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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UNPUBLISHED 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: 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