State v. Buttercase, 296 Neb. 304

Background

Buttercase was convicted in Gage County of multiple felonies; convictions were affirmed on direct appeal in 2013.
He filed a motion (Dec. 9, 2015) in the district court for return of various seized personal items (electronics, clothing, media, notes, etc.).
The State opposed return, citing a pending federal child-pornography prosecution and Buttercase’s pending state postconviction proceedings, arguing some items may be needed as evidence.
At the Jan. 20, 2016 hearing Buttercase (pro se) did not dispute the existence of the federal and postconviction matters or that some items might be needed; he asked only that portions not needed be returned.
The district court denied the motion as premature because items might be necessary for the pending federal and postconviction matters; Buttercase appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pending postconviction and federal prosecutions count as "any trial" under Neb. Rev. Stat. § 29-818	Postconviction and federal matters are not "pending trials" so seized property should be returned	These proceedings may require the evidence; § 29-818 allows retention so long as property may be needed for any trial	Court: Postconviction and pending federal prosecution qualify as trials for § 29-818 purposes; retention permissible
Whether the State must identify which seized items are necessary and return the rest	Buttercase: State must parse items and return those not needed	State: Only need show items "may be used as evidence"; no parsing required	Court: State’s showing of possible need was sufficient; court did not abuse discretion by not parsing items
Whether the district court abused its discretion in denying the motion for return of property	Buttercase: Denial was unreasonable and deprived him of property rights	State: Government has continuing interest because of pending proceedings	Court: No abuse of discretion; continuing interest shown by existence of pending matters
Whether the judge was biased, requiring recusal or reversal	Buttercase: Cites prior rulings, alleged social ties between judge and victim’s attorney, social-media comment, and other rulings as evidence of bias	State: Allegations known earlier but not raised timely; judicial rulings/social ties do not, by themselves, show bias	Court: Waived because not raised at earliest opportunity; allegations even if considered do not show an objective appearance of bias

Key Cases Cited

State v. Agee, 274 Neb. 445 (holds that upon termination of criminal proceedings, seized property should be returned absent government’s continuing interest)
State v. Dubray, 24 Neb. App. 67 (applies Agee presumption that property is returnable once proceedings conclude unless government shows claim)
Young v. Govier & Milone, 286 Neb. 224 (discusses recusal standard under Nebraska Code of Judicial Conduct)
Tierney v. Four H Land Co., 281 Neb. 658 (timeliness standard for judicial disqualification; earliest practicable opportunity)
State v. Hubbard, 267 Neb. 316 (familiarity between judge and local attorneys or socializing does not by itself create appearance of impropriety)