Cited by

“An error is ‘plain’ if it is clear or obvious.”

-14 (Minn. 2011), the supreme court addressed the following comments made by the prosecutor: [B]ased upon the testimony that we have heard and the evidence that we have seen, our reason and common sense tell us that Gary Vue committed the crimes that he is accused of, the First and Second Degree Drive–By Shoot

at 280-81; -14 (Minn. 2011) (holding that prosecutor’s statement that defendant “has now lost that presumption of innocence as a result of the evidence that you have heard” was not a “plain or obvious” error).

The state argues that the prosecutor’s

(“We will not read into a statute a requirement that the Legislature by its plain language has left out.”).

See S -16 (Minn. 2011) (holding no misconduct when prosecutor repeatedly stated defense wanted jury to “believe the impossible”).

–14 (Minn. 2011) (emphasis omitted).

We are required to “consider the closing arguments in their entirety in determining whether prosecutorial misconduct occurred,” and here, the content and context of the misstatements are concerning.

And in so doing, the prosecution may “respond to the arguments made by the defendant.”

itiated by law enforcement officers after a person has been taken into cu stody or otherwise deprived of his [or her] freedom of action in any significant way,” Miranda, 384 U.S. at 444, or “if, based on all the surrounding circumstances, a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest.” -11 (Minn. 2011) (quotation omitted)

-16 (Minn. 2011) ( concluding that prosecutor did not engage in misconduct by arguing that defendant wanted jury to "believe the impossible").

Indirect references to a defendant ’s failure to testify con stitute misconduct if they “(1) manifest the prosecutor ’s intention to call attention to the defendant’s failure to testify, or (2) are such that the jury would naturally have understood them as a comment on defendant ’s failure to testify.” State v. Vue , (quoting DeRosier, d at 107).

(quotations and citations omitted).

See State v. Vue , ( concluding the state’s remark that “the [d]efendant has lost his presumption of innocence” was not plain error because it was made in the context of arguing there was sufficient evidence of guilt ).

see also State v. Jackson , d 681, 694 (Minn. 2006) (instructing court to consider “the closing argument as a whole rather than focus on particular phrases or remarks that may be taken out of context or given undue prominence” (quotations omitted)).

The state also relies on several cases to show that Nichols was not in custody, d at 32, -13 (Minn. 2011).

Further, any error in making such 7 a statement is “not plain or obvious.”

If the state is unable to meet this burden, we must decide “whether the error seriously affected the 10 fairness, integrity, or public reputation of judicial proceedings.” d 5, 13 (Minn. 2011).

(noting that this court should “consider the closing argument as a whole rather than focus on particular phrases or remarks that may be taken out of context or given undue prominence” (quotations omitted)).

This court may not “read into a statute a requirement that the [l]egis lature by its plain language has left out.”

We view that evidence “in the light 22 most favorable to the State” and “assume that the jury belie ved the State’s witnesses and disbelieved contrary evidence,” (M inn.

Misstating the burden of proof constitutes prosecutorial misconduct, yet a “legitimate explanation of the [s]tate’s burden is proper.” –14 (Minn. 2011) (holding no plain error when prosecutor’s explanation of burden of proof, read in context, was not improper).

Moreover, “a significantly incriminating statement does not automatically convert a noncustodial interrogation into a custodial interrogation.”

He can’t explain that smoke detector.” 6 Indirect references to a defendant’s choice not to testify constitute misconduct if they “(1) manifest the prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) are such that the jury would naturally have understood them as a comment on the defendant’s failure to testify.” ().

“An interrogation is custodial if, based on all the surrounding circumstances, a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest.” -11 (Minn. 2011).

(quotations omitted) (noting that this court should consider “the closing argument as a whole rather than focus on 7 particular phrases or remarks that may be taken out of context or given undue

Although the challenged statement could be similarly interpreted as shifting a burden of proof, it is counterbalanced by the fact that “the prosecutor has the right to respond to the arguments made by the defendant.”

But in State v. Vue, the supreme court agreed with the state that the statutory language, “with the intent to promote, further, or assist in criminal conduct,” merely “describes the mens rea (guilty mind) required at the time the person commits the actus reus (wrongful deed).” (emphasis omitted) (quotation omitted).

(noting that this court should consider “the closing argument as a whole rather than focus on particular phrases or remarks that may be taken out of context or given undue prominence”).