IN THE SUPREME COURT OF IOWA No. 14–1615
Filed April 15, 2016
Amended June 21, 2016
STATE OF IOWA,
Appellee,
vs.
MARK GABRIEL MARTIN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cerro Gordo County,
Christopher C. Foy, Judge.
A defendant in a criminal case contends the district court should
have declared a mistrial or granted a new trial because the prosecutor
repeatedly exceeded the scope of permissible voir dire questioning and thereby tainted the entire jury pool. COURT OF APPEALS DECISION
AND DISTRICT COURT JUDGMENT AFFIRMED.
Sarah A. Reindl, Mason City, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick (until
withdrawal) and Tyler J. Buller, Assistant Attorneys General, Carlyle
Dalen, County Attorney, and Blake Norman and Steve Tynan, Assistant
County Attorneys, for appellee. 2
HECHT, Justice.
A prosecutor conducting voir dire posed hypothetical questions
closely approximating the facts of the case, intimated the State possessed
additional evidence supporting guilt but could only present some of it,
and delivered a lecture that implied the State only prosecutes guilty
people. The record does not establish whether the prosecutor’s questions
were calculated or simply unartful, but the district court concluded they
ventured into a gray area. Likewise, the court of appeals concluded the
prosecutor’s questions teetered on the line between proper and improper.
Despite those concerns, neither court granted the defendant a new trial
because each court concluded the remarks did not cause juror bias or
make the trial unfair. On further review from the court of appeals
decision, we examine whether the prosecutor improperly strayed too far
from permissible voir dire. In part because Martin did not object in the
district court to all the statements he challenges on appeal, we conclude
the prosecutor did not cross the line. We therefore affirm.
I. Background Facts and Proceedings.
After his arrest for shoplifting deodorant, criminal suspect Jeremy
Collins offered to “work off” his theft charge by helping police apprehend
narcotics distributors. He gave officers several names, including Mark
Martin, and asserted he could buy methamphetamine from those people.
Collins knew Martin because he previously lived in Martin’s home.
Collins signed an agreement to become a confidential informant and,
with his help, police arranged a controlled buy at Martin’s home in
Mason City.
Collins went to Martin’s home wearing a concealed audio recording
device and carrying marked currency police had given him. Martin was
not there when Collins arrived, but at least three other people were, 3
including Martin’s son. Eventually Martin arrived, and soon thereafter,
Collins returned to his rendezvous point with police, no longer
possessing the marked bills and instead carrying a small baggie
containing methamphetamine. Accordingly, the State charged Martin
with delivering methamphetamine. Martin pled not guilty and the case
proceeded to trial.
Martin’s defense theory disputed identity. Based on his review of
the audio recording from the concealed recording device, Martin
acknowledged a transaction occurred, but he contended the recording
did not establish he personally knew anything about it. Instead, Martin
asserted, one of the other people present in his home that day
consummated the transaction and delivered methamphetamine to
Collins, either outside the house or while Martin was out of earshot and
in another room.
During jury selection, the district court asked questions first. After
finishing its own examination but before allowing the prosecutor to ask
more questions, the court told the panel:
[W]hile the attorneys may talk a little bit about the types of issues they think you’ll be required to deal with in serving as a juror, they’re not to be telling you about the facts of this case. Attorneys are not witnesses. Any evidence in this case will be presented from the witness stand . . . .
During the State’s voir dire, the prosecutor asked several questions
and made comments that Martin asserts were intended to condition the
jury to believe and support law enforcement officers. First, the
prosecutor questioned a prospective juror who indicated she knew
Investigator Frank Hodak, one of the expected witnesses:
Q: What’s your overall feeling of Mr. Hodak? A: I don’t know him any more. 4 Q: Okay. But he was a good guy I guess whenever you knew him? A: He was back then. Yes.
After this exchange, the prosecutor asked another prospective juror about his general impressions of law enforcement and his familiarity with
Officer Lakose, another possible witness:
Q: [What are] your thoughts on law enforcement? A: I have a daughter in law enforcement and a son-in-law in law enforcement.
Q: Oh, okay. And so obviously they’re good—good hard working people; right? A: Correct.
Q: All right. Raised them right.
....
Q: And you know Officer Lakose? A: Yes.
Q: How do you know Mr. Lakose? A: Friends. We’ve known each other for many years.
Q: Okay. Go hunting together or—? A: No.
Q: Okay. Didn’t know. Are you a hunter? A: Yes. But I don’t think [Officer Lakose] does.
Q: I actually—knowing [him], I don’t know if he would do too well hopping the fences. But he’s a pretty good guy that you know? A: Yes.
Martin contends referring to each of the potential witnesses as a good
guy and commenting that a prospective juror with children in law
enforcement “raised them right” are subtle cues intended to implant the
notion that police are always the good guys and defendants like Martin
are the bad guys.
Next, the prosecutor embarked on a discussion about general
impressions of police honesty that transitioned into informing—not
asking—two prospective jurors about notions of police accountability: 5 Q: And do you think there’s certain procedures though that kind of safeguard that officers can’t overstep their bounds? A: We hope so.
Q: Okay. Well we have public accountability is one of them. A: Uh-huh.
Q: And we also have the jury system. A: Uh-huh.
Q: We also have me as the County Attorney. I don’t know if many of you know this but the County Attorney is actually the chief law enforcement officer for the county. A: Okay.
Q: So he’s in charge of some of the administrative. So I didn’t know if you know that. In fact, I don’t know if many of you know kind of what the County Attorney’s office is. We actually don’t work—we work and represent the State. But we’re actually—it’s an elected office for the county. So you, as a citizen of Cerro Gordo, get to elect who is the prosecutor for Cerro Gordo County. I don’t know if any of you knew that.
Q: And do you vote for the County Attorney or do you not or do you just— A: No, I didn’t.
Q: Okay. Okay. Some people don’t and that’s why I didn’t know if you just voted the main elections. Okay. But do you understand that in some ways my office is bound to serve Cerro Gordo citizens? A: Yes.
Q: So if I do something wrong and it represents badly on my boss, that he’s actually accountable to you as a citizen if I do something wrong. A: Yes.
Q: So you have the power actually to vote me out of my position as a citizen. Which I like my job. So please don’t.
After informing the jury that prosecutors are accountable to
voters, 1 the prosecutor turned to the burden of proof, exploring the
1Beyond any implications these statements made about the strength of the State’s case, one of them is also factually incorrect. County attorneys are elected officials, but assistant county attorneys like the one who tried this case are appointed. Compare Iowa Code § 331.751(1) (2013), with id. § 331.757(2). Thus, the citizens of a county do not actually “have the power . . . to vote” assistant prosecutors out of jobs they like. Instead, such an assertion arises from mere anticipation that a newly elected 6
definition of reasonable doubt and probing with the prospective jurors
their expectation about how much evidence they would see and hear:
Q: I cannot as [the] State give you every ounce of evidence that you want. There’s all sorts of rules why. The judge is the one that determines what’s admissible. We have the rules of evidence. Rules of evidence that determine by either statute or by court rules what is available for you as the fact finder to determine. Now, I’m going to try to give you all the evidence that I have available that is admissible. Now, [prospective juror]? A: Yes.
Q: Does that kind of make sense that I have only so much evidence that I can actually give you? A: Yeah.
Q: And even some of that evidence I may have will not be admissible. A: If [the judge] says it’s not, yeah.
Q: Yeah. So what happens if you’re wondering, well, why didn’t he tell me this; why didn’t he give me—the guy, has he committed any other crimes; is this guy a good person; give me some—you know, what’s his reputation? If I don’t give you any of that, are you going to hold that against me? A: Oh, no.
Defense counsel did not lodge an objection on the record or request a
bench conference at any point during these exchanges.
The last line of questioning Martin asserts was improper involved
the prosecutor asking jurors to imagine themselves as drug dealers in
Mason City and further imagine how they would choose their customers.
The prosecutor specifically confirmed with a prospective juror that, if the
juror were a drug dealer, he would want to know his customers, so it
made sense that police might want to apprehend drug dealers with help
from a drug user or previous customer. The prosecutor also asked jurors
if they would consider a confidential informant untrustworthy just
because he or she aided police pursuant to an agreement that would also
________________________ county attorney might decide to revamp the roster of lawyers staffing the county attorney’s office—a speculative assumption that does not always happen in practice. 7
benefit them. Finally, the prosecutor asked if hearing an audio recording
of an alleged drug transaction would “help [jurors] know exactly what
happened.” Because Collins wore a concealed recording device during
the controlled buy, the resulting recording was a key piece of evidence
the State later introduced.
Defense counsel twice requested a bench conference during this
last line of questioning about choosing customers for drug transactions
and audio recordings of drug transactions. Although voir dire was
reported, the dialogue in the bench conferences was not. However, after
each conference concluded, the prosecutor redirected his questions. The
court did not expressly instruct the prospective jurors to disregard the
line of questioning generating the bench conference in either instance.
The State passed for cause on the jury pool at the end of that day’s
proceedings, and the court recessed the proceedings for the day.
Before beginning voir dire the next day, Martin’s counsel moved for
a mistrial, contending the prosecutor’s improper questions tainted the
whole panel of prospective jurors. The motion challenged four specific
categories of inquiry the prosecutor pursued the previous day:
(1) questions specifically about Investigator Hodak, including whether he
was a good guy; (2) asking a prospective juror to imagine she was a
confidential informant; (3) asking a prospective juror to imagine he was a
drug dealer; and (4) asking a prospective juror about the weight they
would give a surreptitious audio recording. In supporting the requested
relief, Martin’s counsel attempted to reconstruct for the record the
substance of the two earlier bench conferences:
I first asked to approach the bench when [the prosecutor] was asking a juror to put herself in the place of a confidential informant. At that time he had already asked another juror to become a dealer and asked the juror who he 8 would sell to. And prior to that, he was asking specific credibility questions about a witness. In fact, he asked is he a good guy. Referring to Frank Hodak.
I think that’s clearly improper. He was trying to establish the credibility of the witness, not look for bias or prejudice. By how people thought of police officers in general—which would be clearly permissible.
After the Court admonished [the prosecutor] to move on, after the first conference, he then started talking about the tape and money to another potential juror. I asked to approach the bench again because that was clearly improper, and the judge again advised him to move on.
Martin’s counsel did not assert the prosecutor’s questions about Officer
Lakose or statements about the prosecutor’s electoral accountability
supported the mistrial motion.
The State resisted the motion, contending the challenged questions
were permissible and the court had appropriately limited or redirected
questioning when the inquiries came close to the line. Questions about
specific witnesses, the State asserted, were designed to ferret out bias
either for or against them, not bolster their credibility. Similarly, the
State contended the hypothetical questions were not prejudging the
case’s facts because they did not use specific names or refer to specific
instances at issue. Finally, the State asserted if the jury panel had been
tainted, Martin could rehabilitate the panel members through his
counsel’s own voir dire. See State v. Gulliver, 163 Iowa 123, 138, 142
N.W. 948, 954 (1913) (“Defects of argumentation and reasoning when
apparent carry with them their own antidote, and, where the poison is
more subtle, it may be safely left with opposing counsel to deal with.”).
The district court concluded questions about specific witnesses
went “a little further than talking about just general opinions of law
enforcement.” The court also observed that the prosecutor’s hypothetical
questions about drug sales encroached “a little too much into testing 9
how a prospective juror . . . might view the facts of the State’s case.”
However, the court denied Martin’s motion for mistrial because it did not
want to “call undue attention to the concerns” and because it believed
Martin could adequately address any issues through his counsel’s own
voir dire. Nonetheless, before allowing Martin’s counsel to begin, the
court reminded the prospective jurors that “during voir dire the attorneys
are not suppose[d] to discuss the facts of the case . . . [or] have you guess
as to what the law is.”
After Martin’s counsel examined the panel and passed for cause,
the parties exercised peremptory strikes. Three of the panel members
involved in the exchanges reproduced above were selected as jurors; two
were not. The jury heard the evidence, including the audio recording.
Collins also testified, stating Martin—not any of the other visitors to
Martin’s home—delivered the methamphetamine. Before the jury began
deliberations, one of the court’s instructions reminded the jury that
“[s]tatements, arguments, questions and comments by the lawyers” are
not evidence. The jury returned a verdict finding Martin guilty of
delivering methamphetamine.
Martin filed a motion in arrest of judgment and motion for new
trial, renewing the claim of error 2 during voir dire and asserting several
other grounds for a new trial. The court denied the motion on each
asserted ground. With regard to the asserted voir dire errors, the court
concluded the State’s questions, while troubling, were not so
inflammatory as to deny Martin a fair trial. In addition, the court
reasoned that any prejudice resulting from the prosecutor’s questions
2We use the word “error” here (instead of “misconduct”) to avoid automatically
implying that the prosecutor violated our ethical rules. 10
and statements was mitigated by several jury instructions given before
and after voir dire reminding the jury that attorneys’ statements and
arguments are not evidence.
Martin appealed, asserting multiple errors, including the
prosecutor’s voir dire questioning, justified a new trial.3 The court of
appeals affirmed Martin’s conviction, but noted “the prosecutor’s
approach to voir dire . . . skated on the line of impropriety.” Martin
sought further review, asserting that affirming his conviction would
embolden prosecutors to push the voir dire envelope even further in
future cases. We granted his application to determine whether the
prosecutor’s questions toed the line, crossed it incrementally, or barreled
through it entirely. See State v. Tolson, 248 Iowa 733, 734, 82 N.W.2d
105, 106 (1957) (“It is sometimes said that error ‘crept’ into the trial of a
lawsuit. Not so in the case at bar. It marched in like an army with
banners, and trumpets.”).
II. Scope of Review.
“Control of the [voir dire] process is lodged in the discretion of the
trial court . . . .” State v. Windsor, 316 N.W.2d 684, 686 (Iowa 1982).
Accordingly, we review Martin’s claim of error during voir dire for an
abuse of discretion. See State v. Tubbs, 690 N.W.2d 911, 915 (Iowa
2005) (applying an abuse-of-discretion standard when the defendant
claimed the court improperly allowed several voir dire questions);
Windsor, 316 N.W.2d at 685–86 (applying an abuse-of-discretion
standard when the defendant claimed the court improperly restricted voir
dire questioning and interjected its own comments). 4
3Martin’s appellate counsel did not represent him at trial. 4Although defense counsel did not couch the mistrial motion in constitutional terms and did not mention any provision of either the United States Constitution or the 11
III. Analysis.
Before the court of appeals, Martin raised several grounds for
granting a new trial; asserted error during voir dire was just one of them.
In his application for further review, Martin focused solely on the voir
dire questioning. “When we consider an application for further review,
our discretion allows us to review any issue raised on appeal, regardless
of whether a party seeks further review of that issue.” State v. Bogan,
774 N.W.2d 676, 679 (Iowa 2009). However, in this case we let the court
of appeals decision stand as to Martin’s other asserted grounds for new
trial and address only the assignment of error arising from the voir dire.
See State v. Gathercole, 877 N.W.2d 421, 426 (Iowa 2016) (limiting review
to one issue even though the defendant initially raised multiple
challenges on appeal).
A. Error Preservation. On appeal, Martin aggregates several
portions of the voir dire as support for his overall claim that the
prosecutor crossed the line. However, trial counsel made no objection to
some of the statements now raised on appeal, and we therefore conclude
Martin did not preserve them for our review.
Our research reveals some authority condemning statements and
lines of questioning that place the weight of the prosecutor’s office
behind the legitimacy of the state’s case or the theory supporting guilt.
For example, in Lainhart v. State, the court granted a new trial when “the
prosecutor’s remarks [during voir dire] constituted improper
indoctrination, vouching, and commentary on the justness of the cause.” ________________________ Iowa Constitution, the district court understood Martin’s objection to be that continuing with the same jury panel would deprive him of his right to a fair trial. However, neither party asserts on appeal that Martin made a constitutional claim or that our review is de novo. Accordingly, we leave for another day the question whether claims like Martin’s necessarily feature a constitutional dimension justifying de novo review. 12
Lainhart v. State, 916 N.E.2d 924, 938 (Ind. Ct. App. 2009). And in
Foster v. State, the prosecutor embarked upon a screed detailing “the
entire scheme and procedure of sentencing.” Foster v. State, 436 N.E.2d
783, 786 (Ind. 1982). The court concluded this lecture about the legal
system exceeded the scope of permissible voir dire because the subject
matter would “not assist the jury in fulfilling the serious responsibility
assigned to it[:] to determine the guilt or innocence of the defendant
based solely upon the evidence presented at trial.” Id. The court granted
a new trial because the civics lesson went too far afield and may have
created “misconceptions in the minds of the jurors” suggesting they
should decide the case a certain way because of how the system works.
Id. at 786, 788.
Here, the prosecutor’s civics lesson reminded the prospective
jurors that the county attorney is an elected supervisory law enforcement
officer working for them—the residents of the county. The lesson invited
jurors to infer that they could rely on the prosecutor to present reliable
evidence because he is accountable to them as voters. Cf. Lainhart, 916
N.E.2d at 937 (concluding it was improper for the prosecutor to suggest
police officers would testify reliably because “they’d be putting their
badge at risk” if they didn’t). In other words, intentional or not, the
prosecutor subtly suggested he and the potential jurors were on the
same side and he would not lead them astray because doing so might
cost him his job. Cf. State v. Musser, 721 N.W.2d 734, 756 (Iowa 2006)
(concluding a prosecutor giving closing argument “inappropriately
diverted the jury from its duty to decide the case solely on the evidence
by . . . making predictions of the consequences of the jury’s verdict”).
Similarly, the prosecutor’s statement about evidence the State
“may” have, but that was inadmissible, was troublesome because it 13
“suggests that information not presented to the jury supports the
[expected] witness[es’] testimony.” State v. Vincent, 768 P.2d 150, 155
(Ariz. 1989) (en banc). “We have some difficulty in understanding why
prosecutors and lawyers of standing will take chances by making
statements upon which the claim of [error] may be made . . . .” State v.
Browman, 191 Iowa 608, 634–35, 182 N.W. 823, 834 (1921). We do not
decide, however, whether Martin suffered prejudice from the prosecutor’s
civics lesson or the implication that the State had incriminating evidence
it could not present to the jury. Defense counsel did not object to these
statements or raise them as grounds for a mistrial below. See Reynolds
v. State, 114 So. 3d 61, 147 (Ala. Crim. App. 2010) (finding no prejudice
in part because the defendant “did not object to any of the allegedly
improper comments”); People v. Shipman, 747 P.2d 1, 3 (Colo. App. 1987)
(concluding some of the prosecutor’s voir dire questions were improper
but declining to grant a new trial because the defendant did not make a
timely objection); cf. Foster, 436 N.E.2d at 788 (granting a new trial when
the defendant lodged a “timely and continuing objection” to an irrelevant
lecture about the legal system but the trial court overruled it).
Accordingly, we cannot review them on appeal because we have
repeatedly declined “to abandon our preservation of error rules in favor of
a discretionary plain error rule.” State v. Hutchison, 341 N.W.2d 33, 38
(Iowa 1983); see also State v. Rutledge, 600 N.W.2d 324, 325 (Iowa
1999); State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). Instead, we
review only the questions that Martin asserted as grounds for mistrial in
the district court. Cf. State v. Prusha, 874 N.W.2d 627, 630 (Iowa 2016)
(“Prusha never apprised the district court that he believed the search
violated [the state constitution]. . . . Accordingly, we only address
Prusha’s Fourth Amendment claims.”). 14
B. Voir Dire Principles. We described long ago the purpose of
conducting voir dire:
It is the general and well-established practice to allow both to the state and to the defendant considerable latitude in the examination of persons called to act as jurors, not only to facilitate the discovery of grounds for challenge for cause, but to enable the parties interested to discover any peculiarity of conduct, association, character, or opinion, or any predilection, of the person under examination, or other circumstances which, in the opinion of the examiner, might influence the person as a juror, and affect his [or her] verdict. It is well known to persons familiar with jury trials that jurors are frequently influenced in reaching a verdict by considerations which have no legitimate application in the case. The right of peremptory challenge gives the means of keeping from the jury persons of that kind, which the challenge for cause does not afford; and parties should be permitted to examine persons called to act as jurors, within reasonable limits, to the end that the peremptory challenges may be used intelligently.
State v. Dooley, 89 Iowa 584, 588, 57 N.W. 414, 415 (1894). Put another
way, “[t]he objective of voir dire is to gather sufficient information for the
exercise of challenges” and otherwise “secure a fair and impartial jury.”
Windsor, 316 N.W.2d at 687.
Those two purposes are limited: “Voir dire is not designed for
educating jurors on the law or for persuading them on the merits of the
case.” Id. Nonetheless, lawyers receive considerable leeway in
questioning prospective jurors. Tubbs, 690 N.W.2d at 915; Dooley, 89
Iowa at 588, 57 N.W. at 415.
Our appellate courts have decided only a few cases addressing
allegedly improper voir dire questioning. For example, in 1975 we
reviewed a defendant’s challenge to a prosecutor’s use of two leading
questions preemptively attacking the defendant’s alibi. Although we
declined to “place the stamp of approval upon” the questions, we found 15
no abuse of discretion in the district court’s decision to deny a motion for
mistrial. State v. Menke, 227 N.W.2d 184, 187 (Iowa 1975).
In State v. Hunt, a defendant contended a single question using a
hypothetical that matched the facts of the case justified a mistrial. State
v. Hunt, 801 N.W.2d 366, 371–72 (Iowa Ct. App. 2011). The court of
appeals concluded the isolated question was merely “attempting to
assess whether the potential juror would approach the case fairly and
impartially,” and did not pose a great risk of prejudice because “the
hypothetical was actually favorable” to the defendant. Id. at 372; see
also State v. Ortega, 813 N.W.2d 86, 99 (Minn. 2012) (concluding a
prosecutor’s questioning was permissible because it “could have aided
[the defendant]’s case”).
In State v. Reed, the court provided the prospective jurors with
information they would not otherwise hear—specifically, that one
potential defense witness was subject to pending criminal charges. State
v. Reed, 482 N.W.2d 672, 673 (Iowa 1992). The court then asked the
panel if “information or impressions the jurors had about that
investigation would make it difficult for them to be fair.” Id. Defense
counsel moved for a mistrial because while “[a]cknowledging that the
court’s apparent purpose was merely to air any possible juror prejudice,
counsel claimed the court’s remarks would ‘taint or poison’ [the]
testimony.” Id. We concluded the court abused its discretion because it
“unnecessarily enlightened the jurors about a piece of impeachment
evidence that would otherwise be inadmissible at trial.” Id. at 674.
However, we found the error was harmless because the comments were
brief, factual, and nonjudgmental, because the court “did not state
whether [the witness] would be appearing on behalf of the State or the 16
defendant,” and because the comment did not appear to be advocacy for
either party. Id.
In Tubbs, the defendant was charged with driving while
intoxicated. The prosecutor asked potential jurors questions about what
symptoms they might expect to observe in an intoxicated person. Tubbs,
690 N.W.2d at 914–15. Counsel objected that this line of questions
improperly solicited juror testimony and was not calculated to evaluate
the jurors’ ability to be impartial. Id. at 915. We concluded the
questions were permissible because the prosecutor was simply
“attempting to assess potential jurors’ understanding of what evidence is
relevant on the question of intoxication.” Id.
C. Applying the Principles. Instead of one question or one brief
instance during voir dire, Martin presents a handful of asserted
improprieties and contends they demonstrate the prosecutor’s purpose
was to condition the potential jurors to trust and believe police.
Additionally, unlike the hypothetical in Hunt, the prosecutor’s
hypotheticals here were not favorable to the defendant. Instead, they
closely matched the facts of the case and sought the jurors’ opinion
whether confidential informants are trustworthy witnesses. Finally,
Martin contrasts this case with Tubbs and asserts the questions here
went beyond the permissible general inquiry allowed in Tubbs, venturing
into improper questions about a specific witness (Investigator Hodak).
We conclude some of the challenged questions that are properly
before us were permissible, and as to the others, the district court acted
appropriately to prevent prejudice to Martin.
1. Investigator Hodak. Referring to Investigator Hodak as a good
guy was, as in Hunt, only one question most reasonably viewed as
“attempting to assess whether the potential juror would approach the 17
case fairly and impartially” given her previous personal relationship with
Investigator Hodak. Hunt, 801 N.W.2d at 372. The vast majority of the
prosecutor’s questions about police sought the prospective jurors’
general impressions and opinions about a category of possible witnesses,
which is a proper subject of inquiry. Importantly, too, the juror who
knew Investigator Hodak expressed during the court’s voir dire that she
would have no problem viewing his testimony objectively.
2. Confidential informants. We also conclude the prosecutor’s
questions probing whether potential jurors held views about the
trustworthiness of confidential informants were permissible. These, too,
were general questions “prob[ing] the minds of potential jurors to
determine whether they had predispositions” about a case-specific
category of possible witnesses. State v. Scott, 829 N.W.2d 458, 464 (S.D.
2013); see also State v. Garvin, 117 P.3d 970, 979 (N.M. Ct. App. 2005)
(concluding it was permissible for a prosecutor to ask questions about
homelessness “to determine whether any of the potential jurors would
have refused to convict a person simply because he or she is homeless”).
The district court did not abuse its discretion in declining to grant
Martin’s mistrial motion based on these two lines of inquiry during voir
dire.
3. Hypothetical questions matching the case’s facts. Two lines of
inquiry pursued by the prosecutor and challenged by Martin remain:
asking jurors to imagine themselves as drug dealers and asking whether
they would be inclined to give weight to a surreptitious audio recording.
“To test the qualification of persons called to sit as jurors neither party
may inquire concerning . . . views of evidence to be adduced on the trial
or the weight [the juror] would be inclined to attach thereto.” State v.
Dillman, 183 Iowa 1147, 1152, 168 N.W. 204, 206 (1918). Similarly, 18
prosecutors cannot “precondition[] the jury by arguing” the facts of the
state’s case through voir dire questions. Law v. State, 98 P.3d 181, 194
(Wyo. 2004). The challenged questions in this case steered awfully close
to these shoals. However, in both instances, defense counsel requested a
bench conference and the court promptly terminated the lines of inquiry.
Furthermore, the court instructed the jury “[a]t least twice . . . that
remarks made by the lawyers were not to be considered as evidence.”
United States v. Mack, 643 F.2d 1119, 1124 (5th Cir. 1981). We
conclude these remedial efforts were adequate under the circumstances
presented here and find no abuse of discretion.
IV. Conclusion.
Of the four lines of voir dire inquiry challenged by objection and
preserved for our review, two were permissible. We conclude the district
court mitigated any prejudice resulting from the two lines of questionable
voir dire inquiry by promptly restricting them and by giving appropriate
instructions to the jury. We find no abuse of discretion by the district
court. Accordingly, we affirm Martin’s conviction and both lower courts’
decisions.
COURT OF APPEALS DECISION AND DISTRICT COURT
JUDGMENT AFFIRMED.