State v. Combs, 297 Neb. 422

Patrick J. Combs was tried on four counts related to financial misconduct involving elderly victims; after a multi-day jury trial the jury deadlocked and the court declared a mistrial at Combs’ request.
During deliberations the presiding juror later swore the jury had unanimously voted to acquit on three counts and was 11–1 not guilty on the fourth, but the jury never returned or announced any verdict in open court.
Combs moved for judgment of acquittal post-mistrial and filed a plea in bar asserting double jeopardy barred retrial on the three counts the jury had reportedly voted to acquit.
The district court overruled the motion for judgment of acquittal (as untimely) and overruled the plea in bar; Combs appealed only the plea-in-bar ruling as a final, appealable order.
The Nebraska Supreme Court reviewed whether the Double Jeopardy Clause barred retrial after a mistrial sought and obtained by the defendant when jurors had privately voted to acquit some counts but never rendered a verdict in open court.

Issue	Combs' Argument	State's Argument	Held
Whether retrial on counts 2–4 is barred by Double Jeopardy after juror votes to acquit during deliberations	Jury actually acquitted on counts 2–4 during deliberations so retrial would violate Double Jeopardy	No valid acquittal occurred because no verdict was returned in open court; mistrial was at defendant’s request so retrial permitted	Court held retrial not barred; private jury votes are not verdicts and mistrial requested by defendant allows retrial absent prosecutorial provocation
Whether the plea in bar order is appealable	Order overruling plea in bar is final and appealable	Same—dispute is properly before the court	Court confirmed overruling plea in bar is a final, appealable order
Whether post-mistrial motion for judgment of acquittal was timely	Combs argued insufficiency and acquittal evidence warranted judgment	Motion was untimely because filed after mistrial; defendant waived prior challenges by proceeding to present evidence	Court held motion untimely and related trial errors non-reviewable on this appeal
Whether the court should have inquired whether jury was deadlocked on individual counts before declaring mistrial	Combs argued court should have asked whether deadlock was limited to some counts	State noted defendant sought mistrial and did not request specific inquiry	Court said better practice to ask, but defendant requested mistrial so he cannot now complain under Double Jeopardy

State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (Neb. 2017) (standards for questions of law and appellate review)
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (Neb. 2017) (Nebraska’s final-order statute construed as exclusive)
State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (Neb. 2015) (criminal final judgment defined as sentence)
State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (Neb. 2009) (plea in bar may raise nonfrivolous double jeopardy claims; overruling plea is appealable)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (retrial after mistrial declared over defendant’s objection requires manifest necessity)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (where defendant requests mistrial, manifest necessity standard does not apply; retrial barred only if prosecution intended to provoke mistrial)
Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Fifth Amendment Double Jeopardy applies to states via Fourteenth Amendment)