People of Michigan v. Melvin Earl Howard
153651
| Mich. | Jun 16, 2017Background
- Defendant Melvin Earl Howard was tried; a mistrial was declared during proceedings and the prosecution sought to retry him.
- The Court of Appeals held Howard consented to the mistrial, allowing retrial.
- The Michigan Supreme Court denied leave to appeal, but Chief Justice Markman dissented.
- Markman’s dissent argues the proper standard for implied consent to a mistrial is unresolved and that the trial court never made the factual finding required.
- He proposes adopting a totality-of-the-circumstances test (from the Sixth Circuit) under which silence implies consent only if surrounding circumstances positively indicate consent.
- He would vacate the Court of Appeals’ judgment and remand to the trial court to make a factual finding on consent; Justice Bernstein joined his statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant consented to the mistrial so as to permit retrial | Prosecutor/COA: Howard’s conduct amounted to consent; retrial permissible | Howard: Silence or failure to object does not equal consent; retrial barred by double jeopardy | Michigan Supreme Court: Leave denied; no majority opinion. In dissent, Chief Justice Markman: adopt Sixth Circuit totality test and remand for factual finding |
| Proper legal standard for implied consent to mistrial | COA applied consent finding without clarifying standard | Johnson requires affirmative indication; defendant need not expressly consent, but silence alone insufficient | Dissent: silence may imply consent under totality-of-circumstances test from United States v. Gantley |
| Who should make the factual finding on consent | COA made the consent finding on appeal | Defense contends trial court should make initial factual finding | Dissent: trial court should make the factual finding in the first instance; remand recommended |
| Whether manifest necessity was addressed | Prosecution could later argue manifest necessity on remand | Defendant relies on lack of manifest necessity to bar retrial | COA did not address manifest necessity; dissent would permit that argument on remand after trial-court factfinding |
Key Cases Cited
- People v. Lett, 466 Mich. 206 (discusses attachment of jeopardy and retrial exceptions)
- People v. Dawson, 431 Mich. 234 (explains double jeopardy does not bar all retrials)
- People v. Johnson, 396 Mich. 424 (silence alone is not consent to mistrial)
- United States v. Dinitz, 424 U.S. 600 (defendant must retain primary control; waiver concept limited)
- United States v. Scott, 437 U.S. 82 (consent to mistrial is a deliberate election)
- United States v. Gantley, 172 F.3d 422 (6th Cir.) (advocates totality-of-circumstances test for implied consent)
- People v. Camp, 486 Mich. 914 (standard of review: consent-findings are factual and reviewed for clear error)
- People v. McGee, 469 Mich. 956 (indicates consent to mistrial may be inferred from record circumstances)