Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  March 9, 2012                                                                      Robert P. Young, Jr.,
                                                                                               Chief Justice

  141457(51)                                                                          Michael F. Cavanagh
                                                                                            Marilyn Kelly
                                                                                      Stephen J. Markman
                                                                                      Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Mary Beth Kelly
            Plaintiff-Appellee,                                                           Brian K. Zahra,
                                                                                                    Justices
  v                                                        SC: 141457
                                                           COA: 289540
                                                           Grand Traverse CC:
                                                           08-010647-FH
  STEVEN DANIEL SMOOT,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the motion for reconsideration of this Court’s October 5,
  2011 order is considered, and it is DENIED, because it does not appear that the order was
  entered erroneously.

          CAVANAGH and HATHAWAY, JJ., would grant the motion for reconsideration.

          MARILYN KELLY, J. (dissenting).

         I dissent. I would grant reconsideration and grant defendant’s application for
  leave to appeal.

         Defendant was charged with three counts of third-degree criminal sexual conduct
  involving force or coercion.1 The jury convicted him of one of those counts. This
  suggests that the jury did not find entirely credible the victim’s assertion that she did not
  consent to any sexual activity with defendant. And this case turned on a credibility
  contest between the complainant and defendant regarding consent.

         Further complicating matters, the prosecutor engaged in blatant misconduct. Her
  transgressions included arguing to the jury that defendant’s lack of a steady job and
  income gave him a motive to sexually assault the complainant. As the Court of Appeals
  noted, “[s]uch an argument is the archetype of unfounded character assassination


  1
      MCL 750.520d(1)(b).
                                                                                                                 2

expressly prohibited by our Supreme Court . . . .”2 This inflammatory argument may
well have cast doubt on defendant’s credibility and been the deciding factor that led the
jury to conclude that he preyed on the complainant.

       This misconduct was not isolated. It was part of a troubling pattern that persisted
throughout the trial. The prosecutor ignored the trial court’s rulings and engaged in
deliberate dishonesty in an effort to obtain a conviction. The Court of Appeals aptly
summarized the extent of the misconduct and the closeness of the question of whether
defendant’s rights were violated:

                Our review of the entire record in this matter creates a close question
         regarding whether the cumulative effect of the assistant prosecutor’s
         instances of misconduct deprived defendant of a fair trial. When expressly
         told by the trial court not to engage in eliciting certain testimony, the
         assistant prosecutor ignored the trial court’s clear and express ruling and
         was justly admonished. When asked who would be called to testify as
         rebuttal witnesses, the assistant prosecutor provided the trial court and
         defense counsel with inaccurate information.           Lastly, the assistant
         prosecutor asked questions of defendant and made legal arguments which
         had been expressly forbidden by our Supreme Court since 1975.[3]

       This Court should not summarily conclude that the prosecutorial misconduct did
not deprive defendant of a fair trial. It should not allow the misconduct to pass without
comment.4 Accordingly, I would grant reconsideration and grant defendant’s application
for leave to appeal.




2
 People v Smoot, unpublished opinion per curiam of the Court of Appeals, issued June 1,
2010 (Docket No. 289540), p 11, citing People v Johnson, 393 Mich 488 (1975).
3
    Smoot, unpub op at 11.
4
  See, e.g., People v Schaw, 489 Mich 922, 922-923 (2011) (MARILYN KELLY, J.,
dissenting); accord People v Richardson, 489 Mich 940 (2011) (order of the Court
denying leave to appeal but chastising the prosecutor for her behavior during the
defendant’s trial).



                           I, Corbin R. Davis, 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.
                           March 9, 2012                       _________________________________________
         d0306                                                                 Clerk
