State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Schwaderer was stopped, arrested for driving under suspension and false reporting; searches produced ~34.06 g packaged methamphetamine, additional small amount, ~$3,300, a digital scale, baggies, and several notebooks/notepads.
- Charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; he conceded possession but contested intent to deliver and quantity.
- State admitted notebooks/notepads ("owe notes") and elicited testimony from a former narcotics-unit employee who opined the writings were consistent with drug ledgers; court gave a limiting instruction that the notes were not admitted for the truth of the matters asserted.
- Forensic scientist testified to identity, weighing procedures, scale calibration checks, and purity testing showing at least 31 g actual methamphetamine; weights and purity entered into evidence.
- Jury convicted on all counts; sentenced within statutory limits; Schwaderer appealed, challenging admissibility of weight testimony and notebooks, jury instructions, expert testimony, sufficiency of evidence, and raising ineffective assistance claims.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Schwaderer) | Held |
|---|---|---|---|
| Admissibility of meth weight testimony | Scales were properly tested, witness had sufficient foundation to testify to weights and calibrations | Testimony rested on hearsay about outside-company calibrations and lacked foundation/confrontation | Admission proper; witness’s own tests and procedures provided sufficient foundation; any error harmless |
| Admissibility of notebooks/notepads (hearsay/authentication) | Notes were offered to show character/use of location and circumstantially to show intent to sell, not for truth of entries; they were authenticated by seizure and expert interpretation | Notes were inadmissible hearsay and insufficiently authenticated | Admission proper; not hearsay because not offered for truth; authentication satisfied by testimony and distinctive characteristics under §27-901(2)(d) |
| Jury cautionary instruction/limiting instruction | Limiting instruction adequately informed jury not to consider notes for truth; State’s use consistent with that purpose | Instruction insufficient or State’s closing argument contradicted the limiting instruction | No reversible error; instructions read as a whole were adequate and not prejudicial |
| Ineffective assistance of trial counsel (various failures) | Counsel’s choices were reasonable; some claims barred or meritless | Claimed failures to renew suppression motion, seek independent testing, challenge expert qualifications, and object to closing argument | Three claims resolved on record and rejected (failure to renew suppression, failure to object to expert quals, failure to object to closing); one claim (independent testing/weighing) left unresolved for lack of record |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
- State v. Russell, 292 Neb. 501 (expert testimony analysis; foundation for interpretation of drug ledger terms)
- State v. Casterline, 293 Neb. 41 (authentication standard under Neb. Rev. Stat. § 27-901)
- State v. Richardson, 285 Neb. 847 (hearsay review standards and appellate review of hearsay rulings)
- State v. Ely, 295 Neb. 607 (application of Strickland on Nebraska law)