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State v. Polson

Court of Appeals of Iowa

April 19, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
PETE JASON POLSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         The defendant appeals from his convictions for attempt to commit murder, assault with intent to inflict serious injury, two counts of willful injury causing serious injury, intimidation with a dangerous weapon, possession of a controlled substance with intent to deliver (marijuana), and failure to possess a tax stamp. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Pete Polson appeals from his convictions for attempt to commit murder, assault with intent to inflict serious injury, two counts of willful injury causing serious injury, intimidation with a dangerous weapon, possession of a controlled substance with intent to deliver (marijuana), and failure to possess a tax stamp. On appeal, Polson raises a number of issues; he claims (1) the court abused its discretion when it denied his request to substitute counsel one business day before trial; (2) there was not sufficient evidence to support the jury's verdict regarding his specific intent; (3) the weight of the evidence does not support the jury's verdict; and (4) trial counsel was ineffective for failing to retain an expert witness on the effects of psychotropic drugs and failing to move to sever the shooting incident charges from the drug charges.

         I. Background Facts and Proceedings.

         On November 17, 2014, at approximately 6:30 a.m., Mark Mitchell left his home to start his vehicle, which was sitting in the driveway. As Mitchell walked toward his truck, he was approached by a man who pulled a gun out of his pocket and shot Mitchell in the stomach. The man fired a second shot, but the second bullet missed Mitchell and entered the home. Mitchell was then able to retreat back into the house, and Mitchell's young son called 911. The first officers were dispatched at 6:32 a.m.

         Nearby, Zachary Whitehill had just pulled over to the side of the road because he was having difficulty seeing due to snow blowing up and freezing his windshield wipers. Whitehill exited his vehicle, and as he was reaching for the wiper blades, he was shot twice-once in the back and once in the neck. The shooter then left the scene, and a concerned citizen stopped and called 911. Whitehill reported the shooter had driven off in a green Ford Explorer with Iowa license plates. Officers were dispatched to the second scene at 6:36 a.m.

         Matthew Stephenson had stopped at the home of his children's grandparents in order to drop off his son's school bag. Stephenson left his vehicle running, and as he was returning to the truck, a number of shots-four or five-rang out. Stephenson was able to make it into the home without being hit, but a number of bullets missed him by mere inches. Stephenson called 911 at 6:44 a.m., and he reported the shooter was driving an older green SUV and wearing a bright "hunting" orange sweatshirt.

         Around 7:00 a.m., Trooper Brian Moses was driving in his squad car near the location of the three shootings when he noticed a man matching the shooter's description wearing an orange sweatshirt and driving a green Ford Explorer. The vehicle drove past Moses, and Moses lost sight of it for a short time. However, he and another trooper, Andrew Klein, located, and were able to block, the vehicle. Trooper Klein ordered the driver out of the vehicle, and he complied. Once they had the driver, they were able to identify him as Pete Polson. Stephenson was brought to the scene shortly thereafter, and he identified Polson as the man who had shot at him "without a doubt."

         Officers searched the area Polson had been driving when Moses lost sight of him, and they found a handgun in the ditch. Although there had been a snowstorm a couple days earlier, the gun was not covered in snow. Later testing confirmed that Polson's DNA was on the handgun. Additionally, casings found at each of the scenes were tested and determined to have been shot from the recovered handgun. Polson's orange sweatshirt was also tested, and gunshot residue was found on it.

         Later the same day, officers conducted a search of Polson's residence. In it, they found in excess of fifteen pounds of marijuana, as well as some packaging materials and scales. Additionally, a couple of spoons with methamphetamine residue were recovered.

         Special Agent Matthew Clifton interviewed Polson at the police station on the day of the shootings. When asked, Polson responded he had not used narcotics or drugs for a couple years. Additionally, Polson said he did not feel intoxicated at the time. Clifton testified that based on his observations of Polson and his demeanor, Clifton believed that Polson was not intoxicated at the time.

         On December 22, 2014, Polson was charged by trial information with a number of crimes stemming from November 17. Polson was charged with three counts of attempted murder (count I: Mark Mitchell; count II: Zachary Whitehill; count III: Matthew Stephenson); two counts of willful injury causing serious injury (count IV: Zachary Whitehill; count V: Mark Mitchell); one count of intimidation with a dangerous weapon (count VI); one count of conspiracy to deliver a controlled substance (marijuana) (count VII); one count of possession of a controlled substance with intent to deliver (marijuana) (count VIII); and failure to affix a tax stamp (count IX).

         In early October 2015, Polson filed a notice that he intended to rely on the defense of intoxication.

         Jury orientation took place on the morning of Friday, October 9; the trial was scheduled to start the following Monday. Then, on Friday afternoon, the court held a hearing on Polson's pro se motion to dismiss or substitute his appointed trial counsel. The court stated, "I'll go ahead and have you [Polson] make any statements you would like, and then I'm going to have [trial counsel] respond to that." Polson then stated:

I just feel that [trial counsel] doesn't have my best interests, you know. He's dropped the ball on a lot of things. It's all there in the affidavit. He's-we talked about filing for certain things, and he hasn't done it. Just, you know-and I just feel that a lot of things haven't gone like he says they were going to and he doesn't have my best ...

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