State v. J. Polak II, 499 P.3d 565

Background

In April 2015 Joseph Polak shot and killed Scott Hofferber; Andrea Sattler was the lone eyewitness. Polak fled and was arrested two days later.
Initial trial convicted Polak of deliberate homicide (with weapons enhancement), tampering, and criminal endangerment; this Court reversed the deliberate homicide conviction and ordered a new trial because the court had excluded evidence (a meth pipe) that could impeach Sattler.
On retrial the State did not introduce evidence of Polak’s drug use in its case-in-chief per a motion in limine, but the court allowed limited rebuttal impeachment if Polak denied drug use at trial; the court also limited details about Polak’s April 30 arrest.
The State emphasized a nighttime, meth-affected subculture in opening and closing; defense emphasized Sattler and Hofferber were on meth and argued self-defense; rebuttal suggested Polak may have been using meth.
Polak was convicted again of deliberate homicide with a weapons enhancement and sentenced to 70 years (60 + 10); he appeals claiming (1) prosecutorial misconduct in opening/closing (plain error) and (2) multiple instances of ineffective assistance of trial counsel (IAC).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct / plain error based on opening/closing statements about a “world” of meth use	The State defended the remarks as contextualizing witness behavior and previewing defense theory; rebuttal inferences were permissible and consistent with the motion in limine.	Polak argued the theme impermissibly implied he used or dealt drugs and prejudiced the jury, violating the limine order.	No plain error. Remarks were contextual, permissible inferences from the evidence, and consistent with the court’s limine ruling.
IAC — failure to object or seek mistrial for the State’s “world” meth-theme	State: objections would have failed; counsel need not make nonmeritorious motions.	Polak: counsel’s omission waived a meritorious objection and was deficient.	Not IAC on direct appeal — the prosecutor’s remarks were proper, so failing to object was not deficient.
IAC — failure to seek continuance or properly vet/qualify detective on cellphone location data	State: record doesn’t show counsel lacked the data or that further vetting would have changed outcome; detective conceded non-expert status on cross.	Polak: counsel should have sought time to analyze phone data and voir dired the detective’s qualifications.	Record insufficient to show deficient performance; may be pursued in postconviction proceedings, not on direct appeal.
IAC — failure to elicit victim’s violent/MMA history; alleged bad plea advice causing withdrawal of counteroffer	State: trial record does not explain counsel’s choices; no showing advice was given that prejudiced plea process.	Polak: counsel failed to develop self‑defense foundation, withheld key impeachment and gave incorrect plea advice, resulting in prejudice.	Record inadequate to evaluate these IAC claims on direct appeal; issues either lacked a plausible justification record or require postconviction development.

Key Cases Cited

Darden v. Wainwright, 477 U.S. 168 (prosecutorial-misconduct standard: whether remarks so infected trial as to deny due process)
Donnelly v. DeChristoforo, 416 U.S. 637 (prosecutorial remarks require context and actual prejudice to reverse)
Strickland v. Washington, 466 U.S. 668 (two-pronged standard for ineffective assistance of counsel)
State v. Haithcox, 447 P.3d 452 (Mont. 2019) (preservation and plain error review for prosecutorial misconduct)
State v. McDonald, 299 P.3d 799 (Mont. 2013) (plain error framework and prosecutor inferences)
State v. Aker, 310 P.3d 506 (Mont. 2013) (prosecutor argument permissible when tied to evidence and jury instructions)
State v. Crider, 328 P.3d 612 (Mont. 2014) (IAC standards and deference to tactical choices)
State v. Trull, 136 P.3d 551 (Mont. 2006) (when counsel files affidavit/new-trial motion, record can support IAC review on direct appeal)
Lafler v. Cooper, 566 U.S. 156 (IAC in plea-bargaining context; prejudice requires showing plea would have been presented and accepted)