Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  May 10, 2013                                                                                         Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  146241                                                                                               Michael F. Cavanagh
                                                                                                       Stephen J. Markman
                                                                                                           Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                          Brian K. Zahra
            Plaintiff-Appellee,                                                                     Bridget M. McCormack
                                                                                                          David F. Viviano,
                                                                    SC: 146241                                        Justices
  v                                                                 COA: 297115
                                                                    Jackson CC: 09-005490-FH
  DUSTIN ARTHUR MARSHALL,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the October 4, 2012
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we VACATE Part II of the Court of Appeals judgment.
  The Court of Appeals erred in holding that there was no prosecutorial misconduct when
  the prosecutor, in closing, argued that witnesses were recanting because they were
  intimidated by spectators in the courtroom. We recognize that “[p]rosecutors are
  accorded great latitude regarding their arguments and conduct. They are free to argue the
  evidence and all reasonable inferences from the evidence as it relates to their theory of
  the case.” People v Bahoda, 448 Mich 261, 282 (1995) (internal citations omitted).
  Here, however, there was no evidence that the courtroom spectators were intimidating the
  witnesses. Thus, the prosecutor’s argument was not based on evidence in the record, and
  was improper. The Court of Appeals also erred in holding that there was no misconduct
  based on the prosecutor’s argument that defendant had the intent to kill the victim
  because children lived in the neighborhood where defendant fired his gun. Defendant
  was charged with assault with intent to commit murder, MCL 750.83. As we stated in
  People v Taylor, this crime requires a specific intent to kill. 422 Mich 554, 567 (1985).
  Behavior that might otherwise establish malice in the context of murder, such as callous
  disregard for human life, is insufficient. Id. Because this line of argument was irrelevant
  to the prosecutor’s burden of proof, it was improper. However, the Court of Appeals
  nevertheless reached the correct result as to the issue of prosecutorial misconduct because
  defendant failed to preserve these arguments, and the misconduct did not affect his
  substantial rights. People v Carines, 460 Mich 750, 763 (1999). In all other respects, the
  application for leave to appeal is DENIED, because we are not persuaded that the
  remaining questions presented should be reviewed by this Court.




                           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.
                           May 10, 2013                        _________________________________________
           p0507                                                               Clerk
