State v. Martin

877 N.W.2d 859

STATE of Iowa, Appellee,

v.Mark Gabriel MARTIN, Appellant.

No. 14–1615.

Supreme Court of Iowa.

April 15, 2016.

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.

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, 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.

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:

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 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 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...