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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 8, 2016

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

Defendant-Appellant.

Before: S ERVITTO , P.J., and G ADOLA and O’B RIEN , JJ.

O’B RIEN , J. ( concurring ).

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

It is undisputed that “the pros ecution has an affirmative duty to correct false testimony[.]” People v Smith , 498 Mich 466, 476; 870 NW2d 299 (2015). It is equally undisp uted 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 tria ls designed to end in just judgments.” People v Lett , 466 Mich 206, 215; 644 NW2d 743 (2002) (citations and interna l 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 mistri al was manifestly necessary is anything but a bright-line inquiry. Se e 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 mistr ial 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 correc t false testimony. Smith , 498 Mich at 476. It is clear from the record that the false testim ony 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 cour t to avoid declaring a mistria l, including an in-chambers discussion with the attorneys, a warning to the witness that sh e would be held in contempt if her-2- uncooperative behavior continued, a bench conference, and an on -the-record discussion, the trial court concluded that a mistrial was manifestly necessary becaus e witness’s uncooperative behavior, which included undisputedly false testimony, “taint[e d] the jury” with respect to the victim and the defendant . While I certainly can respect defendant’s argument that opti ons other than a mistrial were available to the trial court, that is not the appropriate inquiry, and I simply cannot conclude that the trial co urt’s decision, under the uniq ue 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 concl uding 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 ine ffective for failing to make a futile objection.”).

/s/ Colleen A. O’Brien