Pete Jason Polson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1508
Filed January 11, 2023

PETE JASON POLSON,
Applicant-Appellee,

vs.

STATE OF IOWA,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

The State appeals the grant of a new trial to a postconviction-relief

applicant. REVERSED AND REMANDED.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellant State.

Alexander Smith of Parrish Kruidenier Dunn Gentry Brown Bergmann &

Messamer L.L.P., Des Moines, for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2

BADDING, Judge.

On a cold Monday morning in November 2014, Pete Polson went on a

random shooting spree in a quiet neighborhood, almost killing two men and

narrowly missing another. We affirmed Polson’s convictions for these shootings

on direct appeal but preserved the following claim for postconviction relief: whether

trial counsel was ineffective for failing to retain an expert witness to testify about

Polson’s “lack of memory and ability to form specific intent several hours after

using ‘cut’ methamphetamine.” State v. Polson, No. 15-2104, 2017 WL 1401472,

at *7–8 (Iowa Ct. App. Apr. 19, 2017). Polson raised that claim in his application

for postconviction relief, which the district court granted. We reverse and remand.

I. Background Facts and Proceedings

Polson spent the weekend before the shootings “slamming”1

methamphetamine with a woman he had only recently met—Billi Jo Bailey. She

testified at Polson’s criminal trial that “she saw Polson use methamphetamine a

number of times throughout that weekend, with the last time being around 10:30

or 11:00 p.m. on November 16.” While it looked the same as other

methamphetamine they had that weekend, Polson’s behavior was different. So

Bailey asked him to leave.

Polson left Bailey’s home around midnight. His last memory was the shot

of methamphetamine she watched him inject. Polson testified at trial it was new

stuff he had just purchased that night after they ran out. He said that right after he

injected it, he knew “something was wrong. . . . [I]t didn’t even taste like dope,”

1 By “slamming,” Polson meant he was heating methamphetamine on a spoon until
it became liquid and then injecting it into his veins with a syringe.
3

which is what he called methamphetamine. Polson continued: “[W]hen you shoot

dope, if it’s real good you can taste it,” and whether “it’s good or not, you feel it,

you know. You get a rush. . . . You’re really energetic and stuff like that.” But with

what he took that night, Polson said, “Right when I took the shot [the] back of my

neck hair stood up, and I just—I don’t know, man. . . . [A]fter that stuff got weird,

and I just don’t even remember.”

What Polson claims to not remember is shooting at three strangers the next

morning, starting around 6:30 a.m. The first victim was Mark Mitchell, who Polson

shot in the stomach as Mitchell was leaving his house to go to work. The second

shooting was called in a few minutes later. That victim was Zachary Whitehill. He

had pulled over to the side of the road to clear off his windshield when Polson

drove up and shot him in the back and neck. Less than ten minutes later, Polson

came upon Matthew Stephenson, his third victim. Stephenson had just dropped

his son’s school bag off and was getting back into his truck when Polson started

shooting at him. He took cover, and the bullets missed him by mere inches.

Law enforcement officials found Polson around 7:00 a.m., shortly after the

last shooting. His vehicle was blocked in by two troopers, who ordered him to shut

off the car and throw the keys out. The troopers said that Polson followed all of

their commands and was “very compliant.” One described Polson during the

encounter as:

He was very calm. He was calm throughout the whole thing. He
really had no emotion on his face. . . . And I believe I remember him
when he was in the vehicle asking what was going on, but he didn’t
seem fearful. He didn’t seem concerned about what was happening.
4

The other trooper agreed, testifying Polson seemed “indifferent, just normal, like

another day.” Neither of those troopers, nor two other law enforcement officials

who interacted with Polson that morning, believed he was intoxicated or under the

influence of any drug.

Polson was charged with three counts of attempted murder, two counts of

willful injury causing serious injury, and intimidation with a dangerous weapon,

along with several drug offenses stemming from a large amount of marijuana found

at his residence after the shootings. Law enforcement officials also found spoons

on Polson’s nightstand with methamphetamine residue, a small glass vial on a

coffee table with a crystal residue that was not a controlled substance, and a

syringe in a backpack in Polson’s vehicle.

Faced with this evidence, Polson’s trial attorney explained at the

postconviction-relief hearing that “the only defense to the attempted murder

charges was that he was not in control of his actions” because of intoxication. The

problem with this defense, according to the attorney, “was the [S]tate’s argument

that he wasn’t acting like one who was on meth.” When confronted with that

problem, defense counsel said, “that’s when [Polson] mentioned, well, he didn’t

think it was methamphetamine. He thought it was something else.” So their

argument at trial was that Polson “wasn’t acting like somebody on

methamphetamine because he was on something else.”

Polson’s attorney did not secure an expert to testify about this because he

knew that he could get the officers to say

there was this business out there where people would sometimes
sell counterfeit substances, and so . . . Mr. Polson would have been
able to unknowingly and unwittingly purchase some of that and use
5

some of that, causing a reaction in him that would look different from
somebody else that had actually used methamphetamine.

He felt that using the State’s witnesses as experts against them, rather than hiring

one of their own, was a good strategy because

[j]urors are well used to the concept of experts being called, and that
you can always get an expert to say anything you want, so to speak,
under the theory that they’re just bought and paid for and will say
what you want them to say. But when you do it with their witness, it
has more impact.

This strategy worked, to an extent. The jury found Polson guilty of only one

count of attempted murder and two counts of the lesser-included offense of assault

with intent to inflict serious injury.2 On direct appeal, Polson claimed that “trial

counsel should have retained an expert witness to testify about the effects of

psychotropic drugs.” In examining that claim, we concluded:

While the evidence Polson was the shooter was overwhelming, there
was some question as to whether Polson was able to form the
specific intent necessary to be convicted of the charges that resulted
from the shootings. Based on the record before us, we do not know
if there was an expert that could offer the type of testimony that
Polson now contends was necessary—testimony that would have
buttressed his assertions about his lack of memory and ability to form
intent several hours after using “cut” methamphetamine.

Id. at *7. So we preserved that claim for postconviction relief. Id.

After petitioning for postconviction relief, Polson retained Terriann Crisp, a

retired pharmacology professor. Dr. Crisp’s review was limited to our decision in

Polson’s direct appeal, which led her to conclude: “I have no question whatsoever

that he was experiencing a methamphetamine-induced psychosis.” Because that

“causes a dissociation from reality,” Dr. Crisp believed it “could certainly affect a

2 Polson was found guilty as charged of the remaining counts.
6

person’s ability to differentiate right from wrong and affect their specific intent to

harm others.”

The district court found this testimony compelling in concluding that trial

counsel’s “failure to fully investigate and utilize an expert witness to testify as to

Polson’s ability to form the specific intent necessary to be convicted of the charges

that resulted from the shootings was breach of an essential duty.” The court further

found that Polson was prejudiced by the error because

[t]here was an expert that could have offered the type of testimony
that Polson contends was necessary. Dr. Crisp’s testimony would
have buttressed Polson’s assertions about his lack of memory and
ability to form intent. This testimony shows that the probability of a
different result is sufficient to undermine confidence in the outcome
of Polson’s trial.

The court granted Polson a new trial on all of his convictions.3

The State appeals, claiming (1) “[c]ounsel performed effectively by pursuing

an intoxication defense consistent with the fact that [Polson] took a drug other than

meth before the shooting spree,” and (2) the “failure to call an expert on the effects

of meth did not prejudice [Polson] because the facts did not support the expert’s

opinion and she did not understand specific intent.”

II. Standard of Review

We generally review a district court’s ruling on an application for

postconviction relief for errors at law. See Doss v. State, 961 N.W.2d 701, 709

(Iowa 2021). But because Polson’s application alleged ineffective assistance of

3 Polson agrees the court erred in extending its ruling to his marijuana convictions,
which were not affected by the lack of an expert witness on his specific intent for
the shootings.
7

counsel, we conduct a de novo review. Goode v. State, 920 N.W.2d 520, 523

(Iowa 2018).

III. Analysis

“The Sixth Amendment to the United States Constitution and article 1,

section 10 of the Iowa Constitution guarantee the right to ‘effective’ assistance of

counsel.” State v. Lorenzo Baltazar, 935 N.W.2d 862, 868 (Iowa 2019). To

establish ineffective assistance of counsel, Polson must show by a preponderance

of the evidence that his trial attorney “‘failed to perform an essential duty’ that

resulted in prejudice.” Doss, 961 N.W.2d at 709 (citation omitted); accord

Strickland v. Washington, 466 U.S.668, 687–88 (1984).

Under the first prong of the analysis, we start with the presumption that

counsel “competently performed his or her duties.” Lorenzo Baltazar, 935 N.W.2d

at 868. To rebut this presumption, Polson must show “that trial counsel’s

representation fell below an objective standard of reasonableness.” Id. (citations

omitted). “This is more than a showing that a trial strategy backfired or that another

attorney would try the case differently.” Id. “[T]o some extent counsel’s trial

performance must be judged by his primary theory of defense,” the selection of

which “is a tactical matter.” Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984).

The primary defense theory was that Polson was intoxicated by something

other than methamphetamine during the shootings, which affected his ability to

form the specific intent required for the charges related to the shootings. See State

v. Guerrero Cordero, 861 N.W.2d 253, 258 (Iowa 2015), overruled on other

grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708 (Iowa 2016) (stating

intoxication can “be used by a fact finder to consider the ability of a defendant to
8

form the specific intent necessary to commit a crime”); see also Iowa Code § 701.5

(2014). Trial counsel considered whether to call an expert on that issue and

elected against it because “the plan was to use the State’s witnesses against

them.” He had found that to be effective in the past, testifying; “Any time you can

turn State’s witnesses against them, it’s helpful to you.” Counsel used this strategy

to get one of the law enforcement officials involved in the case to agree:

Q. Some people will ingest things like bath salts; isn’t that
correct? A. Correct.
Q. Some of those bath salts will sometimes look like
methamphetamine crystals; isn’t that correct? A. Correct.
Q. The report that you went through with Ms. Cox talks about
item No. 6 [a glass vial] having a crystalline substance that . . . was
not a controlled substance; isn’t that right? A. Right.
Q. But it could be a bath salt? A. The lab didn’t tell us what it
was.
Q. Exactly. So it could be? A. Could be something else.
....
Q. And sometimes, though, people will use something that will
look like meth because they don’t have methamphetamine, and they
want to get the money from the sale. They use something, a
counterfeit substance; isn’t that correct? A. Yes.

“There is no bright-line duty for an attorney to retain an expert.” Dawson v.

State, No. 17-1679, 2019 WL 1940727, at *5 (Iowa Ct. App. May 1, 2019). Instead,

it is a question of trial strategy. See Heaton v. State, 420 N.W.2d 429, 432

(Iowa 1988). Counsel felt the strategy worked here, where “given all of the

overwhelming evidence against [Polson], the jury still chose to find him guilty of

only one charge of attempted murder as opposed to three.” See Everett v.

State, 789 N.W.2d 151, 158 (Iowa 2010) (“In determining whether an attorney

failed in performance of an essential duty, we avoid second-guessing reasonable

trial strategy.”). When asked whether he could have done both—cross-examined

the State’s witnesses and retained an expert—defense counsel said: “If it affects
9

the way the jury looks at the expert and makes them think that he’s just a bought

and paid for witness, you know, maybe it degrades the look of the police officers

to them, as well.” This was a reasonable trial strategy. See State v. Majors, 940

N.W.2d 372, 392 (Iowa 2020) (finding trial counsel’s “strategic decision to rely on

his own cross-examination of the State’s expert” was a reasonable one).

Polson also failed to prove that he was prejudiced by counsel’s decision to

forego an expert. To establish prejudice, “a defendant must show a reasonable

probability that the result of the trial would have been different.” State v.

Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Lorenzo

Baltazar, 935 N.W.2d at 869. That said, the “likelihood of a different result must

be substantial, not just conceivable.” Ambrose, 861 N.W.2d at 557. “This standard

requires us to consider the totality of the evidence, identify what factual findings

would have been affected, and determine if the error was pervasive or isolated and

trivial.” Id.

Dr. Crisp’s description of how a person in a methamphetamine-induced

psychosis would act conflicted with the evidence about how Polson acted. She

testified that someone who is in a methamphetamine-induced psychosis,

looks very similar to what schizophrenia looks like. And the patients
that I personally have seen in that violent capacity, they aren’t
holding back at all. So most of the time they’ll give them a shot in
the emergency room, and it takes four or five men to hold them down
because they are so violent. So this is right after . . . they’ve ingested
the amphetamine.

The person’s behavior, according to Dr. Crisp, would make “it obvious that they

were on methamphetamine.”
10

But multiple law enforcement officials testified Polson displayed no

observable signs of intoxication when he was arrested shortly after the last

shooting. They described him as “calm,” “compliant,” “indifferent,” “normal,” and

“lucid.” One of those officials, who was trained to recognize signs of

methamphetamine intoxication, testified:

A person’s behavior would be very fidgety. They would be moving
around a lot. They would be tapping their feet or tapping their leg.
They would almost appear shaky. They would be very talkative, very
restless. . . . [T]heir pupils would be very dilated, very large. And
they may also be sweating. . . .

Polson’s ex-girlfriend similarly testified that when he was high on

methamphetamine, he was “hyper”; “all over the place”; and unable to

“comprehend things” or hold a normal conversation. Polson did not exhibit any of

that behavior just after the shootings, which Dr. Crisp recognized was “odd”

because she “wouldn’t have thought that he could have just been in [the psychosis]

and then popped out enough to talk to the police.”

The State used the testimony about Polson’s normal behavior after the

shootings to argue that he was not intoxicated. Defense counsel tried to combat

that argument with evidence that whatever Polson took made him act differently

than someone on methamphetamine. This tracked Polson’s testimony that

“something was wrong” with the “last shot” he did the night before. He testified

that, in his experience with methamphetamine, sometimes it is “cut” with other

substances to “stretch it out to make more money.” But Dr. Crisp poked a hole in

that theory, testifying: “[N]owhere have I read that the mixes they use

enhance . . . the psychoactive effects of the drug.” Instead, according to Dr. Crisp,
11

methamphetamine is usually cut with “stuff that isn’t going to make any difference

pharmacologically one way or the other.”

While Dr. Crisp had “no question whatsoever that [Polson] was experiencing

a methamphetamine-induced psychosis,” her testimony on whether that affected

his ability to form specific intent was more equivocal. Dr. Crisp equated specific

intent with a person’s ability to engage in “complex cognitive behaviors,” which she

explained would involve the “ability to look ahead and see what needs to be done”

or how to “get from A to Z.”4 She gave the examples of driving a car or getting a

gun and hitting a target. According to Dr. Crisp, a person in a methamphetamine-

induced psychosis would have a significantly diminished ability to engage in those

types of “complex cognitive behaviors.” But the morning of the shootings, Polson

drove a car and used a gun to shoot at three people, making contact with two. And

after the shootings, he fled the scene and threw the gun out the window, again

showing he was able to “look ahead and see what needs to be done.”

On our de novo review, we conclude the record does not show an expert

like Dr. Crisp would have helped Polson’s defense. See, e.g., Babcock v. State,

No. 19-1035, 2021 WL 603229, at *3–4 (Iowa Ct. App. Jan. 21, 2021) (finding

counsel was not ineffective where defendant failed to show a defense expert would

have helped his defense); Dawson, 2019 WL 1940727, at *5 (concluding

defendant was not prejudiced by counsel’s failure to call an expert pathologist to

4The jury instruction on specific intent defined the element to mean “not only being
aware of doing an act and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.”
12

testify on how aggressive a fight was). Polson was therefore not prejudiced by trial

counsel’s failure to retain an expert.

IV. Conclusion

Because Polson failed to prove either a breach of duty or prejudice as

required to succeed with his ineffective-assistance-of-counsel claim, we find the

district court erred in granting him postconviction relief. We accordingly reverse

the court’s decision and remand for a dismissal of Polson’s application.

REVERSED AND REMANDED