State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Police stopped Robert L. Schwaderer for driving with a suspended license; a search incident to arrest yielded ~34.06 grams of packaged methamphetamine (plus ~0.358 g separately packaged), ~$3,300 cash, a digital scale, baggies, and several notebooks/notepads. A later jail search yielded additional packaged methamphetamine.
- 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 argued he was a user, not a seller.
- The State introduced (1) forensic testimony about testing, weighing, and purity of the methamphetamine and (2) seized notebooks/notepads ("owe notes") as evidence of drug distribution, alongside an expert (former narcotics unit member) who interpreted slang/notations in the notebooks.
- The trial court admitted the weight testimony and the notebooks (with a limiting instruction that the notes were not to be considered for the truth of assertions within them), allowed the expert to interpret the notes, and submitted instruction No. 8 limiting the exhibits’ use.
- A jury convicted Schwaderer on all counts; he received concurrent sentences (10–15 years for delivery, shorter terms for other counts) and appealed challenging evidentiary rulings, jury instructions, expert testimony, sufficiency, sentencing, and multiple ineffective-assistance claims.
Issues
| Issue | Schwaderer’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of weight testimony | Weight testimony lacked proper foundation, was hearsay, and violated confrontation | Forensic scientist established calibration/accuracy and personal testing sufficient for admissibility | Admissible; foundation sufficient and any error harmless because witness performed known-weight checks showing scale accuracy |
| Admissibility of notebooks/notepads (hearsay/authentication) | Notes were hearsay proving truth of transactions and not properly authenticated | Notes offered not for truth of listed transactions but as circumstantial evidence of dealing; appearance, content, and witness testimony authenticated them | Admissible; not hearsay for the purpose offered and authentication via circumstantial evidence was sufficient |
| Jury cautionary instruction & final instruction No. 8 | Instructions were inadequate/ prejudicial | Court’s limiting instruction and final instruction properly informed jury not to use notes for truth | No reversible error; instructions adequate and not misleading; objections preserved only in part, so some arguments waived |
| Expert witness qualification & testimony | Expert was not properly qualified; procedures for qualifying expert not followed | Witness’s experience/perception justified testimony; objection not timely preserved | Claim waived for lack of timely objection; even on merits witness’s testimony permissible as expert or lay-perception testimony |
| Ineffective assistance (renew suppression, independent testing, expert prelim hearing, object to closing) | Trial counsel failed on several fronts, prejudicing defense | Record shows no prejudice or claim meritless; some claims not resolvable on record | Three claims rejected on merits; one claim (independent testing/weighing) not resolved due to insufficient record |
| Sufficiency of evidence & sentence excessiveness | Evidence excluded would make convictions unsupported; sentences excessive | Evidence supported convictions; sentences within statutory limits | Convictions and sentences affirmed; evidence sufficient and sentences not an abuse of discretion |
Key Cases Cited
- State v. Richardson, 285 Neb. 847 (Neb. 2016) (standard for reviewing hearsay rulings and foundation)
- State v. Casterline, 293 Neb. 41 (Neb. 2016) (authentication standard under Neb. Rev. Stat. § 27-901)
- State v. Russell, 292 Neb. 501 (Neb. 2016) (when witness testimony interpreting drug-related notation is admissible)
- State v. Parnell, 294 Neb. 551 (Neb. 2016) (procedural standards for ineffective-assistance claims on direct appeal)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)