State v. Combs , 297 Neb. 422 ( 2017 )


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    www.nebraska.gov/apps-courts-epub/
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. COMBS
    Cite as 
    297 Neb. 422
    State of Nebraska, appellee, v.
    Patrick J. Combs, appellant.
    ___ N.W.2d ___
    Filed August 4, 2017.    No. S-16-798.
    1.	 Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
    tions 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 govern-
    ment’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,
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    STATE v. COMBS
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    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 com-
    pletely 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 fol-
    lowing a mistrial.
    15.	   Constitutional Law: Double Jeopardy. The 5th Amendment’s pro-
    tection 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 demon-
    strate 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.
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. COMBS
    Cite as 
    297 Neb. 422
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Affirmed.
    Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
    for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, 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 mis-
    trial, 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 jury reportedly voted to acquit him would violate the
    Double Jeopardy Clause of the Fifth Amendment to the U.S.
    Constitution. We affirm the district court’s order overruling
    Combs’ plea in bar.
    BACKGROUND
    Combs was charged with four crimes in connection with his
    financial dealings with Harold and Beverly Mosher. Combs
    was charged with (1) attempted theft by unlawful taking, over
    $1,500; (2) abuse of a vulnerable adult; (3) theft by unlawful
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    taking; and (4) unauthorized use of a financial transaction
    device, over $1,500. The details of these allegations and the
    evidence presented at trial are not relevant to this appeal.
    A lengthy jury trial was held. At the conclusion of the
    State’s evidence and again after the defense’s evidence, Combs
    moved to dismiss. These motions were overruled, and the
    case was submitted to the jury. During its deliberations, the
    jury submitted several questions to the court in writing, which
    the court answered. After 2 days of deliberations, Combs
    moved for a mistrial, “largely out of concern that the time has
    become fairly lengthy,” which motion the district court over-
    ruled because the court “had no indication from the jury that
    there’s a problem.”
    On the third day, the court spoke with counsel for Combs
    and the State and said, “The jury has submitted a question
    . . . that reads, The jury in the above-entitled case requests the
    court’s advice on how to proceed as the jury is unable to reach
    a unanimous verdict at this time.” Combs renewed his motion
    for mistrial. The district court overruled Combs’ motion and
    gave the jury a supplemental instruction, over Combs’ objec-
    tion, instructing the jury to continue deliberating and urging
    the jury to continue trying to reach a verdict.
    About 2 hours later, the district court received another note
    from the jury, requesting advice and stating that it was “dead-
    locked with no apparent ability to agree on a verdict.” The
    court said, “This is the second communication I’ve had that
    they’re deadlocked. I sent them to lunch after getting that com-
    munication earlier. It seems like they mean it now.”
    Combs’ counsel renewed his motion for mistrial, saying,
    “[I]t is now quite apparent to me, you know, whether the ver-
    dict is eleven to one for acquittal or eleven to one for convic-
    tion or anything in between, that this jury has made it clear
    that any further deliberations would not be likely to result
    in a verdict.” Counsel for the State agreed that the jury was
    deadlocked. The court said, “I don’t think we’re going to get
    anywhere with this jury or [get] any further with this jury,” and
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    it declared a mistrial and dismissed the jury. The jury did not
    complete the verdict form it was given by the court.
    After the mistrial, Combs filed a motion for judgment of
    acquittal. As to count 1, Combs argued that there was insuf-
    ficient evidence presented by the State. As to the other three
    counts, Combs’ counsel stated that he learned after trial that
    the jury had unanimously voted in its deliberations to acquit
    Combs on counts 2 through 4, but mistakenly thought it was
    required to have a unanimous verdict on all counts.
    Combs presented the affidavit of the presiding juror. The
    presiding juror stated that she supervised the deliberations and
    conducted the votes of the jury members. She said that the
    jury voted unanimously to find Combs not guilty on counts 2
    through 4. She said that following “extensive deliberations” on
    count 1, the jury voted 11 to 1 to find Combs not guilty. She
    said that she told the bailiff that “the jury had reached unani-
    mous verdicts on 3 of the counts, without divulging which
    counts or whether [it] found guilty or not on those, but that [it]
    had deadlocked on the remaining count.” The presiding juror
    assumed that this information was passed on to the judge. She
    said that “[i]t was the jury’s general understanding from the
    jury instructions provided . . . that [it] had to find unanimously
    on all four counts, albeit separately guilty or not guilty on
    each count.”
    At the hearing on the motion for judgment of acquittal, the
    State submitted two emails that were sent from other jurors
    to the court, which potentially conflicted in part with the
    affidavit of the presiding juror. The emails were not affidavits
    and did not contain sworn testimony. In the first email, the
    juror said that the votes to find Combs not guilty on counts
    2 through 4 were preliminary votes and that he believed
    the jurors were still free to change their minds. That juror
    also wrote that a holdout juror said that he felt pressured
    to vote not guilty. The juror confirmed in the email that the
    jury mistakenly believed it had to find Combs guilty on all
    four counts.
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    In the second juror email, the juror also said that the jury
    “seemed to agree not guilty on three” of the counts. The juror
    said that the holdout juror on the one count on which the jurors
    disagreed said that he “‘went along’” with everyone else on
    the other three counts.
    The district court overruled Combs’ motion for judgment
    of acquittal.
    Combs then filed a plea in bar to prohibit the retrial of
    counts 2 through 4 on the bases that the jury found him not
    guilty on those counts and that retrial would violate the Double
    Jeopardy Clause of the U.S. Constitution. The district court
    overruled the plea in bar. Combs appealed.
    ASSIGNMENTS OF ERROR
    Combs asserts the district court erred in not sustaining his
    plea in bar for counts 2 through 4, of which the jury reportedly
    voted unanimously to acquit him. He also claims the district
    court erred in failing to sustain his motion for judgment of
    acquittal and failing to sustain his motion to dismiss at the
    close of the evidence. He argues that the district court com-
    mitted plain error in not inquiring whether the jury was dead-
    locked on all or some of the counts. He also argues that “plain
    error exists” by the presiding juror’s not publishing the jury’s
    verdict for counts 2 through 4. Finally, Combs argues that the
    district court erred in admitting opinion testimony from a care-
    giver as to whether the alleged victim had capacity to execute
    legal documents.
    STANDARD OF REVIEW
    [1,2] Issues regarding the grant or denial of a plea in bar
    are questions of law.1 On a question of law, an appellate court
    reaches a conclusion independent of the court below.2
    1
    State v. Todd, 
    296 Neb. 424
    , 
    894 N.W.2d 255
    (2017).
    2
    
    Id. - 428
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. COMBS
    Cite as 
    297 Neb. 422
    ANALYSIS
    A ppellate Jurisdiction: Combs’
    Assignments of Trial Error
    Because Combs’ trial ended in a mistrial with no verdict,
    there was no final order or judgment. Therefore, this court
    lacks jurisdiction over Combs’ assignments of error arising
    from his trial. The only final order in this case was the district
    court’s overruling of Combs’ plea in bar.
    [3,4] This court has stated many times that “for an appel-
    late court to acquire jurisdiction of an appeal, the party must
    be appealing from a final order or a judgment.”3 In a criminal
    case, the final judgment is the sentence.4 Because Combs’ trial
    ended in a mistrial, no sentence was issued. Thus, there is no
    final judgment. Because there is no judgment in this case,
    Combs may only appeal if there is a final order.
    [5] Final orders have been defined by statute in Nebraska
    since 1858.5 Under § 25-1902, the three types of final orders
    which may be reviewed on appeal are (1) an order which
    affects a substantial right and which determines the action and
    prevents a judgment, (2) an order affecting a substantial right
    made during a special proceeding, and (3) an order affecting
    a substantial right made on summary application in an action
    after judgment is rendered.6 We have interpreted these three
    statutory categories of final orders as exclusive.7
    3
    Heckman v. Marchio, 
    296 Neb. 458
    , 462, 
    894 N.W.2d 296
    , 300 (2017).
    4
    See State v. Jackson, 
    291 Neb. 908
    , 
    870 N.W.2d 133
    (2015). See, also,
    Neb. Rev. Stat. § 25-1911 (Reissue 2016).
    5
    John P. Lenich, What’s So Special About Special Proceedings? Making
    Sense of Nebraska’s Final Order Statute, 
    80 Neb. L
    . Rev. 239 (2001). See,
    also, Neb. Rev. Stat. § 25-1902 (Reissue 2016).
    6
    In re Interest of Becka P. et al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
    (2017).
    7
    See Heckman v. Marchio, supra note 
    3, 296 Neb. at 464
    , 894 N.W.2d
    at 301 (rejecting judicially created collateral order doctrine that allowed
    appeals of orders not final under three categories of § 25-1902 and quoting
    Lenich, supra note 5, “‘Section 25-1902 specifies three types of final
    orders, which implies that there are no others’”).
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    The district court’s overruling of Combs’ motions to dis-
    miss and motion for judgment of acquittal were not final
    orders.
    Combs argues that “the Trial Court erred in failing to sus-
    tain the motion for judgment of acquittal as to all Counts” and
    that “the Trial Court erred in failing to dismiss the case at the
    close of the evidence.” He argues that the court should have
    dismissed the charges at the conclusion of the State’s evidence
    and should have entered a judgment of acquittal on all counts
    because the evidence was insufficient to submit the case to
    the jury.
    [6-8] 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.”8 A motion for judgment
    of acquittal is simply another name for a motion for directed
    verdict of acquittal.9 And a motion to dismiss at the close of all
    the evidence has the same legal effect as a motion for directed
    verdict.10 Thus, whether styled as a motion for judgment of
    acquittal, motion for directed verdict, or motion to dismiss,
    these motions all have the same effect when used to challenge
    the sufficiency of the State’s evidence at the conclusion of the
    State’s case or the conclusion of the evidence.
    [9] Combs’ motion for judgment of acquittal was untimely
    because it was filed after the court declared a mistrial. Because
    a motion for judgment of acquittal is a motion for a directed
    verdict, such a motion logically cannot be made after a trial
    has ended in a mistrial.
    8
    Black’s Law Dictionary 1170 (10th ed. 2014).
    9
    See State v. Foster, 
    230 Neb. 607
    , 611, 
    433 N.W.2d 167
    , 169 (1988)
    (citing case from another jurisdiction and “not[ing] that [that jurisdiction’s]
    motion for acquittal is procedurally the same as our motion for a directed
    verdict”).
    10
    Mock v. Neumeister, 
    296 Neb. 376
    , 
    892 N.W.2d 569
    (2017).
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    [10] Combs’ has waived his claim that the district court
    erred in overruling his motions to dismiss. 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, 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
    [11] Here, Combs waived his right to challenge the over-
    ruling of his motions to dismiss by proceeding with trial and
    introducing evidence in his defense. And Combs cannot chal-
    lenge the sufficiency of the evidence underlying a conviction
    because no verdict was reached by the jury; there is no convic-
    tion to challenge. Furthermore, the overruling of a motion to
    dismiss is typically not a final order.12 As this court has said,
    “‘A judgment entered during the pendency of a criminal cause
    is final when no further action is required to completely dis-
    pose of the cause pending.’”13 The order overruling the motion
    to dismiss was not a final order because it did not “completely
    dispose of” the case.
    Because Combs sought and was granted a mistrial, he can-
    not now challenge the district court’s failure to inquire whether
    the jury was deadlocked on all counts. We point out that the
    better practice would have been for the district court to have
    inquired of the jury whether it was deadlocked on every count
    before it granted a mistrial.
    Combs cannot challenge as error the presiding juror’s failure
    to publish the jury’s verdict on counts 2 through 4. Appellate
    11
    State v. Olbricht, 
    294 Neb. 974
    , 
    885 N.W.2d 699
    (2016).
    12
    StoreVisions, Inc. v. Omaha Tribe of Nebraska, 
    281 Neb. 238
    , 
    795 N.W.2d 271
    (2011) (concluding in civil case that motion to dismiss is not special
    proceeding and that overruling of motion to dismiss is not final order).
    13
    State v. Warner, 
    290 Neb. 954
    , 959, 
    863 N.W.2d 196
    , 200 (2015)
    (discussing “the final order requirement in the context of § 29-2315.01”
    regarding appeals by the prosecution).
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    courts consider errors made by the trial court, which may
    relate to the jury. Our rules of appellate procedure direct appel-
    lants to include in their briefs a “separate, concise statement of
    each error a party contends was made by the trial court,”14 not
    by the jury.
    Finally, Combs cannot challenge the admission of certain
    opinion testimony because the court’s admission of such tes-
    timony is not subject to review, since Combs was granted a
    mistrial. No judgment was rendered in Combs’ trial because it
    resulted in a mistrial.
    [12,13] But we have held that “a plea in bar . . . may be filed
    to assert any nonfrivolous double jeopardy claim arising from
    a prior prosecution” and that an “order overruling the plea in
    bar [is] a final, appealable order.”15 A plea in bar is a special
    proceeding’” for purposes of § 25-1902, and a nonfrivolous
    double jeopardy claim affects a substantial right.16 Thus, the
    district court’s order overruling Combs’ plea in bar is a final,
    appealable order that we have jurisdiction to review.
    Overruling of Combs’ Plea
    in Bar: Double Jeopardy
    Combs argues that the district court erred in overruling his
    plea in bar. He argues that he presented evidence that the jury
    voted to acquit him on three of the four counts, but that the
    jury did not enter a verdict of acquittal on those counts because
    it mistakenly thought it had to reach a unanimous verdict on
    all counts. He asserts that he was effectively acquitted on
    those counts and that the Double Jeopardy Clause of the U.S.
    Constitution bars retrial.
    [14] Under Neb. Rev. Stat. § 29-1817 (Reissue 2016), a
    criminal defendant “may . . . offer a plea in bar to the indict-
    ment that he has before had judgment of acquittal, or been
    14
    Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014) (emphasis supplied).
    15
    State v. Williams, 
    278 Neb. 841
    , 850-51, 
    774 N.W.2d 384
    , 392 (2009).
    16
    
    Id. at 847,
    774 N.W.2d at 390.
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    convicted, or been pardoned for the same offense.” 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.17
    [15-17] The Double Jeopardy Clause of the Fifth Amendment
    to the U.S. Constitution provides that “No person shall . . . be
    subject for the same offence to be twice put in jeopardy of
    life or limb . . . .” The 5th Amendment’s protection against
    double jeopardy applies to states through the 14th Amendment
    to the U.S. Constitution.18 This provision prohibits a crimi-
    nal defendant from being put in jeopardy twice for the same
    offense and “unequivocally prohibits a second trial following
    an acquittal.”19 But this prohibition on retrial is not unequivo-
    cal when the first trial ends in a mistrial.20
    [18-20] 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.21
    But as the U.S. Supreme Court has said, “[Where] a mistrial
    [is] declared at the behest of the defendant, quite different
    principles come into play. [Where] the defendant himself
    has elected to terminate the proceedings against him . . . the
    ‘manifest necessity’ standard has no place in the application
    of the Double Jeopardy Clause.”22 Where a defendant asks
    the court to declare a mistrial, the Double Jeopardy Clause
    does not bar retrial, subject to one “narrow exception.”23
    17
    See State v. Williams, supra note 15.
    18
    U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of
    life, liberty, or property, without due process of law”); Benton v. Maryland,
    
    395 U.S. 784
    , 
    89 S. Ct. 2056
    , 
    23 L. Ed. 2d 707
    (1969).
    19
    Arizona v. Washington, 
    434 U.S. 497
    , 503, 
    98 S. Ct. 824
    , 
    54 L. Ed. 2d 717
          (1978).
    20
    See Arizona v. Washington, supra note 19.
    21
    
    Id., 434 U.S.
    at 505.
    22
    Oregon v. Kennedy, 
    456 U.S. 667
    , 672, 
    102 S. Ct. 2083
    , 
    72 L. Ed. 2d 416
          (1982).
    23
    See 
    id., 456 U.S.
    at 673.
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    That narrow exception, where retrial is barred by the Double
    Jeopardy Clause following a mistrial declared on the defend­
    ant’s motion, is “limited to those cases in which the [pros-
    ecution’s] conduct giving rise to the successful motion for a
    mistrial was intended to provoke the defendant into moving
    for a mistrial.”24
    In this case, Combs asked the district court three times to
    declare a mistrial. Double Jeopardy does not bar retrial where
    a defendant asks the trial court to declare a mistrial.25 The
    narrow exception for circumstances in which the prosecution
    intends to provoke the defendant into moving for a mistrial
    does not apply here.
    [21-23] We disagree with Combs that the jury acquitted
    him. While the jury may have voted or tentatively voted to
    acquit Combs on three of the counts in its deliberations, it
    did not reach a verdict. The verdict form was not filled out or
    signed, the jury did not announce a verdict and was not avail-
    able to be polled by the parties, nor was any verdict accepted
    by the district court. Neb. Rev. Stat. § 29-2024 (Reissue 2016)
    provides, “When the jury have agreed upon their verdict they
    must be conducted into court by the officer having them in
    charge. Before the verdict is accepted the jury may be polled
    at the request of either the prosecuting attorney or the defend­
    ant.” We have said that “[a] jury’s action cannot become a
    verdict until it is finally rendered in open court and received
    and accepted by the trial judge”26 and that “[a] verdict, to be
    of any validity, must be delivered in open court.”27 A vote
    taken in the privacy of jury deliberations is not a verdict.
    The fact that the jury may have planned to acquit him on
    three counts does not mean that the Double Jeopardy Clause
    24
    
    Id., 456 U.S.
    at 679.
    25
    See 
    id. 26 State
    v. Anderson, 
    193 Neb. 467
    , 469, 
    227 N.W.2d 857
    , 858 (1975).
    27
    Longfellow v. The State, 
    10 Neb. 105
    , 107, 
    4 N.W. 420
    , 422 (1880).
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    prohibits retrial after the court declared a mistrial at Combs’
    own request.
    Combs claims that the trial judge erred by not asking the
    jurors whether they were deadlocked on all counts. But Combs
    did not ask the court to inquire whether the jury had reached
    a verdict on all counts. Instead, he asked for a mistrial, which
    the court granted. Where Combs asked for and was granted a
    mistrial, the Double Jeopardy Clause does not bar his retrial.
    CONCLUSION
    We affirm the order of the district court which overruled
    Combs’ plea in bar. The Double Jeopardy Clause does not bar
    Combs’ retrial after his first trial ended in a mistrial which was
    granted at Combs’ request.
    A ffirmed.
    Cassel, J., participating on briefs.