State v. Polak, 422 P.3d 112

On April 28, 2015, Joseph Polak II shot and killed Scott Hofferber; Andrea Sattler was the sole eyewitness. Polak claimed self-defense (justifiable use of force, JUOF).
Police recovered a .45 shell casing; the .45 handgun used in the shooting was not recovered. Polak admitted firing but asserted self-defense. He was charged with deliberate homicide, a weapons enhancement, tampering with or fabricating physical evidence, and criminal endangerment.
Police found a glass methamphetamine pipe with residue on Sattler’s cleaning sponge in the trailer where the shooting occurred; Sattler denied being high that night. The State moved in limine to exclude evidence and questioning about the pipe and Sattler’s drug use; the court granted the motion.
The court gave a jury instruction limiting JUOF for a person who purposely or knowingly provoked the use of force (a “first-aggressor” instruction). The jury convicted Polak on all counts; he was sentenced to an aggregate 80-year term.
On appeal the Court (Shea, J.) addressed three issues: exclusion of the meth pipe/drug-use impeachment evidence; the propriety of the first-aggressor instruction; and sufficiency of the evidence for the tampering conviction.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Polak)	Held
Exclusion of meth pipe/drug-use evidence for impeachment	Exclusion proper because Polak failed to show Sattler was impaired at the time; pipe alone insufficient to prove intoxication.	Evidence was relevant to Sattler’s perception and credibility; foundation existed (pipe, texts, proximity to meth user, Polak’s observations).	Reversed: exclusion was an abuse of discretion; evidence should have been admitted for impeachment and perception issues.
First-aggressor jury instruction	Instruction appropriate because evidence conflicted on who provoked the encounter.	No sufficient evidence Polak purposely provoked force; instruction unnecessary and prejudicial.	Affirmed: instruction supported by direct and circumstantial evidence; proper to give alongside JUOF instructions.
Sufficiency of evidence for tampering with evidence (failure to locate gun)	Circumstantial inference that Polak disposed of the .45 supported tampering conviction.	Mere failure to locate the gun is insufficient; State presented no evidence of an overt act or intent to impair the investigation.	Reversed: insufficient evidence; judgment of acquittal on tampering directed.
Ineffective assistance claim (juror nondisclosure)	—	Trial counsel ineffective for not further probing juror Wittman’s connection to victim.	Not decided: Court declined to reach claim given remand instructions.

State v. Gommenginger, 790 P.2d 455 (Mont. 1990) (defendant’s constitutional right to present a defense and confront witnesses limits exclusion of evidence)
State v. Sorenson, 619 P.2d 1185 (Mont. 1980) (intoxication evidence admissible to impeach witness perception/accuracy)
State v. Matz, 150 P.3d 367 (Mont. 2006) (foundation required to show witness intoxication at relevant time)
State v. Erickson, 338 P.3d 598 (Mont. 2014) (jury must be instructed on theories supported by evidence; conflicted evidence requires instruction on both theories)
State v. Rosling, 180 P.3d 1102 (Mont. 2008) (standards for sufficiency of evidence review in criminal cases)
Burks v. United States, 437 U.S. 1 (U.S. 1978) (double jeopardy bars retrial when evidence is legally insufficient)