State of Nebraska v. Robert L. Schwaderer

Schwaderer was arrested for driving under suspension and

false reporting. A search incident to his arrest yielded a significant

amount of packaged methamphetamine, approximately

$3,300 in cash, a digital scale, empty baggies, and several

notebooks and notepads. A later search of his person at the

county jail produced another smaller amount of separately

packaged methamphetamine. Schwaderer was then charged

with possession with intent to deliver methamphetamine, at

least 28 grams but less than 140 grams; possession of money

to be used, violating Neb. Rev. Stat. § 28-416(1) (Supp. 2015)

(drug money); and false reporting.

2. Trial

At trial, Schwaderer did not contest his actual possession

of the methamphetamine but he alleged that he was only a

user and did not possess the controlled substance with intent

to deliver. Therefore, the main issues at trial were (1) whether

Schwaderer was a seller—rather than a mere user—of methamphetamine

and (2) how much methamphetamine he actually

possessed.

(a) “Owe Notes”

The State offered the seized notebooks and notepads into

evidence as indicative of sales of narcotics. Schwaderer

objected to their admittance on authentication, foundation,

relevance, and hearsay grounds. The court overruled the objections,

received the items into evidence as exhibits 11 through

15, and soon thereafter recessed for the day. The following

morning, the court revisited its ruling. When the jurors were

seated, the court instructed as follows:

Jurors, yesterday, as a part of the evidence received by

the Court, the Court did receive Exhibits 11, 12, 13, 14

and 15.

I’m, at this time, giving a cautionary instruction

regarding those exhibits. The Court has received those

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exhibits not for the truth of the matter asserted in

the statements contained within those exhibits, but has

received those exhibits for the purposes of trial today.

The State later called on an individual who had previously

worked for the Lincoln/Lancaster County Narcotics Unit to

explain the significance of the writings within the notebooks

and notepads and to testify to the general practices of narcotics

dealers. He testified as an expert witness and opined

that the notebooks were records of narcotics sales and that

they, taken with the large amount of methamphetamine and

cash found on Schwaderer, indicated that Schwaderer sold

methamphetamine.

The expert witness testified that through his work with the

narcotics unit, he became familiar with “the drug culture” and

the terms and procedures used for sales of narcotics. When the

State attempted to elicit testimony from him concerning the

meaning of words similar to those found within the notepads,

Schwaderer objected on relevance and a side bar discussion

was held. Schwaderer reminded the court that the notepads

were received with the limiting instruction that they were not

to be considered for the truth of the matter asserted within.

He therefore objected to the witness’ testimony as unfairly

and highly prejudicial. The State responded that the testimony

“can be used to explain the items in those notebooks,” and the

court overruled the objection. The court later explained, during

another side bar discussion, its understanding of the limiting

instruction:

The cautionary instruction was they’ve — those exhibits

were received not for the truth of the matter asserted

in the statements contained within those exhibits. For

example, if Joe Blow — if it says Joe Blow owes me

$25 for an eight ball, it’s not the truth of that asserted

fact that Joe Blow actually does owe me $25 for that

eight ball. That was what the cautionary instruction was

going to.

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For any other purpose, that it illustrates something else,

that it — for any other purpose, it is received.

Over Schwaderer’s objections, the notebooks and notepads

were then published to the jury. The expert witness examined

each page and testified to his opinion as to what various terms

and phrases contained within meant. He concluded that the

notebooks and notepads were consistent with ledgers for transactions

involving controlled substances that he had seen in

past narcotics investigations.

In the final instructions to the jury, instruction No. 8 stated:

“Exhibits #11, #12, #13, #14, and #15 have been admitted for

the limited purpose of showing the character and use of the

location where they were found and not for the truth of any

matters asserted in Exhibits #11, #12, #13, #14 and #15.”

(b) Weight of Methamphetamine

While the State repeatedly emphasized that the “owe notes”

were “consistent with the sales of methamphetamine,” it also

heavily relied on the large amount of methamphetamine as

showing an intent to distribute for sale.

A forensic scientist testified to the processing and testing

of the substance found on Schwaderer. The forensic scientist

testified that the substance tested positive for methamphetamine.

She additionally testified to the methods used to weigh

the methamphetamine and the calibrations and tests done on

the scales used. She testified that the large amount of packaged

methamphetamine weighed 34.06 grams, plus or minus

0.15 grams, and that the separate smaller amount of packaged

methamphetamine weighed 0.3580 grams, plus or minus

0.0056 grams.

The forensic scientist additionally testified to the purity

analysis conducted on the methamphetamine. The court

received into evidence the scientist’s report that showed the

purity testing confirmed the large amount of packaged methamphetamine

to be at least 31 grams of actual, undiluted

methamphetamine. During closing argument, the State noted

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that this amount of methamphetamine would be about 170

doses of methamphetamine and that a simple user would not

have that much with them at any given time.

3. Convictions and Sentenc es

On this evidence, the jury found Schwaderer guilty of possession

with intent to deliver methamphetamine, at least 28

grams but less than 140 grams; possession of drug money;

and false reporting. The court sentenced Schwaderer to concurrent

sentences of 10 to 15 years’ imprisonment for possession

with intent to deliver, 2 to 2 years’ imprisonment for

possession of drug money, and 1 to 1 year’s imprisonment for

false reporting.

Schwaderer timely appealed, and we moved the appeal to

our docket.1

III. ASSIGNMENTS OF ERROR

Schwaderer alleges, restated, that (1) the district court

erred in (a) admitting testimony regarding the weight of the

methamphetamine, (b) admitting the notebooks and notepads

seized from Schwaderer’s vehicle into evidence, (c) its

instructions to the jury, and (d) admitting expert testimony;

(2) he received ineffective assistance of counsel “as a result

of the acts and omissions of . . . trial counsel”; (3) there was

insufficient evidence; and (4) the sentences imposed were

excessive.

IV. STANDARD OF REVIEW

[1] An appellate court reviews the trial court’s conclusions

with regard to evidentiary foundation and witness qualification

for an abuse of discretion.2

[2] Apart from rulings under the residual hearsay exception,

an appellate court reviews for clear error the factual findings

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).

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underpinning a trial court’s hearsay ruling and reviews de

novo the court’s ultimate determination to admit evidence

over a hearsay objection.3

[3] Whether jury instructions are correct is a question of law,

which an appellate court resolves independently of the lower

court’s decision.4

[4,5] Whether a claim of ineffective assistance of trial counsel

may be determined on direct appeal is a question of law.5 In

reviewing claims of ineffective assistance of counsel on direct

appeal, an appellate court decides only questions of law: Are

the undisputed facts contained within the record sufficient to

conclusively determine whether counsel did or did not provide

effective assistance and whether the defendant was or was not

prejudiced by counsel’s alleged deficient performance?6

[6] In reviewing a sufficiency of the evidence claim, whether

the evidence is direct, circumstantial, or a combination thereof,

the standard is the same: An appellate court does not resolve

conflicts in the evidence, pass on the credibility of witnesses,

or reweigh the evidence; such matters are for the finder

of fact.7

[7] We will not disturb a sentence imposed within the statutory

limits absent an abuse of discretion by the trial court.8

V. ANALYSIS

1. Weight of Methamphetamine

Schwaderer first alleges that the district court erred by

allowing testimony of the weight of the methamphetamine

found on Schwaderer. He argues that such testimony should

have been excluded because it was based on hearsay, lacked

3 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

4 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

5 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

6 Id.

7 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).

8 Id.

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sufficient foundation, and violated his right of confrontation.

He suggests that the witness lacked personal knowledge of

the calibration because she testified that an outside company

calibrates the scales twice a year. But, he does not account for

the same witness’ testimony as to the other procedures used to

verify the accuracy and reliability of the scales.

[8] To sustain a conviction based on information derived

from an electronic or mechanical measuring device, there must

be reasonable proof that the measuring device was accurate and

functioning properly.9 And there was.

Assuming that it was error to allow the witness to testify

to the calibration done by an outside company, such error was

harmless, because the accuracy of the scales had already been

established. The witness provided sufficient foundation of personal

knowledge concerning calibration procedures performed

by the laboratory and the witness herself. She testified that she

personally used a known weight to measure the accuracy and

variability of the scales used to weigh the methamphetamine.

She further testified that she would use a known weight on a

daily and monthly basis to check the accuracy of the scales.

Though she did not classify such procedures as “calibration,”

we agree with the district court that the procedures met the

definition of calibration and were sufficient to show the accuracy

of the scales.

The testimony provided identified the time period during

which the scales were tested against known weights and established

that the scales were operating correctly. Therefore, there

was sufficient foundation regarding the calibration of the scales

and the district court did not err in allowing the witness to testify

to the weight of the methamphetamine.

2. Notebooks and Notepads

Schwaderer next assigns that the district court erred in

admitting the notebooks and notepads found in Schwaderer’s

vehicle into evidence because they were inadmissible hearsay

9 State v. Richardson, supra note 2.

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and were not properly authenticated. Although we have not

confronted such records, numerous courts have.10 And we follow

their reasoning.

(a) Hearsay

Schwaderer alleges that the notebooks and notepads were

inadmissible hearsay because they “were received for the truth

of the matter asserted by the declarants,”11 who Schwaderer

suggests were the testifying officers. We disagree and note

that this argument relies on a mistaken understanding of the

definition of hearsay.

“Hearsay is a statement, other than the one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”12 Therefore,

the declarant is the author of the writings contained within

the notebooks and notepads—not the officers testifying to the

seizure and contents of the notebooks and notepads. And, the

truth of the matter asserted refers to the statements made by

the declarant—not the professed reason for why the statements

are offered into evidence.

The notebooks and notepads appeared to be “owe notes”

or ledgers evidencing the exchange of money for various

10 See, e.g., United States v. Southard, 700 F.2d 1 (1st Cir. 1983) (documents

containing records of bets not hearsay as proof of scope of defendant’s

gambling operations), cert. denied sub nom. Ferris v. United States, 464

U.S. 823, 104 S. Ct. 89, 78 L. Ed. 2d 97; United States v. Wilson, 532 F.2d

641 (8th Cir. 1976) (notebooks containing writings related to various drug

transactions not hearsay as proof of character and use of place in which

notebooks were found), cert. denied 429 U.S. 846, 97 S. Ct. 128, 50 L. Ed.

2d 117; Collins v. State, 977 P.2d 741, 746 (Ala. App. 1999) (day planner

and “drug ledgers” not hearsay as circumstantial evidence that controlled

substances were distributed on premises); Guerra v. State, 897 P.2d 447

(Wyo. 1995) (letter to defendant detailing proposed drug transaction not

hearsay as circumstantial evidence that defendant deals in controlled

substances).

11 Brief for appellant at 15.

12 Neb. Rev. Stat. § 27-801(3) (Reissue 2016) (emphasis supplied).

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amounts of methamphetamine; they included notes with numbers,

names, and addresses. The State offered these notebooks

and notepads not to prove that a listed individual owed or paid

money for a certain amount of methamphetamine, but to show

that Schwaderer possessed the methamphetamine for purposes

of sale and distribution. Thus, the notebooks and notepads

were not offered to prove the truth of the matter asserted

therein and did not constitute hearsay.

(b) Authentication

Schwaderer additionally alleges that the notebooks and

notepads were not properly authenticated, because the State

did not adduce evidence or testimony establishing “the origin

of the exhibits, the author of the exhibits, the handwriting in

the exhibits, or the date the exhibits were created.”13 He concedes

in his brief that the State did adduce testimony establishing

that the notebooks and notepads were the same as those

found within his vehicle. But, he argues this testimony was

insufficient to support a finding that the exhibits were what the

State claimed them to be.

[9-12] The requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is

what its proponent claims.14 A proponent of evidence is not

required to conclusively prove the genuineness of the evidence

or to rule out all possibilities inconsistent with authenticity.15

If the proponent’s showing is sufficient to support a finding

that the evidence is what it purports to be, the proponent has

satisfied the requirement of Neb. Rev. Stat. § 27-901 (Reissue

2016).16 Under § 27-901(2)(d), a proponent may authenticate

a document by circumstantial evidence, or its “[a]ppearance,

13 Brief for appellant at 20.

14 State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).

15 Id.

16 Id.

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contents, substance, internal patterns, or other distinctive characteristics,

taken in conjunction with circumstances.”17

The State presented the “owe notes” found within

Schwaderer’s possession as records of drug transactions. The

State did not claim that Schwaderer authored the notes or was

involved in the notated transactions, but merely alleged that

possession of such notes was consistent with drug dealing.

As such, the State was not required to prove that Schwaderer

authored the notes or was involved in the transactions.18

The arresting officer testified that the notebooks and notepads

presented at trial were the same he seized from Schwaderer’s

vehicle. And, a witness reviewed the notebooks and notepads

and explained that the notations and language used within were

consistent with records of drug transactions, specifically with

the sale of methamphetamine. This was sufficient to authenticate

the notebooks and notepads under § 27-901(2)(d).

Because the notebooks and notepads were not hearsay and

were properly authenticated, the district court did not err in

admitting them into evidence.

3. Jury Instructions

[13] Schwaderer assigns error to the court’s cautionary

instruction given at trial and to jury instruction No. 8.

However, he did not properly preserve these errors for review.

Schwaderer did not object to the cautionary instruction given

at trial. And, though he did object to jury instruction No. 8, he

argued that no instruction should reference the exhibits because

the exhibits should not have been received into evidence. On

appeal, he may not assert a different ground for his objection

than was offered at trial.19

[14] We cannot find anything clearly erroneous or unduly

prejudicial in the instructions given. It is best practice, when

17 See id.

18 See State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).

19 State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).

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overruling a hearsay objection on the ground that an outof-

court statement is not received for the truth of the matter

asserted, for a trial court to identify the specific nonhearsay

purpose for which the out-of-court statement is relevant

and probative.20 However, the cautionary instruction that the

exhibits were not to be considered by the jury for the truth

of the matter asserted was sufficient. Likewise, the final jury

instruction was sufficient, because it specifically instructed

the jury not to consider the exhibits for the truth of the matter

asserted.

The district court’s instructions to the jury, read together

and taken as a whole, correctly advised the jury that the notebooks

and notepads were not to be considered for the truth of

the matter asserted. They correctly stated the law, were not

misleading, and adequately covered the issues raised by the

evidence. For these reasons, the district court did not err in its

instructions to the jury.

4. Expert Testimony

Schwaderer next alleges that the witness who previously

worked with the narcotics unit was not an expert witness. He

argues that the witness was not properly qualified and that

the court did not follow the proper procedure in determining

whether expert testimony was admissible. The State argues that

Schwaderer waived this argument. We agree.

[15] Failure to make a timely objection waives the right

to assert prejudicial error on appeal.21 At trial, Schwaderer

continuously objected to the witness’ testimony on foundation

and relevance grounds and challenged the qualifications

of the witness during closing argument. But, he never specifically

objected to the witness’ qualification as an expert

or asked the court to make specific findings as to the witness’

qualifications. And, he cannot assert a new ground for

20 See State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

21 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

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his objection to the witness’ testimony for the first time on

appeal.22 Therefore, Schwaderer waived his right to assert this

assignment of error.

5. Ineffective Assistanc e

of Counsel Claims

(a) Preliminary Matters

[16,17] Schwaderer is represented on direct appeal by different

counsel than the counsel who represented him at trial. When

a defendant’s trial counsel is different from his or her counsel

on direct appeal, the defendant must raise on direct appeal any

issue of trial counsel’s ineffective performance which is known

to the defendant or is apparent from the record; otherwise, the

issue will be procedurally barred.23 An ineffective assistance

of counsel claim is raised on direct appeal when the claim

alleges deficient performance with enough particularity for

(1) an appellate court to make a determination of whether the

claim can be decided upon the trial record and (2) a district

court later reviewing a petition for postconviction relief will

recognize whether the claim was brought before the appellate

court.24

[18] The fact that an ineffective assistance of counsel claim

is raised on direct appeal does not necessarily mean that it can

be resolved.25 The determining factor is whether the record is

sufficient to adequately review the question.26

Schwaderer asserts several claims of ineffective assistance

of counsel. A few of his claims overlap and have been combined

and restated for review. Schwaderer alleges that he

received ineffective assistance of counsel when trial counsel

failed to (1) renew his motion to suppress at trial, (2) obtain

22 See State v. Samayoa, supra note 19.

23 State v. Loding, ante p. 670, ___ N.W.2d ___ (2017).

24 Id.

25 State v. Parnell, supra note 5.

26 Id.

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independent testing and weighing of the methamphetamine,

(3) request a preliminary hearing and specific findings on the

qualifications of the State’s expert witness, and (4) object to

the State’s closing argument, which was inconsistent with the

limiting instruction on exhibits 11 through 15.

The record is insufficient to address his second claim concerning

the failure to obtain independent testing and weighing

of the methamphetamine, but the record is sufficient to resolve

the remaining three claims.

(b) Strickland Analysis

[19] To establish a right to postconviction relief because

of counsel’s ineffective assistance, the defendant has the burden,

in accordance with Strickland v. Washington,27 to show

that counsel’s performance was deficient; that is, counsel’s

performance

did not equal that of a lawyer with ordinary training

and skill in criminal law.28 Next, the defendant must show

that counsel’s deficient performance prejudiced the defense in

his or her case.29 To show prejudice, the defendant must demonstrate

a reasonable probability that but for counsel’s deficient

performance, the result of the proceeding would have been

different.30 A court may address the two prongs of this test,

deficient performance and prejudice, in either order.31

(i) Failure to Renew

Motion to Suppress

Schwaderer alleges that his trial counsel was ineffective for

failing to renew his motion to suppress at trial and thus waiving

the issues presented in his motion to suppress. However, he

cannot show deficient performance or prejudice on this claim.

27 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

28 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

29 Id.

30 Id.

31 Id.

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Schwaderer’s motion to suppress alleged that the warrantless

stop, detention, and search of Schwaderer and his vehicle

were unlawful. The evidence presented at the motion to suppress

hearing established that the arresting officer identified

Schwaderer before making the stop and that the arresting officer

was advised that Schwaderer had a suspended license. The

officer thus had reasonable suspicion to initiate the stop.

Once stopped, the officer approached Schwaderer, identified

himself as law enforcement, and asked Schwaderer for identification.

Schwaderer claimed he had no identification and,

when asked to confirm his name, claimed to be his brother,

“William Schwaderer.” Because he knew this to be false

based on the information within the Nebraska Criminal Justice

Information System, the officer requested another officer in

the area to come and assist him in detaining and investigating

Schwaderer.

The arresting officer asked Schwaderer to exit the vehicle

to perform a safety pat down, after which he noticed what

appeared to be a wallet in Schwaderer’s pocket. The officer

then asked whether Schwaderer had identification in that wallet.

At this point, Schwaderer admitted that he was, in fact,

“Robert Schwaderer” and the arresting officer arrested him for

driving under suspension and false reporting.

The arresting officer and the assisting officer conducted

a valid search incident to arrest for contraband and weapons

before placing Schwaderer in the police cruiser. The search

yielded items that the arresting officer testified were “common

with narcotics use or distribution” and a large amount of

methamphetamine.

The assisting officer testified that he then conducted a

search of the vehicle for further evidence of contraband and

to inventory the contents prior to the vehicle being towed

away. That search yielded the notebooks and notepads containing

records of narcotics sales. Because the contraband

discovered during a lawful search incident to an arrest provided

the probable cause for the further warrantless search of

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the vehicle, the subsequent search did not violate the Fourth

Amendment.

[20] As a matter of law, counsel cannot be ineffective for

failing to raise a meritless argument.32 Because there was no

merit in the initial motion to suppress, Schwaderer’s counsel

was not ineffective for failing to renew the motion at trial.

(ii) Failure to Object to Expert

Witness’ Qualifications

Schwaderer alleges that his trial counsel was ineffective for

failing to request specific findings and a preliminary hearing

to determine the qualifications of the State’s expert witness.

This claim is also without merit because Schwaderer cannot

show prejudice.

Even if trial counsel had objected to the witness’ qualifications

or requested a preliminary hearing, the result would not

have been different. Under our analysis in State v. Russell,33

there was sufficient foundation to allow the witness to testify

to the interpretation of the terms used within the notebooks and

notepads. The witness’ testimony was rationally based on the

perception of the witness and the testimony was helpful to the

determination of a fact in issue.

Because the witness would have qualified as an expert witness,

or at the very least would have been allowed to testify to

the same matters as a lay witness based on his experience and

perception, Schwaderer was not prejudiced by trial counsel’s

failure to object to the witness’ qualifications or to request a

preliminary hearing on the matter.

(iii) Failure to Object to State’s

Closing Argument

Lastly, Schwaderer alleges that his trial counsel was ineffective

for failing to object to the State’s closing argument

insofar as it was inconsistent with jury instruction No. 8.

32 Id.

33 State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).

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Again, he cannot show deficient performance or prejudice on

this claim.

The State’s closing argument referred to the notebooks

and notepads as “owe notes” and emphasized that the writing

within was consistent with the distribution of methamphetamine.

At no point did the State suggest that the transactions

notated actually occurred or claimed that the writings were

proof Schwaderer received the listed amounts of money in

exchange for methamphetamine. Therefore, the State’s closing

argument was not inconsistent with jury instruction No. 8,

which admonished the jury not to consider the notebooks and

notepads for the truth of the matters asserted.

Schwaderer’s counsel was not ineffective for failing to

make a meritless objection to the State’s closing argument.

Schwaderer has failed to show ineffective assistance of counsel.

6. Remaining Assignments of Error

We have carefully considered Schwaderer’s remaining

claims—that there was insufficient evidence and that he received

excessive sentences—and find them to be without merit. He

premises his claim of insufficient evidence on his arguments

that certain evidence and testimony should have been excluded

and asserts that the remaining evidence was insufficient to support

the convictions. We have already rejected these arguments.

He also failed to establish that the district court abused its discretion

in imposing his sentences.