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

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

“In identifying the circumstances proved, we defer to the jury ’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State .” State v. Sterling , (quotation omitted); see also State v. Nissalke , (“We construe conflicting evidence in the light most favorable to the verdict and assume that the jury believed the State’s witnesses and disbelieved the defense witnesses.” (quotation omitted)).

Tactical decisions to call certain witnesses or present specific evidence at trial are within trial counsel’s discretion and “do not prove that counsel’s performance fell below an objective standard of reasonableness.” 6 (Minn. 2011); see also State v. Jones, 3 (holding that tactical decisions are within trial counsel’s discretion).

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

See State v. Nissalke , , 108 (Minn. 2011) (holding that a defendant is not entitled to a new trial when a peremptory challenge is used to cure a district court's erroneous denial of a motion to remove a biased juror for cause); State v. Barlow , , 312 (Minn. 1995) ("Even if the declination to dismiss the one juror for cause w

State v. Nissalke ( Nissalke I )

closing argument.” (quotation omitted).

5 We are not persuaded otherwise by Deno ’s d 540 (Minn. 2006)

We “need not address both the performance and prejudice prongs if one is determinative.” State v. Nissalke , (quotation omitted).

12 error test for “unusu ally serious” misconduct requires an analysis of whether the misconduct was “harmless beyond a reasonable doubt.” (quotation omitted).

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

“The State has a duty to preserve evidence th at it collects during the investigation of a crime.”

Evidence showed that appellant made disparaging remarks about D.J., such as referring to her as a “[c]oke [w]hore.” As such, to th e degree that the pros ecutor’s statements constituted misconduct, the misconduct was of the less-serious variety, requiring us to analyze “whether the misconduct likely played a substantial part in influencing the jury to convict.” (quotation omitted).

There are t wo harmless -error standards of review for objected -to prosecutorial misconduct, taken from State v. Caron, 300 Minn. 123, 127-28, 4 The harmless-error test for “unusually serious” misconduct requires an analysis of whether the misconduct was “harmless beyond a reasonable doubt.” State v. Nissalke , d 82, 105 (Minn. 2011) (quotation omitted).

But the district court properly overruled appellant’s attorney’s objection to the prosecutor’s sta tement because “a prosecutor’s comment on the lack of evidence supporting a defense theory does not improperly shift the burden [of proof].” State v. Nissalke

But, as we have noted, “the evidence proffered in support of the defense must still comply with the rules of evidence.” (“[CJourts may limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the jury.”).

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

(explaining that “the court must still evaluate [the alternative perpetrator] evidence under the ordinary evidentiary rules as it would any other exculpatory evidence” (quoting Jones, d at 16 ))

–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

Cases in which actual bias was found include (1) statements that a juror would favor the testimony of police over lay witnesses and h e did not know if he had the ability to be 8 fair but he would try, (2) statements that a juror would believe the testimony of a police officer over others, and that she would try to be fair but when making a judgment call, she would favor police testimony, -10 (Minn. 2010); and (3) statements by a juror that police officers

The state points to State v. Nissalke for support of its position that a prosecutor may comment on “an absence of evidence to support theories that [the defendant] put[s] before the jury.”

at 625 (finding a juror’s ambiguous acknowledgement that “I think it would be hard” to be probative of bias); (finding a juror’s statement that he would “try to” treat other testimony similar to the testimony of a police officer probative of bias); (finding juror biased who said she would be more inclined to believe a police officer’s testimony and only sa

(“[I]t is not prejudicial error when a prosecutor discusses expected testimony in his opening statement but does not produce the evidence at trial.”).

Conversely, wherein the supreme court declined to apply the strict rule of Mims.

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

(stating that a defendant is allowed to present evidence challenging the police investigation of alternative suspects)

See, n.10 (Minn. 2011); n.2 (Minn. 2008).

(“[B]are assertions as to what could have happened are not evidence and do not have an ‘inherent tendency 5 to connect [the alleged alternative perpetrators] to the crime.”).