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State v. Combs

Supreme Court of Nebraska

August 4, 2017

State of Nebraska, appellee,
v.
Patrick J. Combs, appellant.

         1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

         2. Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.

         4. Criminal Law: Final Orders: Sentences. In a criminal case, the final judgment is the sentence.

         5. Final Orders. The three categories of final orders in Neb. Rev. Stat. § 25-1902 (Reissue 2016) are exclusive.

         6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment of acquittal is a criminal defendant's request, at the close of the government's case or the close of all evidence, to be acquitted because there is no legally sufficient evidentiary basis on which a reasonable jury could return a guilty verdict.

         7. Pleadings: Directed Verdict. A motion for judgment of acquittal is simply another name for a motion for directed verdict of acquittal.

         8. Motions to Dismiss: Directed Verdict. A motion to dismiss at the close of all the evidence has the same legal effect as a motion for directed verdict.

         9. Directed Verdict: Motions for Mistrial: Time. A motion for judgment of acquittal or motion for directed verdict is untimely if made after a mistrial has been declared.

         10. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, [297 Neb. 423] proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence.

         11. Criminal Law: Final Orders. A judgment entered during the pendency of a criminal cause is final when no further action is required to completely dispose of the cause pending.

         12. Double Jeopardy: Pleadings. A plea in bar may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution.

         13. Pleadings: Final Orders: Appeal and Error. An order overruling a plea in bar is a final, appealable order.

         14. Double Jeopardy: Pleadings. A plea in bar may be used to raise a double jeopardy challenge to the State's right to retry a defendant following a mistrial.

         15. Constitutional Law: Double Jeopardy. The 5th Amendment's protection against double jeopardy applies to states through the 14th Amendment to the U.S. Constitution.

         16. Constitutional Law: Criminal Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prohibits a criminal defendant from being put in jeopardy twice for the same offense and unequivocally prohibits a second trial following an acquittal.

         17. Double Jeopardy. The Double Jeopardy Clause's prohibition on retrial is not unequivocal when the first trial ends in a mistrial.

         18. Motions for Mistrial. Where a mistrial is declared over a defendant's objection, he or she may only be retried if the prosecution can demonstrate a "manifest necessity" for the mistrial.

         19. Double Jeopardy: Motions for Mistrial. Where a mistrial is declared at the behest of the defendant, the "manifest necessity" standard has no place in the application of the Double Jeopardy Clause.

         20. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys. The narrow exception to the rule that where a defendant asks the court to declare a mistrial, the Double Jeopardy Clause does not bar retrial, is limited to those cases in which the prosecution's conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

         21. Trial: Juries: Verdicts. A jury's action cannot become a verdict until it is finally rendered in open court and received and accepted by the trial judge.

         22. Trial: Verdicts. A verdict, to be of any validity, must be delivered in open court.

         23. Juries: Verdicts. A vote taken in the privacy of jury deliberations is not a verdict.

         [297 Neb. 424] Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

          Robert B. Creager, of Anderson, Creager & Wittstruck, PC, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          WRIGHT, J.

         NATURE OF CASE

         The appellant, Patrick J. Combs, was charged with four crimes in the district court for Lancaster County. His case was tried to a jury. After deliberating for 3 days, the jury reported that it was deadlocked. Combs moved for a mistrial, which the district court sustained. After the mistrial, Combs discovered that, according to the presiding juror, the jury had voted unanimously during its deliberations to acquit him on three of the four charges, but mistakenly thought it had to reach a unanimous verdict on all charges. Combs moved for a judgment of acquittal, which the district court overruled. Combs then filed a plea in bar, which the district court overruled. Combs appeals the overruling of his plea in bar on the ground that retrial of the three counts on which the ...


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