Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  June 16, 2017                                                                     Stephen J. Markman,
                                                                                               Chief Justice

  153651                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein
                                                                                           Joan L. Larsen
  PEOPLE OF THE STATE OF MICHIGAN,                                                      Kurtis T. Wilder,
            Plaintiff-Appellee,                                                                     Justices


  v                                                       SC: 153651
                                                          COA: 324388
                                                          Washtenaw CC: 13-001442-FH
  MELVIN EARL HOWARD,
           Defendant-Appellant.

  ________________________________________/

         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.” US
  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
  1
    The Michigan Constitution similarly provides that “[n]o person shall be subject for the
  same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. Neither party has
  argued that the Michigan Constitution’s double jeopardy provision provides a defendant
  greater protections than the federal constitution. Cf. People v Thompson, 424 Mich 118,
  130 (1985) (“[W]e hold that reprosecution after a mistrial caused by the failure of a jury
  to reach a verdict does not violate . . . the Michigan Constitution.”).
                                                                                             2

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 US 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).]
                                                                                            3

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 US 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

2
   This narrow reading of Johnson is in tension with this Court’s statement in People v
McGee that “[t]he record in this case reveals circumstances from which consent to the
circuit court’s declaration of a mistrial can be inferred.” People v McGee, 469 Mich 956
(2003) (emphasis added). Moreover, such a narrow approach is contrary to the standard
applied in other jurisdictions that have similarly held that silence alone does not indicate
consent. See Cardine v Commonwealth, 283 SW3d 641, 651 (Ky, 2009) (holding that a
defendant is not required to object to a mistrial, but silence can be considered consent
only if “the surrounding circumstances positively indicate[] this silence was tantamount
to consent”) (quotation marks and citation omitted); State v Bertrand, 133 NH 843, 852
(1991) (holding that “a defendant generally cannot consent to a mistrial by silence”)
(emphasis added); State v Stevens, 126 Idaho 822, 828 (1995) (“While something more
than mere silence on the defendant’s part must be shown to establish his consent to being
placed in double jeopardy, the consent need not be express; rather it may be implied from
a totality of circumstances.”) (emphasis added; quotation marks and citation omitted);
Stanley v Superior Court of Los Angeles Co, 206 Cal App 4th 265, 269 (2012) (holding
that consent to a mistrial can be inferred if “counsel’s conduct goes beyond ‘mere
silence,’ and his words and actions reasonably lead the court to believe he consents”).
                                                                                           4

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 F3d 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 positively indicates this silence was tantamount
       to consent. [Id. at 428-429 (emphasis added; quotation marks and citations
       omitted).]

I would adopt this test in Michigan and hold that silence or failure to object constitutes
consent to a mistrial “only if the sum of the surrounding circumstances positively
indicates this silence was tantamount to consent.” Id. at 429. Such an approach is
consistent with United States Supreme Court caselaw on the issue and ensures that a
defendant will not rest on his or her rights in the hope of establishing an appellate
parachute.

       Because this Court has never clarified what constitutes the proper standard under
Johnson for determining whether a defendant has consented to a mistrial, I would vacate
the decision of the Court of Appeals and remand for a determination of whether
defendant consented under the proper legal standard. Whether a defendant has consented
to a mistrial poses a question of fact that is reviewed for clear error. See, e.g., People v
Camp, 486 Mich 914 (2010) (“[T]he trial court did not clearly err in finding that the
defendant consented to the mistrial declared by the court.”). However, the trial court here
never made a finding that defendant consented to the mistrial. Accordingly, rather than
remand to the Court of Appeals, I would remand to the trial court to undertake a factual
finding in the first instance under the proper legal standard as to whether defendant
impliedly consented to the mistrial. After the trial court undertakes such a finding, either
                                                                                                               5

party could appeal that ruling, and the prosecutor could also then argue that the mistrial
was justified by manifest necessity.3

      BERNSTEIN, J., joins the statement of MARKMAN, C.J.




3
  Judge O’BRIEN issued a concurring opinion in which she concluded that the trial court’s
declaration of a mistrial was also justified by manifest necessity. Howard (O’BRIEN, J.,
concurring), unpub op at 2. However, the Court of Appeals majority declined to address
that issue, concluding only that defendant had consented to the mistrial. Id. (opinion of
the Court) at 6 n 3. Accordingly, I would not address this issue until after it has been
considered by the Court of Appeals.



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 16, 2017
       p0613
                                                                             Clerk
