State v. Dubray, A-16-962

Background

Dominick Dubray was convicted of two murders (February 2012); police seized multiple personal items from the residence he shared with victim Catalina Chavez.
After his criminal proceedings concluded, Dubray moved for return of seized property (May 2015), claiming ownership of items including two iPods, a purse with cash, clothing, shoes, and multiple pieces of jewelry.
At an initial hearing the district court returned only a coat and shoes, denying the remainder for failure to prove ownership; this court reversed and remanded, holding Dubray presumptively entitled to return of seized property unless the State proved a superior claim.
On remand Dubray renewed his motion; an evidentiary hearing was held where the State presented Chavez’s sister, who identified many items as belonging to Chavez or her half-brother and identified some items as Dubray’s.
The district court found the sister credible, granted return of the coat, shoes, and certain jewelry items, and denied return of the purse, cash, most jewelry, and an iPod; Dubray appealed.
The appellate court affirmed: remand permitted an evidentiary hearing; the State rebutted Dubray’s presumption of ownership for specific items; no due process violation or reversible error on alleged perjury.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court exceeded the scope of this court's remand by holding an evidentiary hearing	Dubray: remand required immediate return of all seized property; no further evidence allowed	State: remand allowed further proceedings; court may receive evidence to determine ownership	Held: General remand permitted evidentiary hearing; court did not exceed mandate
Whether Dubray was presumptively entitled to return of seized property and whether the State bore burden to rebut	Dubray: presumption of ownership entitles him to return of all items seized from residence	State: presumption may be rebutted by evidence of superior title or continuing government interest	Held: Presumption applies but State may rebut; State presented credible evidence of superior title for certain items, so denial of those items proper
Whether forfeiture proceedings were required or Dubray’s due process rights were violated by denying return absent forfeiture	Dubray: forfeiture procedure (and notice) required before denying return; due process violated	State: forfeiture statute invoked by Dubray applies to drug forfeiture, not murder investigation property; notice and hearing occurred	Held: Forfeiture statute inapplicable; Dubray had notice and opportunity to be heard; no due process violation
Whether the district court relied on perjured testimony (statutory false testimony claim)	Dubray: Chavez’s sister testified falsely; court improperly relied on perjured testimony	State: sister’s testimony was evidentiary and credibility was for trial court to assess	Held: No basis to overturn credibility determination; perjury statute not applicable to this collateral proceeding

Key Cases Cited

State v. Agee, 274 Neb. 445 (2007) (presumption of return of seized property after criminal proceedings; government bears burden to show legitimate reason to retain)
State v. Dubray, 24 Neb. App. 67 (2016) (appellate reversal and remand for failure to require State to rebut ownership presumption)
Liljestrand v. Dell Enters., 287 Neb. 242 (2014) (construction of appellate mandate is question of law)
Scott v. Khan, 18 Neb. App. 600 (2010) (general remand permits further development of facts when record is incomplete)
State v. $1,947, 255 Neb. 290 (1998) (statute cited governs forfeiture in drug cases; scope limited)
Bryan M. v. Anne B., 292 Neb. 725 (2016) (procedural due process requires notice and opportunity to be heard appropriate to proceeding)
Moreno v. City of Gering, 293 Neb. 320 (2016) (trial court is sole judge of witness credibility)
Henderson v. City of Columbus, 285 Neb. 482 (2013) (appellate courts do not reweigh credibility findings)