warranting a reversal, if all of the errors in
the aggregate establish that the defendant did not receive a fair
trial, a new trial must be granted. See State v. Kern, 224 Neb.
177, 397 N.W.2d 23 (1986). See, also, State v. Smith, 292 Neb.
434, 873 N.W.2d 169 (2016). The question, then, is whether in
the aggregate the claimed errors denied McSwine a fair trial.
See State v. Kern, supra.
Having rejected each of McSwine’s assignments of error to
this point, we also conclude that he was not denied a fair trial
and reject this assignment of error as well.
4. Ineffective Assistance
of Counsel
Finally, we turn to McSwine’s claims of ineffective assist­
ance of trial counsel. McSwine claims that he received inef-
fective assistance of trial counsel for a number of reasons. We
conclude with respect to each claim either that the claim is
without merit or that the record on direct appeal is insufficient
to determine the merits of the claim.
[11,12] 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 counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.
State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). The
two-prong ineffective assistance of counsel test need not be
addressed in order. State v. Nesbitt, 279 Neb. 355, 777 N.W.2d
821 (2010). To show prejudice under the prejudice component
of the Strickland test, the petitioner must demonstrate a rea-
sonable probability that but for his or her counsel’s deficient
per­formance, the result of the proceeding would have been
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different. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880
(2015). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
[13,14] When considering whether trial counsel’s perform­
ance was deficient, there is a strong presumption that counsel
acted reasonably. State v. Nesbitt, supra. Furthermore, trial
counsel is afforded due deference to formulate trial strategy
and tactics. When reviewing a claim of ineffective assistance
of counsel, an appellate court will not second-guess reasonable
strategic decisions by counsel. Id.
Because McSwine has different counsel in this appeal from
trial counsel, he must raise any issue of ineffective assistance
of trial counsel which is known to him or which is apparent
from the record, or the issue will be procedurally barred on
postconviction review. See State v. York, 273 Neb. 660, 731
N.W.2d 597 (2007). However, the fact that an ineffective
assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Collins, 292
Neb. 602, 873 N.W.2d 657 (2016). The determining factor
is whether the record is sufficient to adequately review the
question. Id. An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires an evidentiary
hearing. Id.
(a) Failure to Prepare Defense
McSwine claims that he received ineffective assistance
because his trial counsel failed to adequately prepare his
defense. He asserts that counsel did not depose C.S. prior to
trial, nor did counsel obtain video surveillance of McSwine’s
previous encounters with C.S. from the gas station where
he worked. McSwine’s claims involve allegations regarding
evidence and other information not presented at trial and
not present in the record, and furthermore, his claims would
require proof of matters outside the trial record. We therefore
conclude that these claims cannot be adequately reviewed in
this direct appeal.
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(b) Failure to Introduce Evidence
Relevant to McSwine’s
Consent Defense
McSwine claims that he received ineffective assistance
because his trial counsel failed to introduce certain evidence
relevant to his consent defense, including evidence of a prior
sexual relationship between McSwine and C.S., sufficient evi-
dence that McSwine committed trespass on the morning of
the assault, and evidence that a friend and fellow inmate of
McSwine’s who testified against him had access to police
reports about the assault. There is no evidence in the record
that would allow us to determine whether trial counsel con-
sciously chose as part of a trial strategy not to present certain
evidence related to these topics.
As we stated above, when reviewing claims of alleged inef-
fective assistance of counsel, trial counsel is afforded due
deference to formulate trial strategy and tactics. See State v.
Nesbitt, supra. And, there is a strong presumption that counsel
acted reasonably, and an appellate court will not second-guess
reasonable strategic decisions. Id. Because of this deference,
the question of whether the failure to present certain evidence
was part of counsel’s trial strategy is essential to a resolution of
McSwine’s ineffective assistance of counsel claims. We there-
fore conclude that these claims cannot be adequately reviewed
in this direct appeal.
(c) Failure to Subject C.S. to
Handwriting Analysis
McSwine claims that he received ineffective assistance
because his trial counsel failed to subject C.S. to a handwrit-
ing analysis to prove that she wrote a note which allegedly
contained directions from her apartment to a location near
McSwine’s home. McSwine asserts that if it had been estab-
lished that C.S. wrote this note, it would have corroborated
his testimony that he and C.S. planned to meet at some point
on October 13, 2012. Upon our review, we conclude that
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McSwine’s assertions lack merit because he cannot show he
was prejudiced by his counsel’s failure to subject C.S. to a
handwriting analysis.
During the cross-examination of C.S., McSwine’s trial coun-
sel asked her about the note which apparently contained direc-
tions from her apartment to a location near McSwine’s home.
C.S. testified that the handwriting on the note “look[ed] like it
could possibly be” her handwriting, but that she was not sure.
Upon further questioning, C.S. admitted that the handwriting
looked “similar” to her handwriting, but she also indicated that
she did not remember writing the note, nor did she know where
the directions led.
Given C.S.’ testimony about the similarity between her
handwriting and the handwriting on the note, we find that
McSwine was not prejudiced by his counsel’s failure to obtain
a handwriting analysis of C.S. Even if such a handwriting
analysis proved that the handwriting on the note matched C.S.’
handwriting, C.S. essentially admitted to that fact in her tes-
timony. As such, evidence of the handwriting analysis would
have been cumulative and would not have changed the result
of the trial.
(d) Failure to Strike Juror
Who Was Related to Law
Enforcement Officer
McSwine claims that he received ineffective assistance
because his trial counsel failed to strike from the jury a pro-
spective juror who was the brother of “a law enforcement
officer who took an active role in the investigation which
ultimately led to the arrest of [McSwine].” Brief for appellant
at 52. McSwine alleges that as a result of counsel’s failure to
strike this prospective juror, he was placed on the jury which
ultimately convicted him. Upon our review, we conclude that
McSwine’s assertions lack merit because he cannot show he
was prejudiced by his counsel’s failure to strike the prospec-
tive juror.
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During voir dire, the following exchange occurred between
defense counsel and the prospective juror at issue:
[Defense counsel]: . . . Your brother’s a deputy?
[Prospective juror]: (Nodding in the affirmative.)
[Defense counsel]: Okay. And he had very limited
involvement in this case. He interviewed one person, I
think, and that’s it, and he won’t testify, and I’m not even
certain the person he interviewed will testify. Did you
ever talk with your brother about this case?
[Prospective juror]: (Shaking head in the negative.)
[Defense counsel]: Does he talk with you about some
of his work?
[Prospective juror]: Oh, no. I mean, other than asking
questions, but — me asking questions.
[Defense counsel]: Sometimes you’re curious?
[Prospective juror]: Yeah.
[Defense counsel]: Okay. But you never heard anything
about this case?
[Prospective juror]: No.
Based on defense counsel’s questions, it is clear that, con-
trary to McSwine’s assertion on appeal, the prospective juror’s
brother did not play an “active” role in the investigation of
this case. Rather, it appears that the brother played a very
minimal role in this investigation. Moreover, it is clear that the
prospective juror had not discussed this case with his brother,
nor did he even appear to know about his brother’s involve-
ment in the case until informed of such by defense counsel.
There is simply no indication that the prospective juror had
received any extraneous information about the case. In addi-
tion, there is no indication that the prospective juror was influ-
enced in any way by his brother’s involvement in the inves-
tigation. Accordingly, there is no reason that defense counsel
should have struck the prospective juror from the jury on the
basis of his brother’s involvement in the case. And, because
McSwine only alleges ineffective assistance due to counsel’s
failure to strike the juror on the basis of his brother’s role in
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the investigation, we do not find that McSwine was prejudiced
by counsel’s actions.
(e) Failure to Object to State’s
Questions About C.S.’
Sexual Naivety
McSwine claims that he received ineffective assistance
because his trial counsel failed to “object to the [State’s]
repeated attempts to portray [C.S.] as a sexually naïve per-
son.” Brief for appellant at 52. McSwine alleges that because
counsel failed to object to evidence that C.S. was “pure” and
“innocent,” such evidence was admitted and “crippled” his
consent defense. Id. at 53. Upon our review, we conclude that
McSwine’s assertions lack merit. McSwine cannot demonstrate
he was prejudiced by his counsel’s failure to object to this
evidence because, even if he had objected, such evidence was
relevant and admissible.
First, we note that, as we discussed above and contrary
to McSwine’s assertions, the State did not offer a significant
amount of evidence about C.S.’ propensity for pureness or
innocence. And, what evidence the State did offer, which
could have been interpreted as demonstrating that C.S. was
somewhat innocent, was relevant to the State’s presentation
of its case. For example, in his brief on appeal, McSwine
emphasizes C.S.’ testimony during the State’s direct examina-
tion that she did not want her parents to know that she and her
boyfriend had a sexual relationship. While this testimony may
be interpreted to demonstrate some sort of innocence or lack of
sexual experience on C.S.’ part, it was relevant to explain why
C.S. had initially lied to police about whether she had ever
engaged in sexual intercourse prior to the day of the assault.
Because this evidence was relevant to the State’s case and to
its discussion about C.S.’ credibility, any objection made to
the evidence by defense counsel would have been overruled.
This allegation of ineffective assistance of trial counsel is
without merit.
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V. CONCLUSION
Upon our review, we affirm McSwine’s convictions for ter-
roristic threats, kidnapping, first degree sexual assault, and
use of a deadly weapon to commit a felony. We find that
the district court did not err in excluding evidence about
C.S.’ sexual experience prior to the day of the assault or in
overruling McSwine’s motion for a mistrial due to alleged
juror misconduct.
As to McSwine’s claims of ineffective assistance of trial
counsel, we find that he was not denied ineffective assistance
of counsel when counsel failed to subject C.S. to a handwriting
analysis, to strike a prospective juror whose brother was a law
enforcement officer, and to object to evidence that portrayed
C.S. as pure or innocent. We find that the record is insufficient
to review the remaining grounds for McSwine’s ineffective
assistance of counsel claim.
A ffirmed.
Moore, Chief Judge, participating on briefs.