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