State v. Todd, 296 Neb. 424

Todd was charged in Dodge County with driving under the influence after a traffic stop and a chemical breath test of .132 BAC.
The State obtained an order in limine precluding Todd from presenting a "choice of evils" (justification) defense under Neb. Rev. Stat. § 28-1407 and the county court refused Todd’s proposed instruction.
At trial Todd repeatedly tried to elicit testimony and make references to fear/escaping and that driving was an "escape route." The court sustained objections and struck some answers.
After multiple alleged violations of the in limine order and additional volunteered testimony by Todd that the driving was to "get away" or an "escape route," the State moved for a mistrial; the county court granted the mistrial and said it would retry the case.
Todd filed a plea in bar (dismissal with prejudice) asserting retrial would violate double jeopardy because jeopardy had attached when the jury was sworn and the mistrial was not supported by manifest necessity. The county court denied the plea; the district court affirmed.
The Nebraska Supreme Court affirmed, holding the record supported the county court’s determination of manifest necessity and that double jeopardy did not bar retrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review for denial of plea in bar	District court applied abuse of discretion; should review de novo as a question of law	Plea in bar is legal question but underlying mistrial determination (manifest necessity) is discretionary	Court: Legal question reviewed de novo, but mistrial/manifest necessity reviewed for abuse of discretion
Whether mistrial granted over objection terminates jeopardy	Jeopardy terminated when court declared mistrial without manifest necessity; retrial barred	Mistrial was supported by manifest necessity because defense repeatedly violated in limine order and juror impartiality was threatened	Held: Record shows manifest necessity; retrial not barred by double jeopardy
Whether county court needed express ‘‘manifest necessity’’ language at time of mistrial	County court failed to state those words; requires dismissal	Court: explicit label not required if record provides sufficient justification	Held: Lack of magic words immaterial; record supplies justification
Whether State’s motion for mistrial was improper prosecutorial tactic	State used mistrial to gain tactical advantage; strict scrutiny required	No evidence State sought tactical advantage; mistrial followed repeated violations and considered arguments	Held: No prosecutorial misconduct shown; strictest scrutiny inapplicable; mistrial proper

State v. Williams, 278 Neb. 841 (discusses double jeopardy, manifest necessity, and standard of review for mistrial rulings)
State v. Pester, 294 Neb. 995 (scope of district court review on county-court criminal appeals)
State v. Muhannad, 290 Neb. 59 (reviews plea-in-bar denial generally legal but factual findings like prosecutorial intent reviewed under different standards)
State v. Jackson, 274 Neb. 724 (record can supply justification for mistrial even absent explicit manifest-necessity finding)
State v. Cisneros, 248 Neb. 372 (contrasting rule when defendant requests mistrial)
Arizona v. Washington, 434 U.S. 497 (framework: mistrial over objection permissible if manifest necessity; spectrum of scrutiny)