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“The Sixth Amendment guarantees a defendant the effective assistance of counsel.” State v. Nissalke

“Prosecutorial misconduct is harmless beyond a reasonable doubt if the jury’s verdict was ‘surely unattributable’ to the misconduct.” ().

(“[B]are assertions as to what could have happened are not evidence and do not have an ‘inherent tendency’ to connect [the third party] to the crime.”).

Randolph bases his argument on two supreme court opinions:

2 “Prosecutorial misconduct is harmless beyond a reasonable doubt if the jury’s verdict was ‘surely unattributable’ to the misconduct.” ().

(“[B]are assertions as to what could have happened are not evidence and do not have an ‘inherent tendency’ to connect [the alleged alternative perpetrators] to the crime.”); Woodard, d at 143 (“The defense’s use of a witness statement concerning [the alleged alternative perpetrator’s] wherea

“ Prosecutorial misconduct is harmless beyond a reasonable doubt if the jury’s verdict was ‘surely unattributable’ to the misconduct.” ().

A prosecutor may argue about “the merits or the supporting evidence of possible defenses,” d 716, 727 (Minn. 2022), and such statements do not “improperly shift the burden,”

“ But a prosecutor’s comment on the lack of evidence supporting a defense theory does not improperly shift the burden.” (quotation omitted).

d 82, 106 (Minn. 2011) (“[A] prosecutor’s comment on the lack of evidence supporting a defense theory does not improperly shift the burden.” (quotation omitted)).

“In considering whether the defendant has established the required foundation, a court must focus on ‘the evidence, not the assertions, contained in the proffer.’ ” Woodard, d at 142 ().

Put differently, “evidence 17 proffered in support of the defense must still comply with the rules of evidence.”

“But ‘a prosecutor’s comment on a lack of evidence supporting a defense theory does not improperly shift the burden.’” (quoting McDaniel, d at 750).

n.10 (Minn. 2011) (questioning but not deciding whether Caron’s two-tiered harmless-error test remains good law because the prosecutor did not commit misconduct of any type).

But “the evidence proffered in support of the defense must still comply with the rules of evidence.”

The harmless- error test for “unusually serious” misconduct requires an analysis of whether the misconduct was “harmless beyond a reasonable doubt.” We note that the district court adjudicated convictions for both DWI counts (test refusal and driving under the influence).

The failure to preserve potentially useful evidence does not constitute a due-process violation unless the defendant shows that it was the result of “bad faith on the part of the police.” (quotation omitted).

First, we review “unusually serious” misconduct to determine whether the error is harmless “beyond a reasonable doubt.” (quotation omitted).

In considering whether the defendant has established the required foundation, a court must focus on “the evidence, not 7 the assertions, contained in the proffer.” (citation omitted) (internal quotation marks omitted).

(holding that Nissalke could not prove ineffective assistance of counsel because he did “not articulate with any specificity how” counsel’s drug use affected his representation).

-06 (Minn. 2011) (quotation omitted).

See State v. Nissalke , -07 (Minn. 2011); McDaniel, d at 750.

-12 (Minn. 2011) (rejecting ineffective -assistance-of-counsel claim when tri al attorney was arrested 1 Wilson also sought relief under clauses (b) and (f).

We review “unusually serious” prosecutorial misconduct to determine whether the misconduct was harm less beyond a reasonable doubt, while less -serious prosecutorial misconduct requires an analysis of “whether the misconduct likely played a substantial part in influencing the jury to convict.” (quotation omitted).

Nelson, citing State v. Nissalke , -06 (Minn. 2011), argues that this court should apply the Caron standard of harmless-error review, because defense counsel objected to the prosecutor’s arguments.