State v. Schwaderer, 296 Neb. 932

Background

Defendant Robert L. Schwaderer was stopped, arrested for driving on a suspended license and false reporting; searches yielded ~34.06 g packaged methamphetamine (plus a small separate amount), $3,300 cash, a digital scale, baggies, and several notebooks/notepads.
Charged and convicted by jury of: possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; sentenced within statutory limits and appealed.
At trial the defense conceded possession but argued Schwaderer was a user, not a seller; key State evidence was the quantity/purity/weight of drugs and seized notebooks characterized as "owe notes."
The court admitted forensic testimony concerning weights and purity (including scale checks/calibrations) and admitted/published the notebooks to the jury; an ex-narcotics-unit witness testified about the meaning of entries and that they were consistent with drug ledgers.
The court gave a cautionary/limiting instruction that the notebooks were admitted to show character/use of the location, not for the truth of the matters asserted; Schwaderer objected on hearsay, authentication, relevancy, foundation, confrontation, and expert-qualification grounds.
On appeal Schwaderer challenged admissibility of weights and notebooks, jury instructions, expert testimony, alleged ineffective assistance of trial counsel (multiple grounds), sufficiency of evidence, and excessiveness of sentences.

Issues

Issue	Schwaderer’s Argument	State’s Argument	Held
Admissibility of methamphetamine weight evidence	Testimony about scale calibration and reported weights rested on hearsay, lacked foundation, and violated confrontation	Forensic scientist personally performed accuracy checks and procedures; calibration/foundation sufficient	Court: sufficient foundation; any reference to outside calibrator harmless; weight evidence admissible
Admissibility of seized notebooks/notepads	Notebooks were hearsay and not properly authenticated	Notes were offered to show character/use (circumstantial), not for truth; officer tied exhibits to those seized; expert explained distinctive patterns consistent with drug ledgers	Court: notes not hearsay when used for nontruth purpose; authentication met under §27‑901(2)(d); admissible
Jury/admonitory instructions about notebooks	Instruction referencing exhibits prejudiced jury; cautionary instruction insufficient	Limiting instruction correctly told jury not to consider notes for truth; closing argument did not assert the writings were proven transactions	Court: instructions, read together, were adequate and not misleading; preserved objections limited appellate grounds
Ineffective assistance of counsel (multiple claims)	Trial counsel failed to renew suppression motion, obtain independent testing/weighing, request preliminary expert‑qualification hearing, and object to State’s closing	Many alleged failures were either meritless or record insufficient; some claims waived or not prejudicial	Court: three claims rejected on merits (no deficiency or prejudice); independent testing/weighing claim not resolved on direct appeal due to inadequate record

Key Cases Cited

State v. Richardson, 285 Neb. 847 (governs appellate review of hearsay factual findings)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
State v. Casterline, 293 Neb. 41 (authentication under Neb. Rev. Stat. §27‑901 and circumstantial characteristics)
State v. Russell, 292 Neb. 501 (expert testimony — foundation/perception/helpfulness analysis)
State v. Hale, 290 Neb. 70 (criminal evidence precedent relied on in weighing admissibility)
State v. Ely, 295 Neb. 607 (Strickland application in Nebraska appellate review)