State v. Buttercase , 296 Neb. 304 ( 2017 )


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    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.
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    STATE v. BUTTERCASE
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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 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.
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    STATE v. BUTTERCASE
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    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
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    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).
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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 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.
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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, 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
    
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    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. Ct. App. 67
    , 
    883 N.W.2d 399
    (2016).
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    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
    .
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    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).
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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 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.
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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 “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).
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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 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
    
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    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.