Jury to decide if
Mark knew he was
shooting an officer
The key point for jurors now deliberating the fate of Shane Mark will be whether or not the accused murderer knew that the man he was shooting was a police officer trying to arrest him.
Mark is on trial in Circuit Court, accused of first-degree murder for fatally shooting Glen Gaspar, one of six plainclothes officers who went to the Kapolei Baskin-Robbins store on March 4 to arrest him. Mark was wanted on warrants in connection with a Feb. 1 confrontation in Moanalua, where he allegedly shot at two men, hitting one.
Jurors in the trial began deliberating late yesterday. They have three choices: convict Mark as charged, convict him of lesser offenses or find him not guilty.
Mark is also charged with first-degree attempted murder for trying to shoot Gaspar's partner, officer Calvin Sung, and carrying and using a firearm during the shooting.
The defense argues Mark acted in self-defense when he fatally shot Gaspar and pointed the pistol at Sung.
During closing arguments yesterday, Deputy Prosecutor Chris Van Marter argued Mark knew the men who grabbed him in the ice cream store were police officers and that self-defense does not apply.
Van Marter reminded the jury that witnesses testified that at least three officers, including Gaspar, identified themselves by lifting up their shirts and displaying their badges and repeatedly announced their intentions before Mark pulled out his gun and fired the first of three shots into Gaspar.
Mark's former girlfriend, who had tipped off police that he was going to visit with his daughter at Baskin-Robbins, also testified she heard someone say, "Shane Mark, you need to come with us, you're under arrest."
Using deadly force is justifiable if the person using it reasonably believes it is immediately necessary to protect against death, serious injury or kidnapping, Van Marter said.
While Mark testified he thought the men were going to kill him, the officers were only grabbing his arms and he over-reacted by pulling out a gun and firing it three times, Van Marter said.
Mark was not acting under an emotional or mental disturbance at the time of the shooting, but was in control, Van Marter said.
Mark had testified he made sure he pointed the barrel of the gun away from his daughter, who was sitting a few feet away, and that he chose to aim at Gaspar's torso because it was a bigger target than his limbs. That Mark also had the strength to overpower three officers and point the gun at a second officer shows self-control and intentional conduct, Van Marter said.
Mark testified that he wanted to turn himself in to police after the Feb. 1 shooting, but his actions said otherwise, Van Marter said. Mark armed himself with a gun and carried around a newspaper clipping that reported charges had been filed against him in the Feb. 1 shooting and warrants were out for his arrest, Van Marter said.
There were no facts to justify Mark's belief that the people in the Feb. 1 incident were after him, the prosecutor said. "He created an alleged fear in his mind that doesn't exist in reality," Van Marter said.
The defense disputes that the officers identified themselves before the shooting. They contend Mark was in such a state of constant dread after learning men were out to get him and his girlfriend after the Feb. 1 shooting that he armed himself with a loaded gun, even slept with it.
"He made mistakes, but acted reasonably to defend himself, others and property and because he did, his actions were justified under the law," Deputy Public Defender Debra Loy argued.
Mark was fighting for his life after the men grabbed him in Baskin-Robbins, but he did not shoot to kill.
"It was the act of a desperate man to get what he thought were thugs off him," Loy said.
Mark's perspective is what's important, she said. It's not whether identification was shown, but whether Mark saw it, and not who the men were, but who Mark thought they were, she said.
She said the officers "botched" the arrest by not doing enough surveillance of the ice cream store, developing three "haphazard plans" to arrest Mark that didn't consider catching him on the way out of the store, having a uniformed officer arrest him, or backing off if customers were in the store.
More significantly, police violated their general policy for wearing protective vests, she said. "They went in half-cocked."
Jurors can consider lesser offenses, including second-degree murder, which is punishable by life with parole; manslaughter while under an extreme mental and emotional disturbance; or manslaughter by recklessly causing a person's death. Manslaughter carries a penalty of 20 years imprisonment.
First-degree murder is punishable by life without parole.