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State v. Buttercase

Supreme Court of Nebraska

April 7, 2017

State of Nebraska, appellee,
v.
Joseph J. Buttercase, appellant.

         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.

         [296 Neb. 305] 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. 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, Kelch, 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.

         [296 Neb. 306] 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 ...

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