State v. Schwaderer
296 Neb. 932
Neb.2017Background
- Police stopped Robert Schwaderer for driving with a suspended license; search incident to arrest produced packaged methamphetamine, cash, digital scale, empty baggies, and several notebooks/notepads from his vehicle; an additional small amount was found on his person at jail.
- Schwaderer was charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting.
- Forensic testing and weighing by a lab scientist produced weights and purity analysis establishing at least ~31 grams of actual methamphetamine.
- The State introduced seized notebooks/notepads ("owe notes") and presented a former narcotics-unit officer as an expert to interpret the entries as consistent with drug ledgers; the court gave a limiting instruction that the notebooks were admitted not for the truth of their contents but to show character/use of the place where found.
- Jury convicted Schwaderer on all counts; district court imposed concurrent prison terms. Schwaderer appealed, challenging admissibility of weight testimony and the notebooks, jury instructions/admonishments, expert testimony, sufficiency of evidence, sentences, and alleging ineffective assistance of trial counsel.
Issues
| Issue | Schwaderer’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of weight testimony | Testimony rested on hearsay/insufficient foundation and violated confrontation because calibration was done by outside company | Lab scientist provided sufficient personal foundation (daily/ monthly checks and use of known weights); any mention of outside calibration was harmless | Admission upheld; foundation for scale accuracy was sufficient and any error was harmless |
| Admissibility of notebooks (hearsay) | Notebooks are hearsay and not properly authenticated | Notebooks were offered to show character/use of place and to provide circumstantial evidence of dealing; authentication via seizure testimony and expert interpretation suffices | Notebooks not hearsay (not offered for truth) and were properly authenticated; admission upheld |
| Jury instructions / limiting admonition | Cautionary instruction and instruction No. 8 were inadequate or prejudicial | Court’s limiting instruction properly told jury not to consider notebooks for truth and was sufficient when read as a whole | No reversible error; instructions sufficient and not misleading |
| Ineffective assistance of counsel (multiple claims) | Trial counsel failed to renew suppression motion, obtain independent testing/weighing, challenge expert qualifications, and object to closing argument | Many alleged failures were either meritless or produced no prejudice; one claim (independent testing/weighing) record insufficient on direct appeal | Most ineffective-assistance claims rejected as meritless or nonprejudicial; independent-testing claim left unresolved for postconviction review |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
- State v. Richardson, 285 Neb. 847 (standard for reviewing hearsay rulings on appeal)
- State v. Casterline, 293 Neb. 41 (authentication standard under Neb. Rev. Stat. § 27-901)
- State v. Russell, 292 Neb. 501 (expert lay/expert testimony on drug-notation interpretation)
- United States v. Wilson, 532 F.2d 641 (notebooks/ledgers relating to drug transactions admissible as circumstantial evidence)