              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.
