State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Robert L. Schwaderer was arrested after a traffic stop; police seized packaged methamphetamine (total ~34.06 g for the larger batch and ~0.358 g for a smaller batch), ~$3,300 cash, a digital scale, baggies, and several notebooks/notepads from his vehicle; an additional smaller amount was seized at the jail.
- Schwaderer was charged with possession with intent to deliver methamphetamine (at least 28 grams but less than 140 grams), possession of drug money, and false reporting.
- At trial Schwaderer conceded possession but argued he was a user, not a seller; State relied on quantity, cash, scale, and the seized notebooks ("owe notes") to show intent to distribute.
- The trial court admitted the notebooks and notepads over objections (authentication, hearsay, relevance), gave a limiting instruction that they were not received for the truth of the matters asserted, and permitted an expert (former narcotics unit member) to interpret entries.
- A forensic scientist testified about drug testing and scale calibration/personal checks; purity testing supported that at least 31 grams were actual methamphetamine.
- The jury convicted; Schwaderer appealed raising evidentiary, instructional, ineffective-assistance, sufficiency, and sentence claims. The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of methamphetamine weight testimony | Weight testimony rested on hearsay/insufficient foundation and violated confrontation due to out-of-lab calibration evidence | State pointed to the forensic scientist’s personal testing and scale checks that established accuracy | Court: No error — personal testing and checks provided sufficient foundation; any isolated testimony about outside calibration was harmless |
| Admissibility of notebooks/notepads | Notebooks were hearsay and not properly authenticated | State offered them as circumstantial evidence (character/use of place) and authenticated by seizure, appearance, and expert interpretation | Court: Not hearsay (offered for non-truth purpose) and sufficiently authenticated under §27-901(2)(d); admissible |
| Jury instructions / limiting instructions | Limiting instruction and cautionary admonishment were inadequate or prejudicial | State maintained instruction correctly told jury not to consider notebooks for truth and explained non-hearsay purpose | Court: No reversible error; instructions, read together, were adequate and not misleading |
| Ineffective assistance of counsel (several claims) | Counsel failed to renew suppression motion, seek independent testing/weighing, request a preliminary hearing on expert qualifications, and object to closing argument | State argued many failures were either waived, meritless, or nonprejudicial; record insufficient for independent testing claim | Court: Three claims rejected on merits (failure to renew motion, failure to challenge expert qual., failure to object to closing); one claim (failure to obtain independent testing/weighing) left unresolved due to insufficient record |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged ineffective assistance standard: deficient performance and prejudice)
- State v. Richardson, 285 Neb. 847 (review standard for hearsay rulings and factual findings)
- State v. Russell, 292 Neb. 501 (expert foundation and admissibility for interpretation of drug ledgers)
- State v. Casterline, 293 Neb. 41 (authentication standard under Neb. Rev. Stat. § 27-901)
- State v. Parnell, 294 Neb. 551 (discussion of standards for evaluating evidentiary foundation and appellate review)