Order Michigan Supreme Court
Lansing, Michigan
April 21, 2020 Bridget M. McCormack,
Chief Justice
160480 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth T. Clement
Plaintiff-Appellee, Megan K. Cavanagh,
Justices
v SC: 160480
COA: 340906
Wayne CC: 15-005089-FC
EDWARD LEE WATKINS,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the September 12, 2019
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MCCORMACK, C.J. (concurring).
I concur in the order denying leave to appeal but write separately to address the
Court of Appeals’ analysis of defendant Watkins’s claim that he was denied effective
assistance of counsel.
On the third day of the defendants’ joint trial for first-degree premeditated murder,
a juror sent a note to the trial court stating that the juror believed supporters of the two
defendants were “eyeballing” the jury from the gallery in an attempt to intimidate.
Addressing the note, the court stated it would keep vigilant watch for any further attempts
at juror intimidation. And outside the presence of the jury, the court warned the
defendants and their attorneys that the behavior needed to stop.
The next day of trial, counsel for codefendant Taylor moved the court to replace
the juror who had submitted the note, arguing that the juror was “tainted.” The court
denied the motion without prejudice. The court explained that it would reconsider the
matter if it appeared that further efforts to intimidate the jury were made or if the
spectators’ behavior biased the jury. Taylor’s attorney argued that the next appropriate
remedy would be a mistrial, to which the court stated, “I have no basis for entertaining
anything like that at this point.”
Following lunch recess that same day, a different juror informed the court that on
the previous day of trial he had been approached in the restroom by a man whom the
juror recognized as a spectator. The juror reported that this man asked him “if it was
going up or down[.]” The court addressed this matter on the record but outside the
presence of the remaining jurors. The solicited juror said that he did not know whether
the spectator was associated with either defendant and that while the interaction made
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him feel “[a] little uncomfortable,” he did not believe it would affect his judgment. The
trial continued and the defendants were convicted as charged.
In his appeal as of right, defendant Watkins argued that trial counsel should have
requested a mistrial after these incidents were brought to counsel’s attention and that the
failure to request a mistrial amounted to ineffective assistance of counsel. The Court of
Appeals rejected this argument, stating:
Given the gang-violence overtones of this case, a reasonable trial attorney
might just as well have decided not to move for a mistrial because the
spectators’ attempts to intimidate the jury might have been successful. In
other words, counsel might have reasonably believed that it was more likely
that the intimidation tactics would work against at least one juror than it
was those tactics would prejudice the entire jury pool to vote against
convicting Watkins. Therefore, Watkins has failed to rebut the strong
presumption that his trial counsel employed effective strategy in deciding
not to move for a mistrial. [People v Watkins, unpublished per curiam
opinion of the Court of Appeals, issued September 12, 2019 (Docket No.
340906), p 8.]
This hypothesis about defense counsel’s motives is unsupported and unnecessary.
Whether to move for a mistrial is generally a strategic decision for which counsel is
afforded wide latitude. But there is no reason to assume that counsel viewed jury-
intimidation efforts to his client’s advantage. In my view, such reasoning comes too
close to imputing an endorsement of such tactics to defense counsel. And I find the
panel’s making that logical leap in this case especially suspect, given that it denied the
defendant’s motion to remand to the trial court for a Ginther hearing.
Speculation as to counsel’s motivation isn’t necessary to evaluate the defendant’s
claim for relief. Defendant Watkins has not presented this Court with any evidence that
the jury’s overall ability to render an impartial verdict was compromised such that the
trial court would have been compelled to grant a mistrial, had one been requested. By the
time the restroom incident was brought to the trial court’s attention, the court had already
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explained, in clear terms that very morning, that the court would not entertain a mistrial
unless there were continued attempts to intimidate the jury or evidence of actual juror
bias, neither of which occurred. Given this record, I conclude that defendant Watkins has
not shown a reasonable probability that a motion for a mistrial would have been granted.
I therefore concur in the order denying his application for leave to appeal.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 21, 2020
a0407
Clerk