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State v. Schwaderer

Supreme Court of Nebraska

June 16, 2017

State of Nebraska, appellee,
v.
Robert L. Schwaderer, appellant.

         1. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.

         2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

         3. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         4. Effectiveness of Counsel: Appeal and Error. 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. Evidence: Appeal and Error. 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. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         [296 Neb. 933] 8. Convictions: Proof. 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. Evidence: Proof. 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.

         10. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.

         11. __:__. 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).

         12. Rules of Evidence: Circumstantial Evidence: Proof. Under Neb. Rev. Stat. § 27-901 (2)(d) (Reissue 2016), a proponent may authenticate a document by circumstantial evidence, or its appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

         13. Trial: Appeal and Error. On appeal, a defendant may not assert a different ground for his or her objection than was offered at trial.

         14. Trial: Hearsay: Proof. It is best practice, when overruling a hearsay objection on the ground that an out-of-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.

         15. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

         16. Effectiveness of Counsel: Appeal and Error. 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.

         17. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. 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.

         18. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal [296 Neb. 934] does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         19. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To establish a right to postconviction relief because of counsel's ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 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. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. 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. A court may address the two prongs of this test, deficient performance and prejudice, in either order.

         20. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

         Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Joe Nigro, Lancaster County Public Defender, and Yohance Christie for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.

         I. INTRODUCTION

         In this direct appeal, Robert L. Schwaderer challenges his drug-related convictions and sentences. He raises numerous issues, but we focus primarily on (1) the admissibility of evidence of drug weights and "owe notes" and (2) the propriety of jury admonishments and instructions. Because we find no prejudicial error, we affirm the judgment. We also reject three claims of ineffective assistance of trial counsel and decline to reach a fourth claim because the record is not sufficient.

         [296 Neb. 935] II. BACKGROUND

         1. Arrest and Charges

         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 [296 Neb. 936] 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.
[296 Neb. 937] 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 ...


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