State v. Combs, 297 Neb. 422

Patrick J. Combs was tried on four counts arising from alleged financial misconduct; after a multi-day jury trial, the jury reported it was deadlocked and the court declared a mistrial at Combs’ repeated request.
During posttrial proceedings Combs learned (via the presiding juror’s affidavit) that the jury had unanimously voted to acquit on three counts and 11–1 to acquit on the fourth, but did not return or announce any verdict in open court.
Combs moved for judgment of acquittal and, separately, filed a plea in bar arguing retrial on the three counts would violate the Double Jeopardy Clause; the district court overruled both.
The State submitted unsworn juror emails that suggested the acquittal votes may have been preliminary or subject to change; the jury never filled out, signed, announced, or had any verdict accepted by the court.
Because the mistrial was granted at Combs’ request, the district court held, and the Nebraska Supreme Court agreed, that double jeopardy does not bar retrial absent a narrow exception (prosecutorial conduct intended to provoke a mistrial motion).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has appellate jurisdiction over Combs’ trial-error claims	Combs: trial rulings (e.g., denial of dismissal/judgment) are reviewable	State: no final judgment existed because trial ended in mistrial; only plea-in-bar ruling is final	Court: no jurisdiction on trial-error claims; only plea-in-bar is final and appealable
Whether motions to dismiss / judgment of acquittal were timely/waived	Combs: evidence insufficient; judgment of acquittal should have been entered	State: motions untimely or waived because Combs continued and presented defense evidence	Court: motions untimely or waived; cannot review because no final conviction
Whether jurors’ internal votes (unannounced) constitute acquittals barring retrial under Double Jeopardy	Combs: jury unanimously voted to acquit on three counts; retrial barred	State: no verdict was returned in open court; internal votes are not verdicts	Court: internal deliberation votes are not verdicts; retrial not barred
Whether retrial is barred because mistrial was granted at defendant’s request	Combs: asks court to inquire whether acquittals existed and asserts retrial barred	State: retrial allowed where mistrial was defendant-requested unless prosecution provoked motion	Court: retrial permitted; narrow Oregon v. Kennedy exception (provocation by prosecution) not shown

State v. Todd, 296 Neb. 424 (Neb. 2017) (questions re: plea in bar are legal and reviewed de novo)
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 final judgment is the sentence)
Mock v. Neumeister, 296 Neb. 376 (Neb. 2017) (motion to dismiss is not a special proceeding; directed-verdict legal effect)
State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar may raise nonfrivolous double jeopardy claims; overruling is appealable)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (mistrial over defendant’s objection permits retrial only for manifest necessity)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (where defendant requests mistrial, retrial barred only if prosecution intended to provoke the mistrial)
State v. Anderson, 193 Neb. 467 (Neb. 1975) (a jury’s action is not a verdict until rendered in open court)
Longfellow v. The State, 10 Neb. 105 (Neb. 1880) (verdict must be delivered in open court to be valid)