State v. Combs
297 Neb. 422
Neb.2017Background
- Patrick J. Combs was tried on four financial-crime counts; after 3 days the jury reported it was deadlocked and the court declared a mistrial at Combs’ renewed request.
- The jury did not complete or announce any verdicts in open court; no verdict forms were returned or accepted.
- After the mistrial, the presiding juror submitted an affidavit stating the jury had unanimously voted to acquit on three counts and was 11–1 not guilty on the fourth; other jurors sent unsworn emails suggesting votes may have been preliminary or influenced.
- Combs moved for judgment of acquittal and then filed a plea in bar contending double jeopardy barred retrial on the three counts the jury had (allegedly) unanimously voted to acquit.
- The district court overruled the judgment-of-acquittal motion and the plea in bar; Combs appealed only the overruling of the plea in bar (the only final, appealable order).
Issues
| Issue | Plaintiff's Argument (Combs) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether jurors’ internal votes to acquit during deliberations constitute an acquittal that bars retrial under Double Jeopardy | The jury unanimously voted to acquit on counts 2–4 (per presiding juror affidavit); those internal acquittal votes should bar retrial | A private vote in jury deliberations is not a verdict; no verdict was returned or accepted in open court, so retrial is permitted | Votes in deliberations are not verdicts; no acquittal occurred; retrial is not barred |
| Whether a mistrial granted at defendant’s request bars retrial under Double Jeopardy | Even though mistrial was requested by Combs, retrial is barred as to counts already unanimously decided by the jury | A mistrial requested by the defendant generally permits retrial; Double Jeopardy bars retrial only where prosecution provoked the mistrial or where a manifest necessity exists for mistrial over defendant’s objection | Mistrial at defendant’s request does not trigger manifest necessity rule; retrial allowed absent prosecutorial provocation |
| Whether the district court’s overruling of the plea in bar is appealable | Combs: The plea in bar overruling is a final, appealable order and should be reviewed on the merits | State: Agrees the plea in bar ruling is a final, appealable order; other trial errors are not appealable because no final judgment was entered | Overruling plea in bar is a final, appealable order; appellate court reviews it de novo |
| Whether other trial errors (e.g., denial of judgment of acquittal, evidentiary rulings) are reviewable on appeal now | Combs: Trial errors such as denial of motion to dismiss and admission of testimony are reviewable | State: Those rulings are not final because trial ended in mistrial and no sentence was entered; Combs waived some by proceeding and presenting evidence | Those trial errors are not reviewable on this appeal (no final judgment); some claims were waived by proceeding with trial |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (describing "manifest necessity" standard for retrial after mistrial declared over defendant's objection)
- Oregon v. Kennedy, 456 U.S. 667 (holding retrial is barred after defendant-requested mistrial only when prosecution intended to provoke the mistrial)
- Benton v. Maryland, 395 U.S. 784 (double jeopardy protection applies to the states via the 14th Amendment)
- State v. Williams, 278 Neb. 841 (recognizing plea in bar as proper vehicle to raise double jeopardy claim and that overruling is appealable)
- State v. Anderson, 193 Neb. 467 (explaining a jury's private deliberative vote does not become a verdict until rendered in open court)