State v. Combs
297 Neb. 422
Neb.2017Background
- Patrick J. Combs was tried on four counts arising from alleged financial misconduct; after three days of jury deliberations the jury reported being deadlocked and the court declared a mistrial at Combs’ request.
- The jury had not returned or announced any verdicts and the verdict form remained incomplete when the mistrial was declared.
- After the mistrial, Combs learned from a juror affidavit and juror emails that during deliberations the jury had (allegedly) unanimously voted to acquit on three counts and was 11–1 (not guilty) on the fourth.
- Combs moved for judgment of acquittal (untimely) and filed a plea in bar asserting retrial on the three counts would violate the Double Jeopardy Clause.
- The district court overruled the motion and the plea in bar; Combs appealed only the overruling of the plea in bar (the only final, appealable order).
Issues
| Issue | Combs' Argument | State's Argument | Held |
|---|---|---|---|
| Whether retrial on counts 2–4 is barred by double jeopardy because jurors unanimously voted to acquit during deliberations | Jury actually reached unanimous acquittals on counts 2–4 during deliberations, so retrial is barred | No verdict was rendered in open court; deliberative votes are not verdicts and Double Jeopardy does not bar retrial after a mistrial requested by the defendant | Held: retrial is not barred; juror votes in deliberation are not verdicts and Double Jeopardy does not bar retrial following a defendant‑requested mistrial (absent prosecutorial provocation) |
| Whether the plea in bar was a final, appealable order | N/A (Combs appealed the overruling) | Overruling a plea in bar asserting double jeopardy is a final, appealable order | Held: The overruling of the plea in bar is a final, appealable order, so appellate jurisdiction exists for that question |
| Whether Combs may challenge trial errors (e.g., denial of pre‑verdict motions, admission of testimony) on this appeal | Court erred at trial on multiple evidentiary and procedural rulings | Those trial rulings are not final because the trial ended in a mistrial and thus are not properly before this court | Held: Trial‑level rulings (motions to dismiss, evidentiary rulings) are not reviewable here because no final judgment; Combs waived some by proceeding at trial |
| Whether the narrow Oregon v. Kennedy exception applies (prosecutorial conduct intended to provoke mistrial) | Implied that prosecutor actions contributed or the court should have polled jury to prevent retrial | No prosecutorial conduct intended to provoke mistrial; defendant repeatedly asked for mistrial | Held: Kennedy exception does not apply; no evidence prosecution provoked mistrial and defendant requested the mistrial |
Key Cases Cited
- State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar and double jeopardy principles)
- Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (manifest necessity standard for mistrials over defendant's objection)
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (bar on retrial after defendant‑requested mistrial only when prosecution intended to provoke)
- Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Fifth Amendment double jeopardy applies to states via Fourteenth Amendment)
- State v. Anderson, 193 Neb. 467 (Neb. 1975) (a jury’s deliberative vote is not a verdict; verdict must be rendered in open court)
- Longfellow v. The State, 10 Neb. 105 (Neb. 1880) (verdict validity requires delivery in open court)
- Heckman v. Marchio, 296 Neb. 458 (Neb. 2017) (statutory categories of final orders are exclusive)
- State v. Todd, 296 Neb. 424 (Neb. 2017) (standard of review for plea in bar questions of law)