Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/30/2017 01:12 AM CDT




                                                        - 304 -
                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                               STATE v. BUTTERCASE
                                                 Cite as 296 Neb. 304




                                        State of Nebraska, appellee, v.
                                        Joseph J. Buttercase, appellant.
                                                    __ N.W.2d ___

                                          Filed April 7, 2017.    No. S-16-114.

                1.	 Search and Seizure: Appeal and Error. The denial of a motion for
                    return of seized property is reviewed for an abuse of discretion.
                2.	 Sentences. An abuse of discretion takes place when the sentencing
                    court’s reasons or rulings are clearly untenable and unfairly deprive a
                    litigant of a substantial right and a just result.
                3.	 Judges: Recusal: Appeal and Error. A motion requesting a judge to
                    recuse himself or herself on the ground of bias or prejudice is addressed
                    to the discretion of the judge, and an order overruling such a motion will
                    be affirmed on appeal unless the record establishes bias or prejudice as a
                    matter of law.
                4.	 Criminal Law: Search and Seizure: Property. Property seized in
                    enforcing a criminal law is said to be in custodia legis, or in the custody
                    of the court.
                5.	 Trial: Search and Seizure: Evidence. Property seized and held as
                    evidence shall be kept so long as necessary for the purpose of being
                    produced as evidence at trial.
                6.	 Courts: Jurisdiction: Search and Seizure: Property. The court in
                    which a criminal charge was filed has exclusive jurisdiction to deter-
                    mine the rights to seized property, and the property’s disposition.
                7.	 Search and Seizure: Property. The proper procedure to obtain the
                    return of seized property is to apply to the court for its return.
                8.	 Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct,
                    a judge must recuse himself or herself from a case if the judge’s impar-
                    tiality might reasonably be questioned.
                9.	 ____: ____. Under the Nebraska Revised Code of Judicial Conduct,
                    such instances in which the judge’s impartiality might reasonably be
                    questioned specifically include where the judge has a personal bias or
                    prejudice concerning a party or a party’s lawyer.
                                     - 305 -
              Nebraska Supreme Court A dvance Sheets
                      296 Nebraska R eports
                            STATE v. BUTTERCASE
                              Cite as 296 Neb. 304

10.	 Judges: Recusal: Presumptions. A defendant seeking to disqualify a
     judge on the basis of bias or prejudice bears the heavy burden of over-
     coming the presumption of judicial impartiality.
11.	 Judges: Recusal. In evaluating a trial judge’s alleged bias, the question
     is whether a reasonable person who knew the circumstances of the case
     would question the judge’s impartiality under an objective standard of
     reasonableness, even though no actual bias or prejudice was shown.
12.	 ____: ____. That a judge knows most of the attorneys practicing in his
     or her district is common, and the fact that a judge knows attorneys
     through professional practices and organizations does not, by itself, cre-
     ate the appearance of impropriety.
13.	 ____: ____. Judicial rulings alone almost never constitute a valid basis
     for a bias or partiality motion directed to a trial judge.
14.	 Judges: Recusal: Waiver. A party is said to have waived his or her right
     to obtain a judge’s disqualification when the alleged basis for the dis-
     qualification has been known to the party for some time, but the objec-
     tion is raised well after the judge has participated in the proceedings.
15.	 Judges: Recusal: Appeal and Error. Once a case has been litigated,
     an appellate court will not disturb the denial of a motion to disqualify a
     judge and give litigants a “second bite at the apple.”
16.	 Judges: Recusal: Time. The issue of judicial disqualification is timely
     if submitted at the earliest practicable opportunity after the disqualifying
     facts are discovered.

  Appeal from the District Court for Gage County: Paul W.
Korslund, Judge. Affirmed.
   Joseph J. Buttercase, pro se.
  Douglas J. Peterson, Attorney General, Melissa R. Vincent,
and, on brief, George R. Love for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   Heavican, C.J.
                       INTRODUCTION
   This is an appeal from the denial of Joseph J. Buttercase’s
motion for the return of seized property, filed within a criminal
case that is currently pending on postconviction review with
this court, docketed as case No. S-15-987.
                              - 306 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                      STATE v. BUTTERCASE
                        Cite as 296 Neb. 304

   Buttercase contends that he was denied his right to the
return of certain personal property, in violation of Neb. Rev.
Stat. § 29-818 (Reissue 2016). The district court denied the
motion. Buttercase appeals. We affirm.
                        BACKGROUND
   Following a jury trial, Buttercase was convicted in the Gage
County District Court of first degree sexual assault, first degree
false imprisonment, strangulation, and third degree domes-
tic assault. Buttercase appealed, and in case No. A-12-1167,
in an unpublished memorandum opinion dated November 5,
2013, the Nebraska Court of Appeals affirmed his convictions
and sentences.
   On December 9, 2015, Buttercase filed a motion for return
of seized property. In his motion, Buttercase requested the
return of the following:
      1. One black leather couch cushion;
      2. One brown and white striped fitted sheet;
      3. One white mattress pad;
      4. One Sony Camcorder;
      5. One camera tripod;
      6. One pair of Flypaper blue jeans;
      7. One pair of blue Fruit of the Loom underwear;
      8. One “I have the Dick” black T-shirt;
      9. One pair of white Nike shoes and pair of white socks;
      10. One green belt;
      11. One Silver Case and Blackberry cell phone[;]
      12. SpeedTech 500GB External Hard Drive and cord;
      12. E-Machine PC Tower and Cord, SN# GRY5A20017309;
      13. SanDisk media card;
      14. Lexar 128 MB media card;
      15. 77 Homemade compact discs (from upstairs and liv-
      ing room);
      16. One Brass pipe (Brand new, still in package);
      17. 3-page note from T. Fulton to J. Buttercase.
   On January 20, 2016, the district court held a hearing
on Buttercase’s motion to return property. Buttercase, acting
                                     - 307 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

pro se, appeared telephonically. At the hearing, the State
argued that at that time, Buttercase had a pending postcon-
viction motion and a pending federal prosecution for child
pornography and that “many of the items that he pled in his
motion are subject to that case.” The State further argued that
“until there’s a final disposition in this matter in both the fed-
eral case and the state case that’s on appeal, that none of the
property items should be returned.” The district court denied
Buttercase’s motion to return property, stating at the hear-
ing that
      at least some of the property listed here might be neces-
      sary for the federal prosecution or the other postconvic-
      tion matter depending on the outcome of that, and rather
      than try to parse through the different items of property
      and determine what may or may not be needed at this
      time, it would be premature to release property. So I will
      deny the Motion for Return of Seized Property, because it
      may be necessary for those other matters.
                 ASSIGNMENTS OF ERROR
   Buttercase assigns that the district court erred in dismissing
his motion for return of seized property because (1) the pend-
ing federal prosecution and postconviction proceedings do not
qualify as pending trials, (2) the State was required to deter-
mine what portion of the seized evidence would be necessary
for the pending proceedings and return the portion that would
not be necessary, and (3) the court was biased against him.
                   STANDARD OF REVIEW
   [1,2] The denial of a motion for return of seized property
is reviewed for an abuse of discretion.1 An abuse of discretion
takes place when the sentencing court’s reasons or rulings are
clearly untenable and unfairly deprive a litigant of a substan-
tial right and a just result.2

 1	
      State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
 2	
      State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
                                    - 308 -
               Nebraska Supreme Court A dvance Sheets
                       296 Nebraska R eports
                            STATE v. BUTTERCASE
                              Cite as 296 Neb. 304

   [3] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or
prejudice as a matter of law.3
                            ANALYSIS
   Buttercase argues that the district court erred in denying his
motion to return seized property under § 29-818 because (1)
the “collateral or postconviction proceedings do not qualify
as a criminal prosecution in which evidence is needed for any
pending trial,”4 and “court proceedings against [Buttercase]
ceased in 2013 when the appellate court mandate affirming
[his] convictions and sentences on direct appeal was entered
by the district court”5; (2) at least some of the property was not
needed for his pending federal prosecution or postconviction
proceedings; and (3) there is evidence of judicial bias.
            Whether Pending Federal Prosecution
                and Postconviction P roceedings
                   Qualify as Pending Trial
   On appeal, Buttercase contends that the pending postconvic-
tion and federal prosecution are not “any pending trial” for
purposes of § 29-818 and that therefore, he is entitled to the
return of his property.6 Section § 29-818 governs seized prop-
erty and provides in relevant part:
      [P]roperty seized under a search warrant or validly seized
      without a warrant shall be safely kept by the officer seiz-
      ing the same, unless otherwise directed by the judge or
      magistrate, and shall be so kept so long as necessary for
      the purpose of being produced as evidence in any trial.
      Property seized may not be taken from the officer having

 3	
      Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
 4	
      Reply brief for appellant at 3.
 5	
      Brief for appellant at 4.
 6	
      Reply brief for appellant at 3.
                                     - 309 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

      it in custody by replevin or other writ so long as it is or
      may be required as evidence in any trial, nor may it be
      so taken in any event where a complaint has been filed
      in connection with which the property was or may be
      used as evidence, and the court in which such complaint
      was filed shall have exclusive jurisdiction for disposition
      of the property or funds and to determine rights therein,
      including questions respecting the title, possession, con-
      trol, and disposition thereof.
   [4-7] Property seized in enforcing a criminal law is said to
be “in custodia legis,” or in the custody of the court.7 Property
seized and held as evidence shall be kept so long as necessary
for the purpose of being produced as evidence at trial.8 The
court in which a criminal charge was filed has exclusive juris-
diction to determine the rights to seized property, and the prop-
erty’s disposition.9 The proper procedure to obtain the return of
seized property is to apply to the court for its return.10
   In State v. Agee,11 this court found that the district court
erred in denying the defendant’s motion for return of property
after the defendant’s theft charge was dismissed, and that the
State did not meet its burden of proving it had a legitimate
reason to retain the property. The State claimed that the prop-
erty did not belong to the defendant and that it had been stolen
by him. This court found that no evidence had been adduced
at trial as to whether the seized items were stolen property;
rather, without evidentiary support, the district court based
its ruling solely on representations made by the State that the
property was stolen.12 We noted that

 7	
      State v. Agee, supra note 1.
 8	
      Id.
 9	
      Id. See State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986).
10	
      State v. Agee, supra note 1. See State v. Allen, 159 Neb. 314, 66 N.W.2d
      830 (1954).
11	
      State v. Agee, supra note 1.
12	
      Id.
                                    - 310 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                            STATE v. BUTTERCASE
                              Cite as 296 Neb. 304

      the general rule is well established that upon the termi-
      nation of criminal proceedings, seized property, other
      than contraband, should be returned to the rightful owner
      unless the government has a continuing interest in the
      property. “‘[I]t is fundamental to the integrity of the
      criminal justice process that property involved in the
      proceeding, against which no Government claim lies,
      be returned promptly to its rightful owner.’” . . . Thus,
      a motion for the return of property is properly denied
      only if the claimant is not entitled to lawful possession
      of the property, the property is contraband or subject to
      forfeiture, or the government has some other continuing
      interest in the property.13
   This court further stated that the burden of proof was on the
“government to show that it has a legitimate reason to retain
the property.”14 And, “[t]he State must do more than assert,
without evidentiary support, that the property was stolen, or is
not in the State’s possession.”15 Therefore, this court held that
the State did not meet that burden because it failed to present
evidence of “any of the other grounds that have been used
to justify the government’s retention of property, such as an
ongoing investigation, a tax lien, an imposed fine, or an order
of restitution.”16
   Also relevant is State v. Dubray,17 in which the Court
of Appeals applied the reasoning in Agee and found that
once criminal proceedings against the defendant were con-
cluded, he was presumptively entitled to the return of property
seized from him. Without providing any supporting evidence,
the State argued that the items belonged to the defendant’s

13	
      Id. at 449-50, 741 N.W.2d at 166, quoting United States v. Wright, 610
      F.2d 930 (D.C. Cir. 1979).
14	
      Id. at 450, 741 N.W.2d at 166.
15	
      Id. at 452, 741 N.W.2d at 167.
16	
      Id. at 451, 741 N.W.2d at 167.
17	
      State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).
                                     - 311 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

murder victims and that the defendant “failed to present evi-
dence supporting his claim to the property.”18 The Court of
Appeals found the State had not overcome that presumption
because it did not submit any evidence “of a cognizable claim
or right of possession adverse to [the defendant’s].”19
   Buttercase argues that the State does not have a continuing
interest in his property because his conviction and sentence
are final. Buttercase further contends that the State made no
“specific showing . . . of any legitimate reason to retain said
property or demonstrate any valid continuing interests in such
property.”20 We disagree as to both assertions.
   This court has held that a motion for the return of property
is properly denied “only if the claimant is not entitled to lawful
possession of the property, the property is contraband or sub-
ject to forfeiture, or the government has some other continuing
interest in the property.” 21 In this case, the government does
not contend that Buttercase is not entitled to lawful possession
of the property or that the property is contraband or subject to
forfeiture. Instead, the government asserts that it has a continu-
ing interest in the property.
   In the instant case, much like in Agee and Dubray, without
presenting evidence or requesting the district court to take
judicial notice, the State cited the pending federal case and
motion for postconviction relief currently pending in this
court. The judge then asked Buttercase if there was anything
further he would like to say. Buttercase did not dispute the
State’s assertion of his pending proceedings in state and fed-
eral court, nor did he dispute that some of the seized items
may be needed for those proceedings. Rather, Buttercase
responded that “at least part of it could be returned . . . if there

18	
      Id. at 72, 883 N.W.2d at 403.
19	
      Id. at 73, 883 N.W.2d at 404.
20	
      Brief for appellant at 5.
21	
      See State v. Agee, supra note 1, 274 Neb. at 450, 741 N.W.2d at 166.
                                     - 312 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

was no other need for it.” In addition, Buttercase acknowl-
edges in his brief the existence of both cases against him, but
asserts that they “do not qualify as a criminal prosecution in
which evidence is needed for any pending trial.”22 The district
court found that the State showed it had a legitimate reason
to retain the seized property based on “a pending appeal on
[Buttercase’s] post-conviction matter and a federal case that
is still pending.”
   Under § 29-818, seized evidence “shall be so kept so long
as necessary for the purpose of being produced as evidence in
any trial.” (Emphasis supplied.) When a prisoner files a motion
for postconviction relief, the court must determine whether
the prisoner “has the right to be released on the ground that
there was such a denial or infringement of the rights of the
prisoner as to render the judgment void or voidable under the
Constitution of this state or the Constitution of the United
States.”23 If, after conducting an evidentiary hearing, the court
finds such a denial or infringement, “the court shall vacate
and set aside the judgment and shall discharge the prisoner
or resentence the prisoner or grant a new trial as may appear
appropriate.”24 Accordingly, postconviction proceedings pro-
vide an evidentiary hearing for the court to determine whether
there has been a “denial or infringement” of his or her rights,
and whether the court should “grant a new trial.” For these
purposes, the State may have a continuing need to retain
the evidence in the course of postconviction proceedings.
Postconviction proceedings are the equivalent of a “trial” for
purposes of § 29-818.
   In addition, at the time this motion was filed, Buttercase
remained subject to a pending federal criminal child pornogra-
phy case. Thus, the evidence seized may have been “necessary

22	
      Reply brief for appellant at 3.
23	
      Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).
24	
      § 29-3001(2).
                                - 313 -
               Nebraska Supreme Court A dvance Sheets
                       296 Nebraska R eports
                         STATE v. BUTTERCASE
                           Cite as 296 Neb. 304

for the purpose of being produced as evidence” at trial in the
federal criminal proceedings.25
   Given the fact that Buttercase does not contest the exis-
tence of the postconviction motion or the federal prosecu-
tion, the presumption in Agee and Dubray has been rebut-
ted. Under these facts, we cannot say that the district court
abused its discretion in denying Buttercase’s motion to return
seized property.
          Whether State Was R equired to Determine
           Portion of Seized Evidence R equired for
                Pending Proceedings and R eturn
                     Portion Not R equired
   Buttercase argues, without citation to any relevant author-
ity, that the district court must determine what property is
needed for his pending federal prosecution or postconviction
proceedings and return any evidence that is not needed for
prosecution.
   Under § 29-818, when a complaint has been filed, the State
must only show that the property “may be used as evidence.”
Here, the district court found that there was such a possibil-
ity. The district court did not abuse its discretion in failing to
parse through the property to determine what evidence would
be used in the other pending proceedings and what should be
returned to Buttercase.
                   Buttercase’s Contentions
                         of Judge’s Bias
   Finally, we address Buttercase’s contention that the district
court denied his motion because the court was biased against
him. Buttercase points to the following as evidence of this
bias: (1) The court denied Buttercase’s postconviction motion
without granting an evidentiary hearing, (2) the court denied a
new trial wherein newly discovered evidence would have made
the result different, (3) the court denied Buttercase’s motion

25	
      See § 29-818.
                                   - 314 -
               Nebraska Supreme Court A dvance Sheets
                       296 Nebraska R eports
                            STATE v. BUTTERCASE
                              Cite as 296 Neb. 304

to amend his motion for postconviction relief, (4) the victim
sent Buttercase’s ex-wife a message on social media prior to
trial stating that her attorney and the judge play golf together
and that the judge likes the victim, (5) the court issued a “one-
sided ‘admonishment’”26 of Buttercase in the presence of the
jury, (6) the court denied Buttercase the chance to fully estab-
lish a defense based on consensual sexual conduct, and (7) the
court showed “cumulative bias”27 against Buttercase.
   [8-10] Under the Nebraska Revised Code of Judicial
Conduct, a judge must recuse himself or herself from a case
if the judge’s impartiality might reasonably be questioned.28
Under the code, such instances in which the judge’s impar-
tiality might reasonably be questioned specifically include
where “‘[t]he judge has a personal bias or prejudice concern-
ing a party or a party’s lawyer . . . .’”29 A defendant seeking
to disqualify a judge on the basis of bias or prejudice bears
the heavy burden of overcoming the presumption of judi-
cial impartiality.30
   [11-13] Under the standard we have articulated for evaluat-
ing a trial judge’s alleged bias, the question is whether a rea-
sonable person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard
of reasonableness, even though no actual bias or prejudice was
shown.31 That a judge knows most of the attorneys practic-
ing in his or her district is common, and the fact that a judge
knows attorneys through professional practices and organiza-
tions does not, by itself, create the appearance of impropriety.32

26	
      Brief for appellant at 7.
27	
      Id.
28	
      Young v. Govier & Milone, supra note 3.
29	
      Tierney v. Four H Land Co., 281 Neb. 658, 664, 798 N.W.2d 586, 591
      (2011), quoting Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(1).
30	
      State v. Pattno, supra note 2.
31	
      State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
32	
      State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004).
                                     - 315 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

Judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion directed to a trial judge.33
   [14-16] A party is said to have waived his or her right to
obtain a judge’s disqualification when the alleged basis for the
disqualification has been known to the party for some time, but
the objection is raised well after the judge has participated in
the proceedings.34 Once a case has been litigated, an appellate
court will not disturb the denial of a motion to disqualify a
judge and give litigants “‘a second bite at the apple.’”35 “[T]he
issue of [judicial] disqualification is timely if submitted at the
‘“earliest practicable opportunity” after the disqualifying facts
are discovered.’”36
   The record contains no indication that Buttercase raised any
allegation of judicial bias prior to or during the hearing on his
motion for return of seized property. And each of Buttercase’s
allegations was known to him prior to the hearing.
   As noted above, at the hearing, the State cited the pending
federal case and the motion for postconviction relief currently
pending in this court. The judge then asked Buttercase, “[I]s
there anything further you would like to state?” Buttercase
did not dispute the State’s assertion of his pending proceed-
ings in state and federal court, nor did he dispute that some
of the evidence may be needed for those proceedings. After
the court denied Buttercase’s motion, the judge again asked,
“Anything else that anybody wants to bring up at this point?”
Once again, Buttercase failed to make any of his judicial
bias arguments.
   Despite several opportunities, Buttercase failed to raise any
allegation of bias at any point during the hearing. Thus, we
find that Buttercase failed to raise these issues at the earliest

33	
      Young v. Govier & Milone, supra note 3.
34	
      Tierney v. Four H Land Co., supra note 29.
35	
      Id. at 665, 798 N.W.2d at 592.
36	
      Id.
                                     - 316 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             STATE v. BUTTERCASE
                               Cite as 296 Neb. 304

practicable opportunity and has waived any argument regard-
ing bias.
   Even if we were to consider these allegations, we find them
to be without merit. As we have previously held, the fact that
the district court socialized with another member of the bar is
insufficient to show bias, as is the fact that the court previously
presided over other actions involving the parties and made
rulings against one or another of the parties. The possibility
that the judge and the State’s attorney knew each other and
played golf together “does not, by itself, create the appearance
of impropriety.”37 Buttercase also contends that the statement
in the victim’s social media message that the judge “‘likes’”38
her is evidence of bias. Assuming such a message is admissible
evidence, without further substantive support no reasonable
person would question the judge’s impartiality under an objec-
tive standard of reasonableness based on the claimed social
media message.
   Even considered collectively, these allegations are insuffi-
cient to show bias. We find that a reasonable person who knew
the circumstances of the case would not question the judge’s
impartiality under an objective standard of reasonableness.
Therefore, Buttercase’s arguments that the district court judge
was biased are without merit.
                        CONCLUSION
  The district court did not err in dismissing Buttercase’s
motion for return of seized property. Accordingly, we affirm.
                                                    A ffirmed.

37	
      See State v. Hubbard, supra note 32, 267 Neb. at 324, 673 N.W.2d at 576.
38	
      Brief for appellant at 8.
