State v. Combs, 297 Neb. 422

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.
Post-mistrial, Combs learned (via juror affidavit and juror emails) that during deliberations the jury had reportedly voted unanimously to acquit on three counts and 11–1 to acquit on the fourth count.
The jury never completed or announced a verdict in open court, nor was any verdict accepted by the court before dismissal.
Combs moved for judgment of acquittal and then filed a plea in bar asserting double jeopardy barred retrial on the three counts the jury had allegedly unanimously voted to acquit; the district court overruled both motions.
Combs appealed only the overruling of the plea in bar (a final, appealable order); other trial errors were held nonappealable because no final judgment (sentence) was entered after the mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether double jeopardy bars retrial of counts the jury reportedly voted to acquit during deliberations	Combs: jurors unanimously voted to acquit on three counts, so retrial is barred	State: no verdict was rendered in open court; mistrial at defendant’s request allows retrial	Held: Double Jeopardy does not bar retrial; juror votes in deliberation are not verdicts and mistrial at defendant’s request permits retrial absent prosecutorial provocation
Whether the trial court erred in overruling plea in bar	Combs: plea should have been sustained based on juror affidavit/evidence of acquittals	State: plea properly overruled because no final verdict existed	Held: Overruling was correct—no final acquittals were entered
Whether Combs can appeal rulings on motions to dismiss/judgment of acquittal made before mistrial	Combs: court erred in denying dismissal and JOA	State: those rulings are not final and thus not appealable after mistrial	Held: Court lacks jurisdiction to review those trial rulings because no final judgment; those claims waived or nonappealable
Whether juror communications or judge’s failure to ask whether deadlock was on all counts creates reversible error	Combs: judge should have inquired and juror nondisclosure prejudiced him	State: defendant requested and obtained mistrial; better practice notwithstanding, no relief	Held: No reversible error; defendant requested mistrial so double jeopardy protection does not apply

State v. Todd, 296 Neb. 424 (Neb. 2017) (legal standard for reviewing questions of law)
State v. Williams, 278 Neb. 841 (Neb. 2009) (plea in bar is proper vehicle for double jeopardy claims; overruling is appealable)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (manifest necessity standard for retrial after mistrial declared over defendant’s objection)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (when defendant requests mistrial, retrial barred only if prosecution intended to provoke mistrial)
Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Fifth Amendment double jeopardy protection applies to states via Fourteenth Amendment)
State v. Anderson, 193 Neb. 467 (Neb. 1975) (jury action in deliberation is not a verdict; verdict must be rendered in open court)
Longfellow v. The State, 10 Neb. 105 (Neb. 1880) (verdict must be delivered in open court to be valid)