State v. Combs, 297 Neb. 422

Background

Patrick J. Combs was tried on four felony counts related to alleged financial misconduct involving elderly victims; after 3 days the jury reported it was deadlocked and the court declared a mistrial at Combs’ renewed request.
After the mistrial, Combs presented an affidavit from the presiding juror stating the jury had unanimously voted to acquit on three counts and was 11-1 for acquittal on the fourth, but believed (mistakenly) it had to be unanimous on all counts before announcing any verdict.
The State produced two unsworn juror emails that cast doubt on the presiding juror’s affidavit (indicating votes were preliminary and some jurors felt pressure).
Combs moved for judgment of acquittal and filed a plea in bar asserting retrial on the three allegedly-acquitted counts would violate the Double Jeopardy Clause; the district court overruled both and Combs appealed only the plea-in-bar ruling.
The Nebraska Supreme Court held it lacked jurisdiction to review trial errors (no final judgment because of the mistrial) but had jurisdiction to review the overruling of the plea in bar as a final, appealable order.
On the merits the court held: votes taken in private jury deliberations are not verdicts; because Combs requested and obtained the mistrial, double jeopardy does not bar retrial (absent prosecutorial conduct intended to provoke a mistrial, which was not claimed).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court may review trial errors after a mistrial	Combs: trial errors (denial of motion to dismiss/JOA, evidentiary rulings) should be reviewed	State: no final judgment exists after mistrial so those trial errors are not appealable	Court: lacked jurisdiction over those trial-error claims because no final judgment existed; only plea-in-bar was appealable
Whether jurors’ internal unanimous votes to acquit constitute final acquittals barring retrial	Combs: juror affidavit shows unanimous acquittal on counts 2–4; retrial barred by Double Jeopardy	State: internal deliberative votes are not verdicts; no verdict was returned in open court	Court: private jury votes are not verdicts; no verdict was rendered, so double jeopardy does not bar retrial
Whether retrial is barred because mistrial was granted after jury confusion	Combs: jury’s misunderstanding led to de facto acquittals; judge erred by not asking whether acquittals existed on some counts	State: defendant requested mistrial; when defendant requests mistrial, double jeopardy does not bar retrial absent prosecutorial provocation	Court: Combs requested mistrial; therefore retrial permitted; no showing prosecution provoked mistrial
Whether the presiding juror’s failure to announce alleged acquittals or other jury communications deprived Combs of rights	Combs: judge should have inquired further and the presiding juror should have published verdicts	State: procedural missteps do not create final verdicts and appellate review of jury actions is improper absent final judgment	Court: better practice would be to inquire, but failure to do so does not create acquittals; appellate review of jury-only actions is improper here

Key Cases Cited

State v. Todd, 296 Neb. 424 (2017) (question of law review standard)
Heckman v. Marchio, 296 Neb. 458 (2017) (§ 25-1902 final order categories are exclusive)
State v. Jackson, 291 Neb. 908 (2015) (final judgment in criminal case is sentence)
State v. Williams, 278 Neb. 841 (2009) (plea in bar and double jeopardy special proceeding)
Arizona v. Washington, 434 U.S. 497 (1978) (manifest necessity standard for mistrials over defendant objection)
Oregon v. Kennedy, 456 U.S. 667 (1982) (double jeopardy when mistrial is defendant-initiated; exception for prosecutorial provocation)
Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment double jeopardy applies to states via Fourteenth Amendment)