author: MEYER, Justice. ANDERSON, G. BARRY, Justice

text:
    STATE of Minnesota, Respondent, v. Troy Demetrius MAYHORN, Appellant.
    No. A04-1971.
    Supreme Court of Minnesota.
    Aug. 31, 2006.

      Bridget Kearns Sabo, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Lisa Borgen, Clay County Attorney, Moorhead, MN, for respondent.
   OPINION

MEYER, Justice.

Troy Demetrius Mayhorn appeals his convictions of aiding and abetting first-degree premeditated murder and aiding and abetting second-degree assault. May-horn argues that he is entitled to a new trial based on prosecutorial misconduct and various evidentiary errors made by the district court. Mayhorn also contends that the court erred in imposing a 51-month consecutive sentence for second-degree assault. We reverse Mayhorn’s convictions, holding that the cumulative ef-feet of prosecutorial misconduct and evi-dentiary errors deprived Mayhorn of a fair trial.

Around 2:20 p.m. on August 29, 2003, Janney Garcia dialed 911 and reported that her boyfriend had just been shot in the living room of her apartment in Moor-head, Minnesota. When police officers arrived at the apartment, they found Nasean Jordan lying on a couch just inside the doorway with multiple gunshot wounds to his chest. Garcia had been shot once in the leg but was standing and walking around. Nicole Johnson, a friend who lived nearby, was also at the apartment, having arrived just before emergency responders.

Investigators immediately began to locate Jordan’s friends and associates. Mayhorn and Michael Dickey quickly were identified as suspects in Jordan’s murder. Mayhorn and Jordan had met each other in Chicago as teenagers and became friends as well as partners in the trafficking of drugs, primarily crack cocaine. Dickey was also a friend of Mayhorn’s and an associate of Mayhorn’s and Jordan’s in the drug trade. Also involved in the drug trade with them was Dickey’s cousin, David Longmire. Investigators learned that Dickey had been admitted by Garcia or Longmire into Garcia’s apartment building just before Jordan was killed.

The state’s theory of the case at trial was that Mayhorn masterminded a plan to kill Jordan, and he drove the getaway car. The precise motive for Jordan’s murder was never determined. One theory was that Jordan, who was known as “T.J.,” was murdered by Mayhorn because Jordan was suspected of stealing drugs from him. Another theory was that Jordan had borrowed $800 from Mayhorn and had not repaid it. Evidence was also presented that Dickey was angry with Jordan because Jordan would not supply Dickey with drugs, and because Jordan had forcefully demanded that some of Garcia’s acquaintances — including Dickey — stop spending time in Garcia’s apartment.

Mayhorn’s defense was that he had played no role in planning the murder and that he was not even in Moorhead at the time of the murder, although his green Ford Taurus may have been there.

It was undisputed at trial that on August 28, the day before the murder, May-horn and Muammar Ali drove from Chicago to Moorhead in Mayhorn’s Taurus. They arrived in Moorhead around 7:30 p.m. and stopped at 1-94 Liquors, where they purchased some liquor and left some garbage in the dumpster outside. May-horn and Ali spent the remainder of August 28 with a woman identified only as April. Around 2:30 a.m. on August 29, Mayhorn and Ali left April’s home and drove to Garcia’s apartment. Mayhorn testified that when they arrived, he went inside and delivered 63 grams of crack cocaine and 1 pound of marijuana to Jordan while Ali remained in the ear. The state disputed the purpose of Mayhorn’s and Ali’s 2:30 a.m. trip to Garcia’s apartment and asserted that the two men actually went there to kill Jordan, but their plan was thwarted because the exterior door had not been propped open as planned.

After leaving Garcia’s apartment, May-horn and Ali drove to Kim Wilson’s house, where a group of people, including Dickey, Longmire, Shawnee Johnson (one of May-horn’s girlfriends), and others were socializing. Mayhorn went inside while Ali waited in the car. Inside Wilson’s house, Dickey pressured Mayhorn to sell Dickey some crack cocaine. Mayhorn told Dickey that if Dickey could get to the Twin Cities, Mayhorn could arrange for him to obtain some drugs there. The state also presented evidence that Mayhorn said to Dickey, “[H]e gotta go,” meaning Mayhorn wanted Jordan killed, but both Mayhorn and Dickey dispute that there was any such discussion at Wilson’s house. Mayhorn then agreed to drive Dickey — -who was unable to find another ride — to the Twin Cities. At 4:30 a.m. on August 29, Mayhorn, Dickey, and Ali left Moorhead in Mayhorn’s Taurus. They arrived in Woodbury at 8:30 a.m. and went directly to Lyra Robinson’s townhouse.

For the events beginning at 10 a.m. on August 29, the parties’ versions of the facts diverge significantly. The state presented evidence that the three men obtained their crack cocaine and were back in Mayhorn’s car on the road to Moorhead by 10 a.m. During the drive to Moorhead, Mayhorn said to Dickey, “TJ gotta go,” ostensibly meaning Jordan should be killed. At around 2:15 p.m., Mayhorn, Dickey, and Ali arrived outside Garcia’s apartment building. Mayhorn remained in the car while Dickey and Ali walked up to the apartment building. Dickey “buzzed” the intercom and was admitted to the building. Ali went inside the building and into Garcia’s apartment and found Jordan playing a video game with Longmire. Ali asked Jordan, “[Wlhere that sh* * at?” and started shooting. Dickey and Long-mire fled to Mayhorn’s car and got in the back seat. Ali then came running out and got in the car. As they were driving away, Mayhorn asked Ali, “[I]s he gone?” Ali answered affirmatively.

Four eyewitnesses testified that they had seen one to three men matching the physical descriptions of Dickey, Ali, and Longmire near or inside Garcia’s apartment building at the time of the murder. One of these witnesses testified that the three men got into a green car driven by a fourth person.

Dickey testified against Mayhorn and said when Mayhorn drove him to the Twin Cities to get crack, Ali was in the car. As they were driving to the cities Mayhorn said that T.J. “gotta go.” Dickey understood Mayhorn’s statement to mean that T.J. was to die or be hurt. After they picked up the drugs in Woodbury, Dickey testified that the three of them drove back to Moorhead in Mayhorn’s car.

Cell phone records were received into evidence. The state also presented maps that plotted the calls made and received on both Mayhorn’s and Dickey’s cell phones for the time period of August 28-30. The records and maps showed that Mayhorn’s cell phone traveled from Chicago to Moor-head on August 28. In the evening and early morning hours of August 28-29, Mayhorn’s cell phone was activating a Moorhead cell tower. By the morning hours of August 29, both Mayhorn’s and Dickey’s cell phones were activating towers in the Twin Cities. Both cell phones were back in Moorhead by 2:14 p.m. on August 29, around the time of the murder. By 12:16 a.m. on August 30, both cell phones were back in Chicago.

Longmire also testified for the state and said at the time of the murder he was in Garcia’s apartment with Garcia and Jordan, playing a video game with Jordan. Longmire saw Ali enter the apartment with a handgun and heard him say, “Where that sh* * at?” and start shooting. Longmire ran out of the apartment to Mayhorn’s green Taurus. Mayhorn was in the driver’s seat. Ali, Mayhorn, Long-mire, and Dickey drove to Chicago, and Mayhorn warned Longmire and Dickey not to say anything.

Mayhorn testified in his own defense and claimed that he was not a part of any conspiracy, and although his car may have been in Moorhead at the time of the murder, he was not. Mayhorn told Dickey that he could take his car and return to Moorhead without Mayhorn. Mayhorn’s cell phone was charging in his car at the time, and Dickey took the cell phone with him when he left the Twin Cities around 10 a.m. At about 6 p.m., Dickey returned in Mayhorn’s car, picked up Mayhorn, and they drove to Chicago.

Mayhorn presented an alibi witness, Lyra Robinson, who testified that May-horn was taking a nap at her Woodbury apartment at the time of the murder. He also called Toistine Pleasant, a previous girlfriend, who claimed that she called Lyra Robinson in Woodbury about an hour after the murder and Robinson told Pleasant that Mayhorn was with her. The defense suggested that robbery may have been a motive for Jordan’s murder, and that Garcia may have been involved. The defense also presented evidence that Jordan was not well liked, was “big-headed,” had aggressively tried to take over the drug trade in Moorhead, and had come between Garcia and her previous boyfriend. To bolster this argument, May-horn presented evidence that although Jordan was living with Garcia, Jordan had other girlfriends in Moorhead, a fiancée in Chicago, and two “baby-mamas” by whom he had five children.

After a three-week trial, the jury found Mayhorn guilty of aiding and abetting first-degree premeditated murder, conspiracy to commit first-degree premeditated murder, and aiding and abetting second-degree assault. The court imposed a mandatory life sentence for aiding and abetting first-degree premeditated murder and a consecutive 51-month sentence for aiding and abetting second-degree assault. This direct appeal followed.

I.

The district court admitted into evidence over Mayhorn’s objection the recordings of telephone calls made by Mayhorn from the Otter Tail county jail as he was awaiting trial. On appeal, Mayhorn argues that four of the recordings were inadmissible because they were not relevant and their probative value was substantially outweighed by the danger of unfair prejudice. Mayhorn argues that one of the four telephone calls was also inadmissible because it was evidence of a prior bad act for which the state failed to comply with Spreigl requirements. The state’s position is that the admission of the recordings was not a clear abuse of discretion and that Mayhorn has not met his burden of proving that he was prejudiced by the admission of any of them. Additionally, the state asserts that the fourth recording was relevant to illuminate the relationship between Mayhorn and Jordan, such that Spreigl requirements did not apply.

We review a district court’s decision to admit evidence for an abuse of discretion. State v. Lee, 645 N.W.2d 459, 465 (Minn.2002). The threshold requirement for the admissibility of evidence is provided by Minn. R. Evid. 402: “Evidence which is not relevant is not admissible.” Reversal is required for the erroneous admission of evidence when the admission of that evidence likely influenced the jury to convict. Lee, 645 N.W.2d at 465.

In the first recording, Mayhorn is speaking to Nicole Johnson, the friend who arrived at Garcia’s apartment shortly after the shooting, and states that he would prefer to “be around in Cook County where I was around killers and drug dealers” than in the Otter Tail county jail “around mother f* * * * *g, um, ah, thieves and mother f* * * * *g women beaters,” who were “[n]ot my type of crowd.” The basis of the court’s ruling on the admissibility of this recording is unclear from the record.

On appeal, the state does not address the relevance of this portion of the conversation with Nicole Johnson, merely contending that the entire conversation is relevant because Mayhorn was speaking to a potential witness. We have never concluded that all recorded conversations between a suspect and a potential witness are per se relevant. In any event, we conclude that the specific content of the objected-to portion of this recording had no probative value. Mayhorn’s derogatory comments about the prisoners at the local jail are not probative of whether he engaged in conspiracy to commit murder, or aided and abetted murder and assault. These comments only tend to demonstrate Mayhorn’s apparent preference for the company of certain criminals over others, and then-admission may have allowed the inference that Mayhorn preferred to be around “killers” because he was one. Because the comments in the first recording are not relevant to any issue in the case, we hold that the court abused its discretion in admitting the comments into evidence.

The court also admitted over objection a voicemail message left by Mayhorn for Nicole Johnson in which Mayhorn stated: “What’s up man? You don’t f* * * with the ni* * *r no more. You need to holler at your boy straight up.” The state asserts that this message was a threat against Nicole Johnson, a potential witness. Mayhorn’s position is that the message meant, “What’s going on * * * I’m trying to reach you,” and was not meant as a threat.

Evidence of a threat made by the defendant against a witness may be relevant to show consciousness of guilt, State v. Harris, 521 N.W.2d 348, 353 (Minn.1994), and to explain a witness’s inconsistent statements, State v. Clifton, 701 N.W.2d 793, 797 (Minn.2005) (quoting United States v. Thomas, 86 F.3d 647, 654 (7th Cir.1996)). It is possible to interpret this voicemail message as a threat against a witness and, therefore, we conclude that the court did not abuse its discretion in implicitly determining that it was relevant. We also defer to the district court’s implicit finding that the recording was not unduly prejudicial. The district court was in the best position to evaluate the prejudicial nature of this evidence. Cf. State v. Gaulke, 281 Minn. 327, 330, 161 N.W.2d 662, 664 (1968) (noting that the trial judge was in the best position to evaluate the prejudicial nature of a closing argument).

A third recording admitted over Mayhorn’s objection was his statement to an unidentified female to “keep [Shawnee Johnson] away from the police right now.” Shawnee Johnson had been with Mayhorn in the early morning hours of August 29. She was not called as a witness by the state or the defense, but from her involvement with Mayhorn it is fair to conclude that the police may have wanted to interview her. A defendant’s attempt to prevent a person from participating in a police investigation may be relevant to show consciousness of guilt. See Harris, 521 N.W.2d at 353 & n. 6. We conclude that this attempt to keep Shawnee Johnson away from law enforcement tended to show a consciousness of guilt and, therefore, it was relevant. Further, we conclude that the content of this recording was not unfairly prejudicial and, therefore, the court did not abuse its discretion in admitting this recording.

We address Mayhorn’s final claim of evidentiary error, that the court erred by admitting a recorded conversation in which Mayhorn describes “an ugly shootout” with a person named “T.J.” without requiring a Spreigl analysis. See State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The state sought to admit this evidence to show the past relationship between Mayhorn and Jordan, who was known as “T.J.” The state essentially argues that relationship evidence involving a prior bad act is not subject to the notice requirements under Spreigl. We need not determine in this case whether relationship evidence is subject to the notice requirement of Spreigl because the state failed to establish by clear and convincing evidence that the referenced shootout involved Jordan. See State v. Bauer, 598 N.W.2d 352, 364 (Minn.1999) (“Character evidence which tends to show the ‘strained relationship’ between the accused and the victim is relevant to establishing motive and intent and is therefore admissible. Prior to admitting such evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the prior bad act * * * ” (internal citations and quotation marks omitted)). If the state intends to present relationship evidence, it bears the burden of proving that the incident at issue actually involved the relevant parties in the present case. The evidence otherwise has no probative value as relationship evidence.

Mayhorn did not dispute that he participated in a shoot-out with an individual identified as “T.J.,” but he denied that T.J. was Jordan. The state did not present clear and convincing evidence that Jordan was the person referred to by Mayhorn as T.J., the person involved in the shoot-out. The only evidence from the state on this point came from Nicole Jordan during questioning by the state:

Q: Okay. So do you know of any conflict between your brother and [May-horn] when they were down in Kok[o]mo?
A: He mentioned a couple of times that they got into it, you know. He wouldn’t get into deep details * * *.
Q: Now, you told us that you had talked to your brother and he said there was some conflict down in Kok[o]mo, is that right?
A: Yeah.
Q: And that was between him and [Mayhorn]?
A: Yeah.
Q: Did your brother ever tell you that he got shot at?
A: Yeah.
Q: By anybody?
A: He said it before, yeah.

This exchange makes clear that Nicole Jordan had no firsthand knowledge of the type or nature of the conflict her brother reported having with Mayhorn. In response to the state’s direct question, she did not identify Mayhorn as a person who shot at her brother. This evidence does not clearly and convincingly establish that a shoot-out occurred between Mayhorn and Jordan, and therefore we conclude that Mayhorn’s statement regarding an “ugly shoot-out” was not admissible as relationship evidence.

Reversal is required for the erroneous admission of evidence when the admission of that evidence substantially influenced the jury to convict. Lee, 645 N.W.2d at 465. We note at the outset that the state made numerous references to the erroneously-admitted shoot-out evidence— the state referenced it directly or indirectly a total of 13 times during cross-examination, once during closing argument and once during its rebuttal to Mayhorn’s closing argument. The fact that the prosecutor made repeated references to the shoot-out is important to our conclusion that the combination of evidentiary errors and prosecutorial misconduct rendered the trial unfair.

We need not decide whether the eviden-tiary errors alone warrant a new trial because we conclude that the cumulative effect of the prosecutorial misconduct and evidentiary errors in the case denied May-horn his right to a fair trial. Our reasoning follows.

II.

Mayhorn claims he is entitled to a new trial because the prosecutor committed serious misconduct in the course of cross-examining him. Mayhorn frames his argument regarding prosecutorial misconduct in the two-tiered structure we identified in State v. Poivers:

This court reviews claims of prosecutorial misconduct and will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. ⅜ * * There are two distinct standards. If the misconduct ivas serious, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. For less serious misconduct, the standard is ivhether the misconduct likely played a substantial part in influencing the jury to convict.

654 N.W.2d 667, 678 (Minn.2003) (emphasis added; internal quotation marks and citations omitted). In more recent opinions, we have retained the general rule of reversing only when prosecutorial misconduct impairs the defendant’s right to a fair trial, but we have adopted a streamlined approach to our analysis. In State v. Swanson, we held:

When reviewing claims of prosecutorial misconduct, we reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt. We will find an error to be harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.

707 N.W.2d 645, 658 (Minn.2006) (emphasis added; internal quotation marks and citations omitted). The language in Swanson provides the structure for our analysis of objected-to prosecutorial misconduct.

When a defendant fails to object at trial, he generally forfeits consideration of prosecutorial misconduct on appeal, but we can still address the misconduct under the plain-error doctrine. State v. Blanche, 696 N.W.2d 351, 375 (Minn.2005); see also State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Before we review an error for which there was no objection, there must be (1) error, (2) that is plain, and (3) the error must affect substantial rights. Griller, 583 N.W.2d at 740. If all three prongs are satisfied, we determine whether we should address the error to ensure the fairness and integrity of the judicial proceedings. Id. (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

Commenting on the Defendant’s Credibility as a Witness

During her cross-examination of Mayhorn, the prosecutor asked, “You wouldn’t know the truth if it hit you in the face, would you, Mr. Mayhorn?” Mayhorn did not object. The state conceded at oral argument that this comment was inappropriate. We agree. We have held that it is improper for a prosecutor to give her own opinion about the credibility of a witness in closing argument. See State v. Porter, 526 N.W.2d 359, 364 (Minn.1995). It follows that a prosecutor may not do the same during cross-examination. We conclude that this remark about Mayhorn’s ability to recognize the truth constituted misconduct.

Inflaming the Passions of the Jury

Mayhorn argues that the prosecutor committed misconduct when, during cross-examination of Mayhorn, she improperly gave the jury prejudicial information about Mayhorn’s prior dangerous use of a firearm and portrayed Mayhorn as “an aggressive person who carried a gun and shot at people.” Specifically, Mayhorn challenges the following exchange during his cross-examination by the state:

Q: Okay. Now, we heard you try to explain away this shootout thing that we heard a tape [sic] a couple different times. You’re not denying that you had a shootout with someone though, are you?
A: No.
Q: Okay. You’re not denying that you were in a car and someone was shooting at you and you shot back, right?
A: Right.
Q: Okay. So in order to shoot back you had to have something in your hand, right?
A: Yes.
Q: What would that be?
A: A gun.
Q: Okay. So do you consider yourself pretty handy with a gun?
A: No.
Q: You didn’t kill anyone there. At least you didn’t tell us about it, right?

Mayhorn did not object. The state contends that these remarks were not improper because they merely indicated that Mayhorn acted in self-defense on a previous occasion. We disagree with the state’s characterization.

Although the district court excluded evidence about Mayhorn’s previous conviction for felony possession of a handgun, it admitted evidence of the shoot-out. Because the state’s line of questioning related specifically to the shoot-out, and not to May-horn’s prior conviction for a separate offense, we conclude that it did not provide the jury with any excluded evidence on the prior conviction. But with this line of questioning, the state capitalized on and compounded the court’s error in having admitted evidence of an alleged shoot-out between the defendant and the victim. We further note that this was not an isolated incident — the state referenced the shoot-out directly or indirectly a total of 13 times during cross-examination, once during closing argument, and once during its rebuttal to Mayhorn’s closing argument. The fact that the prosecutor made repeated references to the shoot-out affects our analysis of the impact of the prosecutor’s misconduct.

Additionally, the tenor of the prosecutor’s remarks appears to have been intended to inflame the passions and prejudices of the jury. A prosecutor must not appeal to the passions of the jury. Porter, 526 N.W.2d at 365. When credibility is a central issue, this court pays special attention to statements that may inflame or prejudice the jury. State v. Morton, 701 N.W.2d 225, 236 (Minn.2005). Credibility was a central issue in this case. Some of the strongest evidence against Mayhorn was the testimony of Dickey and Longmire regarding Mayhorn’s role in the shooting and the testimony of two other witnesses, Steven Johnson and Nicole Jordan, regarding telephone conversations they had had with Mayhorn that afternoon. We conclude that by engaging in this line of questioning, the prosecutor appealed to the passions of the jury and thereby committed misconduct.

Commenting on the Defendant’s Failure to Call a Particular Witness

Mayhorn argues that the prosecutor committed misconduct when she commented on his failure to call April as an alibi witness. Mayhorn did not object. Mayhorn and Ali had visited with April on their way into Moorhead on August 28, the day before Jordan’s murder. During the state’s cross-examination of Mayhorn, the following exchange occurred:

Q: What’s April’s last name?
A: I don’t know her last name.
Q: Never thought that it would be smart maybe to get your investigator to find out who April was and have her come in because she could help you with an alibi too, couldn’t she?
A: I mean—
Q: Never thought of that, huh?

It is well-settled that a prosecutor may not comment on a defendant’s failure to call a witness. State v. Fields, 306 Minn. 521, 522, 237 N.W.2d 634, 634 (1976). There are two reasons for this rule: (1) the comment suggests that the defendant bears some burden of proof; and (2) the comment suggests that the defendant did not call the witness because his or her testimony would be unfavorable. Id. at 522, 237 N.W.2d at 634. We conclude that the state committed misconduct in asking this question, and compounded the error by repeating it.

Intentionally Misstating the Evidence and Asking a ‘Were They Lying?” Question

Mayhorn argues that the prosecutor committed misconduct by misstating the evidence regarding the shoot-out during cross-examination of Mayhorn. We agree. The state called Nicole Jordan as a witness, and elicited the following testimony on direct examination:

Q: Okay. So do you know of any conflict between your brother and [May-horn] when they were down in Kok[o]mo?
A: He mentioned a couple of times that they got into it, you know. He wouldn’t get into deep details * * *.
:}c ⅜ * ⅜
Q: Now, you told us that you had talked to your brother and he said there was some conflict down in Kok[o]mo, is that right?
A: Yeah.
Q: And that was between him and [Mayhorn]?
A: Yeah.
Q: Did your brother ever tell you that he got shot at?
A: Yeah.
Q: By anybody?
A: He said it before, yeah.

Later, in the state’s cross-examination of Mayhorn, the following exchange occurred without objection:

Q: Mr. Mayhorn, you were in the courtroom when Nicole Jordan testified that she knew of a shootout that you and her brother were in in Kokomo, right?
A: No. She — I don’t remember her saying anything about a shootout.
Q: You don’t remember her saying that from that witness stand * ⅜ *? She talked about a shootout in Kokomo [involving Jordan and Mayhorn].
A: No, because TJ and I were never in a shootout in Kokomo.
Q: So you would remember that, right?
A: Yes.
Q: So Nicole Jordan must have been lying from the witness stand, is that correct?

We conclude that the prosecutor’s questions misstated Nicole Jordan’s testimony. Because of the earlier arguments to the court regarding the admissibility of the shoot-out recording, the state should have been sufficiently familiar with Nicole Jordan’s testimony to avoid inadvertently misstating it. We therefore conclude that this misstatement was intentional. A prosecutor commits misconduct by intentionally misstating evidence. See State v. Torres, 632 N.W.2d 609, 618 (Minn.2001); State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (quoting Standards for Criminal Justice § 3 — 5.8(a) (1979)) (“It is unprofessional conduct for the prosecutor intentionally to misstate the evidence * * *.”). We conclude that the prosecutor’s misstatement of Nicole Jordan’s testimony constituted misconduct. Mayhorn argues that the prosecutor compounded the error of misstating Nicole Jordan’s testimony when she asked him, “So Nicole Jordan must have been lying from the witness stand, is that correct?” We agree. This court has not adopted a blanket prohibition of “were they lying” questions, but “such questions have no probative value and are generally improper.” Clifton, 701 N.W.2d at 801. We conclude that this question- — ■ to which Mayhorn objected at trial — constituted misconduct.

Referring to Threats Not in Evidence

Mayhorn argues that the prosecutor committed misconduct by referring to apparent threats in telephone calls that were not in evidence. Mayhorn objected. The relevant exchange took place during the state’s cross-examination of Mayhorn:

Q: We listened to a tape and you talked about putting the dogs on ya. Do you remember that?
A: Yes.
Q: I know what to say to put my dogs on ya, but I don’t know what to say to get them off, right?
A: Yeah. I was talking to my little sister.
Q: Well, you’ve said that three times in your phone calls, Mr. Mayhorn. Not just to your sister.
* * * *
Q: Right, but you said it again to another man you were talking to on November 2nd, didn’t you? Do you remember saying that? I know what to say to put my dogs on you. I don’t know what to say to get them off. You heard me. Do you remember saying that?
A: I remember saying it to my sister. I might have said it a few more times after that.
Q: Right. You said it a few more times when you were talking to people, especially because you want people to know who you’re talking to, that even though you’re not available right now that you still have the means to get them, right?
A: No.

The court excluded portions of the shoot-out recording in which Mayhorn said he could “put the dogs on ya” to the person he identified on cross-examination as his sister. But Mayhorn himself introduced the “put the dogs on ya” portion of the conversation with his sister as part of his effort to demonstrate that the T.J. referenced in the shoot-out recording was Trillus Bailey, Jr. The record suggests that there were other telephone calls in which Mayhorn discussed “putting the dogs on” people, but none of these recordings were admitted into evidence. Because of the court’s earlier ruling excluding Mayhorn’s statement that he could “put the dogs on” his sister, the state had no good faith basis to believe that the court would have admitted statements by Mayhorn to other individuals that he could “put the dogs on” them. Because the state had no good faith basis to believe these apparent threats would have been admissible, we conclude that the prosecutor committed misconduct by referring to them during cross-examination of May-horn.

Aligning Self with the Jury and Character Attacks

Mayhorn argues that the prosecutor committed misconduct by stating, “This is kind of foreign for all of us, I believe, because we’re not really accustomed to this drug world and drug dealing.” Mayhorn objected. We have held that a prosecutor’s statement describing a defendant as not being from the same world as the jurors is not misconduct when “these comments did little more than prepare the jury for evidence of an unfamiliar world involving drugs.” State v. Robinson, 604 N.W.2d 355, 363 (Minn.2000), denial of habeas corpus affirmed by Robinson v. Crist, 278 F.3d 862 (8th Cir.2002). But it is improper for a prosecutor to highlight the defendant’s racial or socioeconomic status as a way to put evidence in context. See State v. Ray, 659 N.W.2d 736, 746-47 (Minn.2003) (noting that prosecutors should avoid inviting jurors to apply racial and socio-economic considerations). Although the challenged statement refers explicitly to “this drug world,” we note our concern that there may have been instances in this trial in which the state attempted to highlight cultural differences between the predominantly white jury and the defendant. For example, at one point during cross-examination, the prosecutor asked Mayhorn, who is African American, a question about the “white girls that you were hanging around with in Fargo-Moorhead.”

Furthermore, the prosecutor appears to have used impeachment devices as a thinly-veiled character attack. During cross-examination of Mayhorn, the prosecutor asked him nearly 40 questions about his various girlfriends and “baby mamas,” including one series of questions comprising more than five pages of trial transcript. The prosecutor repeatedly asked if Mayhorn’s girlfriends knew about each other, and when he responded in the negative the prosecutor asked if this meant Mayhorn was lying to his girlfriends. Mayhorn twice objected to this line of questioning. In closing argument, the prosecutor stated “[Mayhorn] admits that he is a habitual liar,” based in part on his responses to these questions.

“By voluntarily testifying in his own behalf, the accused opens up only the issue of his credibility, not his general character.” State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973). Under Minn. R. Evid. 608(b), specific instances of the conduct of a witness may be inquired into on cross-examination if they are probative of the witness’s truthfulness or untruthfulness. The New Hampshire Supreme Court has held that “[although illegal and immoral, adultery do[es] not relate directly to truthfulness.” State v. Moses, 143 N.H. 461, 726 A.2d 250, 253 (1999) (citation and quotation marks omitted; second alteration in original). We agree that adultery is not probative of a witness’s truthfulness, and conclude that the same rationale applies to an unmarried person involved in more than one romantic relationship. We therefore conclude that the prosecutor engaged in improper impeachment and that this line of questioning amounted to an attack on Mayhorn’s character, not his credibility.

Finally, even to the extent it is permissible to describe a “drug world” of which the jury is not a part, it does not follow that a prosecutor may describe herself and the jury as a group of which the defendant is not a part. A prosecutor is a “minister of justice” whose obligation is “to guard the rights of the accused as well as to enforce the rights of the public.” Salitros, 499 N.W.2d at 817 (quoting ABA Standards for Criminal Justice § 3-1.1 cmt. at 3.7 (2d ed.1979)). On a more basic level, a prosecutor is not a member of the jury, so to use “we” and “us” is inappropriate and may be an effort to appeal to the jury’s passions. We conclude that the prosecutor committed misconduct when she attacked Mayhorn’s character and aligned herself with the jury.

Commenting on the Defendant’s Opportunity to Tailor His Testimony

We next consider Mayhorn’s argument that the prosecutor committed misconduct by repeatedly questioning May-horn about his opportunity to review the state’s evidence before testifying in his own defense. Mayhorn objected to some of these questions. The prosecutor asked Mayhorn if he knew what Nicole Jordan, Nicole Johnson, and Steven Johnson had “said” about the case before Mayhorn testified. She also suggested that Mayhorn’s statements to police differed from his testimony at trial because “you hadn’t read all the police reports and the story didn’t come to you then, did it?” In total, the prosecutor noted 10 times during cross-examination of Mayhorn and once during the state’s rebuttal to Mayhorn’s closing argument that Mayhorn had an opportunity to review the state’s evidence, including the testimony of several witnesses and thousands of pages of police reports, before testifying.

We have recently addressed the propriety of a prosecutor commenting on the defendant’s opportunity to tailor his testimony by his presence at trial and opportunity to review the evidence.

[T]he prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case. Without specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation. The exercise of this constitutional right, by itself, is not evidence of guilt.

Swanson, 707 N.W.2d at 657-58. The state cites no evidence that Mayhorn actually tailored his testimony to fit the evidence previously presented at trial. Because there is no evidence of actual tailoring, we conclude that the prosecutor’s remarks regarding Mayhorris opportunity to tailor his testimony constituted misconduct.

Commenting on the Credibility of a Witness

Finally, during her rebuttal to Mayhorn’s closing argument, the prosecutor commented that “Lyra” was an appropriate name for Lyra Robinson, who corroborated Mayhorn’s testimony. Mayhorn did not object. We understand this comment to suggest that Lyra Robinson was a liar. The state conceded at oral argument that this comment was inappropriate. We agree. It is improper for a prosecutor to give her own opinion about the credibility of a witness in closing argument. Porter, 526 N.W.2d at 364. This comment constituted prosecutorial misconduct.

III.

We turn to the question of remedy and consider whether the combination of the evidentiary errors and the multiple incidents and types of prosecutorial misconduct deprived Mayhorn of a fair trial. The state had a strong case against May-horn. Two witnesses, Dickey and Long-mire, testified that Mayhorn participated in planning the murder and drove the shooter to and from the murder scene. Mayhorn conceded at trial that his car and cell phone could have been present at the murder scene. Two additional witnesses testified that they spoke with Mayhorn shortly after the shooting. Cell phone records confirmed their calls to Mayhorn’s cell phone during this critical timeframe, and indicated that Mayhorn’s cell phone was traveling away from the Moorhead area at the time. We conclude that on the basis of the admissible evidence, a reasonable jury could have found Mayhorn guilty as charged.

But even the strongest evidence of guilt does not eliminate a defendant’s right to a fair trial. Harris, 521 N.W.2d at 355. “The role of the prosecutor and trial court is not simply to convict the guilty, they are also responsible for providing a procedurally fair trial.” Id. The state has an overriding obligation, shared by the court, to see that the defendant receives a fair trial, regardless of the defendant’s culpability. Id. (quoting State v. Sha, 292 Minn. 182, 185, 193 N.W.2d 829, 831 (1972)). Here, the state and the court failed to satisfy this overriding obligation. The prosecutor’s misconduct was a pervasive force at trial. She commented on the defendant’s credibility, appealed to the passions of the jury, commented on Mayhorn’s failure to call a witness, intentionally misstated evidence, asked a “were they lying?” question, referred to threats made by Mayhorn not in evidence, aligned herself with the jury, improperly attacked Mayhorn’s character, commented on May-horn’s opportunity to tailor his testimony, and commented on the credibility of a witness. At least 20 pages of the prosecutor’s 80-page cross-examination of the defendant evince prosecutorial misconduct. The scope of the misconduct in this case is unprecedented in this court’s memory and calls to mind the words of Judge Jerome Frank of the Second Circuit:

This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said, that nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. * * * If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. * * * Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.

United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.1946) (Frank, J., dissenting).

Because of the number of errors and the seriousness of some of them, we are unable to determine whether the jury based its verdict on the admissible evidence and the reasonable inferences derived therefrom, or on the state’s pervasive misconduct and the consideration of evidence that should have been excluded.

We are mindful that the constitution guarantees a fair trial — not a perfect or error-free trial. See State v. Greenleaf, 591 N.W.2d 488, 505 (Minn.1999). But if we are to sustain a murder conviction, we must be able to conclude that the conviction was based on admissible evidence presented at a fair trial.

The questions before the jury in this case were whether Mayhorn planned and participated in the murder of Nasean Jordan and participated in the shooting of Janney Garcia. Because of numerous incidents and types of prosecutorial misconduct and two evidentiary errors, we are not able to conclude that “the jury had a reasonable opportunity to focus on [those] question[s].” Harris, 521 N.W.2d at 355. We conclude that the cumulative effect of the prosecutorial misconduct and eviden-tiary errors in this case denied Mayhorn the right to a fair trial. We therefore reverse his convictions and remand the case for a new trial.

Reversed and remanded for a new trial.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, G. BARRY, Justice

(dissenting).

The majority holds that Mayhorn’s convictions must be reversed because of the cumulative effect of evidentiary errors and prosecutorial misconduct. While I agree that Mayhorn’s trial was far from perfect, and I certainly do not seek here to excuse wrongful conduct on the part of the prosecution, I cannot conclude on this record that the state and the district court failed in their joint obligation to ensure a fair trial.

Analysis of this case for cumulative error is complicated because some errors were properly preserved for appeal by appropriate objection and others were not. Of course, an error that is preserved for appeal may ultimately be determined to be harmless and not grounds for reversal. See Huff v. State, 698 N.W.2d 430, 437 (Minn.2005). Concerning errors to which no objection was taken, the governing analysis is plain error and, as the majority notes, plain error must affect a defendant’s substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

These same analyses apply when analyzing the cumulative effect of errors. With respect to errors to which no objection was taken, when applying the plain-error test of Griller, the key issue is whether the errors collectively affected Mayhorn’s substantial rights such that reversal is the appropriate remedy. And, even if a determination is made that the errors affected substantial rights, we must determine whether the errors should be addressed to ensure the fairness and integrity of the judicial proceedings. See Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As to the cumulative effect of errors to which objections were made, we have ultimately inquired whether the cumulative effect of the error was harmless. See State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998) (“[W]e cannot conclude on this record that the cumulative effect of these errors was harmless beyond a reasonable doubt.”).

The majority concedes that the state had strong evidence of Mayhorn’s guilt and describes that evidence in some detail. Because I conclude the evidence of Mayhorn’s guilt was overwhelming, the cumulative effect of the errors to which objection was taken was harmless, and the errors to which Mayhorn did not object did not cumulatively affect his substantial rights or the overall fairness and integrity of the judicial proceedings.

A word should be said about our standard for determining whether prosecutorial misconduct to which objection was taken requires reversal. Reversal is warranted “only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). As the majority notes, we have historically applied a two-tiered standard and recently have chosen to apply a higher standard to the effect that a defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt. Compare State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (using two-tiered standard), with State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006) (applying harmless beyond a reasonable doubt standard).

But however it is formulated, harmless-error analysis is a linchpin in the analysis of prosecutorial misconduct to which proper objection was taken and consideration of whether or not a new trial should be granted. See Bennett L. Gershman, Pros-ecutorial Misconduct § 14:3 (2d ed.2005). In federal cases, the Supreme Court has required reviewing courts to employ harmless-error analysis in prosecutorial misconduct cases. See United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (“Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless,- including most constitutional violations”); Chapman v. California, 386 U.S. 18, 24-26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (applying harmless-error analysis to constitutional errors in a prosecutorial misconduct case, including improper comment on the defendant’s failure to testify at trial).

My point in this analysis is that whether we apply the lower standard set out in Caron (distinguishing between constitutional and non-constitutional violations), the higher standard which we have more recently applied {Swanson), or some other standard for evaluating prosecutorial misconduct, in any circumstance we look to whether the misconduct was harmless. In any event, the strength of the evidence is such that it is unnecessary to finally resolve the issue of which standard we should apply when analyzing the misconduct to which Mayhorn objected below. I would decline to reverse based on cumulative error as it relates to prosecutorial misconduct and evidentiary errors.

Finally, the majority, relying on State v. Harris, 521 N.W.2d 348 (Minn.1994), concludes that the cumulative effect of the errors and misconduct requires reversal and indicates that, since these trial errors violated Mayhorn’s right to a fair trial, he is entitled to a new trial regardless of the strength of the evidence of guilt. While I certainly do not excuse the conduct of the prosecutor in this case, Harris involved prosecutorial misconduct of a more deliberate and pervasive nature than found here. Id. at 354 (describing how prosecutor, in violation of district court rulings, persistently sought to elicit inadmissible testimony concerning defendant’s prior bad acts). Essentially, the majority in this case prophylaetically reverses the verdict and orders a new trial in the face of overwhelming evidence of guilt. I would not do so and, under these circumstances, I respectfully dissent.

      . Moorhead, is approximately 250 miles from Woodbury. Mayhorn could not have participated in the shooting in Moorhead and then traveled to Woodbury within one hour.

      . A "baby mama” is the mother of one’s child, with whom one may or may not be in a current relationship.

      . A larger portion of this recording included an update by Nicole Johnson on several acquaintances involved in the murder investigation and their contact information. Mayhorn does not dispute the relevancy of those portions.

      . The state contends that the shoot-out was between Mayhorn and Jordan, and occurred in Kokomo, Indiana. Mayhorn's position is that the shoot-out occurred in Chicago between him and Trillus Bailey, Jr., the maternal uncle of two of Mayhorn's children.

      . Moreover, we note that this question may have been confusing to the jury. It is not clear whether the state's intention was to imply that April played a greater role in these events than the evidence suggests, or to imply that Mayhorn was prone to fabricating alibis. We note that neither objective is proper.

      . It appears that one juror may have been of Latino ethnicity.


source: Caselaw Access Project

author: MEYER, Justice. PAGE, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Said Moussa GOULEED, Respondent.
    No. A04-700.
    Supreme Court of Minnesota.
    Sept. 7, 2006.

      Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Asst. Ramsey County Attorney, St. Paul, MN, for appellant.
    Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

Said Moussa Gouleed was found guilty of second-degree unintentional felony murder for the death of his 6-week-old daughter. He was retried after the district court in the first trial sua sponte ordered a mistrial because of a discovery violation by the defense’s expert witness. The court of appeals reversed the orders declaring a mistrial and denying the motion to bar a retrial, and reversed Gouleed’s conviction. We determine that the record of the first trial showed a manifest necessity for a mistrial because Gouleed’s expert failed to disclose testing he had done related to a critical evidentiary issue in the trial, and we conclude that Gouleed was not unconstitutionally subjected to double jeopardy. We reverse the court of appeals in part, reinstate Gouleed’s conviction, and remand for resentencing.

At about 7:30 p.m. on November 8, 2002, Gouleed’s wife took the couple’s 2$-year-old son and left their 6-month-old infant, F.M., in Gouleed’s care. The complaint alleged that Gouleed told officers that, while he was watching F.M., he took F.M. out of her crib to give her a bottle because she was crying. Gouleed also told officers that he tripped over an infant chair while carrying F.M., causing him to drop her. He said her head hit the floor, then she “jumped” up and her head hit the wall.

According to Gouleed’s wife, when she returned a little after 9 p.m., she found Gouleed cradling F.M., who was not breathing. Gouleed’s wife called 911, and F.M. was taken to Children’s Hospital in St. Paul where she was pronounced dead just after 11 p.m.

Dr. Michael McGee, the Ramsey County medical examiner, performed an autopsy on F.M. the next day. Dr. McGee documented the following injuries: significant, depressed fractures on both sides of her skull; multiple healing fractures to her ribs; bi-lateral femur fractures; healing fractures of a forearm, wrist, and finger; contusions on her head, face, chest, and arms; and bruising on both of her legs. According to the complaint, Dr. McGee’s provisional report concluded that the cause of death was injuries resulting from child abuse and the manner of death was homicide. Gouleed was charged with second-degree unintentional felony murder in violation of Minn.Stat. § 609.19, subd. 2(1) (2004).

The defense hired an expert forensic pathologist, Dr. John Plunkett, assistant coroner for the Minnesota Regional Coroner’s Office, whose practice is focused on infant head injuries. On July 18, 2003, several months before his testimony, Dr. Plunkett issued a letter reporting his opinion on the cause of F.M.’s death. He based his opinions on his review of clinic and hospital records, Dr. McGee’s autopsy report, including photos and microscopic slides, a consultation report from an ophthalmologist and another doctor, as well as police reports. Dr. Plunkett did not indicate that he had conducted any testing in preparing his report. He referred to microscopic slide evidence in his report stating that “[b]oth impact sites [on F.M.’s head] are associated with a large number of iron-positive macrophages in the inflammatory infiltrate * * *. The iron-positiv[i]ty means that at least a portion of the hemorrhage and associated injury occurred at least 4-5 days before her death.” He specifically referenced Dr. McGee’s microscopic slides numbered 11, 16, and 18 containing samples taken from F.M.’s scalp, and slides T1 through T4 containing samples taken from the dura membrane. Dr. Plunkett opined that “[e]ven the skull fracture or fractures could have occurred significantly earlier” than November 8, 2002. Dr. Plunkett concluded that it was unlikely that an accident like that described by Gouleed would have caused F.M.’s death “unless a preexisting injury contributed to the fatal outcome.”

In preparation for trial and with Gou-leed’s counsel present, the state interviewed Dr. Plunkett and questioned him at length about his letter report. He said in the interview that it was “likely that this child had the [skull] fractures four or five days before [her death].” In the interview, Dr. Plunkett repeated his opinion that the microscopic slides indicated that F.M. had significant preexisting brain injuries, and he mentioned that iron pigment in microscopic slides from the injured area supported his position. But he did not indicate that he had performed his own testing on slides he had received from Dr. McGee.

After delays prompted by Dr. Plunkett’s schedule, Gouleed’s trial began October 31, 2003. On November 4, Gouleed moved for a mistrial after Dr. David Kispert, a neuroradiologist who had reviewed a CT scan of F.M.’s injuries, testified that he did not agree with the opinion attributed to him in another doctor’s report that there were indications of subdural blood of various ages in F.M.’s head injuries. Gouleed argued that a mistrial was “absolutely necessary” because the state had failed to disclose a meeting it had had with Kispert before trial. The court denied the motion for a mistrial but struck all of Kispert’s testimony.

Gouleed requested another mistrial the next day when a juror cried during Dr. McGee’s testimony. That motion also was denied.

In his trial testimony, Dr. McGee stated that the microscopic slide evidence showed injury in the thighs and head, but that these previous head injuries were not causally related to F.M.’s death. Dr. McGee said that a fall as described by Gouleed could not have caused the injuries that killed her. Dr. McGee also indicated that his examination revealed subdural and subarachnoid hemorrhaging, as well as hemorrhaging at the base of F.M.’s brain. He noted he had seen accidental injuries such as she had suffered only in unrestrained children who had been in car accidents; F.M. could not have carried on normal activities for four to five days with such injuries; and it was unlikely that her 2)£-year-old brother could have caused such injuries. He concluded that F.M. died from at least three impacts that had occurred within hours of her death, resulting in closed head trauma and produced by child abuse.

On cross-examination, Dr. McGee agreed that iron slides (i.e., autopsy samples stained with iron) were needed to effectively date F.M.’s subdural hematoma, and he indicated iron slides had been done in F.M.’s case. Defense counsel did not further inquire about the nature, extent, or results of the iron-staining, nor did the defense ask when the staining had been done or who had done it. The prosecutor, on direct examination, had not specifically asked Dr. McGee about the iron-stained microscopic slides and did not follow up with any questions about iron-staining on redirect. ■ No microscopic slides or images of microscopic evidence were admitted during Dr. McGee’s testimony.

The defense called Dr. Plunkett as an expert witness. After the typical questions about Dr. Plunkett’s credentials, defense counsel established the foundation for admission of exhibits Dr. Plunkett would rely on during his testimony:

Q [By defense attorney] Showing you what’s been marked Exhibit 90 through 101. Do you recognize those?
A Yes, sir, I do.
Q Okay. What are those?
A These are prints of a power point presentation that I prepared from slides from the autopsy on [F.M.].
Q Okay. And how do you know that these documents are from [F.M.]?
A Well, I received the slides from the Ramsey County Coroner’s Office. I looked at the slides, which had a key to go with the slides. The key corresponded with the slides that I was looking at. And so I assume that those, in fact, did come from [F.M.].
Q Did the slides and the codes from the autopsy correspond with what you were looking at under the microscope?
A Yes, they did. And I have labeled the slides — the designations on these slides. 14 refers to slide number 14. And I used A, B, C, D or E for various magnifications [sic] powers. And it’s listed, the staining and the magnification power is listed.
[Defense attorney]: Your Honor, I would offer Exhibit 90 through 101.
[Prosecutor]: No objection, Your Honor.
The Court: Exhibits 90 though 101 are received without objection.

Dr. Plunkett proceeded to testify, illustrating his analysis of F.M.’s injuries with photographs of the slides; each exhibit had two images. In testimony covering 12 pages of transcript, Dr. Plunkett showed and discussed 13 of the images: three of samples taken from F.M.’s right thigh, two of which were iron-stained; and 10 of samples taken from her head, six of which were iron-stained. Dr. Plunkett testified specifically about iron-stained slides of samples from the left and right occipital scalp (apparently in the same areas where there were skull fractures), saying they showed evidence of injury occurring at least four or five days before F.M.’s death. In the course of his testimony, Dr. Plunk-ett said the iron-staining was done because, “It’s the best way to try to date something that may be more than four to five days old.”

In short, Dr. Plunkett testified specifically and in some detail about iron-staining, stating that it supported his conclusion that F.M. had head injuries that significantly predated her death. Dr. Plunkett’s testimony was more specific than Dr. McGee’s general acknowledgement that there was evidence of old hemorrhage in F.M.’s head injuries and that iron-staining could date a subdural hema-toma.

After discussing 12 separate images, Dr. Plunkett indicated, to the apparent surprise of both parties, that he had iron-stained the slide to which he was referring. The state interrupted and, after a discussion off the record, defense counsel asked Dr. Plunkett:

Q Are these exhibits the way that you got them from the pathologist of Dr. McGee?
A They are labeled. 35 corresponds to Dr. McGee’s slide 35. 18 corresponds to Dr. McGee’s slide 18 and so forth[.]
Q And did you do anything to these slides? These are as they came; is that correct?
A Well, the H & E’s are as they came. The irons are as I did them.
Q You did those?
A Yes.

The state objected and the jury was removed. Defense counsel indicated that he thought Dr. Plunkett was testifying based on the slides as prepared by Dr. McGee. The state contended that it was surprised by Dr. Plunkett’s staining, which the state described as “obviously * * * critically relevant to what he’s testifying to.” The state made a motion to strike all of Dr. Plunkett’s testimony, maintaining that if it had known that Dr. Plunkett had done his own iron-staining, it would have objected when the exhibits were offered for admission. The state further argued that striking Dr. Plunkett’s entire testimony was the only fair thing to do because the court had already struck Kispert’s testimony. Gouleed opposed the motion to strike on the grounds that it would leave Gouleed without support for his theory of the case and argued that Dr. Plunkett’s July 2003 report had been adequate disclosure.

The court stated that the undisclosed testing represented evidence that went to “the very essence of this case.” The court called a recess to take the state’s motion under advisement and give the state a chance to review Dr. Plunkett’s photos with Dr. McGee and consider remedial steps; the court specifically noted the possibility of a continuance. The bulk of the discussion upon reconvening roughly two hours later concerned the nature of the discovery violation and how it came about. There was no discussion on the record as to the contents or the results of the state’s discussions with Dr. McGee. With regard to remedy, Gouleed argued that Dr. Plunk-ett’s testimony should not be stricken, and instead proposed that the court allow Dr. Plunkett to continue to testify regarding the iron positivity in F.M.’s cells and his conclusions based on it, but preclude Dr. Plunkett from showing additional photographs and have the jury disregard the pictures that were shown.

The court reasoned that because Dr. Plunkett had used his iron-stained slides to create the July 2003 report, the defense had an obligation to disclose the additional testing at that time, and that instructing the jury to disregard the testimony may not be an adequate remedy. The court indicated it was “in the mode of saying that there’s a mistrial,” because it did not want to deprive the defendant of his case. Nonetheless, the court took another break to allow the parties to consider the options of a continuance to prepare for rebuttal (presumably by Dr. McGee) or mistrial. After the recess and, apparently, some discussion in chambers, the court indicated that it had decided on a mistrial and noted its expectation that retrial would begin December 1.

What followed was an effort to put the parties’ conflicting positions on the record. The state indicated that it opposed a continuance, arguing that no rebuttal could undo the impression that Dr. Plunkett had “exposed the state and the state has to try to respond. I don’t think there’s any way to get around that by a continuance.” As such, the state indicated that a continuance was “not adequate.” Defense counsel requested a continuance rather than a mistrial, but noted, “I’ve been told that that’s not going to happen” — apparently referring to an off-the-record conversation in chambers.

The court declared a mistrial, then explained its decision to the jury:

[Q]uite frankly, with the stuff that was coming in today from defendant’s expert, I saw no way that I could tell you to disregard certain portions of the testimony. Nor do I think it would have been fair to the defendant to disqualify his expert * * *. He would have been left without any expert.
So with those being the options, the state felt that a continuance into next week might not have been appropriate. They just didn’t know if they had the time that they could have gotten with their experts to look at the slides that were coming in.

There is no discussion on the record of the possible double-jeopardy consequences of a mistrial.

Before retrial, Gouleed moved to dismiss the charge on double-jeopardy grounds. The district court denied the motion, stating that “the state was deprived of a fair trial when the defense did not provide full disclosure of its expert’s basis for opinions going to [the] very heart of the issue — the age of the injuries.”

The second trial commenced on December 1, 2003. Gouleed employed a different expert for the second trial. The jury in the second trial found Gouleed guilty and he was sentenced to 225 months in prison. Gouleed appealed to the court of appeals. The court of appeals reversed the orders declaring a mistrial and denying the motion to bar the retrial, and reversed Gouleed’s conviction, saying that it was “unable to reach any principled conclusion that there was a manifest necessity for a mistrial or that the [trial] court and counsel appropriately investigated and examined measures short of a mistrial to remedy the discovery violation.” State v. Gouleed, A04-700, 2005 WL 1216294, at *10-11 (Minn.App. May 24, 2005). This appeal followed.

Both the federal and state constitutions prohibit trying a criminal defendant twice for the same crime. U.S. Const, amend. V; Minn. Const, art. 1, § 7. A criminal defendant who objects to the declaration of a mistrial cannot be retried unless there was a “manifest necessity” for the mistrial or the ends of public justice would otherwise be defeated. Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (citing the “fountainhead” decision on a mistrial granted over defendant’s objection, United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)); State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985); State v. Gwara, 311 Minn. 106, 108-09, 247 N.W.2d 417, 419 (1976).

The application of the constitutional protection against double jeopardy is reviewed de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn.1999). But we review trial court decisions to declare a mistrial sua sponte without the consent of the defendant for an abuse of discretion. State v. Miller, 573 N.W.2d 661, 675 (Minn.1998). Review of the district court’s decision, though, is rigorous, because a constitutionally protected interest of the defendant is implicated by mistrial. See Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (stating that “reviewing courts have an obligation to satisfy themselves that * * * the trial judge exercised ‘sound discretion.’ ”). We have stated, “A high degree of necessity — not absolute necessity — must exist before a mistrial is appropriate.” State v. Long, 562 N.W.2d 292, 296 (Minn.1997), habeas corpus granted by Long v. Humphrey, 184 F.3d 758 (8th Cir.1999).

The Supreme Court has noted the fact-intensive quality of the manifest necessity standard. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (noting that the standard “abjures the application of any mechanical formula,” id. at 462, 93 S.Ct. 1066; and “virtually all of the cases turn on the particular facts and thus escape meaningful categorization,” id. at 464, 93 S.Ct. 1066); see also United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (noting, in a case affirming the application of the Double Jeopardy Clause to bar retrial, that “a mechanical rule prohibiting retrial * * * would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment”). We likewise have found that the standard is a flexible one that seeks to achieve fairness for the prosecution, the defendant, and the public interest. Long, 562 N.W.2d at 296 (citing United States v. Givens, 88 F.3d 608, 613 (8th Cir.1996)).

There is no dispute about whether there was a discovery violation in Gou-leed’s first trial. Rather, the issue is whether there was a manifest necessity for the mistrial. As the Court noted in Arizona, the intensity of the scrutiny applied to a decision to grant a mistrial is a function of the nature of the trial problem that prompted the motion: “[I]t is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. 824. A request for a prosecutor to buttress weaknesses in the state’s evidence cannot be justified, id. at 507, 98 S.Ct. 824, whereas, a mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict has long been considered the classic basis for a proper mistrial, id. at 509, 98 S.Ct. 824. In this case, while the state cannot have been wholly surprised by the nature of Dr. Plunkett’s testimony, it is evident in the record that, before trial, Dr. Plunkett deliberately and repeatedly avoided revealing that he had conducted additional testing on the autopsy samples, a violation of the spirit and letter of the discovery rules. Minnesota Rule of Criminal Procedure 9.02, subd. 1(2), requires the defense, upon request, to disclose the results of tests that will be introduced or relate to testimony of one of its witnesses. Dr. Plunkett’s evasiveness, exacerbated by defense counsel’s apparent failure to effectively communicate with its witness, resulted in a trial problem that was not caused by government overreaching.

We agree with the district court’s observation that the discovery violation went to the very heart of the state’s case, in contrast to the court of appeals’ conclusion that “[t]he sole function of the undisclosed slides was to corroborate a point that was not in contention,” State v. Gouleed, No. A04-700, 2005 WL 1216294, at *6 (Minn.App. May 24, 2005). We observe that the iron-stained slides provided a visual basis and critical support for Dr. Plunkett’s conclusion that some of F.M.’s injuries significantly predated her death. Dr. Plunkett’s nondisclosure cannot be characterized as an inconsequential detail related to an uncontested point — indeed, the medical significance of the prior injuries was the only real issue at trial. See State v. Lindsey, 284 N.W.2d 368, 374 (Minn.1979) (noting that “[t]he values sought to be achieved through reciprocal discovery will be attained only if the rules are properly observed, and to this end the trial courts must have the ability to make those obligations meaningful.”). The iron-staining was new evidence to which the state would have had to respond, and the state should have had this evidence in advance of trial.

The discrepancy between the court of appeals’ and the district court’s assessments of the impact of the undisclosed iron-staining evidence on the fairness of the proceedings implicates the well-established maxim that the district court is “best situated to decide whether, for compelling reasons, ‘the ends of substantial justice cannot be attained without discontinuing the trial.’” Long, 562 N.W.2d at 296 (quoting Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961)); see also Long, 184 F.3d at 761 (noting that “mere disagreement with the [trial] court’s conclusion is not enough to warrant habeas relief.”) (citation omitted). The district court arrived at a dispositive conclusion that there was “no way that I could tell you [the jury] to disregard certain portions of the testimony. Nor do I think it would have been fair to the defendant to disqualify his expert * * Ultimately, the court granted the mistrial based on its determination that continuing the trial would not be fair to either party.

Gouleed argues that deference should not be given to the district court because it failed to discuss the double-jeopardy consequences of a mistrial on the record and failed to fully explore alternatives less drastic than a mistrial. Whatever the shortcomings of the district court’s consideration of ramifications, the mistrial decision cannot be said to have been made rashly or altogether without consideration of alternatives. The court took two recesses to allow the parties to ascertain the nature of the violation and to consider remedies. Discussions in chambers were had. A continuance and the excision of testimony were at least considered by the court.

The difficulties of Gouleed’s trial (the delays, the two prior mistrial motions, the striking of the testimony of one of the state’s witness) and the dramatic confusion as to who iron stained which slides compel deference to the district court’s perspective. The record here, while somewhat lacking, does not present the situation found in Jom, where the Court noted that the trial court “made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial.” 400 U.S. at 487, 91 S.Ct. 547 (affirming that double jeopardy precluded retrial where the trial court acted “abruptly,” such that the parties had no time to discuss alternatives to mistrial); id. at 487-88, 91 S.Ct. 547 (Burger, C.J., concurring) (noting that the “frustration of the right to have this case tried [was] attributable solely to the conduct of the trial judge.”).

We conclude that Gouleed’s right to have his trial completed by a particular tribunal is an interest that must be subordinated to the public interest in fair trials designed to end in just judgments. See Arizona, 434 U.S. at 505, 98 S.Ct. 824. The Supreme Court has said that a trial judge properly exercises his discretion when he declines to continue a trial after an error has occurred that will undoubtedly subject a verdict of conviction, if one is reached, to reversal. Somerville, 410 U.S. at 464, 93 S.Ct. 1066. Striking all or some of Dr. Plunkett’s testimony was a remedy available to the court, but such a remedy would have been a severe sanction for a discovery violation. See State v. Freeman, 531 N.W.2d 190, 197-98 (Minn.1995). Ordering the case to be retried preserved Gouleed’s ability to fully present his defense and avoided a trial error that would have undoubtedly subjected a verdict of conviction to reversal. See State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000) (noting that a criminal defendant has a right, albeit not an unlimited one, to present his defense).

Policy reasons weigh against prohibiting the retrial of Gouleed. The constitutional protection against double jeopardy is rooted in the idea that

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see also Jorn, 400 U.S. at 479, 91 S.Ct. 547 (noting that permitting repeated government prosecutions would cut deeply into double-jeopardy protections). We do not find anything in the record to suggest that the state took any action to precipitate the mistrial. To permit the defendant’s key witness to commit a serious discovery error and then to bar retrial of the case would not serve the principles rooted in the double-jeopardy doctrine.

We reverse the court of appeals’ reversal of the district court’s orders declaring a mistrial and denying the motion to bar retrial. We reinstate Gouleed’s conviction and remand to the district court for resen-tencing in accord with the court of appeals’ opinion. Gouleed, 2005 WL 1216294, at *11.

Reversed in part and remanded.

PAGE, Justice

(dissenting).

I respectfully dissent. In reversing the court of appeals, the court concludes that the trial court did not abuse its discretion in declaring the mistrial. I do not understand how the court can reach that conclusion when the trial court never considered the defendant’s constitutionally protected interest against double jeopardy and, therefore, failed to apply the manifest-necessity standard for declaring a mistrial. See Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (stating a reviewing court has the obligation to ensure that the trial courts exercised sound discretion in declaring a mistrial).

The record indicates that during trial the state’s medical expert, Ramsey County Medical Examiner Dr. Michael McGee, testified that based on his examination he believed that F.M. died from several skull fractures that she suffered shortly before her death. According to Dr. McGee, F.M.’s injuries were the result of child abuse and not a fall as described by Gou-leed. Dr. McGee further testified that, although he found evidence of other, earlier injuries in F.M.’s thighs and head, he believed that these injuries, which were sustained before November 8, were not causally related to F.M.’s death. On cross-examination, Dr. McGee agreed that iron-staining was needed to effectively determine when F.M.’s skull fractures had occurred and he indicated that he had performed iron-staining in F.M.’s case.

In order to counter Dr. McGee’s testimony, Gouleed presented expert testimony from Dr. John Plunkett. Dr. Plunkett was of the opinion that Gouleed’s actions on November 8 were not the cause of F.M.’s death. Relying on the iron positivity in iron-stained autopsy slides, Dr. Plunkett testified that the injuries that caused F.M.’s death occurred four or five days before F.M.’s death. The state objected to Dr. Plunkett’s testimony when Dr. Plunk-ett indicated that he had performed independent iron-staining on some of the autopsy slides. A bench conference out of the hearing of the jury ensued. During that conference, the state requested that the trial court strike Dr. Plunkett’s testimony in its entirety, stating:

Here we’ve got a series of slides that the state has never seen and a whole series of testimony about those slides which are the slides [Dr. Plunkett was] testifying to to date these injuries. A critical issue in this case.

Gouleed’s counsel responded that Dr. Plunkett’s testimony should not have been “a huge shock” to the state because Dr. Plunkett had previously indicated in his July 18, 2003, report that the iron positivity means that at least a portion of the hemorrhage and associated injury occurred at least four to five days before F.M.’s death.

In response, the state argued that the issue was not whether “this is an old injury,” which was acknowledged by Dr. McGee, but rather “there’s brand new slides that have never been disclosed before that [Dr. Plunkett] dropped on us for the first time. And [Dr. Plunkett] is testifying regarding issues that are very prejudicial to the state on those very slides.” The state did not claim that either Dr. Plunkett’s testimony regarding the iron-staining done on the slides or the slides themselves contained any new evidence or facts, or resulted in any defense theories that were previously unknown to the state.

After listening to these arguments, the trial court declared a recess to give the state “the opportunity to take either the slides or the photographs and talk to [Dr. McGee],” so that the parties “can revisit the issue of whether or not, based on the disclosure made, that the state has been harmed.” The court also announced that it was going to “look very seriously at the lack of disclosure” because “we’re talking about the very essence of this case.” After the recess, the state informed the trial court that it “did get a chance to talk to [Dr. McGee]” and “it appears that what Dr. Plunkett had done is he received * ⅜ * an unstained set of slides [from the state,] [w]hich he has done his own procedures with in terms of staining for purposes of iron positivity.” Again, the state did not claim and there is no evidence in the record indicating that the iron-staining done by Dr. Plunkett produced evidence or facts or resulted in new defense theories that were previously unknown to the state.

The trial court agreed with the state that “the disclosure [regarding Dr. Plunk-ett’s own iron testing] should have gone to the direction of the state,” but stated that it was “not in a position at this point in time to tell the jury to disregard the testimony of Dr. Plunkett.” Rather, the court was “more in the mode of saying that there’s a mistrial[,] and we’re going to start over again” because the court did not “see any way out of it.” The court explained that if it granted the state’s request to strike then “[i]n this case we don’t have anybody else to present the defendant’s argument,” but it would not be “fair” to the state if the court “let the discovery violation go.”

The court stated:

So what’s the result? I mean to make it fair, we should have a much faster trial starting Monday than we are if this one gets kicked out today. That’s what I’d like to hear argument about as to whether with the remedy that I’m not going to disregard Dr. Plunkett’s testimony, there are two things that could happen: The state could have enough time to go over the exhibits with their expert and have him prepared for rebuttal testimony. Or I could go into the mode of saying we’re going to start over entirely.
* * * *
If you need some more time to think about my two standards right now. Continuance for an examination of the evidence for rebuttal, its medical people. Whether [Dr. McGee] is available may not be an issue for me right now. He’s going to have to be available. He’s on call for this week. So he’s under subpoena. I don’t care where he is[,] he still has to be here.
And the same thing with your people. So that’s what I’m facing right now. So if you need some time to consult each other and then deal with the court, that’s what I’m looking for: Either a continuance or a mistrial.

Further, the court did not believe that “a curative instruction to disregard [relevant slides]” was “going to cure [the discovery violation].”

After a short break, the trial court asked the state if there was anything the state wanted to put on the record. The state responded:

Only just, Your .Honor, to indicate that the state is concerned that a continuance of this trial not be an adequate remedy for the state.
Had the state been aware of the different slides earlier, we would have had our expert look at them. It may have— I don’t know until I have someone look at them. But it may have changed the way we put in our opening statement. It may have changed the way we brought in much of our testimony.
Certainly at this point, I think, it gives the appearance, if we just get a continuance and try to rebut the evidence, that somehow [Dr. Plunkett] has come in and exposed the state and the state has to try to respond. I don’t think there’s any way to get around that by a continuance.
The only option the state had brought to the court was to have [Dr. Plunkett’s] testimony stricken. If this is not stricken, the state feels like a continuance is not adequate.

Gouleed’s counsel indicated to the court Gouleed had requested him to “ask for the continuance versus the mistrial.” The trial court then declared: “Okay. It’s my intent then to bring the jury in and to direct them that the case, as far [as] they’re concerned, is closed and they’re done. And I’ll declare the mistrial.”

In this appeal, the parties disagree as to whether and to what degree Dr. Plunkett’s failure to provide full disclosure with respect to the slides he stained constituted a discovery violation. The state asserts in its brief that Dr. Plunkett committed a discovery violation that “could not have been more serious, either in substance or in timing, and it must be imputed to the defense.” Gouleed acknowledges only that there may have been a technical violation of the discovery rules. We need not, however, decide whether a discovery violation occurred because, even if we assume that the defense’s conduct at issue was a violation and therefore warranted some sanction by the district court, any violation that could have occurred does not justify the trial court’s decision to grant a mistrial.

As the court notes, both the United States and Minnesota Constitutions prohibit a criminal defendant from being tried twice for the same crime. U.S. Const, amend. Y; Minn. Const, art. 1, § 7. The United States Supreme Court has held that a criminal defendant who objects to a mistrial being declared may not be retried unless there was a “manifest necessity” for the mistrial or the ends of public justice would otherwise be defeated. Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We have said, “A high degree of necessity — not absolute necessity — must exist before a mistrial is appropriate.” State v. Long, 562 N.W.2d 292, 296 (Minn.1997), habeas corpus granted by Long v. Humphrey, 184 F.3d 758 (8th Cir.1999). And, as the Supreme Court noted in Arizona, “the key word ‘necessity’ cannot be interpreted literally; instead, * * * we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. 824. On this record, no showing of a high degree of necessity to declare a mistrial can be made. Therefore, the trial court’s grant of the mistrial was inappropriate.

.As identified above, the state’s objection to Dr. Plunkett’s independent iron-staining of some of the slides was not that the staining presented new evidence or a new theory that the state was not aware of and could not respond to in the absence of a new trial, but rather that Gouleed failed to inform the state that Dr. Plunkett had conducted his own iron-staining. Presumably, the state did not object based on Dr. Plunkett’s independent iron-staining presenting new evidence or a new theory because Dr. Plunkett’s testimony about what the slides he tested showed was consistent with his reasoning and opinion from his July 18 report, which the state had reviewed. As such, Gouleed’s discovery violation, if any, was procedural rather than substantive.

And, to the extent that the record does not show a substantive discovery violation, there is no basis for the trial court’s implicit conclusion that any remedy short of a mistrial would be inadequate to address the violation. Moreover, a careful review of the record reveals, and the state does not claim to the contrary, that Dr. Plunk-ett’s testimony about the iron-staining did not result in any evidence that was inconsistent with the July 18 report or, with the exception of the conclusion reached, Dr. McGee’s testimony. Specifically, both experts agreed that F.M. had injuries to her skull that predated November 8, 2002, and that iron-staining provides evidence that aids in determining the specific time of the injury. Further, there is nothing in the record that would indicate that the state could not have responded substantively to Dr. Plunkett’s testimony by recalling Dr. McGee. The state did argue that recalling Dr. McGee to rebut Dr. Plunkett’s testimony could leave the jury the impression that “somehow [Dr. Plunkett] has come in and exposed the state and the state has to try to respond. I don’t think there’s any way to get around that by a continuance.” A review of the record indicates that that argument cannot be supported. As discussed earlier, Dr. McGee had previously testified with respect to the purpose of iron-staining and the fact that F.M. had old injuries to her skull. Although the district court considered the possibility of granting a continuance so that the state could recall Dr. McGee to rebut Dr. Plunk-ett’s testimony, it dismissed that option without explaining its reasoning. In the absence of that explanation, our review is made more difficult. Had the court considered the manifest-necessity standard, it would likely have placed its reasoning on the record, thereby facilitating our review.

The state argues here that Dr. Plunk-ett’s testimony left the jury with the impression that the state was, at best, either unprepared, negligent, or incompetent, and, at worst, intentionally hiding exculpatory evidence, i.e., Dr. McGee had failed to conduct the necessary iron-staining. Given Dr. McGee’s trial testimony regarding the purposes of iron-staining and his testimony that he had performed iron-staining of his own, this argument lacks merit. The state also argues that it would have been irreversibly damaged by having to respond to the iron-staining done by Dr. Plunkett on rebuttal. Yet the state does not explain, and the district court failed to inquire, as to whether or how Dr. Plunk-ett’s testing presented evidence that was in some substantive way different from what had been acknowledged by Dr. McGee at trial or disclosed by the defense before trial. As noted previously, to the extent that iron-staining of the slides only aided in determining the time, and not the extent of F.M.’s injuries, there is nothing in the record that would indicate that the state could not have rebutted Dr. Plunk-ett’s testimony by recalling Dr. McGee.

It is disconcerting that no one raised the issue of double jeopardy or considered, except in the most cursory and perfunctory way, whether a continuance might resolve the problem, or whether rebuttal might completely offset any harm, if there were any, done by the violation.
It is of similar concern that neither the court nor counsel referred to or intimated any awareness of the manifest-necessity standard that governs the declaration of a mistrial after jeopardy attaches. Fixated on the fact of a discovery violation, the court, without any apparent manifest-necessity analysis, proposed that a mistrial, the most drastic sanction, likely would be the way to rectify the violation. Neither counsel provided any manifest-necessity analysis to assist the court in appreciating the gravity of the proposed mistrial sanction.

State v. Gouleed, No. A04-700, 2005 WL 1216294, at *7 (Minn.App. May 24, 2005).

      . The court of appeals' ruling on the double-jeopardy issue was dispositive. But the court also found that the district court violated the rule articulated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), when it imposed a 75-month upward durational departure from the presumptive 150-month sentence for second-degree murder. State v. Gouleed, No. A04-700, 2005 WL 1216294, at *11 (Minn.App. May 24, 2005). Further, the court of appeals found that the admission of testimony from hospital personnel about their feelings about the death of F.M. was erroneous, but that it likely did not have a significant effect on the verdict. Id. at *11-12. The court of appeals' decision on these issues was not appealed to this court.

      .Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
      (1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting * * *.
      Minn.Stat. § 609.19, subd. 2(1) (2004).

      . The scalp covers the outer surface of the skull; between the skull and scalp is the per-iosterum; inside that is a membrane called the dura; under the dura, attached to the brain, is the arachnoid membrane.

      . Dr. Plunkett earlier had failed to comply with a court-ordered deadline for submission of his report.

      . "H & E” stands for hematoxylin and eo-sin — another method of dating blood in hemorrhages.

      . Gouleed had originally been represented by attorney William Mauzy. Mauzy withdrew in April 2003, though, when it appeared he would be called as a witness in the case. Eric Olson took over Gouleed’s defense. The autopsy slides had been given to Dr. Plunkett by Mauzy, not Olson. The record does not establish that either of Gouleed's attorneys was aware of Dr. Plunkett's iron-staining.

      . In State v. Fuller we declined, on the facts of the case, to interpret the double-jeopardy prohibition in the Minnesota Constitution more broadly than the United States Supreme Court had interpreted the identical federal standard. 374 N.W.2d 722, 727 (Minn.1985).

      . We note that Gouleed’s invocation of the policy in favor of concluding a criminal trial in a single proceeding is undermined by his failure to appeal the denial of his double-jeopardy motion before retrial. See Minn. R.Crim. P. 28.02, subd. 2(2)3 (allowing appeal as of right from an order denying a double-jeopardy motion).