State v. McSwine

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
01/29/2016 09:04 AM CST

- 565 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. McSWINE
Cite as 292 Neb. 565

State of Nebraska, appellee, v. Frederick E. McSwine,
also known as Frederick E. Johnson, appellant.
___ N.W.2d ___

Filed January 29, 2016. No. S-13-887.

 1. Motions for New Trial: Prosecuting Attorneys: Appeal and Error.
An appellate court reviews a motion for new trial on the basis of pros-
ecutorial misconduct for an abuse of discretion of the trial court.
 2. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
 3. Trial: Prosecuting Attorneys: Appeal and Error. When considering
a claim of prosecutorial misconduct, an appellate court first considers
whether the prosecutor’s acts constitute misconduct.
 4. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
not mislead and unduly influence the jury is not misconduct.
 5. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
concludes that a prosecutor’s acts were misconduct, the court next
considers whether the misconduct prejudiced the defendant’s right to a
fair trial.
 6. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
prejudices a defendant’s right to a fair trial when the misconduct so
infected the trial that the resulting conviction violates due process.
 7. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
prejudicial depends largely on the context of the trial as a whole.
 8. Trial: Prosecuting Attorneys: Appeal and Error. In determining
whether a prosecutor’s improper conduct prejudiced the defendant’s
right to a fair trial, an appellate court considers the following factors:
(1) the degree to which the prosecutor’s conduct or remarks tended to
mislead or unduly influence the jury; (2) whether the conduct or remarks
were extensive or isolated; (3) whether defense counsel invited the
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Nebraska A dvance Sheets
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STATE v. McSWINE
Cite as 292 Neb. 565

remarks; (4) whether the court provided a curative instruction; and (5)
the strength of the evidence supporting the conviction.
 9. Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or
her argument on the evidence introduced at trial rather than on matters
not in evidence.
10. Trial: Evidence. A fact finder can rely only on evidence actually
offered and admitted at trial and is not permitted to rely on matters not
in evidence.
11. Juries: Jury Instructions. The purpose of jury instructions is to assure
decisions that are consistent with the evidence and the law, and to
inform the jury clearly and succinctly of the role it is to play, the deci-
sions it must make, and to assist and guide the jury in understanding the
case and considering testimony.
12. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
13. Trial: Appeal and Error. A party is normally required to object to a
perceived error by a trial court in order to preserve that issue for appeal.
14. Appeal and Error. A party is not permitted, without objection, to take
the chances of a favorable result and then, if disappointed, for the first
time complain.
15. Trial: Prosecuting Attorneys. Public prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial.
16. Prosecuting Attorneys: Convictions. It is as much a prosecutor’s
duty to refrain from improper methods calculated to produce a wrong-
ful conviction as it is to use every legitimate means to bring about a
just one.
17. 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.

Petition for further review from the Court of Appeals, Irwin,
Inbody, and Pirtle, Judges, on appeal thereto from the District
Court for Lancaster County, Paul D. Merritt, Jr., Judge.
Judgment of Court of Appeals reversed, and cause remanded
for further proceedings.

Mark E. Rappl for appellant.
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STATE v. McSWINE
Cite as 292 Neb. 565

Douglas J. Peterson and Jon Bruning, Attorneys General,
and Kimberly A. Klein for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
Frederick E. McSwine, also known as Frederick E. Johnson,
was convicted 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. On appeal, the Nebraska Court of Appeals reversed,
concluding on plain error review that the State committed
prosecutorial misconduct in its closing arguments.1 We granted
the State’s petition for further review. We reverse the deci-
sion of the Court of Appeals and remand the cause for fur-
ther proceedings.
FACTUAL BACKGROUND
McSwine was charged with terroristic threats, kidnapping,
first degree sexual assault, and use of a deadly weapon to com-
mit a felony. The charges arise from October 2012 allegations
that McSwine abducted C.S. at knifepoint and drove her around
rural Lancaster County, in an area near Waverly, Nebraska,
periodically stopping to sexually assault her. McSwine and
C.S. originally met because McSwine worked at a convenience
store in Waverly, which store C.S. had frequented.
C.S. testified that McSwine knocked on her door the morn-
ing of October 13, 2012, and asked to use her bathroom.
This was not the first time that McSwine had asked to use
her bathroom; a week or two earlier, at a time when C.S. had
guests, McSwine stopped to use the bathroom and left without
incident. But according to C.S.’ testimony, on this occasion,
after purportedly using the bathroom, McSwine pulled out
a pocketknife and forced C.S. out of the apartment. At the

 1
State v. McSwine, 22 Neb. App. 791, 860 N.W.2d 776 (2015).
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STATE v. McSWINE
Cite as 292 Neb. 565

time, C.S.’ boyfriend was sleeping in the apartment. C.S. was
wearing a pair of pajama shorts under a pair of longer pajama
pants, a sports bra, and a flannel shirt. C.S. was not wearing
shoes. She also left her identification, money, and cell phone
in her apartment.
C.S. testified that McSwine then drove around rural
Lancaster County, near Waverly. On three occasions, McSwine
allegedly drove into isolated areas and forced C.S. to engage
in various sexual acts. After about 5 hours, McSwine allowed
C.S. to leave his car. C.S. jumped over a guardrail near where
McSwine let her out of the car and ran, still barefoot, to a
nearby home, where law enforcement was notified. According
to C.S., though McSwine originally let her leave the car, she
later saw him head toward her as she knocked on the door of
the home.
In addition to C.S.’ testimony, the State offered the testimony
of a friend of McSwine’s. This witness testified that McSwine
told him that he had abducted and sexually assaulted C.S. at
knifepoint. His testimony largely corroborated the narrative to
which C.S. testified. The witness’ testimony was given as part
of a cooperation agreement with the State.
The State also offered testimony of the nurse who performed
C.S.’ sexual assault examination. According to the nurse’s tes-
timony, there was a laceration to C.S.’ vagina. The nurse testi-
fied that lacerations such as the one C.S. suffered were caused
by blunt force trauma and were consistent with sexual assault
and also with sexual penetration “if it’s rough sex where
there’s a lot of force.”
McSwine testified in his own behalf. McSwine did not
contest that he had sexual contact with C.S. and agreed that
those acts occurred in isolated areas surrounding Waverly. But
McSwine testified that those acts were consensual. McSwine
testified that C.S. became upset with him when she discov-
ered that he had lied to her about having a charger for his cell
phone. According to McSwine, C.S. then accused McSwine of
being selfish, of lying to her, and of using her for sex. At this
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STATE v. McSWINE
Cite as 292 Neb. 565

point, according to McSwine, C.S. insisted that he stop the car
and let her out. McSwine testified that he did so.
McSwine’s counsel argued in closing arguments that C.S.
had concocted the story about McSwine’s abducting and sex­
ually assaulting her because she was angry at McSwine and
because she did not want her parents or boyfriend to be upset
with her because of her actions.
At trial, the State introduced certain text messages from
McSwine to his wife and from McSwine to a friend. According
to the State, these messages showed McSwine’s feelings of
guilt and remorse over his actions involving C.S. In summary,
the State argued McSwine both knew that C.S. had run from
his car directly to a residence and assumed that C.S. would
inform law enforcement of McSwine’s actions and could iden-
tify him because they had previously met.
In the messages from McSwine to his wife, McSwine indi-
cated that he had “messed up bad” and that “[c]ops are prob-
ably going to be looking for me [and] if they are I’m going to
run.” McSwine also apologized to his wife and stated that he
“[did not] deserve [her and wished he] didn’t f*** everything
up.” In a later text message, McSwine asked his wife if she
“would give [him] up even if [he] was dead wrong and did
some foul s***.” In these messages, McSwine discussed run-
ning away to Mexico or to a “reservation.”
In the messages from McSwine to his friend, McSwine
stated that he had gotten himself into trouble, that he “might be
taking a trip,” and that he did not know “what [he] was think-
ing.” McSwine then stated that he “f*** this all up.”
But McSwine testified that the text messages did not indi-
cate grief or remorse about kidnapping and sexually assaulting
C.S., but instead were an indication of his concern about an
incident that happened prior to the incident involving C.S.
McSwine testified that in the early morning hours of October
13, 2012, he had been selling marijuana to the friend of a
friend in Eagle, Nebraska. During the exchange, McSwine
got nervous that the buyer was going to rob him, so he hit the
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Cite as 292 Neb. 565

buyer and ran into and through a nearby house. An elderly
woman in the house confronted him; he apologized and ran
back out.
McSwine testified that at the time of this incident, he had
just finished smoking methamphetamine. McSwine explained
that he assumed that because he was on parole, he would be
facing significant charges for this encounter.
Other than McSwine’s testimony, there was no evidence
presented at trial that this trespassing incident occurred. On
cross-examination, the State inquired whether McSwine knew
if any reports had been filed on this incident. McSwine replied
that he did not know.
During its closing argument, the State focused in part on
McSwine’s testimony about the motivation for the text mes-
sages. The prosecutor informed the jury that McSwine’s tes-
timony that he trespassed by walking into someone’s house
was “unsupported by any evidence at all. It’s just him saying
that that happened.” In the prosecutor’s rebuttal, he stated:
“There is nothing that supports [McSwine’s] statement or
his testimony that he ran through some house . . . noth-
ing. It’s just his word.” There was no objection to either of
these comments.
Following closing arguments, the jury was instructed and
then retired to deliberate. During those deliberations, the jurors
inquired of the court as follows: “Did [the prosecutor] say
that there was no evidence . . . including a police report . . .
of . . . McSwine’s presence in a local house . . . ?” The court
responded to the jury’s question by informing the jury that it
had all of the evidence it was going to receive in the case and
further directed the jury to one of its instructions. Neither the
State nor McSwine’s counsel objected to the court’s handling
of the question.
McSwine was ultimately found guilty. He filed a motion for
new trial, alleging that the prosecutor’s statements during clos-
ing arguments indicating that there was no evidence to support
McSwine’s testimony that he had trespassed through a house
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. McSWINE
Cite as 292 Neb. 565

in the early morning hours of October 13, 2012, were mis-
leading, because there was evidence of a trespass, supported
by various police reports. The police reports were originally
provided to the defense by the State, but were not offered by
either side or otherwise admitted as evidence at trial.
In support of his motion for new trial, McSwine offered
into evidence those police reports. According to the reports, at
the time of the event, the homeowner identified McSwine as
the trespasser based upon a picture obtained from the security
camera of a convenience store located in Eagle. Months later,
however, the homeowner was not able to identify McSwine
from a photographic lineup. Also offered was an affidavit
from McSwine’s counsel averring that his failure to object was
a mistake and not trial strategy and that he failed to object
because, at the time, he believed the State was arguing that
there was no such evidence “‘presented at trial.’”
McSwine’s motion for new trial was overruled because
counsel did not object to the comments. McSwine was sen-
tenced to a total of 57 to 85 years’ imprisonment. McSwine
appealed to the Court of Appeals. Among other assignments of
error, McSwine argued that the State committed prosecutorial
misconduct in its closing arguments.
The Court of Appeals first noted that McSwine did not
object to the prosecutor’s statements at the time the statements
were made. The Court of Appeals then reviewed the record
for plain error and concluded that there was plain error in the
State’s closing arguments:
Evidence offered by McSwine at the hearing on his
motion for new trial revealed that the prosecutor’s state-
ments about the lack of evidence supporting McSwine’s
testimony were misleading. On two separate occasions,
the prosecutor told the jury that there was no evidence
which supported McSwine‘s testimony that on October
13, 2012, prior to his interaction with C.S., he had com-
mitted various criminal offenses, including trespassing
through a residence. The prosecutor’s comments were not
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. McSWINE
Cite as 292 Neb. 565

qualified in a way so as to suggest that there was simply
no evidence presented at the trial. Instead, the prosecu-
tor unambiguously stated that the only evidence of the
trespass was McSwine’s testimony: “There is nothing that
supports [McSwine’s] statement or his testimony that he
ran through some house . . . nothing. It’s just his word.”
These comments 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 that
McSwine had committed other criminal acts on October
13 which in no way involved C.S.
Even more concerning than the effect these false state-
ments had on the jurors is the evidence that the prosecu-
tor knew the statements to be false or misleading when
making them. The prosecutor knew that there was, in
fact, evidence about the trespass, because he forwarded
to defense counsel police reports about that trespass and
about McSwine’s being the one who committed the tres-
pass. In addition, defense counsel stated in his affidavit
that he and the prosecutor had a discussion about the tres-
pass prior to trial. At that time, the prosecutor specifically
indicated that he was not going to offer any evidence
about that act at trial.
Because the prosecutor’s comments were mislead-
ing and were made with knowledge of their inaccuracy
and untruthfulness, we conclude that the comments were
improper in nature.2
The Court of Appeals then turned to the issue of whether the
improper nature of the statements prejudiced McSwine’s right
to a fair trial and concluded that it did.
The Court of Appeals also found merit to McSwine’s asser-
tion that his trial counsel was ineffective for failing to timely
object to the prosecutor’s statements about the lack of evi-
dence to support McSwine’s explanation of the text messages.

 2
Id. at 799-800, 860 N.W.2d at 784.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. McSWINE
Cite as 292 Neb. 565

The Court of Appeals declined to reach McSwine’s remaining
assignments of error. Ultimately, the Court of Appeals reversed
McSwine’s convictions and remanded the cause for a new
­trial.3 We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in revers-
ing McSwine’s convictions and remanding the cause for a
new trial.
STANDARD OF REVIEW
[1] An appellate court reviews a motion for new trial on the
basis of prosecutorial misconduct for an abuse of discretion of
the trial court.4
[2] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process.5
ANALYSIS
The Court of Appeals reversed McSwine’s convictions and
remanded the cause for a new trial. The basis of the court’s
opinion was that the State committed prosecutorial miscon-
duct such that despite a lack of objection by McSwine was
so plainly error that “[left] uncorrected, would result in
damage to the integrity, reputation, and fairness of the judi-
cial process.”6
We begin our analysis by noting that this case presents an
odd procedural position. In the “typical” direct appeal which
ultimately raises issues of plain error, the “error” is not raised

 3
State v. McSwine, supra note 1.
 4
State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
 5
State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
 6
State v. McSwine, supra note 1, 22 Neb. App. at 798, 860 N.W.2d at 783.
Accord State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
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STATE v. McSWINE
Cite as 292 Neb. 565

until the case reaches the appellate level. A defendant might
raise that “error” in its brief on direct appeal, or this court
might note it on its own motion.7 But in this case, the perceived
error was initially raised at the trial court level in a motion
for new trial. The motion for new trial was denied because
of the lack of an objection at trial. The district court declined
McSwine’s invitation to find plain error.
We ordinarily review the denial of a motion for new trial for
an abuse of discretion, and we cannot conclude that the district
court abused its discretion in denying the motion for new trial.
Indeed, everyone agrees that no objection was made to the
prosecutor’s statements at trial.
But this does not end our inquiry, because the Court of
Appeals concluded that the prosecutor’s statements during
closing arguments constituted, as a matter of plain error, pros-
ecutorial misconduct. We therefore turn to an analysis of
whether that conclusion was correct.

Relevant Propositions of Law.
[3-5] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct.8 A prosecutor’s conduct that does not mislead and
unduly influence the jury is not misconduct.9 But if we con-
clude that a prosecutor’s acts were misconduct, we next con-
sider whether the misconduct prejudiced the defendant’s right
to a fair trial.10
[6-8] Prosecutorial misconduct prejudices a defendant’s
right to a fair trial when the misconduct so infected the trial
that the resulting conviction violates due process.11 Whether
prosecutorial misconduct is prejudicial depends largely on

 7
See State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
 8
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
 9
Id.
10
Id.
11
Id.
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STATE v. McSWINE
Cite as 292 Neb. 565

the context of the trial as a whole.12 In determining whether
a prosecutor’s improper conduct prejudiced the defendant’s
right to a fair trial, we consider the following factors: (1) the
degree to which the prosecutor’s conduct or remarks tended to
mislead or unduly influence the jury; (2) whether the conduct
or remarks were extensive or isolated; (3) whether defense
counsel invited the remarks; (4) whether the court provided a
curative instruction; and (5) the strength of the evidence sup-
porting the conviction.13

Were Statements Misconduct?
We turn first to the conclusion of the Court of Appeals that
the prosecutor’s statements were misconduct. We conclude that
the statements were not misleading and did not unduly influ-
ence the jury. As such, they were not misconduct.
The statements at issue were related to McSwine’s defense
at trial that his text messages were not referring to C.S.’ sexual
assault allegations, but instead were related to a trespassing
incident that McSwine was involved in earlier that same day.
The State, in discussing that defense, noted there was no evi-
dence “at all,” beyond McSwine’s word, of this earlier incident.
As has been noted, McSwine did not object to these statements.
Only after the jury returned a verdict against McSwine did
he complain, via a motion for new trial, that these statements
were misleading.
The Court of Appeals concluded that the prosecutor’s clos-
ing statements were misleading. The court reasoned that the
statements did not limit the term “evidence” to only that evi-
dence presented at trial; rather, the statements suggested to
the jury that there was no evidence “at all,” when there was
evidence to support McSwine’s statements.14 However, that
evidence was not offered at trial.

12
Id.
13
Id.
14
State v. McSwine, supra note 1.
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STATE v. McSWINE
Cite as 292 Neb. 565

There were police reports about the incident, which had
been forwarded to McSwine’s counsel by the State. At that
time, the State indicated that it would not offer evidence of the
incident at trial. According to McSwine, this showed that the
State was aware of evidence relating to the trespassing incident
and that therefore, the prosecutor’s statement that there was no
evidence “at all” regarding the incident was misleading.
[9,10] We agree that the State had knowledge of these
reports. Despite this knowledge, we cannot conclude that the
jury was misled or unduly influenced by the prosecutor’s clos-
ing argument, because the jury was well instructed as to what
“evidence” was within the context of this trial. A prosecutor
must base his or her argument on the evidence introduced at
trial rather than on matters not in evidence.15 A fact finder
can rely only on evidence actually offered and admitted at
trial and is not permitted to rely on matters not in evidence.16
It is undisputed that there was no evidence presented at trial
which corroborated McSwine’s testimony about the trespass-
ing incident.
The jury was informed at various times and in various ways
of what it could consider in reaching its determination. Just
prior to closing statements, the jury was told that “[t]he attor-
neys, in making these arguments, will be commenting upon
the testimony you have heard and the evidence that has been
presented during the trial.”
During the jury’s formal instructions, instruction No. 1
informed the jury that it “is your duty to decide what the facts
are” and that “[i]n determining what the facts are you must rely
solely upon the evidence in this trial and that general knowl-
edge and common sense that everyone has.”
In instruction No. 10, the jury was further instructed: “The
evidence from which you are to find the facts consists of the

15
See State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).
16
See Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424
(1965).
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following: (1) The testimony of the witnesses; (2) the exhibits
received in evidence; and (3) any facts that have been stipu-
lated . . . .” That same instruction also specifically informed
the jury that “[s]tatements, arguments and questions” were
not evidence.
During its deliberations, the jury asked the court if the
prosecutor had said that there was no evidence, “including a
police report,” of the trespassing incident in Eagle. But in a
supplemental answer to the question, the jury was informed
that “[y]ou have all of the evidence you are going to receive in
this case.” That answer also specifically referred the jury back
to instruction No. 10, which provides in part that arguments of
counsel are not evidence.
[11,12] “The purpose of jury instructions is to assure deci-
sions that are consistent with the evidence and the law”17 and
“to inform the jury clearly and succinctly of the role it is to
play, the decisions it must make, and to assist and guide the
jury in understanding the case and considering testimony.”18
Absent evidence to the contrary, it is presumed that a jury fol-
lowed the instructions given in arriving at its verdict.19
In this case, the jury was instructed in various ways that
the only evidence it was to consider was that which was pre-
sented at trial. It seems incongruous to instruct the jury that
“evidence” means the evidence presented at trial and simul-
taneously find the prosecutor commits misconduct if he does
not qualify references to “evidence” to make sure the jury
understands he means only the “evidence” presented at trial.
This is particularly so when McSwine did not object at trial
and instead raised the issue of misconduct only after learning
of the jury’s verdict. We therefore conclude that the jury was
not misled or unduly influenced by the prosecutor’s failure
to qualify his references to evidence as being the evidence

17
89 C.J.S. Trial § 718 at 192 (2012).
18
23A C.J.S. Criminal Law § 1760 at 330 (2006).
19
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
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presented at trial, or his statement that there was no evidence
“at all” to corroborate McSwine’s testimony.

Were Statements Prejudicial?
We conclude that the prosecutor’s statements were not mis-
conduct. But even if they were, those statements were not
so prejudicial as to violate McSwine’s due process rights. In
making that determination, a court considers (1) the degree
to which the prosecutor’s conduct or remarks tended to mis-
lead or unduly influence the jury, (2) whether the conduct or
remarks were extensive or isolated, (3) whether defense coun-
sel invited the remarks, (4) whether the court provided a cura-
tive instruction, and (5) the strength of the evidence supporting
the conviction.20
We turn first to the degree to which the prosecutor’s conduct
or remarks tended to mislead or unduly influence the jury. We
find this weighs against finding prejudice. As noted in detail
above, the statements made by the prosecutor did not mis-
lead or unduly influence the jury to any significant “degree,”
because the jury was well instructed as to what it could con-
sider in its deliberations. The jury was aware it could consider
only that evidence which was presented at trial and that the
arguments of counsel were not evidence.
We further note that in the motion for new trial, even
McSwine’s counsel averred that he did not object because he
“believed [that the prosecutor] argued that no evidence, other
than [McSwine’s] testimony, was ‘presented at trial’ about a
trespassing in Eagle, Nebraska.” Counsel explained that his
failure to object was because he “misheard” the prosecutor.
The second factor is whether the conduct or remarks were
extensive or isolated. As an initial matter, having reviewed
the entirety of closing arguments, we observe that these
mentions were brief in the context of a much longer closing
argument. The remarks consisted of perhaps 30 seconds out

20
State v. Dubray, supra note 8.
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of nearly 45 minutes’ worth of the State’s closing and rebut-
tal arguments.
Moreover, when the State’s closing arguments are consid-
ered collectively with its cross-examination of McSwine, it
seems clear that the State did not strongly contest McSwine’s
story regarding the trespassing incident in Eagle, but only
questioned his explanation that it was that incident to which
the text messages referred:
[State:] And you run — I believe you indicated that
you run [sic] into a house?
[McSwine:] Yes. I ran through a house.
Q Where is your car at?
A If the house is here and the parking lot is here, my
car is here.
And we met on the side of the house, here.
So, I backed out and I ran through the house and came
around the block to the parking.
Q How long were you in this house?
A Twenty — 20 seconds, maybe 30 seconds.
Q So, your testimony is that you did not enter this
house for the purpose of stealing anything or anything
like that, right?
A Absolutely not.
Q You just went into this house so that you could lose
this guy that you thought was following you?
A Correct.
Q And you encountered people in the house?
A Yes.
Q And I believe that you kind of gestured like this, you
put your hands up and got out of there, right?
A Yes.
Q So, there’s no reason to believe that these people
thought you were in there for the purpose of stealing any-
thing or like — anything like that, right?
A Well, I can’t, you know, intelligently tell you what
they were thinking or what they feel, I mean that’s crazy.
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Q But you had no permission to go in the house.
A No.
Q Did you say anything to the people that were in
the house?
A I told the lady I’m just passing through. She looked
scared. I felt bad.
Q Did this guy [you were supposed to be selling mari-
juana to] that you don’t know the name of, did he follow
you into the house?
A No. I paused, briefly, to see if he was giving chase,
and he was not.
Q And is it your testimony that going into this house
was the only way in which to get away from this guy?
A Maybe not the only way, but I felt it was a — clever,
at the time.
Q All right. So, you get to your car after this, right, and
then — Where do you go from there?
A From that car, I went to [C.S.’] house.
During the prosecution’s closing argument, in the context
of discussing McSwine’s explanation for the text messages, it
noted: “[B]y the way, [the story was] unsupported by any evi-
dence at all.” The prosecutor then continued, “[w]hen was the
last time a federal agent had to go get somebody for a simple
trespassing? He’s talking about raping [C.S.]”
In its rebuttal closing argument, the prosecution again sug-
gested that McSwine’s explanation for those text messages just
did not make sense:
I would submit to you that the timing of this, these text
messages, is extremely compelling as to what he’s talking
about and what he’s referring to. His statements are only
that. There is nothing that supports his statement or his
testimony that he ran through some house in Eagle, noth-
ing. It’s just his word.
When considered collectively and not in isolation, the crux
of the State’s argument was not that the trespassing event
did not take place; rather, the crux of the argument was that
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McSwine’s explanation that this event caused him to send
those text messages did not make sense. As such, we conclude
that the second factor weighs against a finding of prejudice.
We turn next to the third factor, whether defense counsel
invited the error.
Our review of the record suggests that in his closing argu-
ment, McSwine’s counsel noted that there was, in evidence, a
picture of McSwine taken from security footage at a conve-
nience store in Eagle. Defense counsel then noted: “Why does
law enforcement go into [a convenience store] looking for sur-
veillance video of someone? Why? It only makes sense [if] it’s
because there’s been a call about a trespass, somebody entering
the house, and that’s why they’re going there.”
But there was no evidence at trial that any police call regard-
ing the trespass was made. It appears that defense counsel
invited the jury to consider evidence outside of trial. This argu-
ably invited the State to clarify, during its rebuttal argument,
that there was nothing except McSwine’s word to support his
trespass story. We conclude there was reason to believe that
the error was invited. This factor also weighs against find-
ing prejudice.
The fourth factor is whether the court gave any curative
instruction. In this case, McSwine did not object to the state-
ments and, as such, did not request a curative instruction or a
mistrial based on these statements. But the instructions the jury
received prior to deliberations did address what the jury was
to consider in reaching its decision, and after the jury asked its
question, these instructions were reiterated. At most, this factor
is neutral.
The final factor is the strength of the evidence support-
ing McSwine’s convictions, and in this case, such evidence
is strong. C.S. testified that McSwine abducted and sexually
assaulted her at knifepoint. C.S. also testified that she had
known McSwine because she frequented a local convenience
store where he worked and because he had once used the bath-
room in her apartment. A friend of McSwine’s also testified
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that McSwine told him that he had abducted and sexually
assaulted C.S. at knifepoint. The physical evidence, notably the
laceration to C.S.’ vagina, also supported the conclusion that a
sexual assault had occurred.
Moreover, the circumstances surrounding the incident do
not support the conclusion that the sexual contact between
C.S. and McSwine was consensual. Both agree that C.S.
was wearing little by way of clothing and left her apartment
without shoes, a cell phone, money, or her identification.
The parties also both agree that the sexual contact occurred
in isolated and remote areas of Lancaster County, requiring
C.S. to walk barefoot through coarse vegetation and over
rocky earth.
Having considered the above factors, we conclude that even
assuming the prosecutor’s statements were misconduct, such
statements were not prejudicial.
We also note that certainly the prosecutor’s statements did
not amount to plain error, and we determine that the Court of
Appeals erred in finding otherwise.
[13,14] Under most circumstances, we require a party to
object to a perceived error by a trial court in order to preserve
that issue for appeal.21 A party is not permitted, without objec-
tion, to take the chances of a favorable result and then, if
disappointed, for the first time complain.22 Conversely, plain
error may be found on appeal when an error is unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process.23
Plain error should be resorted to only in those rare instances
where it is warranted; to conclude otherwise would swallow
the general rule. In short, a party is not permitted a second

21
See State v. Collins, 281 Neb. 927, 949, 799 N.W.2d 693 (2011).
22
Id.
23
State v. Alarcon-Chavez, supra note 5.
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bite at the apple. And plain error certainly is not a vehicle
that should be routinely used to “save” an issue for appeal
where a proper objection should have been, but was not,
made at trial.
We do not, as the dissent suggests, conclude that a district
court cannot, on a motion for new trial, consider whether a
prosecutor’s statement was plain error. In fact, the district court
considered plain error here and ultimately found none. We sim-
ply take issue with the Court of Appeals’ finding of plain error
in this case for two reasons. First, there was no error to form
the basis for plain error. And second, the Court of Appeals’
finding that trial counsel’s performance was ineffective inde-
pendently supports the ultimate conclusion without relying on
the plain error doctrine.
We pause to note that because the jury was both properly
instructed and repeatedly instructed, we do not find miscon-
duct or prejudice. But statements like those made in this case
could impermissibly lead the jury to consider information
not contained in the record. On different facts, these state-
ments could lead to a conclusion that the prosecutor commit-
ted misconduct.
[15,16] We therefore remind the State that public prosecu-
tors are charged with the duty to conduct criminal trials in such
a manner that the accused may have a fair and impartial trial.24
As explained by the U.S. Supreme Court, a prosecutor
is the representative not of an ordinary party to a contro-
versy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecu-
tion is not that it shall win a case, but that justice shall
be done.25

24
State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
25
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314
(1935).
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“It is as much [a prosecutor’s] duty to refrain from improper
methods calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just one.”26
Because the “average jury, in a greater or less degree, has con-
fidence that these obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed,” “improper
suggestions, insinuations and, especially, assertions of per-
sonal knowledge are apt to carry much weight against the
accused when they should properly carry none.”27 Beyond
the reversal of a defendant’s criminal conviction, the State’s
failure to comply with this duty could result in discipline by
this court.28
Was Trial Counsel Ineffective?
In addition to concluding that the prosecutor’s statements
during closing arguments were plain error, the Court of Appeals
concluded that McSwine’s trial counsel was ineffective for
failing to object to those statements when they were made.
We disagree.
[17] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,29 the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.30
As we have noted above, the prosecutor’s statements, when
considered in the context of all the trial proceedings, were not
misleading and did not unduly influence the jury and, thus,
were not misconduct. Counsel cannot be deficient for failing
to object to statements which were not misconduct. Moreover,
as the above analysis shows, McSwine was not prejudiced by

26
Id.
27
Id.
28
See Neb. Ct. R., ch. 3, art. 3.
29
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
30
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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counsel’s performance. We conclude that the Court of Appeals
erred in finding otherwise.

CONCLUSION
We reverse the Court of Appeals’ decision reversing
McSwine’s convictions. We remand the cause to the Court
of Appeals for consideration of any remaining assignments
of error.
R eversed and remanded for
further proceedings.
Stacy, J., not participating.
Connolly, J., dissenting.
I dissent. I disagree with the majority for two reasons. First,
the issue presented by McSwine’s motion for a new trial was
whether the prosecutor’s closing argument was plain error.
McSwine conceded that his attorney did not object but raised
plain error in the proceedings. The trial court stated that even
if it could consider plain error in a motion for a new trial, it
found none. But because McSwine did not object, the major-
ity concludes that the trial court did not abuse its discretion in
overruling his motion for a new trial. In effect, the majority
concludes that a trial court has no inherent duty or statutory
duty under Neb. Rev. Stat. § 29-2101(1) (Reissue 2008) to
consider whether plain error from prosecutorial misconduct
occurred during a trial. I disagree.
Second, I disagree with the majority that the prosecutor’s
false statements of fact were not misconduct and that the
Nebraska Court of Appeals incorrectly held the prosecutor’s
closing argument was plain error. I believe it is always mis-
conduct for a prosecuting attorney to knowingly make false
statements of fact in a case, whether the court admitted the
evidence or not. And because the false statements were crucial
to McSwine’s only defense and made when McSwine could not
rebut them, I agree with the Court of Appeals that the prosecu-
tor’s misconduct was plain error.
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TRIAL COURTS HAVE A STATUTORY DUTY
TO CONSIDER A CLAIM OF PLAIN ERROR
IN A MOTION FOR A NEW TRIAL
UNDER § 29-2101(1)
Section 29-2101, in relevant part, authorizes a trial court
to grant a defendant a new trial for one of seven listed rea-
sons if the asserted reason materially affected the defendant’s
substantial rights. Section 29-2101(1) authorizes a new trial
for one of four disjunctive irregularities in the proceedings
if they prevented a defendant from having a fair trial: an
“[i]rregularity in [1] the proceedings of the court, [2] of the
prosecuting attorney, or [3] of the witnesses for the state
or [4] in any order of the court or abuse of discretion by
which the defendant was prevented from having a fair trial.”
(Emphasis supplied.)
An irregularity in a prosecuting attorney’s proceedings is
listed separately from an irregularity or abuse of discretion
in a court order or ruling. So on its face, § 29-2101(1) con-
templates raising the prosecutor’s misconduct apart from any
claimed irregularity in a court order or ruling. And because any
irregularity under § 29-2101(1) must be one that deprived the
defendant of a fair trial, a valid claim of irregularity is one that
affected a defendant’s substantial rights.
As we know, plain error exists when there is error, plainly
evident from the record but not complained of at trial, that
prejudicially affects a substantial right of a litigant and is
of such a nature that to leave it uncorrected would cause a
miscarriage of justice or result in damage to the integrity,
reputation, and fairness of the judicial process.1 An irregularity
that deprives a defendant of a fair trial is one that, left uncor-
rected, necessarily results in a miscarriage of justice. The Due
Process Clause guarantees a defendant a fair trial, and pros-
ecutorial misconduct can deprive a defendant of that right.2

 1
See, e.g., State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
 2
See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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So § 29-2101(1) provides a defendant a statutory remedy to
raise prosecutorial misconduct that rises to the level of a due
process violation. And McSwine did not waive his right to
a fair trial by his attorney’s failure to object to prosecuto-
rial misconduct.
A waiver is the voluntary and intentional relinquishment of
a known right, privilege, or claim. Although it can be dem-
onstrated by a person’s conduct in some circumstances, an
appellate court will generally not find a waiver of a right con-
stitutionally guaranteed or statutorily granted unless the record
shows that a defendant affirmatively waived the right.3 But that
is not the case here.
In McSwine’s motion for a new trial, his attorney alleged
that after an initial investigation of the trespass, a deputy sher-
iff interviewed the victims in their home and told them that
they might have to testify. But before a rule 404(3)4 hearing,
the prosecutor informed McSwine’s attorney that he would
not present evidence of the trespass McSwine committed in
Eagle. McSwine’s attorney further alleged that during closing
argument, McSwine complained to his attorney that the pros-
ecutor lied when he said there was no evidence that McSwine
had run through a house in Eagle. At the time, McSwine’s
attorney incorrectly believed the prosecutor had argued there
was no evidence presented at trial about the trespass. But after
the trial, his attorney ordered a transcript and reviewed it. His
attorney then moved for a new trial. These facts do not show
a voluntary waiver of McSwine’s claim of prosecutorial mis-
conduct, and certainly not of his right to a fair trial. But the
majority’s reasoning will allow trial courts to conclude that
in considering a motion for a new trial, a defense counsel has
forfeited a defendant’s right to a fair trial if the defense counsel
failed to object to prosecutorial misconduct.

 3
State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
 4
See Neb. Evid. R. 404(3), Neb. Rev. Stat. § 27-404(3) (Cum. Supp. 2014).
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I do not agree with that reasoning. In a previous appeal rais-
ing a trial court’s denial of a motion for a new trial, we con-
sidered whether the prosecutor’s alleged misconduct in closing
argument was plain error without implying that the trial court
had no duty to consider that argument because the defense
counsel failed to object.5 More important, we have specifically
held that a trial court has the inherent power and discretion
to grant a new trial because of plain error.6 This power would
often be of little use if trial courts were free to ignore a mis-
carriage of justice because a party failed to object. Federal
courts similarly hold that under Fed. R. Crim. P. 33 (“[u]pon
the defendant’s motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires”), a
trial court has broad power to correct a miscarriage of justice,
including prosecutorial misconduct, subject to the plain error
doctrine if the defendant did not object.7
So I disagree with the majority’s conclusion that a trial court
cannot consider plain error if the defendant failed to object at
trial. That conclusion is contrary to § 29-2101 and our case
law. In my opinion, the issue is whether the trial court erred in
failing to determine that the prosecutor’s closing argument was
plain error.
PROSECUTOR’S FALSE STATEMENTS
WERE MISCONDUCT
Closing A rguments and R elevant Facts
The prosecutorial misconduct claim involves two different
statements that the prosecutor made in closing arguments. In

 5
See State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727
(2007).
 6
See McCready v. Al Eighmy Dodge, 197 Neb. 684, 250 N.W.2d 640
(1977). See, also, Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
 7
See, e.g., U.S. v. McBride, 862 F.2d 1316 (8th Cir. 1988); 3 Charles Alan
Wright & Sarah N. Welling, Federal Practice and Procedure: Federal Rules
of Criminal Procedure §§ 581, 588 (4th ed. 2011).
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the State’s initial argument, the prosecutor emphasized that
some of McSwine’s text messages to his wife or a friend
were made after he had let the complaining witness out of
the car. He argued that when McSwine sent messages that
he was in big trouble for something that he had done, it was
implausible that he was referring to “some simple trespassing
where he walked through somebody’s house, which is, by the
way, unsupported by any evidence at all. It’s just him saying
that that happened.” (Emphasis supplied.) He then referred to
McSwine’s statements that he might have to go to Mexico or
“the reservation” because the cops would be looking for him
and only federal marshals could go onto a reservation. The
prosecutor argued that it was implausible that federal marshals
would go after someone on a reservation for a trespass, which
showed that McSwine really meant he was in trouble for raping
the complaining witness.
In McSwine’s closing argument, his attorney first said that
the prosecutor “has said a lot of things. Some things that
maybe I hadn’t prepared for. I’ll do my best to address those.”
McSwine’s defense was that the complaining witness was
not credible, because she had lied or omitted facts during the
investigation, and that his claim they had consensual sex was
credible despite his text messages. In arguing that his text mes-
sages were about his parole violations—including the trespass
in Eagle—he reminded the jurors of a photograph of McSwine
from Casey’s convenience store in Eagle. He asked the jurors
to consider why officers would have gone there looking for a
surveillance video when Casey’s had no connection to any of
the alleged sexual crimes: “Why? It only makes sense [if] it’s
because there’s been a call about a trespass, somebody enter-
ing the house, and that’s why they’re going there. And then,
Lancaster County deputies see this and they say, I — we know
that guy, we know him from Ollie’s.”
To put this argument in context, the evidence showed that
the complaining witness knew McSwine from her contacts with
him at Ollie’s gas station in Waverly, where he had previously
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worked. A deputy sheriff, who had seen McSwine at Ollie’s
several times, identified him in a photograph taken at Casey’s
in Eagle on the morning of October 13, 2012. The deputy
sheriff testified that McSwine was at Casey’s about 7 a.m. and
about 8:15 a.m. that day.
McSwine testified that he was in Eagle on October 13, 2012,
to sell marijuana to two people: someone he knew and a friend
of that person whom he did not know. He said he smoked
methamphetamine with the person he knew and that they then
went to Casey’s about 7 a.m. He said that after visiting a for-
mer employer in Eagle, he returned to Casey’s before going to
a used car lot, where he had arranged to meet the second buyer.
McSwine said the second buyer appeared nervous, causing
him to fear that he was about to be robbed. So he punched the
buyer and ran into a nearby house where he had seen an elderly
man leaving through the back door. Inside the house, he was
confronted by an elderly woman. McSwine said that when he
ran out the front door, he did not see the second buyer and left
in his car.
In response to McSwine’s closing argument, the prosecu-
tor emphatically argued that his claim about his text messages
referring to a trespass in Eagle was implausible:
I would submit to you that the timing of this, these text
messages, is extremely compelling as to what he’s talking
about and what he’s referring to. His statements are only
that. There is nothing that supports his statement or his
testimony that he ran through some house in Eagle, noth-
ing. It’s just his word. And you have to apply the same
factors to . . . McSwine that you do [to a witness who
testified against McSwine]. He’s a convicted felon. He
was violating his parole all over the place.
This argument was obviously intended to persuade the jurors
that McSwine was lying about the trespass, and the reason for
the trespass, because there were no facts showing that a tres-
pass occurred. But the prosecutor knew otherwise.
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Prosecutor’s Statements
Were Misleading
Prosecutors have a duty to conduct criminal trials in a man-
ner that provides the accused with a fair and impartial trial.8 A
prosecutor’s conduct that does not mislead and unduly influ-
ence the jury is not misconduct.9 It follows that conduct which
does mislead the jury is misconduct.10
I believe that the majority erroneously concludes that the
prosecutor’s false statements were not misconduct because
they were not misleading and did not influence the jury. To
reach that conclusion, the majority relies on the court’s general
admonitions that (1) the attorneys’ arguments are not evidence;
(2) the jury must rely solely on the evidence presented; and (3)
evidence consisted of testimony, admitted evidence, and stipu-
lated facts. I do not agree that general admonitions to the jury
that arguments are not evidence can cure a prosecutor’s false
statements of fact.11
A prosecutor “is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obliga-
tion to govern impartially is as compelling as its obliga-
tion to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but
that justice shall be done.”12
Because the “‘average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon
the prosecuting attorney, will be faithfully observed,’ ‘improper
suggestions, insinuations and, especially, assertions of personal

 8
Dubray, supra note 2.
 9
Id.
10
See, id.; State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
Accord, e.g., U.S. v. Myerson, 18 F.3d 153 (2d Cir. 1994).
11
See Clark v. Doe, 119 Ohio App. 3d 296, 695 N.E.2d 276 (1997).
12
Barfield, supra note 5, 272 Neb. at 512, 723 N.W.2d at 312-13, quoting
Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).
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knowledge are apt to carry much weight against the accused
when they should properly carry none.’”13
“[T]he prosecutor’s opinion carries with it the imprima-
tur of the Government and may induce the jury to trust
the Government’s judgment rather than its own view of the
evidence.”14 “For this reason, it is improper for the government
to present to the jury statements or inferences it knows to be
false or has very strong reason to doubt.”15
It is true that the prosecutor’s argument was not mislead-
ing because it was based on admitted evidence. Instead, the
prosecutor’s false statements were misleading because they
conveyed to the jury that McSwine was not credible based
on the prosecutor’s knowledge of the available evidence. A
lie, by definition, is a false statement made with the intent to
mislead, and a knowing false statement of fact can never be
consistent with a prosecutor’s duty to do justice. It is precisely
because jurors believe that the prosecutor has knowledge of
the relevant facts—admitted or not—that prosecutors have
a duty to be truthful in their statements, especially in clos-
ing arguments.
Accordingly, a prosecutor cannot misstate the record,16
state facts not in evidence,17 or suggest that there are facts
not in evidence that are favorable to the State.18 “By going
beyond the record, the prosecutor becomes an unsworn wit-
ness, engages in extraneous and irrelevant argument, diverts
the jury from its proper function, and seriously threatens the

13
Id. at 512, 723 N.W.2d at 313, quoting Berger, supra note 12.
14
United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1
(1985).
15
U.S. v. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009).
16
See Bennett L. Gershman, Prosecutorial Misconduct § 11:30 (2d ed. 2015)
(citing cases).
17
See Doug Norwood, Prosecutorial Misconduct in Closing Argument § 15.1
(2014) (citing cases).
18
Id., § 15.3 (citing cases). See, also, Dubray, supra note 2.
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defendant’s right to a fair trial.”19 And a prosecutor’s duty to
be truthful in his or her statements to the jury extends to not
making false statements about the known but unadmitted facts
of the case.
Both federal and state courts have held that a prosecutor’s
knowing false statements of fact were misconduct, even if the
known contrary facts were not admitted in evidence. Some
of these cases were cited in McSwine’s brief. But because it
appears the majority is unconcerned with other courts’ reason-
ing, I discuss cases relevant to show that the Court of Appeals’
decision was correct.
For example, the Ninth Circuit considered a case in which
the government charged the defendant with falsifying corpo-
rate books by conspiring to compensate employees with stock
options that were backdated but not recorded as a compensa-
tion expense.20 The accounting violation made the publicly
traded corporation appear more profitable than it was. The
defendant testified that he had no intent to deceive and had
relied on the finance department’s statements to ensure that
the books were accurate. A low-level employee in the finance
department testified that she and other employees did not
know about the backdating scheme. But both the defense
and the government knew that higher-level employees in the
department, who did not testify, had admitted their knowledge
of the backdating procedures and had themselves been targets
of investigations.
In closing argument, to support the defendant’s position that
he was not responsible for the misstatements, he argued that
the finance department knew about the backdating procedures.
The prosecutor responded by arguing that the employees in
the finance department had no knowledge of the backdating
scheme. The trial court denied the defendant’s motion for a
new trial because the defense counsel had told the jury that

19
Gershman, supra note 16, § 11:32 at 591 (citing cases).
20
Reyes, supra note 15.
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there were finance department employees who knew about
the backdating procedures without seeking their immunity and
calling them as witnesses.
The Ninth Circuit rejected this reasoning because the
“[d]efense counsel made no knowingly false statements.”21
Conversely, the prosecutor, who had the burden to prove
guilt, had “asserted as fact a proposition that he knew was
contradicted by evidence not presented to the jury.”22 The
court emphasized that it would not lightly tolerate a prosecu-
tor’s false statements because such arguments “harm the trial
process and the integrity of our prosecutorial system.”23 And
the false statements were particularly prejudicial because they
struck directly at the defendant’s main defense: that he had
delegated the backdating responsibility, the finance department
knew how it was being done, and he had relied on its state-
ments. The court reversed the conviction and remanded the
matter for a new trial. As in this case, the prosecutor knew that
his statements were false even if the contrary evidence was not
received as part of the record.
The First Circuit reached the same conclusion in U.S. v.
Udechukwu.24 There, the government accused the defendant
of being a drug courier from Nigeria, and the evidence clearly
established the elements of the crime. But her defense was
duress, i.e., that she was forced to carry drugs by a man who
had threatened her and her family. She had given the pros-
ecutor the man’s hotel telephone number and offered to par-
ticipate in a controlled delivery. The government had used her
information to verify the man as a drug trafficker in Aruba,
and the prosecutor informed the defense attorney that gov-
ernment agents had been tracking him for some time. Yet at
trial, the government disclosed neither the man’s name nor his

21
Id. at 1077.
22
Id. at 1076.
23
Id. at 1078.
24
U.S. v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993).
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existence. In closing argument, the prosecutor questioned the
existence of the man and strongly suggested that the defend­
ant’s story was unbelievable. The First Circuit concluded that
the prosecutor had committed two errors: (1) failing to give the
defendant salient evidence and (2)
a deliberate insinuation that the truth is to the contrary. As
we [have previously] pointed out . . . “it [is] not improper
to urge the jury to evaluate the plausibility of the justifi-
cation defense in light of the other evidence (and the lack
thereof),” but “it is plainly improper for a prosecutor to
imply reliance on knowledge or evidence not available
to the jury.” It is all the more improper to imply reliance
on a fact that the prosecutor knows to be untrue, or to
question the existence of someone who is known by the
prosecution to exist.25
Again, the court’s conclusion that the prosecutor’s false
statements were misconduct did not depend on whether the
government had admitted the contrary available evidence.
The Sixth Circuit’s reasoning in United States v. Toney26
also supports McSwine’s argument that the prosecutor’s false
statements were misconduct. In that case, the government
prosecuted the defendant for bank robbery. Three masked men
robbed a bank, and no witness could positively identify the
third man. But a search of the defendant’s residence uncov-
ered a nylon stocking mask and “bait money” that had been
placed in the money stolen from the bank.27 The defendant
admitted to the FBI that he planned the robbery but claimed
that he had backed out the day before and did not participate.
He said he won the money playing poker with his replace-
ment in the robbery and other men. The replacement robber
had told investigators that he gambled with the defendant after
the robbery and that the defendant won a substantial sum. But

25
Id. at 1106 (citation omitted) (emphasis supplied).
26
United States v. Toney, 599 F.2d 787 (6th Cir. 1979).
27
Id. at 788.
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the ­government did not make this statement available to the
defense until the last day of the trial and successfully objected
to the statement as hearsay when the defendant sought to intro-
duce it. In response to the defendant’s testimony, the govern-
ment also presented counterwitnesses, one of whom stated that
the replacement robber had not been present during the gam-
bling; the other stated that the defendant had lost money. In
closing argument, the prosecutor attacked the defendant’s cred-
ibility and suggested the defendant was unbelievable because
no witness testified that the replacement robber was gambling
with the defendant.
In determining that the government’s violation of Brady v.
Maryland28 was not harmless, the Sixth Circuit focused on this
closing argument:
In the circumstances, we find this line of argument to
be foul play. As he was making the argument, the pros-
ecutor well knew that evidence did exist to corroborate
[the defendant’s] story in this regard and that it had come
from [the replacement robber] himself. Moreover, the
nature of the closing argument forecloses any possible
claim that the exclusion of the [replacement robber’s]
statement could have been harmless error. The prosecutor
told the jury that it should convict because of the absence
of evidence which he knew existed. We have no choice
but to assume that the jury was persuaded by the prosecu-
tor’s remarks and convicted for that reason.29
None of these federal courts were concerned with whether
the government submitted the available contrary evidence.
And state courts’ decisions are consistent with these federal
cases. In Garcia v. State,30 the Florida Supreme Court reversed
a trial court’s denial of postconviction relief and vacated the

28
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
29
United States v. Toney, supra note 26, 599 F.2d at 790-91.
30
Garcia v. State, 622 So. 2d 1325 (Fla. 1993).
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defendant’s convictions and sentences because the State had
withheld evidence relevant to the defendant’s death sentence
and the prosecution’s closing argument was contrary to the
evidence that the State had withheld. The defendant was one
of four participants in a robbery in which the two storeowners
were killed. After he was arrested, the defendant twice told
investigators that another participant had shot the owners. In
the first statement, the defendant gave a false name for the
shooter, who had apparently assumed someone else’s name.
But in the second statement, he clarified that the name he had
given was another name for the shooter and gave the shooter’s
real name. Additionally, a witness who turned in the alleged
real shooter said that he initially gave officers the false name
when they arrested him, but the State withheld the witness’
statement from the defense counsel.
The Florida Supreme Court concluded that the evidence
did not support the prosecutor’s argument that the fictional
name (Joe Perez) referred to a fictional person and that the
“available evidence” showed the opposite was true.31 “For the
State prosecutorial team to argue on this record that Joe Perez
was a nonexistent person created by [the defendant] during
questioning constitutes an impropriety sufficiently egregious
to taint the jury recommendation.”32 The court stated that
“while the State is free to argue to the jury any theory of the
crime that is reasonably supported by the evidence, it may
not subvert the truth-seeking function of the trial by obtaining
a conviction or sentence based on deliberate obfuscation of
relevant facts.”33
Finally, in State v. Bvocik,34 the prosecution charged the
defendant with using a computer to facilitate meeting an

31
Id. at 1331 (emphasis supplied).
32
Id. at 1332.
33
Id. at 1331.
34
State v. Bvocik, 324 Wis. 2d 352, 781 N.W.2d 719 (Wis. App. 2010).
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underage girl for sex. The State had to prove that he only
had reason to believe the correspondent, who was actually a
28-year-old woman, was under age 16. Her profile on a Web
site stated that she was age 28 but that she was into “‘age-
play.’”35 The government did not present the woman’s true
age to the jury, and she did not testify. She had elicited the
defendant’s interest in sex acts. Then at some point, she got
nervous and told him that she was age 14. She contacted the
police when he still wanted to meet with her. An officer testi-
fied that she was brought to his office at a high school where
he was the police liaison. The defendant claimed that he did
not really believe she was underage because of her graphic
descriptions of her sexual experiences. In closing argument,
the prosecutor suggested that the woman’s listed birth date
(February 14, 1977) was untrue and obviously suspicious
because it was Valentine’s Day—despite knowing that her
birth date was accurate.
The appellate court reversed. It stated that under Wisconsin
law, when a prosecutor asks a jury to draw an inference
that the prosecutor knows or should know is not true, it
is improper argument that may require reversal. The court
explained that this type of argument could be highly prejudi-
cial because the defense has no opportunity to present rebuttal
evidence. Additionally, during deliberations, the jury submit-
ted a question to the court. It wanted to know the correct age
of the “girl” in question. The court concluded that this ques-
tion showed the prosecutor’s argument had its intended effect.
The transcript of the Web site conversation and the officer’s
testimony that he brought her to a high school increased the
plausibility of the prosecutor’s suggestion that the woman was
actually age 14. If the woman’s true age had been part of the
record, then the suggestion would likely not have required
a reversal. But the prosecutor’s suggestion diverted the jury

35
Id. at 354, 781 N.W.2d at 721.
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from the real issue, which was only whether the defendant had
reason to believe the woman was underage.
These cases show that courts should not tolerate prosecu-
tors’ making false arguments to a jury that are contrary to the
known facts of the case—whether presented or not. That con-
clusion should be obvious and is consistent with our holdings
on fraudulent misrepresentations in civil cases, which include
half-truths intended to deceive:
“When a party makes a partial or fragmentary state-
ment that is materially misleading because of the party’s
failure to state additional or qualifying facts, the state-
ment is fraudulent. ‘Fraudulent misrepresentations may
consist of half-truths calculated to deceive, and a rep-
resentation literally true is fraudulent if used to create
an impression substantially false.’ ‘“To reveal some
information on a subject triggers the duty to reveal all
known material facts.”’ Consistent with imposing liabil-
ity for half-truths, the Restatement (Second) of Torts
§ 527 provides that an ambiguous statement is fraudu-
lent if made with the intent that it be understood in its
false sense or with reckless disregard as to how it will
be understood.”36
The same reasoning should certainly apply when a defend­
ant’s personal liberty is at stake. Yet the majority concludes
that a prosecutor’s false statements are not misconduct if the
court admonishes the jurors to consider only the evidence and
that arguments are not evidence. I do not think a prosecutor’s
duty to be truthful should hinge upon whether the jurors would
have understood to ignore the prosecutor’s false statements
because of the court’s admonition to consider only admitted
“evidence.” A heated argument is qualitatively distinct from
false statements of fact. The prosecutor obviously intended

36
deNourie & Yost Homes v. Frost, 289 Neb. 136, 150, 854 N.W.2d 298, 312
(2014).
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to undermine McSwine’s defense by asking the jurors to rely
on his knowledge of the relevant facts. And the majority’s
reasoning will encourage, rather than discourage, prosecuto-
rial misconduct.
Finally, I reject the majority’s conclusion that McSwine’s
attorney invited the prosecutor’s false statements. It is true
that McSwine’s attorney asked the jurors to infer that police
officers had gone to Casey’s and obtained his photograph
because someone reported a trespass. He appears to have
been responding to the prosecutor’s unexpected argument that
McSwine’s trespass claim was unsupported by the evidence.
But McSwine’s attorney did not refer to evidence outside of
the record or misstate the available evidence. Instead, he asked
the jurors to draw a reasonable inference from the admit-
ted evidence.
Even if McSwine’s closing argument suggested there must
be evidence outside the record, that suggestion only permit-
ted the prosecutor to respond in kind, i.e., to go outside the
record truthfully—not to falsely represent the known available
evidence outside the record. Because the prosecutor knew there
were facts to support McSwine’s claim that he had committed
crimes unrelated to the charged offenses, he could only argue
that the defense had not presented such evidence. He could not
argue that no evidence existed to support McSwine’s defense
when he knew otherwise.
Of course, having concluded that the prosecutor’s false
statements were not misconduct, the majority has no rea-
son to consider whether they were prejudicial. But because
McSwine’s guilt was clearly tied to whether the jury believed
the complaining witness had consented to the sexual acts
underlying these charges, I believe McSwine was prejudiced
by the prosecutor’s false statements. The primary issue in
this case was the witnesses’ credibility. And the prosecutor’s
statements obviously raised the jurors’ concerns over credibil-
ity or they would not have asked whether the prosecutor had
said “there was no evidence (including a police report) of . . .
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McSwine’s presence in a local house in Eagle, NE?” Finally,
the prosecutor’s false statements were made when McSwine
could no longer rebut them.
In sum, I do not agree that a court’s general admoni-
tions can cure a prosecutor’s misrepresentations that directly
undermine a defendant’s primary defense. While a prosecu-
tor “may strike hard blows, he is not at liberty to strike foul
ones.”37 False statements of fact are foul blows. So I think
the Court of Appeals got it right. I would affirm the Court of
Appeals’ decision.

37
Berger, supra note 12, 295 U.S. at 88.