State v. Polak, DA 16-0306

• Decision Date: 17 July 2018
• Docket Number: DA 16-0306
• Citation: 422 P.3d 112,392 Mont. 90,2018 MT 174
• Parties: STATE of Montana, Plaintiff and Appellee, v. Joseph Richard POLAK II, Defendant and Appellant.
• Court: Montana Supreme Court

392 Mont. 90

422 P.3d 112

2018 MT 174

STATE of Montana, Plaintiff and Appellee,

v.Joseph Richard POLAK II, Defendant and Appellant.

DA 16-0306

Supreme Court of Montana.

Submitted on Briefs: February 28, 2018

Decided: July 17, 2018

For Appellant: Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney, Billings, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Joseph Richard Polak II appeals from a judgment, following a jury trial in the Thirteenth Judicial District Court, Yellowstone County, for deliberate homicide with a weapons enhancement, tampering with or fabricating physical evidence, and criminal endangerment.

¶2 We restate the issues as follows:

Issue One: Whether the District Court abused its discretion by granting the State’s motion in limine excluding a glass methamphetamine pipe and the alleged drug use of a State witness that Polak sought to introduce for impeachment purposes.

Issue Two: Whether the District Court abused its discretion by instructing the jury on whether justifiable use of force as an affirmative defense is available to the first aggressor.

Issue Three: Whether there was sufficient evidence to support a conviction of evidence tampering.

¶3 We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 On April 28, 2015, Polak shot and killed Scott Hofferber with a .45 caliber handgun in a trailer park on Lake Elmo Drive in Billings. The only eyewitness to the incident was Andrea Sattler. Polak, Sattler, and Hofferber were all recently acquainted. Sattler occasionally worked in the trailer park cleaning vacant trailers. Hofferber lived in the park. Sattler and Hofferber were involved in an intimate relationship. Polak also pursued a romantic relationship with Sattler. Polak testified that Hofferber had "a reputation for being a fighter and that he was violent." On one occasion, Hofferber poured a bottle of bleach out in front of Polak and Sattler. Polak testified Hofferber informed Polak that he poured the bleach out in preparation of killing Polak. Sattler described it as a "scare tactic" and testified Hofferber told her later, "that’s what you do before you kill somebody so that the blood doesn’t soak into the fibers of the wood." Sattler testified that when she told Polak that Hofferber criticized her relationship with Polak, Polak responded that he would not fight Hofferber but would shoot him instead. On April 27, 2015, Sattler brokered a car sale between Polak and Sattler’s father-in-law. That evening, Sattler told Polak she had money left over from the sale to return to him, and they agreed to meet at the trailer park. In the early morning hours, Polak’s friend drove him to the trailer park to collect the money.

¶5 At trial, Polak testified that as he walked toward the trailer Sattler had been cleaning, he saw Sattler and believed she was high on methamphetamine. Polak testified he and Sattler had previously gotten high on methamphetamine together. Polak testified he then heard someone say, "Hey, motherfucker," and looked up to see Hofferber walking towards him. Polak testified Hofferber also appeared to be high on methamphetamine and angry. Polak testified that he asked Hofferber what his problem was, and Hofferber responded, "you’re my problem," and "you’re going to bleed, bitch." Polak testified that Hofferber brandished a rod with a spike on the end of it in his right hand (called a "catspaw"), causing Polak to step backward. Polak testified he told Hofferber, "don’t," before pulling out his .45 caliber handgun. In response to the drawn weapon, Polak testified that Hofferber dared Polak to "go ahead" and kept coming toward Polak. Polak shot Hofferber, then he turned and ran. Polak got in his friend’s car, telling him to leave, and the two drove off.

¶6 Sattler testified to a slightly different version of events. The night of the shooting, Sattler was with Hofferber inside the abandoned trailer that she was employed to clean. When Polak arrived, Sattler testified that he appeared angry and was asking about his money. Sattler testified that Polak saw Hofferber and asked, "What’s your problem, bro?" Hofferber replied, "You’re my problem, bro." Sattler stated that Hofferber took out a catspaw, held it out to Polak, and said, "Here. You are going to need this." She testified Hofferber did not step towards Polak, who was standing about six feet away. Sattler testified Polak backed up two steps, pulled out a handgun, and fired one shot into Hofferber’s chest. Sattler testified Hofferber then grabbed his chest, fell backwards, and said, "I can’t believe you did that, man." Sattler testified she then fled to a friend’s trailer but returned briefly to grab her purse. Sattler’s recollections regarding the details of the incident changed depending on whom she told. Some of these details included the distance between Polak and Hofferber when he fired the gun, the words exchanged by Polak and Hofferber, how Hofferber was holding the catspaw, and whether Hofferber stepped toward Polak.

Sattler also testified that she did not clearly recall a lot of the details.

¶7 After the incident, Officer Jay Stovall of the Billings Police Department responded to a 911 call that a man had been shot at the trailer park on Lake Elmo Drive. Stovall observed that Hofferber was already deceased when he arrived. Stovall recovered a single .45 caliber shell casing in the street near the trailer. When police officers arrested Polak, Polak attempted to flee by ramming his truck into a patrol car and reversing into a federal marshal’s vehicle. He was ultimately apprehended. Police officers discovered a loaded 9mm handgun in the vehicle Polak was driving. Police never located the .45 caliber handgun used to kill Hofferber. Polak admitted to shooting Hofferber but claimed he was acting in self-defense. The State charged Polak with (1) deliberate homicide in violation of § 45-5-102(1)(a), MCA ; (2) a weapons enhancement, § 46-18-221, MCA ; (3) tampering with or fabricating physical evidence in violation of § 45-7-207(1)(a), MCA ; and (4) criminal endangerment in violation of § 45-5-207(1), MCA.¹

¶8 Polak moved to dismiss the tampering charge for lack of probable cause. On September 2, 2015, the District Court denied Polak’s motion, determining there was probable cause to charge Polak with tampering with evidence. The District Court opined that the proper means for Polak to challenge the sufficiency of the evidence was after it had been presented to the trier of fact. At trial, Polak took the stand in his defense. During direct and cross-examination, no one questioned Polak as to the location of the .45 caliber handgun used in the shooting.

¶9 During voir dire, prospective juror John Wittman admitted he knew Hofferber and that Hofferber was a "distant relative." Defense counsel did not inquire further into Wittman and Hofferber’s relationship, did not move for automatic dismissal of Wittman for cause, and did not use any peremptory challenges on Wittman. Wittman sat on the jury.

¶10 Sattler initially hid from police in a friend’s trailer and asked friends to lie about her whereabouts. Later, Sattler contacted law enforcement and was interviewed. Police also found a glass pipe with methamphetamine residue resting on top of Sattler’s cleaning sponge inside the trailer where she and Hofferber had been. A text message conversation from Sattler’s phone the night of the shooting showed a text from Sattler inviting a friend to "come smoke" with her. When questioned at trial, Sattler denied using methamphetamine the night of the incident. Toxicology reports showed that Hofferber had ingested methamphetamine the night of his death in an amount that exceeded the average overdose level. The State moved in limine to prevent Polak from offering testimony or other evidence to impeach Sattler with the presence of the methamphetamine pipe. Polak responded that the evidence and questions were relevant to his defense and argued the State’s motion should be denied. Following an in-camera discussion, the District Court agreed with the State and disallowed the evidence and Polak’s proposed line of questioning.

¶11 Polak proceeded under a self-defense "justifiable use of force" ("JUOF") theory. After both parties presented their case-in-chief, the State proposed a "first-aggressor" jury instruction in response to Polak’s claim of JUOF. Polak objected that there was no evidence to support such an instruction. The District Court disagreed and gave the instruction, which was patterned off Montana’s model criminal jury instructions ("MCJI") No. 3-104. During closing arguments, the State directed the jury multiple times to "focus on the use of force by aggressor" and to "[p]ay attention to the initial aggressor instruction." The jury returned a verdict of guilty on all counts: deliberate homicide with a weapons enhancement, tampering with or fabricating physical evidence, and criminal endangerment. On March 1, 2016, the District Court sentenced Polak to sixty years for deliberate homicide, ten years consecutive for weapon enhancement, ten years consecutive for criminal endangerment, and ten years to run concurrent for tampering with evidence; in total, an eighty-year prison sentence. Polak appeals.

STANDARDS OF REVIEW

¶12 We review for abuse of discretion a district court’s grant or denial of motions to admit or exclude evidence, including motions in limine. Hulse v. DOJ, Motor Vehicle Div. , 1998 MT 108, ¶ 15, 289 Mont. 1, 961 P.2d 75. A district court is bound by the Rules of Evidence and applicable statutes, State v. Daniels , 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623, and we review a district court’s application...