State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Schwaderer was arrested after a traffic stop; police seized packaged methamphetamine (large and small quantities), ~$3,300 cash, a digital scale, baggies, and several notebooks/notepads from his vehicle; a later search of his person produced additional packaged methamphetamine.
- Charged with possession with intent to deliver methamphetamine (≥28g but <140g), possession of money to be used for drugs, and false reporting; he conceded possession but contested intent to deliver and actual weight/purity.
- The State introduced the seized notebooks/notepads (alleged “owe notes”) and an expert (former narcotics unit member) who opined the writings were consistent with drug transaction ledgers; court gave a limiting instruction that the notebooks were not admitted for the truth of the matters asserted.
- A forensic scientist testified about drug testing, weighing procedures, and scale calibration; she reported ~34.06g (±0.15g) for the large package and purity results indicating at least 31g of actual methamphetamine.
- Jury convicted on all counts; Schwaderer was sentenced within statutory limits and appealed, challenging admissibility of weight evidence and notebooks, jury instructions, expert testimony, sufficiency of evidence, ineffective assistance of counsel, and sentence excessiveness.
Issues
| Issue | Schwaderer’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of weight testimony | Testimony relied on hearsay/insufficient foundation and violated confrontation; witness lacked personal knowledge of calibration | Forensic scientist had personal knowledge of scale checks and used known weights daily/monthly; calibration/foundation adequate | Admissible; foundation sufficient and any error harmless because witness established accuracy herself |
| Admissibility of notebooks/notepads | Notebooks were hearsay and not properly authenticated | Notebooks offered to show character/use of place (not for truth); arresting officer identified seized items and expert linked contents to drug ledgers, satisfying authentication by circumstantial characteristics | Admissible; not hearsay when used for nontruth purpose and authenticated under Neb. Rev. Stat. §27‑901(2)(d) |
| Jury instructions / limiting instruction | Court’s cautionary instruction and Instruction No. 8 were inadequate or inconsistent with closing argument | Limiting instruction properly told jury not to consider writings for truth; State’s argument described consistency with distribution, not actual occurrences | Instructions sufficient; no preserved reversible error; closing argument not inconsistent with limiting instruction |
| Ineffective assistance of counsel (several claims) | Trial counsel failed to renew suppression motion, obtain independent testing/weighing, challenge expert qualifications, and object to closing argument | Many claims meritless or not prejudicial; record insufficient for independent testing claim; other claims fail Strickland standard | Three claims rejected on the merits; one claim (independent testing/weighing) left unresolved on direct appeal due to insufficient record |
Key Cases Cited
- State v. Richardson, 285 Neb. 847 (discussing standard of review for hearsay rulings)
- State v. Casterline, 293 Neb. 41 (authentication standard and §27‑901 applications)
- State v. Russell, 292 Neb. 501 (permitting testimony interpreting drug‑ledger terminology based on witness perception/experience)
- Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective assistance standard)