State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Schwaderer was arrested after a traffic stop; police found packaged methamphetamine, cash, a digital scale, baggies, and several notebooks/notepads from his vehicle; an additional small amount was found later at the jail.
- Charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; at trial he conceded possession but argued he was a user, not a seller.
- State introduced notebooks/notepads ("owe notes") and a narcotics-unit veteran testified as an expert that the writings were consistent with drug ledgers; court admitted the writings with a limiting instruction that they were not admitted for the truth of the matters asserted.
- A forensic scientist testified as to drug testing and weights (large package ~34.06 g; purity testing showed at least 31 g actual methamphetamine) and scale calibration/verification procedures.
- Jury convicted on all counts; district court imposed concurrent sentences (10–15 years for delivery, plus terms on other counts). Schwaderer appealed, raising evidentiary, instruction, and ineffective-assistance claims among others.
Issues
| Issue | Plaintiff's Argument (Schwaderer) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of methamphetamine weight testimony | Testimony rested on hearsay/insufficient foundation and violated confrontation because witness relied on outside calibration | Witness gave adequate personal-foundation testing (known weights, daily/monthly checks); any reference to outside calibration was harmless | Weight testimony admissible; sufficient foundation shown; no reversible error |
| Admissibility/authentication of notebooks/notepads | Notebooks were hearsay and not properly authenticated (no proof of authorship/origin) | Notebooks offered not for truth of entries but as circumstantial evidence of dealing; authenticated by seizure testimony and expert explanation of internal patterns | Notebooks were not hearsay for that limited purpose and were properly authenticated; admission proper |
| Jury cautionary instruction and final instruction about exhibits | Instructions were inadequate/impermissibly allowed jury to consider exhibits substantively | Court gave limiting instruction forbidding use of exhibits for truth; instruction sufficient when read together | No reversible error; instructions adequate and not misleading |
| Ineffective assistance (several claims) | Trial counsel failed to renew suppression motion, obtain independent testing/weighing, request preliminary hearing on expert qualifications, and object to State's closing | Many alleged failures would have been meritless or produced no different result; some claims not fully reviewable on record | Three claims denied on the merits; independent testing claim left unresolved on direct appeal due to insufficient record |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Russell, 292 Neb. 501 (Neb. 2016) (foundation for lay/expert testimony based on perception and experience)
- State v. Casterline, 293 Neb. 41 (Neb. 2016) (standard for authentication under Neb. Rev. Stat. § 27-901)
- State v. Richardson, 285 Neb. 847 (Neb. 2013) (hearsay review standards)