Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/15/2017 09:10 AM CDT
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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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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.
- 424 -
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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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.
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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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
[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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
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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STATE v. COMBS
Cite as 297 Neb. 422
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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STATE v. COMBS
Cite as 297 Neb. 422
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.