I.

We begin by addressing whether the district court properly admitted Spreigl evidence that Ture murdered Edwards. Spreigl evidence is evidence of another crime, wrong, or bad act151the appellation is derived from our decision in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

On appeal of the denial of postconviction relief that is an appellant's first substantive review of his conviction, we review whether there is sufficient evidence in the record to sustain the postconviction court's findings. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). A district court's decision to admit Spreigl evidence is reviewed for abuse of discretion. See State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).

Evidence of another crime, wrong, or act is not admissible at trial to prove the character of a person in order to show that he acted in conformity therewith. Minn. R. Evid. 404(b). Such evidence may be admissible for other purposes, however, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. For the evidence to be admissible, "the other crime, wrong, or act and the participation in it by a relevant person [must be] proven by clear and convincing evidence." Id.

To admit Spreigl evidence, the district court must determine "(1) that the evidence is clear and convincing that the defendant participated in the other offense; (2) that the Spreigl evidence is relevant and material to the state's case; and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice." Shannon, 583 N.W.2d at 583.

Ture was convicted of killing Edwards and he does not dispute that the evidence of his murder of her was clear and convincing. Ture does, however, argue that the court did not admit the Edwards murder evidence for a proper Spreigl purpose (i.e., that it was not relevant) and that the evidence, particularly because of the way it was presented at trial, was more prejudicial than probative.

The district court admitted the Edwards murder evidence for several purposes other than to identify Ture as the murderer of Wohlenhaus as well as Edwards, including to illustrate Ture's intent and modus operandi. To determine the relevance of such evidence, a district court should consider "the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi." State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984).

The closer the relationship between the events, the greater the relevance of the evidence and the lesser the likelihood it will be used for an improper purpose. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999). Spreigl evidence need not be identical in every way to the charged crime, but should serve to "complete the picture" of the defendant and "not to paint another picture." Lynch, 590 N.W.2d at 81 (quoting State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992)).

The record establishes that the Edwards murder and the Wohlenhaus murder were similar in time, place, and modus operandi. Edwards was a 19-year-old waitress when she was abducted and murdered; Wohlenhaus was an 18-year-old waitress.

Edwards was abducted from West Saint Paul, about 20 miles from Afton, approximately 16 months after Wohlenhaus was murdered in Afton.

Ture, who maintained a garage in South Saint Paul, told law enforcement officials that he frequented the Perkins restaurant in West Saint Paul where Edwards worked and that he asked her out on dates.

Ture told law enforcement officials that he "blew up" at Edwards after she said something he did not like. Evidence indicated that Edwards was sexually assaulted and stabbed multiple times.

Krominga testified that Ture told him he wanted to have sex with Wohlenhaus and that when she refused he "freaked," grabbed a hatchet, and struck her in the head. Hofstad testified that Ture told him Wohlenhaus was a waitress and that he had wanted to date her.

Ture also discussed the details of the Edwards and Wohlenhaus murders with authorities, a reporter, and fellow inmates in a similar fashion and in tandem. For all these reasons, we conclude that the district court did not abuse its discretion in ruling that the Edwards murder evidence was relevant.

Even when relevant, however, Spreigl evidence should be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Minn. R. Evid. 403. Spreigl evidence "should be excluded where it is merely cumulative and a subterfuge for impugning a defendant's character or for indicating to the jury that he is a proper candidate for punishment." State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967).

Ture argues that the state's presentation of 24 witnesses testifying to the details of the Edwards murder for almost three of the twelve days of trial testimony made the evidence highly prejudicial. We agree with much of Ture's argument. The state's presentation of evidence was practically a retrial of the Edwards case.

Much of the witnesses' testimony was redundant. While the state had the right to present evidence of the details of the Edwards murder, courts should not allow the state, when presenting Spreigl evidence, to present evidence that is unduly cumulative with the potential to fixate the jury on the defendant's guilt of the other crime. See Minn. R. Evid. 403.

Nevertheless, Ture did not object to the number of witnesses who testified regarding the details of the Edwards murder, nor did Ture object on the record to the testimony of specific witnesses who may have presented unduly prejudicial testimony. Without Ture's objection to the manner in which the Edwards murder evidence was presented, we are reluctant to second-guess the court's sound discretion. Therefore, we hold that the district court did not abuse its discretion by admitting the Edwards murder evidence.

II.

Ture also argues that the district court erroneously admitted notebooks and address books seized from him during the 1980 investigation of the Edwards murder. These items contained women's names, license plate numbers, addresses, and phone numbers, including a reference to the West Saint Paul Perkins where Edwards worked.

Ture argues that this evidence was Spreigl evidence improperly admitted without notice because this behavior151collecting information on various women151could be characterized as stalking. The district court and postconviction court both concluded that the evidence was not evidence of bad acts because there is nothing per se wrong with collecting information on women. We agree that this evidence was not Spreigl evidence.

Ture also argues, as he did at trial, that the notebooks and address books were not relevant because they did not appear to contain any information related to Wohlenhaus. The postconviction court found that the evidence was admitted because collecting information on women was Ture's habit and routine practice. Evidence of a habit or routine practice is relevant because it describes "one's regular response to a repeated specific situation." Minn. R. Evid. 406 advisory committee comment1511989 (quoting C. T. McCormick, Evidence § 195 (2d ed. 1972)). "Whether the response is sufficiently regular and whether the specific situation has been repeated enough to constitute habit are questions for the trial court." Id. (citing Lewan, Rationale of Habit Evidence, 16 Syracuse L. Rev. 39 (1964)).

While the postconviction court found that the notebooks and address books were evidence of Ture's habit and routine practice, the record does not indicate that the district court made any kind of inquiry to assure that a true habit existed. See id. ("The [district court] should make a searching inquiry to assure that a true habit exists."). The state concedes that whether Ture's collection of information on women was proper evidence of his habit or routine practice is a close call. We agree. Regardless, following a thorough review of the record, we hold that even if admission of this evidence was erroneous, the error was harmless because the verdict was surely unattributable to the error. See State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).

III.

Next, we consider the district court's refusal to grant Ture's request to use the Eighth Circuit's jury instruction for the admission of evidence of prior bad acts. The court instructed the jury using an adaptation of CRIMJIG 3.16 to the facts of this case. See CRIMJIG 3.16. [3]

Ture argued that Eighth Circuit Model Instruction 2.09 [4] would be a more appropriate instruction because the only proper use for the Spreigl evidence was to determine the identity of the person who killed Wohlenhaus. According to Ture, failure to give this instruction prejudiced him because the instruction the court gave left the jury free to use the Spreigl evidence for purposes other than proof of identity.

We observed in Billstrom that, as a safeguard for the admission of Spreigl evidence, the court "should admonish the jury that the testimony is received for the limited purpose of establishing identity." 276 Minn. at 179, 149 N.W.2d at 285. In State v. Broulik, we considered the approach taken by several federal appellate jurisdictions, including the Eighth Circuit, which include in their model instructions the specific limited purpose for which evidence of prior bad acts may be used. 606 N.W.2d 64, 70-71 (Minn. 2000).

We contrasted this approach with CRIMJIG 3.16, which leaves the possible inferences that may be drawn from the evidence to the arguments of counsel. Id. We noted that we did not read Billstrom as mandating a specific limited purpose instruction for Spreigl evidence. Broulik, 606 N.W.2d at 69. However, in Broulik we did not reach any conclusions on the instruction issue, holding that a "trial court's failure to give an instruction on the specific purpose for which Rule 404(b) evidence may be considered is not error where no request to so instruct is made." Id. at 71.

Here, Ture specifically requested Eighth Circuit Model Instruction 2.09 rather than the CRIMJIG instruction for Spreigl evidence. Eighth Circuit Model Criminal Jury Instruction 2.09 is given when evidence of a defendant's prior similar acts is introduced to prove identity. Eighth Circuit CRIM-MI 2.09. Eighth Circuit Model Instruction 2.08 is given when evidence of a defendant's prior similar acts is introduced for a purpose other than to prove identity, which purpose is to be specifically described in the instruction. Eighth Circuit CRIM-MI 2.08.

The primary difference between Eighth Circuit Model Instruction 2.09 and CRIMJIG 3.16 is that the Eighth Circuit instruction specifically limits the jury's use of the evidence to whether it "suggests that the same person" committed the act, whereas CRIMJIG 3.16 more generally limits the jury's use of the evidence to "determining whether defendant committed those acts with which the defendant is charged."

We have stated that as a general rule, "instructions on particular kinds of evidence `should be avoided as much as possible'" because they tend to inject argument into the judge's charge. State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992) (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit 48 (1989 ed.)). CRIMJIG 3.16 leaves it to the attorneys to argue to the jury the possible inferences that can be drawn from the evidence. We have utilized this approach because Spreigl evidence does not always fit neatly into specific categories151purposes such as identity, "common scheme or plan," and modus operandi may overlap, or the evidence may be properly admitted for more than one purpose. See State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977) (discussing how the "common scheme or plan" exception has evolved to embrace offenses which tend to corroborate the charged offense because of their marked similarity in modus operandi).

Based on the foregoing distinction, we conclude that under the circumstances here, when the Edwards murder evidence was not necessarily admitted solely for purposes of proving identity, Eighth Circuit Model Instruction 2.09 would not have been a better instruction than the adapted CRIMJIG 3.16 instruction. Accordingly, we hold that the district court did not abuse its discretion in giving the CRIMJIG instruction instead of Ture's requested instruction.

IV.

Ture next argues that during closing argument the state committed prosecutorial misconduct sufficient to warrant a new trial. Ture argues that the state improperly mentioned other rapes that Ture committed, evidence of which was not permitted at trial. He asserts the state did so by arguing to the jurors that Ture had confessed to the Edwards case "to try and get a package deal for the Diane Edwards murder and other cases, other rapes." (Emphasis added.)

Ture also argues that the state committed misconduct by arguing Ture's character to the jurors when he told them the state had Diane Edwards' father testify because the state wanted the jury to "see what kind of a man Joe Ture is, and how he acts and how he behaves consistently in his crimes."

Finally, Ture argues that the state improperly personalized the case against Ture and interjected personal opinion into the closing argument through use of phrases such as "I wanted you to see" and by twice addressing a portion of the closing argument to Ture rather than to the jury. Following the state's closing argument, Ture moved for a mistrial based on these comments, which the district court denied.

Prosecutorial misconduct does not in and of itself necessitate that a defendant be granted a new trial. State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996). Once misconduct has been established, we must then determine whether the defendant was denied a fair trial. Id. at 647-48. Generally, a defendant alleging prosecutorial misconduct will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 301-02 (Minn. 2000).

To determine whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993)

The postconviction court noted, as did the district court in denying the mistrial motion, that the closing argument was two and a half hours long, summarized a complicated murder trial, and the misconduct appeared to have been inadvertent.

The postconviction court concluded that the state's comments did not deny Ture the right to a fair trial. We agree and conclude that while the state committed misconduct during closing argument, the misconduct was harmless beyond a reasonable doubt.

The state's mention of "other rapes" was clearly improper given that evidence of Ture's prior sexual assaults was ruled inadmissible at trial. However, the jury was presented evidence of Ture's rape and murder of Edwards, and the jury had been made aware of "other cases." We do not believe that this single reference to another rape, given all that the jury already knew about Ture, entitles Ture to a new trial.

The state's argument regarding Ture's character was also inappropriate. Character attacks are improper during closing argument. State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994). In this case in particular, the state's argument regarding "what kind of man Joe Ture is" appears to strike at the heart of the potential for prejudice inherent with Spreigl evidence. But this statement must be read in context. It appears that the state was attempting to illustrate the similarities of the Edwards and Wohlenhaus murders and to tie the evidence together.

This type of reference to character came just one time during the closing argument and the state specifically mentioned how Ture behaves "consistently in his crimes," not that the Edwards murder showed his character for such crimes.

Finally, we conclude that the use of the first-person pronoun "I" during closing argument and addressing of portions of the argument directly to Ture was an improper interjection of personal opinion into the argument. An attorney may argue a particular witness's credibility, but may not interject his or her personal opinion so as to "personally attach[] himself or herself to the cause which he or she represents." State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991). This "personal opinion rule" helps prevent "exploitation of the influence of the prosecutor's office." Id. (citing ABA Standards Relating to the Prosecutor's Function, 3-5.8(b) and Commentary (1979)).

Nevertheless, we conclude that the state's actions could not reasonably have had an impact on the jury's verdict. Therefore, while we are troubled by the state's conduct during closing argument, after examining the argument as a whole, we hold that the state's misconduct was harmless beyond a reasonable doubt and does not warrant a new trial.

V.

In addition to arguments presented through counsel, Ture submitted a supplemental pro se brief arguing, among other things, that he was denied effective assistance of counsel and that the evidence was insufficient for this conviction. Ture argues he was denied effective assistance because, he claims, his counsel allowed the state to present inaccurate testimony about when his work hours were at the Saint Paul Ford plant in 1979. Ture claims he was working at the time the Wohlenhaus murder took place. We have considered each of Ture's pro se arguments and, after a thorough review of the record and case law relevant to these arguments, we hold that none of these arguments has merit.

Affirmed.

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