State v. Schwaderer, 296 Neb. 932

Background

Police stopped Robert L. Schwaderer for driving under suspension; search incident to arrest produced ~34.06 g of packaged methamphetamine, additional small amount, $3,300 cash, a digital scale, empty baggies, and several notebooks/notepads; later jail search produced another small packaged amount.
Schwaderer was charged with possession with intent to deliver methamphetamine (≥28 g but <140 g), possession of drug money, and false reporting; he conceded possession but argued he was a user, not a seller.
The State admitted seized notebooks/notepads ("owe notes") and elicited testimony from a former narcotics-unit officer interpreting the entries as drug transaction ledgers; the court gave limiting instructions that the notebooks were not admitted for the truth of their contents.
A forensic scientist testified as to testing, weighing, and purity analysis of the methamphetamine; the State relied on quantity and purity to prove intent to distribute.
Jury convicted Schwaderer on all counts; trial court imposed concurrent prison sentences within statutory limits; Schwaderer appealed on evidentiary, instruction, ineffective assistance, sufficiency, and sentencing grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of methamphetamine weight testimony	Weight testimony lacked foundation, was hearsay, and violated confrontation because calibration was done by outside company	Witness provided personal testing and calibration checks sufficient to establish accuracy	Admitted; foundation and calibration testimony sufficient; any error harmless
Admissibility/authentication of notebooks/notepads	Notebooks were hearsay and insufficiently authenticated	Notebooks offered as circumstantial evidence of drug dealing, not for truth; arresting officer and expert tied exhibits to vehicle and narcotics ledgers	Admitted; not hearsay for that purpose and authenticated under §27-901(2)(d) via circumstantial characteristics
Jury instructions / limiting instruction on exhibits	Limiting instruction and cautionary admonitions were inadequate or inconsistent with closing argument	Instruction properly limited use of notebooks to showing character/use of place, not truth	No reversible error; instructions adequate and consistent with closing argument
Ineffective assistance of counsel (various failures)	Trial counsel failed to renew suppression motion, seek independent testing, demand expert qualification hearing, and object to closing argument	Many claims meritless or record insufficient; failure to raise meritless objections is not ineffective; some claims cannot be resolved on direct appeal	Three of four IAC claims rejected on the merits; one claim (failure to obtain independent testing/weighing) left unresolved for postconviction review

Key Cases Cited

State v. Richardson, 285 Neb. 847 (Neb. 2013) (standard for reviewing hearsay rulings and evidentiary matters)
State v. Hale, 290 Neb. 70 (Neb. 2015) (evidentiary foundation principles)
State v. Custer, 292 Neb. 88 (Neb. 2015) (authentication and evidence sufficiency principles)
State v. Russell, 292 Neb. 501 (Neb. 2016) (expert testimony admissibility and foundational requirements)
State v. Casterline, 293 Neb. 41 (Neb. 2016) (authentication under Neb. Rev. Stat. §27-901)
State v. Parnell, 294 Neb. 551 (Neb. 2016) (standards for reviewing ineffective assistance claims on direct appeal)
State v. Draper, 295 Neb. 88 (Neb. 2016) (criminal evidentiary review standards)
State v. Ely, 295 Neb. 607 (Neb. 2017) (Strickland framework applied in Nebraska)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)