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.
  _________________________________________/

        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
