State v. Combs
297 Neb. 422
Neb.2017Background
- Patrick J. Combs was tried on four counts related to alleged financial misconduct; after a multi-day jury trial the jury reported it was deadlocked and the court declared a mistrial at Combs’ renewed request.
- After the mistrial, Combs learned (via the presiding juror’s affidavit) that the jury had, during deliberations, unanimously voted to acquit him on three counts and was 11–1 to acquit on the fourth, but believed it had to reach unanimity on all counts together.
- Combs moved for judgment of acquittal (filed after the mistrial) and filed a plea in bar arguing double jeopardy barred retrial of the three counts the jury had reportedly unanimously voted to acquit.
- The district court overruled the motion for acquittal and overruled the plea in bar; those rulings were appealed.
- The Nebraska Supreme Court held it lacked appellate jurisdiction to review trial-stage errors (e.g., timeliness/waiver of dismissal motions) because no final judgment had been entered, but had jurisdiction to review the order overruling the plea in bar because that is a final, appealable order.
- On the merits, the court held that the jury had not rendered a verdict in open court and that where a defendant requests a mistrial, retrial is generally not barred by the Double Jeopardy Clause unless the prosecution’s conduct intended to provoke the defendant into seeking a mistrial.
Issues
| Issue | Combs’ Argument | State’s Argument | Held |
|---|---|---|---|
| 1) Whether the appellate court may review trial-stage errors (motions to dismiss, judgment of acquittal) | Combs argued the court erred in overruling his motions and should review sufficiency and trial errors | State argued no final judgment existed (trial ended in mistrial), so those trial rulings are not appealable | Court: No jurisdiction to review those trial-stage errors; only final orders are appealable, and no sentence/verdict existed |
| 2) Whether Combs’ post-mistrial motion for judgment of acquittal was timely | Combs maintained insufficient evidence and relied on juror statements | State maintained a motion for acquittal is untimely after a mistrial and Combs waived challenges by proceeding at trial | Court: Motion was untimely (filed after mistrial) and Combs waived earlier challenges by introducing evidence |
| 3) Whether alleged unanimous votes to acquit during deliberations constitute acquittals barring retrial under Double Jeopardy | Combs argued jurors had unanimously voted to acquit on counts 2–4, so retrial is barred | State argued no formal verdict was returned in open court and votes in deliberation are not verdicts; retrial allowed after defendant-requested mistrial | Court: Held those private deliberative votes were not verdicts; Double Jeopardy does not bar retrial when defendant requested the mistrial (absent prosecutorial misconduct intended to provoke) |
| 4) Whether any narrow exception applies (prosecutorial conduct intended to provoke mistrial) | Combs suggested circumstances warranted barring retrial | State asserted no evidence prosecution provoked mistrial request | Court: No evidence the prosecution intended to provoke mistrial; narrow Kennedy exception did not apply; retrial not barred |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (1978) (discusses when retrial is barred after mistrial and the “manifest necessity” standard)
- Oregon v. Kennedy, 456 U.S. 667 (1982) (establishes narrow exception barring retrial when prosecution’s conduct was intended to provoke defendant into moving for mistrial)
- Benton v. Maryland, 395 U.S. 784 (1969) (incorporation of Double Jeopardy Clause against the states)
- State v. Williams, 278 Neb. 841 (2009) (plea in bar for double jeopardy claims is a special proceeding and its overruling is a final, appealable order)
- Heckman v. Marchio, 296 Neb. 458 (2017) (statutory limits on what constitutes a final order for appeal in Nebraska)