State v. Schwaderer
296 Neb. 932
| Neb. | 2017Background
- Robert L. Schwaderer was arrested after a traffic stop; searches yielded packaged methamphetamine (two quantities totaling ~34.418 g including purity analysis), ~$3,300 in cash, a digital scale, empty baggies, and several notebooks/notepads. A smaller additional packaged amount was found at the jail.
- Charged with possession with intent to deliver methamphetamine (at least 28 g but less than 140 g), possession of drug money, and false reporting; he conceded possession but contested intent to distribute and the amount.
- The State introduced forensic testimony as to drug identity, weight, purity, and scale calibration; forensic report established at least 31 g of actual methamphetamine.
- The State also admitted notebooks/notepads ("owe notes") seized from Schwaderer’s vehicle and presented a former narcotics officer as an expert to interpret shorthand and opine the notes were consistent with drug ledgers; the court gave limiting instructions that the notes were not admitted for the truth of transactions noted.
- Jury convicted on all counts; Schwaderer received concurrent prison terms. On direct appeal he challenged admission of drug-weight testimony, admission/authentication/hearsay status of notebooks, jury instructions/limiting instruction, expert testimony qualification, several ineffective-assistance claims, sufficiency of evidence, and sentence excessiveness.
Issues
| Issue | Plaintiff's Argument (Schwaderer) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of weight testimony / foundation & confrontation | Weight testimony rested on hearsay about calibration and lacked sufficient foundation; confrontation right implicated | Forensic scientist performed and testified to checks using known weights and lab procedures establishing accuracy; any testimony about outside-company calibration was harmless | Admissible; foundation sufficient and any limited hearsay error harmless |
| Admission of notebooks/notepads (hearsay) | Notes are hearsay and admitted for truth of matters asserted (i.e., debts/transactions) | Notes offered not to prove truth of entries but to show character/use of place and possession consistent with distribution; expert explained distinctive terms; authenticated circumstantially | Admissible; not hearsay for nontruth purpose and properly authenticated |
| Jury limiting instruction / cautionary instruction | Instruction and caution were inadequate or inconsistent with prosecutor’s argument | Court gave cautionary instruction and final instruction limiting use to nontruth purposes; prosecutor’s argument stayed within that scope | No reversible error; instructions adequate and not misleading |
| Expert qualification & procedure | Witness was not properly qualified as an expert; court failed to make required preliminary findings | Witness’ experience and testimony met admissibility standards; defendant failed to preserve specific qualification objection | Claim waived for failure to timely object; in any event testimony admissible |
| Ineffective assistance: (a) failure to renew suppression motion (b) failure to challenge expert qualifications (c) failure to object to closing argument (d) failure to obtain independent testing | (a) Failure to renew waived suppression issues (b)-(c) trial counsel erred (d) counsel failed to secure independent testing | (a) stop/search lawful so suppression motion lacked merit (b)-(c) objections would have failed or been meritless (d) record insufficient to review on direct appeal | (a)-(c) No ineffective assistance (meritless or no prejudice); (d) record insufficient to decide on direct appeal |
Key Cases Cited
- State v. Richardson, 285 Neb. 847 (Neb. 2013) (standard for reviewing hearsay rulings)
- State v. Casterline, 293 Neb. 41 (Neb. 2016) (authentication by circumstantial evidence and distinctive characteristics under Neb. Rev. Stat. § 27-901)
- State v. Russell, 292 Neb. 501 (Neb. 2016) (foundations for admitting witness testimony interpreting narcotics-related writings)
- State v. Parnell, 294 Neb. 551 (Neb. 2016) (ineffective-assistance standards on direct appeal)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)