Stephen J. Markman, Chief Justice Brian K. Zahra, Bridget M.
McCormack, David F. Viviano, Richard H. Bernstein, Joan L.
Larsen, Kurtis T. Wilder, Justices.
April 12, 2017, the Court heard oral argument on the
application for leave to appeal the March 8, 2016 judgment of
the Court of Appeals. On order of the Court, the application
is again considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by
Markman, C.J. (dissenting).
respectfully dissent from denial of leave to appeal. I write
separately to explain the standard I believe should be
applied by this Court in determining whether a defendant has
consented to a mistrial and why I would vacate the judgment
of the Court of Appeals and remand to the trial court to make
a factual finding in the first instance on whether defendant
consented to the mistrial.
Fifth Amendment of the United States Constitution provides
that no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." U.S. Const,
Am V. Jeopardy "attaches" when a jury
is selected and sworn. People v Lett, 466 Mich. 206,
215 (2002). "Where the trial ends before a
verdict-where a mistrial is declared-the Double Jeopardy
Clause may bar a retrial." People v Dawson, 431
Mich. 234, 251 (1988). However, the "Double Jeopardy
Clause does not bar all retrials." Id. at 252.
Specifically, a retrial is not barred if the defendant has
consented to the mistrial or the mistrial is justified by
"manifest necessity." Lett, 466 Mich. at
215-216. The Court of Appeals in this case held that
defendant consented to the mistrial and therefore he could be
retried. People v Howard, unpublished per curiam
opinion of the Court of Appeals, issued March 8, 2016 (Docket
No. 324388), p 6.
Court last extensively considered the issue of a
defendant's consent to a mistrial in People v
Johnson, 396 Mich. 424 (1976). In Johnson, the
prosecutor requested a mistrial. Id. at 429. The
trial court adjourned and the next day decided to declare a
mistrial. Id. During this time, defendant's
counsel "never directly commented one way or another on
whether he would consent to a mistrial." Id.
This Court on review held that "[m]ere silence or
failure to object . . . is not [consent to a mistrial.]"
Id. at 432. We added that "in the absence of an
affirmative showing on the record, this Court will not
presume to find such consent." Id. at 433.
Finally, we concluded that defendant had not consented
because "[t]here was no such affirmative showing in this
case. At best, defense counsel may be said to have been
silent. At worst, he did not protest, but he did not
holding, the Court relied on the United States Supreme
Court's opinion in United States v Dinitz, 424
U.S. 600 (1976). In Dinitz, the United States Court
of Appeals for the Fifth Circuit concluded that because
defendant was left with "no choice" but to request
a mistrial, his choice to do so was involuntary, and
therefore his second trial was barred by double jeopardy.
Id. at 608-609. The Supreme Court rejected that
The Court of Appeals viewed the doctrine that permits a
retrial following a mistrial sought by the defendant as
resting on a waiver theory. The court concluded, therefore,
that "something more substantial than a Hobson's
choice" is required before a defendant can "be said
to have relinquished voluntarily his right to proceed before
the first jury." The court thus held that no waiver
could be imputed to the respondent because the trial
judge's action . . . left the respondent with "no
choice but to move for or accept a mistrial." But
traditional waiver concepts have little relevance where the
defendant must determine whether or not to request or consent
to a mistrial in response to judicial or prosecutorial error.
In such circumstances, the defendant generally does
face a "Hobson's choice" between giving up his
first jury and continuing a trial tainted by prejudicial
judicial or prosecutorial error. The important
consideration, for purposes of the Double Jeopardy Clause, is
that the defendant retain primary control over the course to
be followed in the event of such error. [Id.
(emphasis added; citations omitted).]
basis of the italicized sentence above, Johnson held
that "the defendant must therefore do something
positively in order to indicate he or she is exercising that
primary control." Johnson, 396 Mich. at
with Johnson to the extent that it held that
"[m]ere silence or failure to object, " by
itself, is insufficient to indicate consent to a
mistrial. Such a standard is consistent with the Supreme
Court's requirement in Dinitz that a defendant
must exercise "primary control over the course to be
followed" and the Supreme Court's characterization
of consent to a mistrial as "a deliberate election on [a
defendant's] part to forgo his valued right to have his
guilt or innocence determined before the first trier of
fact." United States v Scott, 437 U.S. 82, 93
(1978). Mere silence or failure to object, by itself, is
insufficient to ensure that the defendant "retain[s]
primary control over the course to be followed" and that
he or she made "a deliberate election" to consent
to the mistrial.
to the extent that Johnson stands for the
proposition that silence or failure to object is
never sufficient to indicate consent and that a
defendant must expressly consent to a mistrial declaration, I
believe such a standard to be overly restrictive under the
Constitution. While the express consent of a defendant
is the most certain method of ensuring that a defendant
"retains control" over the proceeding, when a
defendant otherwise takes actions that under the totality of
the circumstances indicate consent to the mistrial, he or she
is still retaining "primary control" over the
course of the proceeding. Thus, an approach holding that a
defendant who remains silent may nonetheless have consented
to a mistrial, when assessed under the totality of the
circumstances, is fully compatible with United States Supreme
Court caselaw. Moreover, a contrary approach may encourage
unacceptable gamesmanship, as a defendant may deliberately
remain silent in the knowledge that if a mistrial is
declared, then a subsequent retrial may be barred. Thus, I do
not believe that the express consent of a defendant is
necessary to permit a retrial of a defendant if the mistrial
has not been justified by manifest necessity.
believe the test enunciated by the United States Court of
Appeals for the Sixth Circuit in United States v
Gantley provides the proper balance between requiring
express consent and holding that silence or failure to object
by itself necessarily constitutes consent to a mistrial.
United States v Gantley, 172 F.3d 422, 428 (CA 6,
1999). That court has explained:
[T]his Circuit . . . insists on an especially careful
examination of the totality of circumstances, to ensure a
defendant's consent is not implied when there is a
substantial question of whether the defendant did, in fact,
consent. Because there are drastic consequences attached to a
finding of consent to a mistrial, we have refused to infer
consent merely because a defendant did not object to the
declaration of a mistrial. Rather, a defendant's failure
to object to a mistrial implies consent thereto only if
the sum of the surrounding circumstances ...