State v. Combs, 297 Neb. 422

Background

Patrick J. Combs was tried on four charges stemming from alleged financial misconduct involving the Moshers; 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 (via an affidavit from the presiding juror and juror emails) that the jury had reportedly voted unanimously to acquit on three counts and was 11–1 to acquit on the fourth, but did not complete or announce 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 allegedly unanimously voted to acquit; the district court overruled both motions.
The only final, appealable order was the district court’s overruling of the plea in bar; the trial ended in mistrial so there was no final judgment (no sentence) to appeal.
The district court denied Combs’ plea in bar reasoning that (1) jurors’ private deliberative votes are not verdicts; (2) because the defendant requested the mistrial, retrial is not barred by double jeopardy absent prosecutorial conduct intended to provoke a mistrial request.

Issues

Issue	Plaintiff's Argument (Combs)	Defendant's Argument (State)	Held
Appellate jurisdiction / final order	Court erred in not sustaining trial errors and motions to dismiss; should be appealable	Only the plea in bar ruling is a final order; trial rulings before mistrial are not final	Only overruling of plea in bar is final and appealable; other trial-error claims are not before the Court
Timeliness / waiver of motion for acquittal	Post-mistrial judgment of acquittal should be allowed because jurors had already acquitted on three counts	A motion for judgment of acquittal (directed verdict) is untimely after a mistrial; prior motions were waived by proceeding to present defense	Motion for judgment of acquittal was untimely and prior dismissal claims were waived by Combs’ conduct
Double jeopardy from juror deliberative votes	Jurors’ unanimous votes to acquit on three counts constituted acquittals; retrial on those counts is barred	Private jury votes are not verdicts; no verdict was returned in open court; double jeopardy does not bar retrial after defendant-requested mistrial	Retrial is not barred: internal jury votes are not verdicts; no verdict was returned in open court; double jeopardy inapplicable where mistrial was granted at defendant’s request absent prosecutorial provocation
Trial court’s duty to inquire / plain error about which counts were deadlocked	Court should have asked if deadlock was on all counts and should have published any verdicts reached	Combs requested a mistrial; court reasonably concluded deadlock and granting mistrial was appropriate; any better practice would not change double jeopardy outcome	No relief: better practice would be to ask which counts are deadlocked, but where defendant sought mistrial, retrial is permissible and no reversible plain error was found

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’s §25-1902 final-order categories are exclusive)
State v. Jackson, 291 Neb. 908 (Neb. 2015) (in criminal cases the final judgment is the sentence)
Mock v. Neumeister, 296 Neb. 376 (Neb. 2017) (motions to dismiss and directed verdict legal effects)
State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar may raise nonfrivolous double jeopardy claims; overruling plea in bar is final)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (retrial after mistrial over defendant’s objection requires manifest necessity)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (when defendant requests mistrial, retrial is barred only if prosecutor intended to provoke the mistrial)
State v. Anderson, 193 Neb. 467 (Neb. 1975) (jury action becomes verdict only when rendered in open court)
Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Double Jeopardy Clause applies to the states via Fourteenth Amendment)