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
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.
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.
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.
__:__. 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?
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.
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.
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.
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.
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
__:__. 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).
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
Trial: Appeal and Error. On appeal, a defendant may not
assert a different ground for his or her objection than was
offered at trial.
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.
Trial: Waiver: Appeal and Error. Failure to make a timely
objection waives the right to assert prejudicial error on
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
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.
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.
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.
Effectiveness of Counsel. As a matter of law, counsel cannot
be ineffective for failing to raise a meritless argument.
from the District Court for Lancaster County: Lori A. Maret,
Nigro, Lancaster County Public Defender, and Yohance Christie
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
Neb. 935] II. BACKGROUND
Arrest and Charges
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.
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
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.
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
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
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
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.
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