State v. Combs, 297 Neb. 422

Combs was tried on four counts related to financial misconduct; after 3 days of jury deliberation, the jury reported being deadlocked and the court declared a mistrial at Combs’ renewed request.
The jury never returned or announced any verdicts in open court and did not complete the verdict form.
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 arguing retrial on the three counts would violate the Double Jeopardy Clause because the jury had already acquitted him on those counts.
The district court overruled the motion for acquittal and the plea in bar; Combs appealed only the plea-in-bar ruling (the plea-in-bar denial is a final, appealable order).

Issue	Combs' Argument	State's Argument	Held
Whether retrial on three counts is barred by Double Jeopardy after mistrial	Jury effectively acquitted Combs on three counts during deliberations, so retrial is barred	No valid acquittal occurred because no verdict was returned in open court; mistrial was requested by Combs so retrial is permitted	Retrial not barred; plea in bar overruled
Whether juror affidavit showing unanimous acquittals prevents retrial	Affidavit proves acquittal on three counts	Jury votes in deliberation are not verdicts; verdicts must be announced in open court and accepted	Juror internal votes are not verdicts; Double Jeopardy does not apply
Whether motion for judgment of acquittal/dismissal was timely or preserved	Judgment of acquittal should have been granted	Motion was untimely (filed after mistrial) and any earlier challenge was waived by offering defense evidence	Trial rulings on dismissals/acquittal are not reviewable here; waiver and lack of final judgment apply
Whether mistrial was improper because court did not ask if deadlock was per-count	Court should have inquired whether deadlock was on all counts before declaring mistrial	Combs requested mistrial; he cannot now complain that the court failed to inquire further	No relief; where defendant requests mistrial, Double Jeopardy does not bar retrial

Arizona v. Washington, 434 U.S. 497 (1978) (sets manifest necessity standard for retrial after mistrial declared over defendant's objection)
Oregon v. Kennedy, 456 U.S. 667 (1982) (holds that when defendant requests mistrial, manifest necessity standard does not apply except where prosecution intended to provoke mistrial motion)
Benton v. Maryland, 395 U.S. 784 (1969) (applies Double Jeopardy Clause to states via Fourteenth Amendment)
State v. Williams, 278 Neb. 841 (2009) (recognizes plea in bar as vehicle for nonfrivolous double jeopardy claims and that overruling plea in bar is final and appealable)
State v. Todd, 296 Neb. 424 (2017) (question of law review standard for plea-in-bar rulings)