State v. Schwaderer, 898 N.W.2d 318

Background

Police stopped Robert L. Schwaderer for driving with a suspended license; a search incident to arrest uncovered packaged methamphetamine, cash, a digital scale, empty baggies, and several notebooks/notepads; an additional small amount was found at the jail.
Schwaderer was charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; he conceded possession but claimed he was a user, not a seller.
Forensic testimony established the total weight and purity of the methamphetamine (large bundle ~34.06 g; purity testing confirmed at least 31 g of actual methamphetamine) and described scale calibration/verification procedures.
The State introduced seized notebooks/notepads ("owe notes") and an expert formerly with the narcotics unit testified that the entries were consistent with drug-transaction ledgers; the court admitted the notebooks with a limiting instruction that they were not received for the truth of the matters asserted.
The jury convicted Schwaderer on all counts and the district court imposed concurrent sentences (10–15 years for possession with intent to deliver, shorter terms for other counts); Schwaderer appealed raising evidentiary, instructional, sufficiency, sentencing, and ineffective-assistance claims.

Issues

Issue	Schwaderer 9s Argument	State 9s Argument	Held
Admissibility of methamphetamine weight testimony	Testimony lacked foundation, relied on hearsay about calibration, and violated confrontation	Forensic scientist provided personal testing and verification showing scales accurate	Admissible; foundational testimony and in-lab verification sufficient; any error about outsourced calibration was harmless
Admissibility of notebooks/notepads ("owe notes")	Notebooks are hearsay and not authenticated as records or authored by Schwaderer	Notebooks offered to show character/use of place and circumstantially support intent to sell; authenticated by seizure testimony and expert interpretation	Admissible; not hearsay because not offered for truth of entries; authentication satisfied under §27-901 by appearance, content, and circumstances
Jury cautionary instruction and final instruction re: exhibits	Instructions failed to identify specific nonhearsay purpose and were misleading	Limiting instruction clearly told jury not to consider exhibits for truth; instructions read as whole were correct	No reversible error; instructions adequate and not misleading
Ineffective assistance of counsel (multiple claims)	Trial counsel failed to renew suppression motion, seek independent testing, challenge expert qualifications, and object to closing argument	Many claims are meritless or record insufficient; some waived; counsel cannot be ineffective for failing to raise meritless objections	Three claims resolved against Schwaderer (no deficient performance or prejudice); one claim (independent testing/weighing) left unresolved on direct appeal for insufficient record

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
State v. Russell, 292 Neb. 501 (2016) (standard for expert testimony based on experience and perception)
State v. Casterline, 293 Neb. 41 (2016) (authentication under Neb. Rev. Stat. § 27-901 and circumstantial authentication)
State v. Richardson, 285 Neb. 847 (2013) (appellate review standard for hearsay rulings)
State v. Hale, 290 Neb. 70 (2015) (evidentiary standards for expert/hearsay issues)