Cited by

“[T]he state should refrain from asking questions or making arguments that would divert the jury from its duty to decide a case on the evidence by injecting issues broader than a defendant’s guilt or innocence into the trial.”

(concluding that evidence of a defendant’s counseled, prearrest silence in the state’s case-in-chief is an error).

An error is plain when it was “clearly contrary to the law at the time of appeal.” (quoting Johnson, 520 U.S. at 468).

Prosecutorial Misconduct This court reviews objected-to prosecutorial misconduct to “determine whether [it] is harmless beyond a reasonable doubt.” (Minn. 2 While not binding in Minnesota, this case is persuasive in its analysis of a very similar situation.

In cases of serious misconduct, “[w]e will review any objected -to prosecutorial misconduct to determine whether the misconduct is harmless beyond a reasonable doubt.” (citation omitted) (internal quotation marks omitted).

Within the modified plain-error framework, the question is whether the misconduct constitutes error that is “clearly contrary to the law at the time of appeal.” (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).

As to cross-examination, “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))

But a prosecutor’s alleged misconduct does not impact a defendant’s substantial rights if “there is no reasonable likelihood that the absence of the misconduct in question 14 would have had a significant effect on the verdict of the jury.” (quotations omitted).

The state meets its burden when it shows “that there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” (quotation omitted).

Second, the district court sustained appellant’s objection and immediately instructed the jury to 7 disregard the remark, which “significantly reduced the impact of the state’s improper question[] on the jury verdict.” (“[C]orrective instructions by the [district] court can cure prosecutorial error.”).

To convince us otherwise

Finally, “[w]e have held that the state should refrain from asking questions or making arguments that w ould divert the jury from its duty to 22 decide a case on the evidence by injecting issues broader than a defendant’s guilt or innocence into the trial.”

See Swanson, d at 653; (concluding that defendant was not entitled to an accomplice-testimony jury instruction “[b]ecause there was no testimony that [the witness] participated in the murder”).

If all three elements of the plain-error test are met, we “address the 12 error to ensure fairness and the inte grity of the judicial proceedings.” State v. Dobbins , (quotations omitted).

We recognize that “the state should refrain from asking questions or making arguments that would divert the jury from its duty to decide a case on the evidence by injecting issues broader than a defendant’s guilt or innocence into the trial.”

If all three elements of the plain- error test are met, we “address the error to ensure fairness and the integrity of judicial proceedings.” (quotation omitted).

And a prosecutor is to refrain from making an argument that would divert the jury from deciding a case on the evidence by “injecting i ssues broader than a defendant’s guilt or innocence.”

If all three elements of the plain-error test are met, “we should address the error to ensure fairness and the integrity of the judicial proceedings” and “will correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.” (quotations omitted).

“If the three prongs of the plain error test are met, [the reviewing court] will then [assess] whether [ it] should address the error to ensure fairness and the integrity of the judicial proceedings.” (second alteration in original) (quotations omitted).

9 For this argument, he relies on State v. McCray , , 753-54 (Minn. 2008) (reversing this court’s reversal of the defendant’s conviction of second -degree criminal sexual conduct with a seven-year-old victim after concluding that the prosecutor’s closing-argument references to penetration were not misconduct) (concluding that, while some of the state’s unobjected -to questions were m isconduct and plain error, their cumul ative effect did not deprive the defendant of a fair trial and affirming h

If all three elements of the plain-error test are met, “we should address the error to ensure fairness and the integrity of the judicial proceedings” and “will correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.” (quotations omitted).

Compare State v. Lilienthal , (applying standard plain-error framework), (applying modified-plain-error framework).

(applying standard plain-error framework), (applying modified plain-error framework).

An error is plain if it is “clearly contrary to the law at the time of the appeal.” .

Appellate courts review “objected -to prosecutorial misconduct to determine whether the misconduct is harmless beyond a reasonable doubt.” State v. Dobbins , (quotation omitted).

Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); -39 (Minn. 1978).

See, e.g. , Mosley, d at 801 (determining that no relie f was warranted where defend ant’s substantial rights were not affected, even upon an assumption of plain error); (“In light of this strong evidence against [appellant], the state has shown that there is no reasonable likelihood that the absence of the misconduct at issue would have a significant effect on the jury’s verdict.”).

State v. Dobbins , , 505 (Minn. 2006).

See State v. Dobbins , -08 (Minn. 2006).

We will correct the e rror only if the fair ness, integrity, or public reputation of the judicial pr oceeding is seriously affected.” (quotations and citations omitted).