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State v. Mrza

Supreme Court of Nebraska

April 19, 2019

State of Nebraska, appellee,
v.
Sami S. Mrza, appellant.

         1. Effectiveness of Counsel: Appeal and Error. 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.

         2.___:.___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.

         3. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. 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.

         4. Effectiveness of Counsel: Records: Appeal and Error. 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.

         5. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         [302 Neb. 932] 6.___:___. 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.

         7. Effectiveness of Counsel: Proof: Words and Phrases. 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.

         8. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In determining whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.

         9. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.

         10. Rules of Evidence. 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.

         11.___. 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.

         12. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, an appellate court will review the record only for plain error.

         13. Appeal and Error. An appellate court may find plain error 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 uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

         14. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

         15. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.

         16. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused.

         [302 Neb. 933] 17.___::___ .A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.

         18. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.

         19.___:___. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

         19. 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 remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.

         21. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         22. Sexual Assault: Testimony: Proof. The State is not required to corroborate a victim's testimony in cases of first degree sexual assault; if believed by the finder of fact, the victim's testimony alone is sufficient.

         23. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

          Appeal from the District Court for Lancaster County: Lori A. Maret, Judge.

          Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

         [302 Neb. 934] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.

         I. INTRODUCTION

         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.

         II. BACKGROUND

         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]

         III. ASSIGNMENTS OF ERROR

         We have reordered and restated Mrza's numerous assignments of error, recognizing two primary issues. The first [302 Neb. 935] 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 [302 Neb. 936] 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.

         IV. ANALYSIS

         1. Snapchat Authentication

         Mrza argues that his trial counsel was ineffective in failing to object, on the ground of authenticity, to "Snapchat'' evidence.

         (a) Additional Facts

         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.

         (b) Standard of Review

         Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In [302 Neb. 937] 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]

         (c) General Principles Regarding Ineffective Assistance of Counsel

         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 [302 Neb. 938] 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]

         (d) Analysis

         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 ...


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