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STATE v. BUTTERCASE

Cite as 296 Neb. 304

State of Nebraska, appellee, v.

Joseph J. Buttercase, appella

__ 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 determine 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 impartiality 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/30/2017 09:12 AM CDT
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10. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming 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, create 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 disqualification has been known to the party for some time, but the objection 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. Affirme

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,

Kelch, and Funke,

Heavican, C

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.
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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 domestic 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 living 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 
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pro se, appeared telephonically. At the hearing, the State 

argued that at that time, Buttercase had a pending postconviction 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 federal 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 hearing that

at least some of the property listed here might be necessary for the federal prosecution or the other postconviction 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 pending federal prosecution and postconviction proceedings do not 

qualify as pending trials, (2) the State was required to determine 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 substantial 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).
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[3] 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.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 Pros

and Postconviction Pr

Qualify as Pending T

On appeal, Buttercase contends that the pending postconviction 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 property 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 seizing 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.
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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, control, 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 jurisdiction to determine the rights to seized property, and the property’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 property 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.
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the general rule is well established that upon the termination 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 concluded, 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).
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murder victims and that the defendant “failed to present evidence 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 subject 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 continuing 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 federal 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.
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was no other need for it.” In addition, Buttercase acknowledges 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 provide 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 pornography 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).
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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 existence of the postconviction motion or the federal prosecution, the presumption in Agee and Dubray has been rebutted. 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 Required to Dete

Portion of Seized Evidence Requ

Pending Proceedings a

Portion Not Requ

Buttercase argues, without citation to any relevant authority, 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 possibility. 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 Conten

of Judge’s Bia

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.
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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 “onesided ‘admonishment’”26 of Buttercase in the presence of the 

jury, (6) the court denied Buttercase the chance to fully establish 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 impartiality might reasonably be questioned specifically include 

where “‘[t]he judge has a personal bias or prejudice concerning 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 judicial impartiality.30

[11-13] Under the standard we have articulated for 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.31 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, 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).
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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 proceedings 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.
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practicable opportunity and has waived any argument regarding 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 objective standard of reasonableness based on the claimed social 

media message.

Even considered collectively, these allegations are insufficient 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.

Affirmed

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

38 Brief for appellant at 8.