IN THE SUPREME COURT OF IOWA

No. 14–1615

Filed April 15, 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 error2 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, ___ N.W.2d ___, ___ (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.

________________________
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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.