Cited by

n.2 (Minn. 2016); (applying standard for unusually serious misconduct without deciding the continued application of the Caron test).

- 50 (Minn. 2010) (considering appellant’s assertion that the prosecutor argued facts not in evidence and concluding that there was no pr ejudicial error where the district court instructed the jury that lawyers’ opening statements and closing arguments are not evidence).

–07 (Minn. 2011) (treating as objected- to misconduct each asserted instance of prosecutor “improperly shifting the burden of proof to [defendant],” even though defendant objected only to “some of the asserted instances of burden-shifting”); (assuming for 19 purposes of analysis that “all instances [of alleged prosecutorial misconduct] were objected to” where defendant “generally made objections regarding the alleged misconduct during witness examination” but “did not make any objections during

Though the prosecutor’s statement constituted error, “corrective instructions by the [district] court can cure prosecutorial error.”

Eggersgluss v. Comm’r of Pub.

While prosecutors “must avoid inflaming the jury’s passions and prejudices” against defendants, (quotation omitted), the record does not indicate any such misconduct.

-47 (Minn. 2010); State v. McTague, 190 Minn. 449, 453-55, 252 N.W.

-49 (Minn. 2010) (concluding that the admission of generalized gang evidence was helpful to prove motive).

For objected-to prosecutorial misconduct, this court applies a two-tiered harmless-error test, “the application of which varies based on the severity of the misconduct.” State v. 14 McDaniel, (quotation omitted).8 Serious misconduct is “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while less serious misconduct is harmless unless “the misconduct likely played a substantial part in influencing the jury to convict.” State v. Powers, 6

Evidence of pre-arrest flight is relevant as it “suggests consciousness of guilt.” d 739, 747 (Minn. 2010) (quotation omitted).

(stating that “evidence of flight suggests consciousness of guilt” (quotation omitted)).

For objected-to prosecutorial misconduct, this court applies a two-tiered harmless-error test, “the application of which varies based on the severity of the misconduct.” 2 ( quotation omitted).

See, State v. McTague, 190 Minn. 449, 453, 252 N.W.

“We have generally found prejudicial prosecutorial misconduct only in extreme circumstances, and not when a prosecutor’s comments are merely likely to confuse.” d 739, 752 (Minn. 2010); see, -64 (Minn. 1995) (finding misconduct where the prosecutor told the jury that they would be “suckers” if they believed a defense witness and would need a sedative if they acquitted the defendant); -09 (Minn. 1985)

(stating that arguing that a particular defense has no merit is permissible).

(“[C]ourts must look at the closing argument as a whole, rather than just selective phrases or remarks that may be taken out 13 of context or given undue prominence to determine whether reversible error has occurred.” (citation omitted)).

Thus, we have stated that “the Minnesota Constitution provides more protection than the U.S. Constitution.”

We view the closing argument “as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence to determine whether reversible error has occurred.” (citation omitted) (internal quotation marks omitted).

“[T]he application of [the test] varies based on the severity of the misconduct.” Carridine, d at 146 ; see State v. Caron, 300 Minn. 123, 127-28 , (setting forth a two-tiered approach to analyzing objected-to alleged prosecutorial misconduct); (stating that “[w]e have not yet decided whether this two-tiered approach set forth in Caron remains viable” (quotation omitted)).