State v. Buttercase, 296 Neb. 304

Background

Joseph J. Buttercase was convicted in Gage County of multiple sexual-assault–related offenses; convictions were affirmed on direct appeal.
Buttercase filed a motion (Dec. 9, 2015) in the district court seeking return of various personal items and electronic media seized during investigation.
The State opposed return, citing a pending federal prosecution for child pornography and a postconviction proceeding in state court; the district court denied the motion as premature because items might be needed for those matters.
At the January 20, 2016 hearing Buttercase (pro se) did not dispute the existence of the federal and postconviction proceedings and acknowledged some items might be needed; he requested partial return only generally.
Buttercase appealed, arguing (1) pending federal and postconviction proceedings are not "any trial" under Neb. Rev. Stat. § 29-818, (2) the court/State should have identified and returned items not needed for pending matters, and (3) the district judge was biased.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether postconviction proceedings and a pending federal prosecution qualify as a "trial" under § 29-818	Postconviction and federal proceedings are not "any pending trial," so seized property must be returned	§ 29-818 protects property "so long as necessary for the purpose of being produced as evidence in any trial;" postconviction and federal proceedings may require evidence	Court held postconviction proceedings and the pending federal prosecution can qualify as a "trial" for § 29-818 purposes; denial not an abuse of discretion
Whether the State/court had to separate items needed for other proceedings and return the rest	Court/state should determine which items are unnecessary and return those portions	§ 29-818 requires only that property be kept if it "may be used as evidence"; court reasonably found such possibility and need not parse items at that time	Court held district court did not abuse discretion by declining to parse and return portions of the seized property
Whether the State met its burden to show a legitimate reason to retain property	State failed to present specific evidentiary support for continued retention	State pointed to ongoing federal prosecution and state postconviction case as legitimate continuing interests	Because Buttercase did not dispute existence of pending proceedings, the presumption of entitlement was rebutted and State’s asserted continuing interest sufficed here
Whether the judge was biased, requiring recusal or reversal	Judge had shown bias via prior rulings, admonishment, social ties to prosecutor, and victim’s social-media claim	Allegations were known earlier and were not raised timely; social ties and rulings alone do not establish bias	Court held Buttercase waived timely challenge and, on the merits, allegations did not show objective appearance of partiality

Key Cases Cited

State v. Agee, 274 Neb. 445 (government must show legitimate reason to retain seized property)
State v. Dubray, 24 Neb. App. 67 (presumption of return after conclusion of proceedings unless government shows continuing interest)
Young v. Govier & Milone, 286 Neb. 224 (judicial recusal standard under the Nebraska Code of Judicial Conduct)