. The state also responds by citing Nunn v. State, 753 N.W.2d 657 (Minn. 2008), in which the supreme court explained that using the word "we" does not constitute prosecutorial misconduct per se and that the word does not necessarily align the prosecutor with jurors if the word could reasonably be interpreted to "refer to everybody who was in court when the evidence was presented." Id. at 663.
Lutz first argues that the prosecutor improperly used "we" and other grouping statements in her closing argument. In closing arguments, a prosecutor may not align themselves with the jury at the exclusion of the defendant. Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008). While the use of "we" and similar grouping statements by the prosecutor is generally considered improper, the use of those statements is not misconduct if they do not necessarily exclude the defendant. See id.
But a prosecutor's use of "we" statements does not automatically constitute misconduct. Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008). In Nunn, for example, the supreme court determined that the prosecutor's use of "we" statements during closing argument was not misconduct, noting that the statements were used to summarize the evidence presented at trial, and that the use of the pronoun "we" could reasonably be interpreted to refer to everyone who was in the courtroom when the evidence was presented and did not necessarily exclude the defendant
While "we" statements may be disfavored generally, they are not prosecutorial misconduct per se. Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008). A prosecutor does not engage in misconduct by using the word "we" when summarizing the evidence that has been presented at trial.
Appellate counsel is not obligated "to include all possible claims on direct appeal, but rather [is] permitted to argue only the most meritorious claims." Nunn v. State, 753 N.W.2d 657, 661 (Minn. 2008) (alteration in original) (quotation omitted). And we presume that appellate counsel's "judgment about which issues to raise falls within the wide range of reasonable professional assistance."
Counsel is not obligated "to include all possible claims on direct appeal, but rather [is] permitted to argue only the most meritorious claims." Nunn v. State, 753 N.W.2d 657, 661 (Minn. 2008) (alteration in original) (quotation omitted). And we presume that counsel's "judgment about which issues to raise falls within the wide range of reasonable professional assistance."
"Prosecutorial misconduct results from violations of clear or established standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state's case law." Nunn v. State, 753 N.W.2d 657, 661 (Minn. 2008) (quotation omitted). "When assessing alleged misconduct during . . . argument, we look to the . . . argument as a whole, rather than to selected phrases and remarks."
"A prosecutor is not permitted to appeal to the passions of the jury during closing argument." Nunn v. State, 753 N.W.2d 657, 661-62 (Minn. 2008) (quotation omitted). However, a prosecutor has "considerable latitude" during a closing argument and need not make a "colorless argument."
The supreme court later stated that a prosecutor does not commit misconduct by using "we" when "describing the evidence . . . presented at trial (i.e., 'we learned' various facts from the trial testimony)." See Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008). Here, the prosecutor used "we" in opening and closing arguments, however, all but two of the instances are similar to the use permitted in Nunn.
Nunn's petition was denied by the postconviction court, and the Minnesota Supreme Court affirmed. See Nunn v. State, 753 N.W.2d 657 (Minn. 2008). Seven years later, Nunn filed a motion to correct his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, arguing variously that the consecutive nature of his sentence violated Minnesota sentencing guidelines, and that the length of his sentence reflected unlawful discrimination in violation of his Fourteenth Amendment Equal Protection rights. (Habeas Pet. at 5.)