State v. Spaulding, 296 N.W.2d 870, 876 (Minn. 1980); State v. Schultz, 262 N.W.2d 411 (Minn. 1978); State v. Prettyman, 293 Minn. 493, 495, 198 N.W.2d 156, 158 (1972). In the present case the trial court gave an appropriate instruction to the jury that statements of counsel were not evidence and that its verdict could be based only on the evidence.
Petitioner was convicted in 1976 of aggravated rape and indecent liberties. Those convictions were affirmed by this court in State v. Schultz, 262 N.W.2d 411 (Minn. 1978). Petitioner was subsequently sentenced to prison terms of 30 years for the aggravated rape and 4 years for the indecent liberties, but the 4-year term for the indecent liberties was subsequently vacated pursuant to Minn.Stat. § 609.035 (1978).
Petitioner was convicted by a district court jury in 1976 of aggravated rape and indecent liberties, Minn.Stat. §§ 609.291(2) and 609.296, subd. 1(2) (1974). The convictions were affirmed by this court in State v. Schultz, 262 N.W.2d 411 (Minn. 1978). Thereafter, petitioner sought postconviction relief, raising new issues.
See State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991) (noting purpose of rule is to prevent attorney from becoming unsworn witness to proceeding, and affirming conviction where prosecutor's statements did not "clearly and plainly" violate rule); see also State v. Schultz, 262 N.W.2d 411, 416 (Minn. 1978) (holding statements of personal opinion constituted harmless error where trial court gave proper cautionary instructions regarding evidence). Walker is not entitled to a new trial.
We consider this objection even though it was first raised in a motion for a new trial. See, e.g., State v. Schultz, 262 N.W.2d 411 (1978) (court addressed allegation of prosecutorial misconduct on appeal when the error was raised in a post-trial motion even though no objection made until after the jury retired). In this case defense counsel had already interrupted the prosecutor's final argument several times with objections to other misconduct. Additionally, the prosecutor argued to the jury "it is the defense that is giving you an unreasonable posture here. Proof beyond a reasonable doubt.