Prior report: Mich.App., 2012 WL 4747210.

Order

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, 531 N.W.2d 659 (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, 375 N.W.2d 1 (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, 597 N.W.2d 130 (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.