State v. Mrza
| Decision Date | 19 April 2019 |
| Docket Number | No. S-18-372.,S-18-372. |
| Citation | 302 Neb. 931,926 N.W.2d 79 |
| Parties | STATE of Nebraska, Appellee, v. Sami S. MRZA, Appellant. |
| Court | Nebraska Supreme Court |
Sanford J. Pollack, of Pollack & Ball, L.L.C., Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Sami S. Mrza appeals his jury conviction and sentencing for first degree sexual assault. Although he assigns multiple errors, we focus on two issues: the authentication requirement for "Snapchat" evidence and the prosecutor’s comment on Mrza’s use of an interpreter. Because the evidence was properly authenticated, trial counsel did not perform deficiently in failing to object to it. We find no plain error in the prosecutor’s closing argument, but determine that the record is not sufficient to address Mrza’s related claim of ineffective assistance of trial counsel. We find no error in Mrza’s other assignments, and because the record is insufficient, we do not reach other ineffective assistance of counsel claims. Therefore, we affirm.
Mrza emigrated from Iraq to the United States in December 2014. In the fall of 2016, Mrza met N.W., the victim, in a class at a community college. The conviction flowed from an event on November 12, 2016, which we summarize in more detail later in this opinion.
The State charged Mrza with first degree sexual assault, pursuant to Neb. Rev. Stat. § 28-319 (Reissue 2016). Mrza pled not guilty. The case proceeded to a jury trial. Throughout the trial, Mrza utilized an interpreter. Both N.W. and Mrza testified. The jury found Mrza guilty, and the court sentenced him to 8 to 15 years’ imprisonment.
Mrza filed a timely appeal, which we moved to our docket.1
We have reordered and restated Mrza’s numerous assignments of error, recognizing two primary issues. The first assigns that because trial counsel did not object to the authenticity of "Snapchat" evidence, counsel was ineffective. The second assigns prosecutorial misconduct for "inflammatory and prejudicial statements made during closing arguments." As an alternative on this second issue, Mrza assigns ineffective assistance of trial counsel in failing to move for a mistrial based on those statements.
His remaining assignments of error assert that the evidence was insufficient, the sentence was excessive, and trial counsel was ineffective in two other instances, by failing to move to suppress Mrza’s statements to law enforcement and by "fail[ing] to adequately investigate [Mrza’s] defenses and effectively cross-examine witnesses."
We observe that Mrza’s last assignment lacked the specificity we demand on direct appeal. We have held that when raising an ineffective assistance claim on direct appeal, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.2 And we have long held that an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.3 It follows that we should not have to scour the argument section of an appellant’s brief to extract specific allegations of deficient performance.4 We now hold that assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance, and an appellate court will not scour the remainder of the brief in search of such specificity.
Although we will not do so in the future, we have synthesized a specific assignment from the argument section of Mrza’s brief, which asserts that trial counsel was ineffective in failing to investigate the time between the assault and N.W.’s first interview with law enforcement for possible defenses by failing to (1) subpoena cell phone records of N.W. and the friend she called following the event, (2) investigate the relationship between N.W. and her friend, (3) subpoena video from the restaurant where N.W. and Mrza met before the event, and (4) subpoena Snapchat to obtain self-destructing messages from Mrza, N.W., and N.W.’s friend.
Mrza argues that his trial counsel was ineffective in failing to object, on the ground of authenticity, to "Snapchat" evidence.
The night after the incident, Mrza initiated a conversation with N.W. via Snapchat (Snapchat is a photograph- and text-sharing social media application). At trial, the State questioned N.W. about the Snapchat conversation. N.W. testified that Mrza was her "friend" on Snapchat. They became friends when they added each other’s "usernames." She knew it was his account because she typed in the username that he told her. Later, when offering the Snapchat conversation as evidence, N.W. stated that she knew the messages were between herself and Mrza, because "it has his name on it." She affirmed that the photographs of the conversation contained a fair and accurate depiction of the conversation. In the conversation, N.W. directly questioned Mrza about why he did certain things to her after she told him to stop. He apologized for his actions and promised not to do it again. After the State offered the evidence, trial counsel did not object and the court admitted it.
Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.5
When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.6 The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.7 Regarding the Snapchat evidence, we conclude that the record is sufficient to address Mrza’s claim.
Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington ,8 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.9 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.10 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.11 In determining whether trial counsel’s performance was deficient, there is a strong presumption that counsel acted reasonably.12
The parties disagree as to which standard should be applied to the authentication of the Snapchat messages. The State contends that authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."13 Mrza argues instead that the text message standard of authentication should be applied. Specifically, he argues that because Mrza testified that there were more messages to the conversation, the State failed to show that the messages were an accurate transcription of the conversation.
The State’s formulation is a correct statement of the evidence rule governing authenticity.14 This rule does not impose a high hurdle for authentication or identification.15 A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.16
Even if Mrza were correct that the text message authentication standard governs messages sent over social media applications, his claim would fail. Generally, the foundation for the admissibility of text messages has two components:
(1) whether the text messages were accurately transcribed and (2) who actually sent the text messages.17 Mrza does not challenge the second prong of this test, but argues only that the State failed to prove that the messages were accurately transcribed. In that regard, he conflates accuracy with completeness.
Contrary to Mrza’s argument, the existence of other messages does not undermine the accuracy of the messages that were offered. Mrza does not argue that the exhibit received in evidence was not accurate as far as it went. Instead, he argues that there were other messages not included in the exhibit. Essentially, his argument attempts to invoke the rule of completeness18 under the rubric of authenticity. The rule of completeness allows a party to admit the entirety of an act, declaration, conversation, or writing when the other party admits a part and when the entirety is necessary to make it fully understood.19 The rule of authentication did not require the State to offer all of the Snapchat messages in evidence. Where there is nothing to suggest that the other messages were relevant or the evidence entered was misleading or prejudicial, the State was not required to enter the entirety of the conversation into evidence.20
If Mrza believed that other messages were necessary to make the conversation fully understood, it was his obligation to offer them. But this was not a matter of...
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State v. Manuel T.
...512 (bar for authentication of evidence is not particularly high), cert. denied, 316 Conn. 917, 113 A.3d 70 (2015) ; State v. Mrza , 302 Neb. 931, 938, 926 N.W.2d 79 (2019) ("[the] rule does not impose a high hurdle for authentication"). This is because "[a] proponent of evidence is not req......
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State v. Short
...Dozier, supra note 6 ; U.S. v. Garcia-Zambrano, supra note 6.68 See, e.g., U.S. v. Mandell, supra note 6.69 See, e.g., State v. Mrza , 302 Neb. 931, 926 N.W.2d 79 (2019).70 State v. Stickelman , 207 Neb. 429, 299 N.W.2d 520 (1980).71 State v. Said , 306 Neb. 314, 945 N.W.2d 152 (2020).72 Se......
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State v. Wood
...deficient performance, and an appellate court will not scour the remainder of the brief in search of such specificity.85 We held, in State v. Mrza ,86 that an assignment of error that trial counsel was ineffective by " ‘fail[ing] to adequately investigate [the defendant's] defenses’ " lacke......
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...F.3d 110 (2d Cir. 2003). [70]Id. [71]Calkins v. U.S., 795 F.3d 896 (8th Cir. 2015). [72] Brief for appellant at 36. [73]See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). [74]State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). [75]Id. [76]Id. See, also, State v. Glazebmok, 282 Neb. 4......
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TOWARD A MORE PERFECT TRIAL: AMENDING FEDERAL RULES OF EVIDENCE 106 AND 803 TO COMPLETE THE RULE OF COMPLETENESS.
...of the completeness doctrine, Nebraska's Rule 106 allows for oral statements. See supra note 162. Additional Sources: See State v. Mrza, 926 N.W.2d 79, 88 (Neb. 2019) ("The rule of completeness allows a party to admit the entirety of an act, declaration, conversation, or writing when the ot......