*1 851 availability option convicting of a third premeditation well); he acted with — merited, defendant of but unin- [a Dahlin, (reaf see also at structed lesser-included offense]—could firming prejudice analysis of both Mer not have resulted in a different verdict.” rill Shepherd). Keeble, at U.S. S.Ct. 1993. Harris also that the district court case, inBut this we do not believe by denying erred an instruction on heat-of- that the denial of an on instruction second- passion manslaughter, but argument Harris, degree felony prejudiced murder fails for the same reason the second-de- so as to call into doubt reliability of the gree-felony-murder argument fails. Since jury’s guilt determination. It is clear that jury convicted first-degree Harris of jury was not left with a Hobson’s felony murder, error in refusing an in- choice, requiring great a conviction of the struction on heat-of-passion manslaughter, outright acquittal. er crime or an jury any, if would not affect reliability on instructed the lesser offense of guilt determination. The denial of the second-degree intentional murder but still requested instructions on lesser-included found guilty greater Harris of the offense offenses of homicide prejudicial was not of first-degree felony intentional murder. error. jury If the had entertained a reasonable doubt guilt about Harris’s of the first- Affirmed. murder, degree jury could have con
victed him of second-degree murder and J., GILDEA, not having been a member him acquitted of the first-degree offense. of this court at the argument time jury That convicted Harris of the submission, took part no offense, greater despite availability consideration or decision of this case. the lesser option,” offense or “third indi cates that Harris no prеjudice suffered
from the denial second-degree felo
ny murder instruction. Sheph See State v.
ered, (Minn. 1991) 477 N.W.2d
(stating that “the fact that the con
cluded that premeditated there was intent kill, though they even opted could have for either of the lesser included offenses Minnesota, Respondent, STATE of them, actually submitted to is a strong and sufficient indication that the defendant was prejudiced by the failure to have sec Reginald GAIL, Appellant. Lee degree felony submitted”); ond murder Merrill, (Minn. 99,105 State v. 274 N.W.2d No. A05-329. 1978) (determining that when the district Supreme Court of Minnesota. court instructed the first-degree premeditated second-degree murder and May murder, intentional give the failure to re quested lesser-included-offense instruc prejudice
tions did not the defendant on
the issue of intent jury’s because the ver guilty
dict of on first-degree premeditated
murder indicated that it not believed intent,
that the defendant acted with but *4 Stuart, Defender,
John State Public Ste- Russett, Defender, ven P. Assistant Public MN, Minneapolis, Appellant. for Hatch, General, Paul, Mike Attorney St. MN, Klobuchar, Amy Hennepin County Richardson, Attorney, Michael Assistant County Attorney, MN, Minneapolis, Respondent.
OPINION GILDEA, Justice.
Rеginald appeals Lee Gail from con- viction for first-degree murder of Yvain committing Braziel while or at- tempting felony to commit the crime of powder unlawful sale of cocaine. We af- firm. 2, 2004, February
On Braziel contacted arrange Gail to for the mari- purchase of juana powder and cocaine. Braziel and his Bemidji in Hollingsworth friend Andre left red, two-door Chevrolet Cavalier to meet Gail in the Twin Braziel and Cities. Gail spoke during via cell phone trip, and parties approximately p.m. met at 5:15 Gail, in north Minneapolis. wearing a black, jacket, car, got down into Braziel’s told him price what the would be for the cocaine, and directed Braziel where to pulled up drive. The Cavalier behind a red, Dodge by four-door Neon driven De- passenger Andre Hill. A identified as Low was also in the Nеon. After the two cars met, got Gail out of the Cavalier and talked with Hill and Low. Gail then went in, Cavalier, told Bra- then “take off” got ingsworth and saw the Neon back leaving and foot. the Neon. Gail ziel to follow house, stopped yellow shooting. at a A.L. also Neon witnessed She The shoveling of the men in one or two went talk to one was snow houses and Gail cir- Hollingsworth shooting Braziel and southeast of where the occurred. the Neon. back, they and came the two in the the block when A.L. saw vehicles street cled coming standing had with an individual outside of each spoken man Gail A.L. saw near person Braziel vehicle. from the house. Gail told back dark, Neon, coat, wearing bulky who was follow the Neon another “stash” because shot, pause, take a and fire one brief fire get yellow could not intо the house. they A.L. “four or five” additional shots. saw two got into Neon and the cars Gail go rigid “arm in a downward shooter’s apartment building. drove to and in front of him” then motion saw men went one of the from the Neon into shooter, gun.” “flashes from the The 10 minutes and apartment about standing passenger on the side of the car out, coming after Gail told Braziel follow partially by blocked from A.L.’s vision to a street “to make the the Neon side car, shooting the hood down- Both ears drove near a transaction.” “at him.” something ward close A.L. park; got out of the Neon and told saw the shooter start to run and the Neon into get Braziel to Braziel re- Neon. move start southbound before she ran initially, but both cars drove sisted after p.m. house to into her call 911 at 6:19 lot, parking a convenience store Braziel into the bаck the Neon. got seat of later, police When arrived a few minutes the parking Neon then left lot and Holl- pulse. no Braziel had The cause of Bra- *6 followed in ingsworth the Neon the Cavali- multiple ziel’s death was determined to be er. gunshot wounds and the manner of death homicide. was stopped
The Neon in the middle of the a short corner street distance from the found at phone Police Braziel’s cell Emerson, and Hollingsworth 39th with last scene. The call Braziel received was stopping length the Cavalier about “a car phone from a Verizon Wireless cell num- got and a half’ behind Neon. Gail out ber. Police on Febru- contacted Verizon Neon, passenger of the left the front door ary request 3 to information about this and stood open, between four and six feet phone Februаry number.1 On Verizon passenger Bra- information, from the side of the car. requested provided the indi- ziel then climbed seat to cating phone from the back that the number was listed to front, Larkins, began to exit the Neon while Erick at an address Minne- facing Hollings- the rear of Police apolis. the vehicle. went to this address and Davis, saw a struggle spoke Byron explained worth and believed that who that in the ear pulling paid someone was on he Larkins to name Braziel’s use Larkins’s leg Hollings- phones. as he tried to car. police exit the lease cell Davis told the worth saw Gail shoot at Braziel once that he had phone while “sublet” the Verizon leg car, was Braziel’s still in the and then that was used to Braziel to a man call he shot Braziel Reggie” five or six more times. knew or “Red fell face paid Braziel in the snоw. Holl- down Davis bills attributed (2004) police they § 1. The indicated needed 388.23 would be faxed in the next urgently produce information and that an administra- 24-48 hours. Police were unable subpoena signed copy subpoena. tive issued under Minn.Stat. of the February Ruger Davis identified mm phone. On semi-automatic handgun top on “Reggie” to he had Gail as the whom of a kitchen cabinet located above the re- phone. of the sublet the cell Because frigerator and a feet few from the entrance phone, ID” function on “Caller Davis apartment. An expert testified that knew Gail had used the Verizon cell a bullet body was, retrieved from Braziel’s call phone to Davis several times on the “to a degree reasonable of scientific cer- day shooting. tainty,” fired from Ruger handgun. Hollingsworth positively identified Gail Gail was indicted on three counts of Specifically, Hollingsworth as the shooter. felony murder: count 1—intentional mur- a photo made identification of Gail on Feb- der while committing or attempting to 11, 2004, ruary writing, “This is the shoot- commit aggravated the crime of robbery; er,” picture on the back of the of Gail count 2—-intentional murder while commit- him shown to an officer. ting or attempting to commit the crime of 12, 2004, February On Minneapolis Po- substance; unlawful sale of a controlled Sergeant lice complet- Gerhard Wehr was and count 3—intentional murder while ing application an for a search warrant for committing or attempting to commit the apartment in Minneapolis Gail’s when he crime of kidnapping. The trial began on learned that apprehended Gail had been at Monday, 15, 2004, November and the casе Plymouth apartment. Wehr then com- submitted to the at p.m. 2:30 pleted application for warrant Friday, November Saturday, On Plymouth apartment. search In the 20, 2004, November found Gail application Plymouth warrant guilty on the second count of the charged apartment, providing addition to infor- (intentional crimes murder while commit- tying mation Gail to the murder and indi- ting attempting to commit the crime of cating that Minneapolis apartment substance).2 unlawful sale of a controlled residence, Gail’s application set forth The district court sentenced Gail to life in following information: prison. Sgt. King your On advised af- 2/12/2004 Reginald
fiant Gail had been following Gail raises the seven issues in probation contact with his officer on this appeal: this direct *7 day, phone and that Gail had called from 1. Was the search warrant issued for number 763-[deleted]. Your affiant Plymouth the apart- search the learned that this number listfs] to the supported by probable ment cause? [Plymouth Apartment], Officers from 2. Should the cell phone pro- records Minneapolis the police went to this ad- by vided suppressed? Verizon have been dress. Officers on knocked the door and Reginald Gail came outside and was 3. Did the in denying district court err placed under arrest. Officers have since Gail’s to empanel motions a different apartment entered this and it have se- jury underrepre- venire because of cured. sentation of African-Americans or in A judge district court issued the warrant. denying Gail’s motion for additional discovery
During subsequent relating the search to the selection Plymouth apartment, police process petit jury pools? the found a 9 for count, jury acquitted 2. The Gail of the first count of court dismissed the third intentional indictment, committing attempting intentional murder while murder while' or to committing attempting kidnapping, prior or to commit commit the crime of to aggravated robbery. submitting crime of jury. The district case to 858 person a caution sup- warrant of reasonable sufficient the evidence
4. Was
first-degree
are located
sought
conviction of
believe
the articles
port Gail’s
v.
place
searched.” Rosillo
felony murder?
at
to be
State,
747,
(Minn.1979);
278
748-49
N.W.2d
revers-
court commit
Did
district
5.
Rochefort,
N.W.2d
see also State v.
631
failing,
sponte,
by
sua
ible error
(Minn.2001) (“An
802,
appellate court
804
whether a
jury
decide
allow the
a
a
court’s decision to issue
reviews district
pur-
accomplice
an
for
witness
issu-
only
warrant
to consider whether the
cor-
giving
accomplice
poses
judge
a
for con-
ing
had
substantial basis
instruction?
roboration
existed.”).
cause
cluding
probable
in ordering
court err
Did the district
6.
or in
sequestered
be
that the
addition,
afford
def
great
“[w]e
begin
deliber-
ordering
issuing judge’s
determination
erence
Friday
afternoon?
ations on
Jones, 678
probable
cause.” State v.
commit prosecutorial
Did the State
7.
1,
(Minn.2004).
not
11
We do
in closing argument?
misconduct
requirement
“the
be
[to]
want
warrant
discourage
as to
come so burdensome
I.
judge.
seeking
by”
from
review
police
the search war
Harris,
782,
v.
589
791
State
“
Plymouth apartment
rant
issued for the
(Minn.1999). Accordingly,
‘the resolu
Minnesota
States and
* * *
violated the United
marginal
or
cases
tion
doubtful
supported
it
because was
Constitutions
pref
be
largely
should
determined
Const,
”
cause.3 See U.S.
by probable
Mas
erеnce to
accorded to warrants.’
be
Const,
I, §
IV;
art.
amend.
Minn.
727, 734,
Upton,
sachusetts v.
U.S.
a search was
examining whether
“When
(1984)
2085,
(quoting
L.Ed.2d 721
S.Ct.
cause, the ultimate
supported by probable
102,
Ventresca,
v.
380 U.S.
United States
proba
a ‘fair
question is
there is
whether
(1965)).
741,
85 S.Ct.
859
to an issuing
a connection be-
that this court affords
establishing
judge’s
facts
tant
cause,
Plymouth
probable
and the
apartment
the
determination
and the
tween
prime suspect
warrants,
in preference
fact that the
that we accord to
murder —the
(Gail)
apart-
out of the
support
murder
came
our
the
conclusion
there was
he was arrested
immediately before
probable
ment
cause to issue the search warrant
apartment
the
day
Jones,
and that
Plymouth
earlier
for the
apartment. See
the time of the
Hams,
been “secured” since
11;
had
were has of in her pany) expectation privacy an from Verizon records Wireless.4 phone case, phone In this cell records. Gail of the Minnesota protections steps from and the three removed Verizon not unless Gail triggered are Constitution produced company’s records it via the expectation legitimate privacy of has a Larkins, to Larkins’s to “lease” “sub-lease” McBride, 666 phone records. See the cell Davis, and to Davis’s “sub-sub-lease” Gail. “Legitimate expectations at 360. Moreover, Gail, Davis, not received the expectations priva of those privacy are of usage phone bills for thе of the cell from prepared recognize to as ‘society is cy that Verizon, Davis, Gail, not these paid ”’ Katz v. (quoting Id. Unit “reasonable.” other stood be- people bills. Because two States, S.Ct. U.S. ed Verizon, did not tween Gail and and Gail (1967) J., (Harlan, concur L.Ed.2d 576 testify a any support or call witnesses to to de two-step analysis a ring)). We use finding expectation priva- that had an of he those protections are termine whether records, cy in the we conclude on cannot B.R.K, triggered. In re subjectively expected this record that Gail Welfare of step first is to deter at 571. The phone records of cell keep Verizon mine Gail “exhibited actual whether usage private. of in the” subjective privacy expectation Not can we conclude Gail step Id. The second phone cell records. is expected keep Verizon to this information expectation whether that is determine confidential, cannot but we conclude Id. reasonable. anything keep did himself his cell Gail usage phone example, confidential. For conducting step In first made calls from Gail numerous to Braziel inquiry should their analysis, “courts focus phone. police the cell When the obtained conduct and whether the individual’s they cell phone, Braziel’s were able to ‘[sought] preserve [some the individual ultimately determine that the number at- ” Id. at 571 private.’ (quoting thing] tributed Gail was the last number to call States, 334, 338, 529 U.S. Bond United Braziel’s phone via the “Caller ID” func- (2000)). 1462, 146 L.Ed.2d 120 S.Ct. tion on that phone. When Gail contacted have defendant found illustrates We day Davis on of the Davis shooting, subjective expectation privacy of when phone knew the Verizon cell was used activity conceal attempts to items. he to make the calls because Davis also had case, produced at this Gail See id. ID.” “Caller attempted that he to conceal no evidence had the that he proving burden phone the cell he anything about used. subjective expectation privacy. had a in the supports record The evidence produced He support no evidence to opposite conclusion. trying keep notion that he was his use stranger was a importantly, Most cell phone he “sub-leased” from
Verizon, holder the records at issue private. record, Davis upon Based we Accordingly, we do not have here. before find that Gail has not met his burden of reach, us, specifically dеcline to we showing subjective he had a expectation typical more user of question of whether phone privacy the cell records obtained (i.e. phone person who has from Verizon.5 the district Accordingly, a cell 4. Gail use of the 5. Because we failed to does not claim cell conclude that Gail expecta- subjective had a rights demonstrate that he phone records violated his under the records, privacy phone we tion of in the cell U.S. Constitution. issue, such do not reach the second whether *10 suppress to refusing Accordingly, court did not err ords. we hold that the dis phone the cell records. court trict did not err in failing suppress to phone the cell on records the basis of the to Our that Gail failed demon conclusion alleged statute’s violation. subjeсtive expectation strate that had a he privacy phone of cell records is also the dispositive argument his alternative III. (2004).6 §
based
Minn.Stat.
upon
388.23
the
that
district court erred
phone
Gail contends that the cell
records
it
suppressed
empanel
should have
this when
denied his motion
been
because
a
statute
Specifically,
was violated.
jury
different
venire because of underrep-
claims that
statute
be
the
was violated
African-Americans,
resentation of
and his
produce
cause
were
police
the
not able to
a
alternative
motion
discover information
by the
subpoena signed
County Attorney’s
relating
process
to the selection
for petit
Cook,
State v.
upon
Office. Gail relies
498 jury pools. Gail
did
file written
(Minn.1993)
17,
(telephone
N.W.2d
war
challenge
jury panel
required
to the
Frink,
rant),
57,
and State v.
296 Minn.
74-
26.02,
Instead,
Minn. R.Crim. P.
subd. 3.8
75,
664,
(1973)
(wiretap),
orally objected
Gail’s counsel
the jury
for the
of evi
proposition
suppression
brought
venire after it was
the
into
court-
appropriate remedy
dence is
when
argued
room. Gail
that a new venire
statutory
requirements
or rule
for the col
brought up
should be
because
one
lection of
been
that evidence have not
sat
person self-identified as African-American
case,
purposes
isfied. For
of this
we will
50-person
on the
venire.
In the alterna-
suppression
assume that
is
available
tive, Gail asked the district court to order
remedy
violation of Minn.Stat.
provide
office
information
case,
§ 388.23.7 In this
Gail cannot avail
the selection of
jury pool.
about
The
because,
remedy
himself of that
as set
above,
requests,
court denied the
“find[ing] no
complete stranger
forth
he is a
regard
phone
Verizon with
rec
departure
cell
evidence material
from the
"
expectation
'society
legislature
all
would
§
be one that
is
enacted Minn.Stat.
388.23 to
’"
recognize
prepared
protect
privacy.
as "reasonable.”
Language
individuals'
in the
McBride,
Katz,
statute,
(quoting
however,
requirements
County.”
Hennepin
County
challenge.
in
against
here
constitutional
process
tion
Willis,
700; Roan,
See
Sixth legal authority or this court with the court challenges makeup jury the of ment request- under which district court was questions law court of that this pools are Roan, 532 gather relating ed to information State v. See de novo. reviews Hennepin (Minn.1995) (Sixth process County selection 563, 569 N.W.2d Willis, petit jury pools. information Gail v. State challenges); Amendment (Minn.1997) have 693, sought appears to been available 559 N.W.2d 700-01 3, 5(b), (Fourteenth him under rule subd. and rule 5 of Equal Amendment Protection the Rules of Public Access to Records of challenges). pri- a order “establish Branch. that showing” ma Amend Judicial We hold facie that his Sixth representative jury district court did not err when it denied right ment to a venire violated, request have Gail’s gather been a defendant must show court time— significant period “that over a of information on Gail’sbehalf.
panel panel, after after month —the month IV. jurors question of has group eligible significantly underrepresented been the evidence ‘system from panels that this results him was insufficient to convict of murder ” Williams, v. exclusion.’ State atic degree committing while first 538, (Minn.1994). chal 542-43 A attempting felony to commit of crime lenge thé the Four venire under unlawful sale of a controlled substance. requires teenth Amendment likewise evidence, reviewing sufficiency When we underrepresentation the defendant show whether, inquire “given the facts period of time.” See significant “over a any legitimate record and inferences that Partida, v. 482, Castaneda 494- 430 U.S. facts, can be drawn from those (1977). 97 S.Ct. L.Ed.2d 498 reasonably could find that the defendant offense.” State guilty charged provided Gail has no evidence to (Minn. Pierson, To Williams satisfy the standard. 1995). view the in the light We evidence contrary, attorney Gail’s told the district Id. most favorable the verdict. court: “I tell it you can seems like provides ample The evidence support for we’ve had more African Americans on our the conclusion that Gail shot Braziel in panels recently. yester This was a shock Moreover, tending to kill him and that day shooting to see even if one.” showing part drug underrepre- happened Gail had made deal. Holl sentation, ingsworth upheld we have came to selection testified Braziel *12 Minneapolis buy worth of cocaine $250 V. Hollingsworth from Gail. While and Bra argues Gail the district driving Minneapolis ziel were around with court committed reversible by error Gail, and after received a phone Gail cell providing with an accomplice cor call, Gail told Braziel price “what the roboration instruction for testimony going to Gail then directed $250. be”— Hollingsworth both and Hill. We have held four-door, Braziel to drive to a Dodge red that “trial duty courts have a .to instruct waiting. Neon where two men were Gail juries on accomplice testimony any in told Braziel to follow the Neon. Gail later criminal case in which it is reasonable to Neon, get told Braziel to into the and after any consider against witness the defendant reluctance, some in got Braziel the Neon an accomplice.” Strommen, be State v.
with Gail and the other two men to com 681, (Minn.2002). 648 N.W.2d This plete that, the dеal. Hill testified after court evaluates “the erroneous omission of car, got “they just Gail and Braziel into the accomplice] jury [an instruction under a started to make the deal.” Hill testified analysis.”9 Lee, harmless error State v. arguing that Braziel started with Gail that (Minn.2004). 309, 683 N.W.2d money he wanted his back because the cocaine was “short” and Braziel and Gail Under § Minn.Stat. 634.04 started fighting. (2004), a criminal may conviction not be
Hollingsworth
“upon
testified that he saw
based
testimony
of an accom
shoot Braziel numerous times after he
plice,
saw
unless it is
corroborated
such
struggle
Hollingsworth’s
the Neon.
other evidence as tends to convict the de
description
clothing
of Gail’s
matched the
fendant of the commission of the offense.”
A.L.,
description given by
who saw some-
In general,
the “test
for determining
“bulky,
one
dark
multiple
coаt” fire
whether a witness is an accomplice for
ground
shots down toward the
from out- purposes of section 634.04 is whether he
passenger
side of the
side of the Neon.
could have been indicted and convicted for
Finally, the medical examiner testified that
the crime with which the accused is
multiple gunshot
Braziel died from
wounds
Lee,
(inter
charged.”
5(1), by permitting the district court to *14 consider separation of a jury only if both VI. the defendant and the state consent to jury began deliberating Friday The on a separation, such not does violate sepa the and returned its verdict on a Saturday. powers ration of doctrine. began Once deliberations and over Gail’s objection, jury the sequestered. Gail Turning to the second aspect of raises relating jury two issues to the delib- argument, Gail’s he contends he is entitled First, argues erations. Gail that Minn. to a new trial because the district court did 5(1) 26.03, R.Crim. P. subd. is unconstitu- jurоrs not ask the they whether would tional insofar as it gives the state “veto prefer begin to Friday deliberations on or power” over a jurors decision to allow the whether, on Monday and if deliberations separate beginning after deliberations. began Friday, there were concerns with Second, argues Gail the district court deliberating over the weekend. We review abused its discretion not asking the this decision under an abuse of discretion jurors preferences for their as to the tim- Blom, standard. See State v. 682 N.W.2d ing of the start of deliberations. (Minn.2004). 578, 607 As the district court
Turning noted, constitutional in denying Gail’s motion to inquire question, we review de novo jurors the constitu of the preferences, as to their “try tionality of a rule of procedure. criminal ing have the make a decision about * n * State, See Ford v. they when would likе to deliberate is (Minn.2005). Minnesota possibly Rule of Criminal fraught problems.” with real 5(1) 26.03, Procedure provides: subd. district court also noted that the trial was “With the consent of the defendant and the being conducted the week before the prosecution, court, discretion, the in its Thanksgiving holiday, and that during jury may jurors separate allow the over selection scheduling issues were discussed. night during argues Finally, deliberation.” Gail the district court expressed con that giving prosecution the right to cern that questioning jurors further of the consent to the separation jurors gives of could be construed as indication the state “the final sequestration. word” on court as to how much time the court that, argues Gail then judicia jurors because the thought might need to reach a ry has authority exclusive procedural over verdict. We hold that the district court did matters, the rule separation violates the of not in denying abuse its discretion Gail’s powers doctrine. jurors motion pref to ask the about their
instead, is, law, 634.04.''). accomplice defendant as a matter of not an under section for a occurs “when timing ing Vouching for the commence witness. as to
erence government implies guarantee of a ment deliberations. truthfulness, to facts out- witness’s refers VII. record, expresses or a personal side committed that state credibility.” opinion witness’s by improperly misconduct prosecutorial Lopez-Rios, State proof, giving per- shifting burden (Minn.2003) (internal quotation marks vouching for a witness.12 opinion, sonal omitted). may argue “But the state that misconduct are without claims Gail’s not particular witnesses were were merit. merely argu- The state credible.” Id. credible, that ing Hollingsworth was claiming prosecutor did therefore we hold the state proof, burden shifted improperly commit misconduct. prosecutor’s statement upon relies “You have know closing argument: Affirmed. defendant, and the has to State doubt, that beyond a reasonable prove PAGE, (concurring). Justice kill with the intent to Mr. acted defendant opinion I concur with the court’s as writ- rational would have Braziel.” No except suggests ten the extent that it indicate statement heard *15 II expectation section that an individual’s prove anything. This had defendant privacy maintained phone by records not misconduct. was statement a result phone company is lessened as claims that Gail next state ID. caller opinion when it said: personal gave looking decide that at might [Y]ou that thе defendant had not
this while aggravated robbery
completed the or sale, completed drug al-
had you I that he
though suggest had those, you may decide both of he done NOSKE, Appellant, L. James hadn’t, may you decide to look at and it’s an attempt as to not. this whether merely telling The state was Joseph FRIEDBERG, S. guilty if could found found Gail be al., Respondents. et attempted, rather than com- had No. A05-1160. underlying There felonies. was pleted, by making the state in no misconduct Appeals Court of Minnesota. statement. April Finally, argument Hollingsworth state’s “frank person”
“a believable impermissible
sincere” constitutes vouch- state, any 12. Gail claims the state committed which we do not also misconduct find, by "disparagement party, misconduct of other was cured when the district court al- theory” counsel or and cites all of the state's Thus, provide a lowed surrebuttal. Gail to closing argument support. Our rebuttal argument. there is no to this merit transcript careful reveals that review