State v. Combs, 297 Neb. 422

Background

Patrick J. Combs was tried on four felony counts related to financial dealings; after a multi-day jury trial the jury reported it was deadlocked and the court declared a mistrial at Combs’ renewed request.
During deliberations the presiding juror later averred the jury had unanimously voted to acquit on three counts and was 11–1 to acquit on the fourth, but did not announce or record any verdict in open court.
Combs moved for judgment of acquittal post-mistrial and filed a plea in bar arguing retrial on the three counts would violate the Double Jeopardy Clause; the district court denied both motions.
The State introduced two unsworn juror emails that conflicted in part with the presiding juror’s affidavit (e.g., suggesting votes were preliminary or that jurors felt pressure to change votes).
Because the case ended in a mistrial and no conviction or sentence was entered, the only final, appealable order was the denial of the plea in bar; Combs appealed that denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Double Jeopardy bars retrial of counts the jury allegedly voted to acquit during deliberations	Combs: jury unanimously acquitted on counts 2–4 during deliberations; those acquittals bar retrial	State: no formal verdict was returned in open court; mistrial at defendant’s request allows retrial unless prosecution provoked mistrial	Held: Retrial not barred. Votes in deliberations are not verdicts; mistrial requested by defendant permits retrial absent prosecutorial provocation
Whether the district court’s denial of the plea in bar is appealable	Combs: denial should be reviewable as it affects substantial rights	State: denial is a final, appealable order under Nebraska law for pleas in bar asserting double jeopardy	Held: Denial of plea in bar is a final, appealable order; appellate jurisdiction exists over that ruling
Whether post-mistrial motions for judgment of acquittal were timely and reviewable	Combs: motion for judgment of acquittal should have been granted based on insufficiency or jury’s acquittal	State: motion was untimely after mistrial; earlier motions were waived by proceeding with defense evidence	Held: Motion for judgment of acquittal was untimely after mistrial and dismissal motions were waived by Combs’ subsequent conduct
Whether the court erred by not inquiring whether the jury was deadlocked on specific counts before declaring mistrial	Combs: court should have asked whether deadlock was limited to particular counts (which might reveal acquittals)	State: defendant requested mistrial and cannot complain; better practice but not reversible error	Held: No reversible error; having requested and obtained mistrial, Combs cannot rely on jury deliberation votes to bar retrial

Key Cases Cited

State v. Todd, 296 Neb. 424 (Neb. 2017) (questions on plea in bar are questions of law)
Heckman v. Marchio, 296 Neb. 458 (Neb. 2017) (Nebraska’s final-order statute is exclusive)
State v. Jackson, 291 Neb. 908 (Neb. 2015) (in criminal cases the final judgment is the sentence)
State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar may assert nonfrivolous double jeopardy claims; denial is appealable)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (mistrial over defendant’s objection requires manifest necessity to allow retrial)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (when defendant requests mistrial, Double Jeopardy standard differs; barred retrial only if prosecution intended to provoke mistrial)
Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Double Jeopardy Clause applies to the states via the Fourteenth Amendment)
State v. Anderson, 193 Neb. 467 (Neb. 1974) (a jury’s action becomes a verdict only when rendered in open court)
Longfellow v. The State, 10 Neb. 105 (Neb. 1880) (a verdict must be delivered in open court to be valid)