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The Honolulu Advertiser
Posted on: Friday, December 5, 2003

Judge says words on videotape not clear

By David Waite
Advertiser Courts Writer

Previewing a videotape of a series of incidents that stopped just short of the fatal shooting of a police officer in Kapolei, a state judge said yesterday she couldn't make out what was being said either in the footage or in a version "enhanced" by an FBI audio-visual expert.

Circuit Judge Karen Ahn, who viewed the videotape while the jury was out of the courtroom, concluded that jurors will have to decide for themselves what, if any, words are spoken in the soundtrack of the tape.

The tape is scheduled to be shown to the jury early next week in the trial of Shane Mark, who is charged with first-degree murder in the March 4 shooting of Officer Glen Gaspar in the Baskin-Robbins store in Kapolei.

As Ahn was previewing the tape yesterday, state Deputy Public Defender Debra Loy told her that what the video shows and what is said in it — or isn't said — will be critical to a key defense argument that Mark had no idea who two plainclothes officers were when they approached him in the ice cream shop before the shooting started.

City Deputy Prosecutor Christopher Van Marter maintains that a voice on the soundtrack can be heard to say: "Hey, police, get your hands up!"

But Loy has contended that two plainclothes officers grabbed Mark from behind without warning and without identifying themselves.

Loy does not deny that Mark, 29, fired the shots that killed Gaspar, 40, but maintains that Mark acted in self-defense, believing that the plainclothes officers who were trying to subdue him were instead two other men retaliating for a Feb. 1 incident in Moanalua. In the February incident, Mark allegedly fired a handgun at two men.

Loy said the issue is whether Mark was able to hear and understand anything that the two police officers might have said by way of identifying themselves as they approached him from the back.

In the final 10 seconds of the 8-mm home video, Mark is seen standing behind his daughter in the shop as he reaches into his right front pocket and pulls out a necklace meant for the girl.

The next several frames show portions of two men's arms and their hands as they attempt to grab Mark by his wrists and forearms.

The two men seen in the video attempting to take control of Mark were Gaspar and Officer Calvin Sung, who had gone to Kapolei along with four other officers who planned to arrest Mark on attempted-murder charges stemming from the Moanalua shooting.

FBI forensic expert Noel Herold, an audio-visual specialist from headquarters in Quantico, Va., said he electronically enhanced the visual images on the tape to make the edges cleaner and also made the sound more distinct by eliminating some of the peripheral noise.

The video was taken by the boyfriend of Mark's former girlfriend and mother of his 10-year-old daughter. It was intended to be a memento of the girl's meeting with her father, meant for her to take back with her to the Mainland.

Herold said the Honolulu prosecutor's office sent the video to him and asked him to analyze the last 10 seconds. On a scale of 1 to 10, with 1 being the highest quality, Herold rated the tape at about 1.5 when it arrived at his office. He said it was "of very good quality" compared to some tapes that the FBI is asked to review or enhance.

Herold said what people hear on the spot when it happens is probably more understandable than what is captured on videotape, barring negative influences such as bad acoustics or background noise, and depending on the proximity of the speaker to other people.

Mark is also charged with attempted first-degree murder and a firearms violation. The trial resumes today.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.