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People v. Howard

Supreme Court of Michigan

June 16, 2017

MELVIN EARL HOWARD, Defendant-Appellant. COA 324388

         Washtenaw CC: 13-001442-FH

          Stephen J. Markman, Chief Justice Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder, Justices.


         On 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 this Court.

          Markman, C.J. (dissenting).

         I 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.

         The 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.[1] 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 People v Howard, unpublished per curiam opinion of the Court of Appeals, issued March 8, 2016 (Docket No. 324388), p 6.

         This 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 assent." Id.

         In so 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 argument:

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).]

         On the 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 432-433.

         I agree 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.

         However, 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.[2] 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.

         I 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 ...

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