Prosecutor's "Invited Error" Was Harmless Beyond a Reasonable Doubt

State v. Whitson, Minn.S.Ct., 3/2/2016.  Mr. Whitson and his crew drove up to Duluth intending to rob a Mr. Williams, whom they believed had money or drugs or both.  They found Mr. Williams in T.C.'s apartment. Before leaving for Duluth the men had discussed the possibility of having to use a gun in order to accomplish the robbery.  Once inside T.C.'s apartment, sure enough, they needed the gun's assistance.  By the time the men fled the apartment and headed back down I-35 Mr. Williams was dead and T.C. had been shot in the cheek.  A jury convicted Mr. Whitson of first degree murder of Mr. Williams, and first degree attempted premeditated murder of T.C.

The state's main witnesses were T.C. and one of Mr. Whitson's crew, Mr. King.  T.C. didn't know the shooter; she described the shooter as a man wearing a plaid shirt.  Mr. King initially said he didn't know anything about what happened in T.C.'s apartment, but eventually he cut a deal with the prosecutor to testify against Mr. Whitson.  Mr. King testified that he had been with Mr. Whitson when plans for the robbery were made, including the possibility of having to use a gun.  He testified that he heard gun shots inside T.C.'s apartment, turned to see Mr. Whitson holding a gun, saw Mr. Whitson shoot Mr. Williams in the head, and then shoot T.C. 

The defense pointed out  the various inconsistencies of Mr. King's testimony.  The prosecutor then asked Mr. King why he had delayed revealing some of his claims; Mr. King said it was because he had gotten threats against his family.  Now, everyone knew about this claim of threats, and the trial judge had excluded any testimony about those threats.  Mr. King blurted out about the threats anyway because the prosecutor hadn't bothered to instruct Mr. King not to talk about the threats.  The defense objected and moved for a mistrial. The trial judge denied the motion but did basically tell the prosecutor that his failure to warn Mr. King off about the threats invited the error.

But, since this invitation came from the state Justice Lillehaug could and did ignore it.  The court resorts to the usual way out by assuming that the prosecutor screwed up but then concluding that the misconduct was harmless beyond a reasonable doubt.  This test asks whether the jury's verdict was "surely unattributable" to the misconduct.  Justice Lillehaug ticks off the usual litany of reasons why the verdict was not so "surely attributable."  

Mr. Whitson, representing himself in this consolidated direct appeal and appeal from denial of post conviction, made four other arguments, all of which the court said were not supported by the record.