                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 8, 2016
               Plaintiff-Appellee,

v                                                                    No. 324388
                                                                     Washtenaw Circuit Court
MELVIN EARL HOWARD,                                                  LC No. 13-001442-FH

               Defendant-Appellant.


Before: SERVITTO, P.J., and GADOLA and O’BRIEN, JJ.

O’BRIEN, J. (concurring).

       I fully concur in the majority opinion. I write separately to offer further rationale for
affirming defendant’s conviction and sentence in this case.

        It is undisputed that “the prosecution has an affirmative duty to correct false testimony[.]”
People v Smith, 498 Mich 466, 476; 870 NW2d 299 (2015). It is equally undisputed that “the
general rule permitting the prosecution only one opportunity to obtain a conviction must in some
instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”
People v Lett, 466 Mich 206, 215; 644 NW2d 743 (2002) (citations and internal quotation marks
omitted). “When a mistrial is declared, retrial is permissible under the double jeopardy
principles where manifest necessity required the mistrial . . . and the mistrial was caused by
innocent conduct on the party of the prosecutor or judge, or by factors beyond their control.”
People v Echavarria, 233 Mich App 356, 363; 592 NW2d 737 (1999). Whether a mistrial was
manifestly necessary is anything but a bright-line inquiry. See Lett, 466 Mich at 215-223.
Rather, it is highly dependent upon the facts and circumstances that are present before the trial
court in each case. It is clear that, as a reviewing court, we are not determining whether we
would have concluded that a mistrial was strictly necessary. Id. at 218-220. Instead, we are
determining only “whether the trial court abused its discretion in” concluding whether there was
“a ‘high degree’ of necessity” for declaring a mistrial.” Id. (citations omitted). Under the unique
facts and circumstances of this case, I would conclude that it did not.

       Here, the prosecution fulfilled its affirmative duty to correct false testimony. Smith, 498
Mich at 476. It is clear from the record that the false testimony was the product of innocent
conduct on behalf of the prosecution and judge. Echavarria, 233 Mich App at 363. Then, after a
thorough effort by the trial court to avoid declaring a mistrial, including an in-chambers
discussion with the attorneys, a warning to the witness that she would be held in contempt if her

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uncooperative behavior continued, a bench conference, and an on-the-record discussion, the trial
court concluded that a mistrial was manifestly necessary because witness’s uncooperative
behavior, which included undisputedly false testimony, “taint[ed] the jury” with respect to the
victim and the defendant. While I certainly can respect defendant’s argument that options other
than a mistrial were available to the trial court, that is not the appropriate inquiry, and I simply
cannot conclude that the trial court’s decision, under the unique facts and circumstances of this
case, constituted an abuse of discretion. Lett, 466 Mich at 218-220. Accordingly, I would also
hold that the trial court did not abuse its discretion in concluding that a mistrial was manifestly
necessary in this case. Relatedly, in light of this conclusion, I would further hold that any
objection by defense counsel would have been frivolous for the same reasons. People v Thomas,
260 Mich App 450, 457; 678 NW2d 631 (2004) (“Counsel is not ineffective for failing to make a
futile objection.”).



                                                             /s/ Colleen A. O’Brien




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