State v. Combs, 900 N.W.2d 473

Background

Patrick J. Combs was tried on four counts arising from alleged financial misconduct; after a multi-day jury trial the jury reported it was deadlocked and the court declared a mistrial at Combs’ request.
After the mistrial, Combs learned the presiding juror claimed the jury had unanimously voted to acquit on three counts during deliberations but failed to return verdicts because jurors thought unanimity across all counts was required.
Combs moved for judgment of acquittal and submitted the presiding juror’s affidavit asserting unanimous acquittals on counts 2–4; the State submitted unsworn juror emails suggesting votes were preliminary and some jurors felt pressured.
The district court overruled Combs’ post-mistrial motion for judgment of acquittal and overruled his plea in bar arguing retrial on counts 2–4 would violate double jeopardy.
Combs appealed only the overruling of the plea in bar; the Nebraska Supreme Court reviewed that final order and affirmed.

Issues

Issue	Combs’ Argument	State’s Argument	Held
1) Is there appellate jurisdiction over trial errors?	Trial errors (e.g., denial of motions to dismiss) are reviewable.	No final judgment exists because the trial ended in a mistrial; only final orders are appealable.	No jurisdiction over trial-error claims; only plea in bar ruling is appealable.
2) Were motions to dismiss / judgment of acquittal timely and preserved?	Post-mistrial judgment of acquittal should be considered; trial evidence was insufficient.	Motion for judgment of acquittal was untimely (filed after mistrial) and prior dismissal motions were waived by proceeding with defense.	Motion untimely and objections waived; not reviewable now.
3) Do jury deliberation votes constitute acquittals barring retrial under Double Jeopardy?	The jurors’ unanimous votes to acquit counts 2–4 amounted to acquittals; retrial is barred.	Deliberation votes are not verdicts; no formal verdict was returned or accepted, so double jeopardy does not bar retrial.	Votes in private deliberations are not verdicts; retrial not barred.
4) Does Double Jeopardy bar retrial when the defendant requested the mistrial?	Even though defendant requested the mistrial, retrial should be barred because jury had effectively acquitted on three counts.	When defendant requests mistrial, double jeopardy generally does not bar retrial unless prosecutorial misconduct was intended to induce the mistrial.	Defendant-requested mistrial removes manifest-necessity protection; retrial permitted absent prosecutorial provocation.

Key Cases Cited

State v. Todd, 296 Neb. 424 (Neb. 2017) (questions of law reviewed de novo)
Heckman v. Marchio, 296 Neb. 458 (Neb. 2017) (Nebraska treats §25-1902 categories of final orders as exclusive)
State v. Jackson, 291 Neb. 908 (Neb. 2015) (in criminal case, final judgment is the sentence)
State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar may assert nonfrivolous double jeopardy claim; overruling plea in bar is final appealable order)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (retrial barred after mistrial over defendant’s objection unless manifest necessity)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (when defendant requests mistrial, manifest-necessity standard does not apply; retrial barred only if prosecution intended to provoke mistrial motion)
Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Double Jeopardy Clause applies to states via Fourteenth Amendment)
State v. Anderson, 193 Neb. 467 (Neb. 1974) (jury action not a verdict until rendered in open court and accepted)
Longfellow v. The State, 10 Neb. 105 (Neb. 1880) (verdict must be delivered in open court to be valid)