State v. Schwaderer, 296 Neb. 932

Background

Robert L. Schwaderer was arrested; police found packaged methamphetamine (two amounts totaling over 34 grams), about $3,300 cash, a digital scale, baggies, and several notebooks/notepads from his vehicle; a smaller separate packaged amount was found on his person later.
Charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; he conceded possession but disputed intent to deliver.
The State introduced the notebooks/notepads (claimed to be "owe notes") and elicited testimony from a former narcotics-unit officer who opined the writings were consistent with drug ledgers; the court admitted the notebooks with a limiting instruction that they were not admitted for the truth of the matters asserted.
A forensic scientist testified about testing and weighing the methamphetamine, including scale checks and purity testing showing at least 31 grams of actual methamphetamine; defense raised objections to foundation and confrontation aspects of that testimony.
Jury convicted Schwaderer on all counts; sentences imposed within statutory limits; Schwaderer appealed raising evidentiary, instructional, and ineffective-assistance claims among others.

Issues

Issue	Schwaderer’s Argument	State’s Argument	Held
Admissibility of methamphetamine weight testimony	Testimony rested on hearsay/insufficient foundation and violated confrontation; lab calibration by outside company lacked foundation	Witness performed in-lab checks with known weights and described calibration procedures sufficient to show scale accuracy	Admission proper; any error about outside calibration harmless because witness’s own testing established accuracy
Admissibility of notebooks/notepads	Notes were hearsay and not properly authenticated	Notes were offered not for truth of entries but as circumstantial evidence of drug-dealing; officer identified exhibits and expert linked their form/content to drug ledgers	Admitted: not hearsay given purpose; authentication satisfied under §27-901 by appearance, content, and circumstances
Jury instructions / limiting instruction	Instruction and cautionary language about exhibits were inadequate or misleading	Court’s caution plus final instruction specifically told jury not to consider exhibits for truth; read together they were sufficient	No reversible error; instructions correct and not prejudicial
Expert witness qualification	Witness was not properly qualified as an expert; procedures for admitting expert testimony were not followed	Trial objections focused on foundation/relevance; no timely specific objection to expert qualification	Claim waived for lack of timely, specific objection; in any event witness would have qualified or been allowed as experienced lay witness
Ineffective assistance (failure to renew suppression motion; failure to seek preliminary hearing on expert; failure to object to closing)	Trial counsel failed to preserve/safeguard rights; these omissions prejudiced defense	Motion to suppress lacked merit; expert would have been permitted to testify; State’s closing not inconsistent with limiting instruction	Three of four ineffective-assistance claims rejected on record (no deficient performance or no prejudice); one claim (failure to obtain independent testing/weighing) left unresolved due to insufficient record

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance analysis)
State v. Richardson, 285 Neb. 847 (standard for reviewing hearsay rulings)
State v. Russell, 292 Neb. 501 (foundation for expert testimony based on experience/perception)
State v. Casterline, 293 Neb. 41 (authentication standard under Neb. Rev. Stat. § 27-901)
State v. Ely, 295 Neb. 607 (application of Strickland in Nebraska)