State v. Schwaderer

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2017 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. SCHWADERER
Cite as 296 Neb. 932
State of Nebraska, appellee, v.
Robert L. Schwaderer, appellant.
___ N.W.2d ___
Filed June 16, 2017. No. S-16-501.
1. Trial: Evidence: Appeal and Error. An appellate court reviews the
trial court’s conclusions with regard to evidentiary foundation and wit-
ness 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 rul-
ing 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 indepen-
dently of the lower court’s decision.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective 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 evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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 sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
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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 func-
tioning properly.
9. Evidence: Proof. The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence suf-
ficient to support a finding that the matter in question is what its propo-
nent 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 dif-
ferent 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 defend­
ant 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 partic-
ularity 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
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STATE v. SCHWADERER
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does not necessarily mean that it can be resolved. The determin-
ing 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 inef-
fective 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 train-
ing and skill in criminal law. Next, the defendant must show that coun-
sel’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 ineffec-
tive for failing to raise a meritless argument.
Appeal from the District Court for Lancaster County: Lori
A. M aret, 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,
K elch, 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 evi-
dence 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.
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STATE v. SCHWADERER
Cite as 296 Neb. 932
II. BACKGROUND
1. A rrest and Charges
Schwaderer was arrested for driving under suspension and
false reporting. A search incident to his arrest yielded a sig-
nificant 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 meth-
amphetamine and (2) how much methamphetamine he actu-
ally 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 objec-
tions, 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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STATE v. SCHWADERER
Cite as 296 Neb. 932
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 nar-
cotics 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, dur-
ing another side bar discussion, its understanding of the limit-
ing 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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STATE v. SCHWADERER
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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 trans-
actions 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 methamphet-
amine. 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 pack-
aged methamphetamine weighed 34.06 grams, plus or minus
0.15 grams, and that the separate smaller amount of pack-
aged 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 meth-
amphetamine to be at least 31 grams of actual, undiluted
methamphetamine. During closing argument, the State noted
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STATE v. SCHWADERER
Cite as 296 Neb. 932
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 Sentences
On this evidence, the jury found Schwaderer guilty of pos-
session 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 con-
current sentences of 10 to 15 years’ imprisonment for pos-
session 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 note-
pads 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 qualifica-
tion 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 coun-
sel 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 statu-
tory 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 per-
sonal 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 accu-
racy of the scales.
The testimony provided identified the time period during
which the scales were tested against known weights and estab-
lished 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 tes-
tify 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 fol-
low 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 state-
ments 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 num-
bers, 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 con-
cedes in his brief that the State did adduce testimony establish-
ing 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 char-
acteristics, 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 authenti-
cate 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 caution-
ary 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 out-
of-court statement is not received for the truth of the matter
asserted, for a trial court to identify the specific nonhear-
say 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 mat-
ter asserted.
The district court’s instructions to the jury, read together
and taken as a whole, correctly advised the jury that the note-
books 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 founda-
tion and relevance grounds and challenged the qualifications
of the witness during closing argument. But, he never spe-
cifically objected to the witness’ qualification as an expert
or asked the court to make specific findings as to the wit-
ness’ 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 Assistance
of Counsel Claims
(a) Preliminary Matters
[16,17] Schwaderer is represented on direct appeal by differ-
ent 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 appel-
late 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 com-
bined 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 con-
cerning 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 bur-
den, 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 train-
ing 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 dem-
onstrate 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 waiv-
ing 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 warrant-
less stop, detention, and search of Schwaderer and his vehicle
were unlawful. The evidence presented at the motion to sup-
press hearing established that the arresting officer identified
Schwaderer before making the stop and that the arresting offi-
cer 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 iden-
tification. 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 investigat-
ing 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 wal-
let. 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 “com-
mon 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 con-
taining records of narcotics sales. Because the contraband
discovered during a lawful search incident to an arrest pro-
vided the probable cause for the further warrantless search of
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STATE v. SCHWADERER
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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’ qualifica-
tions 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 wit-
ness, 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 inef-
fective 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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STATE v. SCHWADERER
Cite as 296 Neb. 932
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 methamphet-
amine. 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 clos-
ing 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. R emaining 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 sup-
port the convictions. We have already rejected these arguments.
He also failed to establish that the district court abused its dis-
cretion in imposing his sentences.
VI. CONCLUSION
For the reasons set forth above, we conclude that the dis-
trict court did not err in allowing the challenged exhibits
and testimony into evidence or in its instructions to the jury.
We also conclude that three of the four claims of ineffective
assistance of counsel are without merit. The record is insuffi-
cient to resolve the remaining claim on direct appeal. Because
Schwaderer’s other assignments of error are without merit, we
affirm the judgment of the district court.
A ffirmed.