State v. Schwaderer
296 Neb. 932
Neb.2017Background
- Schwaderer was arrested after a traffic stop; police found packaged methamphetamine, cash, a digital scale, empty baggies, and several notebooks/notepads from his vehicle, plus a smaller separate package found at the jail. He was charged with possession with intent to deliver (≥28 g but <140 g), possession of drug money, and false reporting.
- At trial Schwaderer conceded possession but argued he was a user, not a seller; State emphasized quantity, purity testing, and the notebooks as indicia of distribution.
- Forensic testimony established weights (34.06 g ±0.15 and 0.3580 g ±0.0056) and that purity testing showed at least 31 g of actual methamphetamine; the analyst described calibration and daily/periodic checks of the scales.
- The notebooks/notepads contained names, numbers, and entries the State described as “owe notes.” The court admitted them and gave a limiting instruction that they were not received for the truth of the matters asserted; an ex‑narcotics officer testified interpreting the entries as consistent with drug ledgers.
- Jury convicted on all counts; court imposed concurrent sentences within statutory limits. Schwaderer appealed, challenging admissibility of weight testimony and notebooks, jury instructions, expert qualification, sufficiency of evidence, sentencing, and raised ineffective‑assistance claims.
Issues
| Issue | Schwaderer’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of weight testimony | Testimony relied on hearsay (outsourced calibrations), lacked foundation, violated confrontation | Analyst provided sufficient personal testing and calibration foundation; any reliance on outside calibration was harmless | Admitted; foundation adequate via analyst’s tests and checks; any error harmless |
| Admissibility of notebooks (hearsay/authentication) | Notebooks were hearsay and not properly authenticated | Notebooks were offered as circumstantial evidence of character/use of place, not for truth; officer identified seized notebooks and expert linked entries to drug transactions | Admitted; not hearsay when used for non‑truth purpose and authenticated by appearance/circumstances |
| Jury limiting instruction/cautionary instruction | Instructions and prosecutor’s argument undermined the limiting instruction and were prejudicial | Instructions adequately informed jury not to consider writings for truth; prosecutor did not assert the transactions actually occurred | No reversible error; instructions, read together, were sufficient |
| Ineffective assistance of counsel (failure to renew suppression motion; failure to seek expert‑qualification hearing; failure to object to closing) | Trial counsel failed to preserve/safeguard rights and missed critical objections | Either the underlying objections lacked merit or any failure caused no prejudice; some claims not reviewable on record | Three claims denied on merits (no deficient performance or prejudice); one claim (failure to obtain independent testing/weighing) left unresolved on direct appeal due to insufficient record |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance review)
- State v. Richardson, 285 Neb. 847 (appellate review of hearsay rulings)
- State v. Russell, 292 Neb. 501 (expert foundation and admissibility of interpretive testimony)
- State v. Casterline, 293 Neb. 41 (authentication standard under Neb. Rev. Stat. § 27-901)