- Associated Press - Friday, January 29, 2016

LINCOLN, Neb. (AP) - The Nebraska Supreme Court denied a new trial Friday for a Lincoln man convicted of sexual assault and kidnapping, concluding a prosecutor’s remarks about the defendant’s text messages didn’t influence the jury’s decision because new evidence can’t be presented in closing arguments.

Frederick McSwine, 29, was sentenced in 2013 to 57 to 85 years in prison after prosecutors argued at trial that he forced a woman from her apartment at knifepoint and raped her in October 2012.

But the conviction was reversed in March when a state appeals court found that the Lancaster County prosecutor handling the case knowingly provided false information to the jury during his closing arguments. The Nebraska Supreme Court reversed that decision and the appeals court’s order that he should get a new trial, concluding that the statements did not unduly influence the jury.

As part of its case against McSwine, the state presented text messages that McSwine sent to his wife and a friend the day of the reported assault indicating he had done something that would get him in trouble with police. McSwine said those texts referred to a different incident, in which he was selling illegal drugs, struck a buyer out of fear of being robbed, then fled into an occupied house.

Though several police reports indicated McSwine had trespassed on someone’s property that morning, Assistant Lancaster County Attorney Eric Miller told jurors twice during closing arguments there was no evidence supporting McSwine’s contention that the text messages referred to any such incident. Miller’s misleading comments coupled with the failure of McSwine’s defense attorney to object to them required that McSwine’s conviction be reversed and that he be tried again, the appeals panel said.

The Supreme Court opinion said Miller’s comments were not misconduct because those reports were not presented as part of trial evidence and as such, the jury could not have used them in its final decision.

“A prosecutor must base his or her argument on the evidence introduced at trial rather than on matters not in evidence,” Nebraska Supreme Court Chief Justice Michael Heavican wrote in the opinion. “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.”

The high court also found the jury was well informed that it should not rely on a prosecutor’s arguments as evidence.

McSwine’s appeals attorney Mark E. Rappl said the opinion is based on flawed logic and that the jury clearly leaned on the prosecutor’s statements in their judgments of McSwine’s credibility.

Rappl said the opinion paves a path for prosecutors to misstate what they believe to be evidence and pointed to a lengthy dissent by Judge William M. Connolly that cited previous case law in which prosecutors’ false statements of fact were found to be misconduct.

“While a prosecutor ‘may strike hard blows, he is not at liberty to strike foul ones,’” Connolly wrote. “False statements of fact are foul blows.”

The ruling instructed the case to be returned to the Nebraska Court of Appeals to review other errors addressed in McSwine’s appeal. Rappl said the defense plans to exhaust state appeal rights and will explore federal options if necessary.

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