State v. Combs
900 N.W.2d 473
Neb.2017Background
- Patrick J. Combs was tried on four felony counts arising from financial dealings with the Moshers; after a multi-day jury trial, jurors reported being deadlocked and the court declared a mistrial at Combs’ renewed request.
- During deliberations the presiding juror later swore the jury had unanimously voted to acquit on three counts and was 11–1 to acquit on the fourth, but the jury never announced a verdict or returned verdict forms.
- Combs moved for judgment of acquittal post-mistrial and filed a plea in bar asserting double jeopardy barred retrial on the three counts the jury reportedly had unanimously voted to acquit.
- The district court overruled the post-mistrial judgment-of-acquittal motion and the plea in bar; Combs appealed only the overruling of the plea in bar (the only final, appealable order).
- The Supreme Court of Nebraska affirmed, holding the Double Jeopardy Clause did not bar retrial because no verdict was entered and the mistrial was granted at Combs’ request (so retrial is allowed absent prosecutorial provocation).
Issues
| Issue | Plaintiff's Argument (Combs) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether retrial on counts 2–4 is barred by Double Jeopardy after jurors allegedly voted unanimously to acquit those counts during deliberations | The jury in deliberation had unanimously voted to acquit on counts 2–4; that amounted to an acquittal and retrial is barred | No verdict was ever rendered in open court or accepted by the judge; jury votes in deliberation are not verdicts and Double Jeopardy does not bar retrial after a mistrial at defendant’s request | Held for State: no bar to retrial because no formal verdict was rendered and mistrial was granted at defendant’s request (no manifest necessity inquiry applies) |
| Whether the district court erred in overruling post-mistrial motion for judgment of acquittal | Judgment of acquittal should have been entered post-mistrial based on insufficiency or the jury’s acquittal votes | A motion for judgment of acquittal is untimely after a mistrial; moreover Combs waived earlier dismissal claims by presenting defense evidence | Held for State: motion untimely and prior dismissal motions waived; not reviewable as final except plea in bar |
| Whether the court should have inquired whether the jury was deadlocked on each individual count before granting mistrial | Court had a duty to ask whether deadlock was on all counts; failure prejudiced Combs | Combs requested the mistrial; he cannot now complain the court did not further inquire; better practice but not reversible here | Held for State: no relief because defendant sought and obtained mistrial |
| Whether juror communications/affidavits establishing internal acquittal preclude retrial | Presiding juror affidavit and juror emails show unanimous acquittals that should bar retrial | Juror deliberative votes and unaccepted internal communications are not verdicts; rules require verdict rendered in open court and accepted by judge | Held for State: internal votes/emails/affidavit insufficient to constitute an acquittal; retrial permitted |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (1978) (discusses when retrial is barred after mistrial and the manifest necessity standard)
- Oregon v. Kennedy, 456 U.S. 667 (1982) (holds defendant-requested mistrial removes manifest necessity protection unless prosecution intended to provoke mistrial)
- Benton v. Maryland, 395 U.S. 784 (1969) (incorporation of Double Jeopardy Clause to the states)
- State v. Williams, 278 Neb. 841 (2009) (plea in bar may raise nonfrivolous double jeopardy claim and order overruling is final and appealable)
- State v. Anderson, 193 Neb. 467 (1975) (a jury’s action is not a verdict until rendered in open court and accepted by the judge)
- Longfellow v. The State, 10 Neb. 105 (1880) (a verdict, to be valid, must be delivered in open court)