                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 23, 2017
              Plaintiff-Appellant,

v                                                                   No. 331604
                                                                    Wayne Circuit Court
BOBBY LEWIS FARLEY II,                                              LC No. 15-006767-01-FH

              Defendant-Appellee.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        The prosecution appeals by right the trial court’s dismissal with prejudice of the charge
against defendant following a mistrial. Defendant was charged with fourth-degree arson of
personal property with a value of between $1,000 and $20,000, MCL 750.75(1)(a)(i). During the
prosecutor’s examination of the complainant at trial, the officer in charge made an outburst
toward defendant that the trial court subsequently confirmed was heard by the jury. The trial
court granted a defense motion for a mistrial and confirmed with defendant personally that he
consented to the mistrial. The trial court subsequently ruled that double jeopardy precluded
retrying defendant, so it dismissed the case. We reverse and remand.

        Whether double jeopardy bars a retrial is a question of constitutional law, which this
Court reviews de novo. People v Lett, 466 Mich 206, 212; 644 NW2d 743 (2002). Both the
federal and Michigan constitutions prohibit a defendant from twice being placed in jeopardy for
the same offense. US Const, Ams V, XIV; Const 1963, art 1, § 15; People v Echavarria, 233
Mich App 356, 362; 592 NW2d 737 (1999). However, a retrial is not barred on double jeopardy
grounds where the defendant requests or consents to a mistrial, unless the prosecutor engaged in
conduct that was intended to provoke or goad the defendant into requesting the mistrial. Lett,
466 Mich at 215. In People v Dawson, 431 Mich 234, 257; 427 NW2d 886 (1988), our Supreme
Court explained:

               Retrials are an exception to the general double jeopardy bar. Where a
       mistrial results from apparently innocent or even negligent prosecutorial error, or
       from factors beyond his control, the public interest in allowing a retrial outweighs
       the double jeopardy bar. The balance tilts, however, where the judge finds, on the
       basis of the “objective facts and circumstances of the particular case,” that the



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       prosecutor intended to goad the defendant into moving for a mistrial. [Citations
       omitted.]

“Where a defendant’s motion for mistrial is prompted by intentional prosecutorial conduct,
however, the defendant may not, by moving for a mistrial, have waived double jeopardy
protection.” Id. at 253.

        The misconduct here was not attributable to the prosecutor. It was the officer-in-charge’s
unanticipated outburst that necessitated the motion, and there is nothing to suggest that the
prosecutor contributed to or could have prevented the outburst. Similarly, if a police officer
volunteers prejudicial information beyond the scope of a prosecutor’s question, that will not bar
a retrial where the prosecutor’s conduct did not provoke or cause the response. See People v
Tyson, 423 Mich 357, 370-373; 377 NW2d 738 (1985).

       Where the motion for mistrial was made by defense counsel, or with his consent,
       and the mistrial was caused by innocent conduct of the prosecutor or judge, or by
       factors beyond their control, or by defense counsel himself, retrial is also
       generally allowed, on the premise that by making or consenting to the motion the
       defendant waives a double jeopardy claim. [Dawson, 431 Mich at 253 (citation
       omitted).]

Because the prosecutor did not contribute to the circumstances that necessitated defendant’s
motion for a mistrial, and defendant consented to a mistrial by moving for the same, double
jeopardy did not bar defendant from being retried. The trial court erred in dismissing the case on
double jeopardy grounds.

        Reversed and remanded for reinstatement of the charge against defendant. We do not
retain jurisdiction.

                                                            /s/ Michael J. Riordan
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




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