State v. Combs, 297 Neb. 422

Patrick J. Combs was tried on four counts relating to financial misconduct; after 3 days of jury deliberations the jury reported it was deadlocked and the court declared a mistrial at Combs’ renewed request.
After the mistrial, Combs learned from juror communications and an affidavit by the presiding juror that the jury had reportedly voted unanimously to acquit on three counts and was 11–1 to acquit on the fourth; the jury did not complete or announce any verdict in open court.
Combs moved for judgment of acquittal (challenging sufficiency and asserting the three acquittals), which the district court overruled as untimely; Combs then filed a plea in bar asserting double jeopardy barred retrial of the three counts.
The district court overruled the plea in bar; Combs appealed only that interlocutory ruling (the court held other trial errors were not reviewable because no final judgment existed after a mistrial).
The Nebraska Supreme Court reviewed whether Double Jeopardy barred retrial after a mistrial granted at the defendant’s request and affirmed the denial of the plea in bar.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appellate jurisdiction/finality	Combs argued trial errors are reviewable now	State argued only final orders are reviewable; no final judgment after mistrial	Court: Only the plea in bar order is final and appealable; other trial-error claims lack jurisdiction now
Timeliness/waiver of judgment of acquittal	Combs argued judgment of acquittal should be entered on counts	State argued motion was untimely (filed after mistrial) and Combs waived trial objections by continuing trial	Court: Motion was untimely; Combs waived prior dismissal challenges by proceeding with trial
Double Jeopardy / plea in bar after mistrial	Combs argued jury had effectively acquitted him on three counts in deliberations, so retrial is barred	State argued no verdict was rendered; when defendant requests mistrial, retrial is generally permitted unless prosecution provoked mistrial	Court: No verdict was rendered in open court; Double Jeopardy does not bar retrial after defendant-requested mistrial absent prosecutorial provocation
Jury verdict disclosure / plain error	Combs argued judge should have inquired whether jury was deadlocked on all counts and juror should have announced acquittals	State argued juror deliberative votes are not verdicts and trial record controls	Court: Jury votes in private are not verdicts; better practice to ask, but Combs requested and obtained mistrial so cannot now complain

Arizona v. Washington, 434 U.S. 497 (prosecution must show "manifest necessity" to retry when mistrial declared over defendant's objection)
Oregon v. Kennedy, 456 U.S. 667 (mistrial requested by defendant removes manifest necessity standard; retrial barred only if prosecution intended to provoke mistrial)
Benton v. Maryland, 395 U.S. 784 (Fifth Amendment double jeopardy applies to the States via the Fourteenth Amendment)
State v. Williams, 278 Neb. 841 (plea in bar is the vehicle for nonfrivolous double jeopardy claims and is appealable)
State v. Todd, 296 Neb. 424 (questions of law reviewed independently on appeal)
Heckman v. Marchio, 296 Neb. 458 (Nebraska's § 25-1902 final-order categories are exclusive)
State v. Olbricht, 294 Neb. 974 (appellate review focuses on trial-court errors; jury-only actions are not trial-court errors)