¶2 We restate the issues as follows:
Issue One: Whether the District Court abused its discretion by granting theState's motion in limine excluding a glass methamphetamine pipe and the alleged drug use of a State witness that Polak sought to introduce for imрeachment 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 tеstified 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
¶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
¶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 hаndgun 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.
¶8 Polak moved to dismiss the tampering charge for lack of probable cause. On September 2, 2015, the District Court denied Pоlak'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
¶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
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. ,
¶13 We review for an abuse of discretion a district court's decisions regarding jury instructions. Ammondson v. Northwestern Corp. ,
¶14 We review de novo whether sufficient evidence supports a conviction. State v. Torres ,
DISCUSSION
¶15 Issue One: Whethеr 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.
¶16 "Relevant evidence-the only type of evidence admissible at trial-is evidence which has a tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence." State v. Johnson ,
¶17 A district court's discretion in applying the Rules оf Evidence and exercising control to exclude evidence is limited by the "constitutionally required threshold level of inquiry ... afforded [to] the [d]efendant." State v. Gommenginger ,
¶18 The mere use of narcotics, or other intoxicants, is not admissible to impeach а witness's credibility. State v. Gleim ,
¶20 The State argues that Polak failed to establish a sufficient connection between the methamphetamine pipe and any alleged impairment of Sattler's memory of the events to establish the pipe's relevance. The State further argues that the only evidence in the record of Sattler's alleged intoxication was Polak's self-serving statement that he believed Sattler was under the influence of methamphetamine.
¶21 Polak counters that in disallowing the evidence and the proposed line of questioning, the District Court abused its discretion and erroneously deprived the jury of important impeachment evidence. Sattler's and Polak's testimonies conflicted in ways that were potentially decisive as to whether Polak justifiably used force against Hofferber. Polak argues the methamphetamine pipe found on Sattler's cleaning sponge in the trailer near where the shooting occurred was relevant to whether Sattler was high that night and admissible for two purposes: (1) challenging the accuracy of her рerceptions and memories of the incident, rendering her an unreliable witness, and (2) contradicting her claim she was not high that night, rendering her a liar and an untrustworthy witness. We agree.
¶22 Sattler's testimony served as the crux of the State's case. Polak's proposed line of questioning was relevant to Sattler's accuracy of her perception the night of the shooting and relevant to whether the jury would believe Sattler's or Polak's version of events. See Sorenson ,
¶23 The evidence was also relevant to impeaching Sattler's credibility and trustworthiness if she was able to be cross-examined as to whether she used methamphetamine the night of the shooting. On direct examination, the State adduced testimony from Sattler claiming she was not high on methamphetamine during the incident, and that her text message inviting a friend to "come smoke with me" minutes before the incident did not reference smoking methamphetamine. The State opened the door to Polak using the methamphetamine pipe for impeachment through contradiction. The evidence concerning the glass pipe was relevant, and the jury should have been able to hear and consider Polak's questions concerning it. See M. R. Evid. 611(b)(1), 402. The District Court аbused its discretion when it excluded relevant evidence that potentially impugned the State's primary witness's perception of the events and impeached her credibility. We therefore reverse and remand on this issue.
¶24 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.
¶25 A district court has broad discretion in formulating jury instructions.
¶26 Justifiable usе of force ("JUOF"), or self-defense, provides a complete affirmative defense to deliberate homicide. Section 45-3-115, MCA ; Erickson , ¶ 25 ; State v. Miller ,
¶27 If a rational trier of fact could find from the evidence that a defendant purposely or knowingly provoked force, a district court may give a "first-aggressor" instruction. Erickson , ¶¶ 33-35 (citing § 45-3-105(2)(a), MCA, and affirming a trial court's decision to give the "first-aggressor" instruction because there was testimony indicating the defendant was the aggressor and the instruction was therefore necessary to fully and fairly instructed the jury on applicable law and permit the jury to resolve questions of fact).
¶28 "The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact ...." State v. Bower ,
¶29 The State proposed Jury Instruction No. 35, which recited § 45-3-105(2)(a), MCA, and mirrored MCJI No. 3-104 (2009).
¶30 The State argues the conflicting evidence in the record warranted the jury instructions for both "first aggressor" and JUOF. Polak argues that the District Court abused its discretion by giving a "first-aggressor" instruction despite insufficient evidence Polak purposely or knowingly provoked
¶31 The "first-aggressor" instruction was supported by the evidence adduced at trial. See Kaarma , ¶¶ 23, 25. There was sufficient evidence, both direct and circumstantial, to give the "first-aggressor" jury instruction. See Erickson , ¶ 35 ; Kaarma , ¶¶ 23, 25. This evidence included the conflicting testimony about what was said between Polak and Hofferber immediately before the shooting and whether Polak was upset when he arrived at the scene the night of the shooting; Polak's and Hofferber's previous interactions; Polak having brought a loaded gun with him; Polak telling the man who drove him to the scene to leave the vehicle running and then fleeing the scene; and the fact that Polak resisted arrest.
¶32 The "first-aggressor" instruction was a correct statement of law and it, along with the JUOF and other instructions, fully instructed the jury on the applicable law. See Kaarma , ¶ 7. The jury instructions, as a whole, fairly and fully apprised the jury of the applicable law presented at trial. See English , ¶ 39. It was for the jury to accept either Polak's version or the State's version of events. See Miller , ¶ 25. The District Court did not abuse its discretiоn in giving a "first-aggressor" jury instruction.
¶33 Issue Three: Whether there was sufficient evidence to support a conviction of evidence tampering.
¶34 We review questions on the sufficiency of the evidence in a
¶35 A new trial cannot be granted where the evidence adduced at the first trial proves insufficient to support a conviction. State v. Warren ,
¶36 A person commits the offense of tampering with or fabricating physical evidence "if, believing that an official prоceeding or investigation is pending or about to be instituted, the person ... alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or ability in the proceeding or investigation ...." Section 45-7-207(1)(a), MCA ; Rosling , ¶¶ 39, 41 (affirming a conviction for tampering with evidence where a witness saw the defendant arrive near the victim's house, the witness did not see other cars coming and going, the defendant's shoeprints were found in the victim's yard, the victim's blood was on the defendant's clothing, and the defendant laundered his clothes later that day); Warren ,
¶37 Polak challenged the sufficiency of evidence in a pretrial motion and on appeal.
¶38 The State presented no evidence that Polak disposed of the handgun. Instead, during closing argument, the State speculated that Polak disposed of the firearm because (1) Polak had the firearm when he used it against Hofferber, and (2) Polak did not have the firearm when he was arrested two days later. Bare suspicion from which inferences can be drawn is insufficient for a finding of beyond a reasonable doubt. See State v. Fitzpatrick ,
¶39 There was insufficient evidence for a reasonable jury to find the elements of evidence tampering, § 45-7-207(1)(a), MCA, beyond a reasonable doubt. See Roedel , ¶ 35. We reverse this portion of the District Court's judgment and remand with directions to enter a judgmеnt of acquittal on the charge of tampering with or fabricating physical evidence.
¶40 Finally, Polak raises a claim of ineffective assistance of counsel
CONCLUSION
¶41 The District Court abused its discretion by granting the State's motion in limine to exclude evidence of Sattler's relationship to the methamphetamine pipe and her alleged drug use. The District Court did not abuse its discretion in giving the jury the "first-aggressor" instruction. There was insufficient evidence to support Polak's conviction for tampering with evidence. The District Court's Order is affirmed in part and reversed in part. We remand for further proceedings consistent with this Opinion.
We Concur:
MIKE McGRATH, C.J.
INGRID GUSTAFSON, J.
BETH BAKER, J.
DIRK M. SANDEFUR, J.
Notes
Initially, Polak was also charged with Criminal Possession of Dangerous Drugs. On June 9, 2016, the charge was dismissed on a motion of the State.
The Use of Force by Aggressor Instruction:
The use of force in defense of a person is not available to a person who purposely or knowingly provoke[d] the use of force against himself unless such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant.
MCJI 3-104 (2009); § 45-3-105(2)(a), MCA (2013).
Citing to § 46-16-403, MCA, and State v. Tichenor ,