State v. Pulsifer
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1999 ME 24
Docket:		Ken-97-745
Submitted 
on Briefs:		November 20, 1998
Decided: 		February 9, 1999

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.

STATE OF MAINE

v.

HAROLD PULSIFER

CLIFFORD, J.

	[¶1] Harold Pulsifer appeals from the judgment of conviction entered
in the Superior Court (Kennebec County, Marden, J.) following a jury waived
trial at which he was found guilty of murder in violation of
17-A M.R.S.A. § 201(1)(A) (1983).{1}  Pulsifer contends that his conviction for
murder should have been reduced to manslaughter, and that the trial court
erred in finding that he did not meet his burden of showing that he was
adequately provoked in causing the death of Wrendy Hayne, pursuant to
17-A M.R.S.A. § 201(3) (Supp. 1998).{2}  Finding no error, we affirm the
judgment.
	[¶2]  Harold Pulsifer voluntarily admitted himself to the Augusta
Mental Health Institute (AMHI) in 1992 after repeatedly receiving extended
residential treatment over the course of the previous six years.  He was
diagnosed with schizoaffective disorder, which is a combination of
schizophrenia, a thought disorder, and major depression or bipolar/manic
depression, a mood disorder.  This disorder is characterized by a lack of
insight which means that he does not have the "ability to see his own
illness, and to see his behavior in the way other people might."  Pulsifer also
has poor judgment and a distorted view of situations, lacks initiative, and is
often withdrawn.    
	[¶3]  Wrendy Hayne had been admitted to AMHI in 1980 at the age of
seventeen.  About a year before Hayne's death, a romance developed between
Hayne and Pulsifer and they began spending more time together.  Hayne's
family initially was not opposed to the relationship.  The AMHI staff
described the relationship as a "high school type relationship."  Staff
members witnessed them holding hands, sitting close to each other, and
kissing each other before they returned to their rooms. 
	[¶4]  In December of 1995, Hayne and Pulsifer attended a holiday
party together.  Following the party, Hayne assaulted a staff member,
resulting in Hayne being restricted for four or five days.  Around this time,
Hayne's mother noticed that Hayne had begun regressing.  Hayne spent all
her time with Pulsifer and no longer attended the different programs she
previously had attended.  Staff members noted that she became
"increasingly more delusional, increasingly more assaultive."  Hayne's
mother asked the staff to strictly monitor Hayne's relationship with Pulsifer,
and to limit the time the two individuals could spend together.  As a result,
Pulsifer was allowed to visit Hayne on her ward only at certain times and
only if supervised by a staff member.
	[¶5]  The restrictions, however, did not stop Hayne and Pulsifer from
spending time together.  To ensure that he would continue to see Hayne,
Pulsifer set up his can collecting "business" outside her building where he
could have a view of her room.  During the winter, he dug a trench in the
snow alongside the basement of her building to establish a meeting place. 
Moreover, Pulsifer found a set of keys that granted him access to many of
the AMHI buildings and rooms.  Hayne would meet Pulsifer outside her
building and then they would find a place where they could spend time
together. 
	[¶6]  On April 2, 1996, Pulsifer became visibly angry with Hayne in
front of a staff member, swore at her, and ripped an Easter card she had
received from her parents.  Pulsifer testified that he was angry with a staff
member and not with Hayne.  As a result of this incident, the staff placed
Hayne under the constant "one-on-one" supervision of staff members.  
On another occasion, a nurse "observed [Pulsifer] yelling at
[Hayne], . . . threatening her, . . . following her."  Pulsifer told Hayne "not to
listen to what the staff said for her to do." 
	[¶7]  On April 3rd, Pulsifer was told that Hayne was afraid of him and
did not want to associate with him any longer, and that Hayne's mother
would obtain a restraining order if he continued to bother Hayne.  Pulsifer
voluntarily agreed to stay away from Hayne, but requested to speak to
Hayne's mother as a condition of his agreement.  According to the staff
members, Pulsifer did not appear angry or upset during the meeting. 
Because of Pulsifer's cooperative attitude, Hayne's one-on-one supervision
was lifted the following day.  Thereafter, the staff required Hayne to check-
in every thirty minutes and required Pulsifer to check-in every hour. 
Between check-ins, both individuals were free to roam the grounds of AMHI. 
	[¶8]  On April 4th, Pulsifer told a mental health worker that he loved
Hayne and "he didn't understand why [Hayne's] parents didn't want him to
be with [Hayne] any more."  The mental health worker testified that Pulsifer
was confused, but not angry, and that he told her that he would abide by
Hayne's parents' wishes.  Despite that pledge, Hayne and Pulsifer secretly
met during that afternoon.  Pulsifer did not see Hayne at all on April 5th
because she slept most of the day.  According to Pulsifer, he was becoming
increasingly worried that he would not see Hayne again.
	[¶9]  Around 11:00 a.m. on the morning of April 6th, Pulsifer was
outside counting his cans when Hayne approached him.  Pulsifer asked
Hayne whether she had talked to her mother about their relationship. 
Hayne told him that she had not talked to her mother, but that the staff had. 
As Hayne started to walk back to her unit to check in and have lunch, a staff
member heard Hayne say to Pulsifer, "See ya. Love ya."  Hayne was delusional
at lunch time and was administered medication.  Although a nurse told
Hayne to remain in the unit while she settled down, Hayne went back to see
Pulsifer after lunch.  
	[¶10]  Pulsifer and Hayne met secretly in a storage room Pulsifer was
able to access with the keys he had found.  Pulsifer testified that they talked
about their relationship for another thirty minutes and he began to believe
that Hayne's mother had made decisions about their relationship of which
he was not informed.  As the time for Hayne to return to her unit to check
in approached, Pulsifer grabbed the knife that he used in his can collecting
business and stabbed Hayne multiple times.  Pulsifer testified that he
stabbed Hayne because "[he] thought [he] was going to lose her and never
see her again."  He further testified, however, that Hayne did not tell him
that she did not love him or that she did not want to see him again. 
	[¶11]  A janitor found Hayne in the storage room at about 1:15 p.m.,
after he saw Pulsifer leave that area.  She had been stabbed at least six times,
had lost a significant amount of blood, and had no pulse.  Although the stab
wounds did not sever any vital organs or major arteries or veins, Hayne died
as a result of hemorrhaging caused by the wounds.  When Pulsifer was found,
his clothes were stained with blood that was later determined to be the
same type of blood as Hayne's.  
	[¶12]  After a jury waived trial, the trial court found Pulsifer guilty of
intentionally or knowingly murdering Hayne, and found that his defense of
adequate provocation was insufficient.  It is the failure to find adequate
provocation on which Pulsifer's appeal is grounded.
	[¶13]  "It is an affirmative defense to a prosecution under [section
201(1)(A)] that the actor causes the death while under the influence of
extreme anger or extreme fear brought about by adequate provocation."
17-A M.R.S.A. § 201(3) (Supp. 1998).  Adequate provocation is a statutorily
prescribed affirmative defense that must be proved by the defendant by a
preponderance of the evidence.  See 17-A M.R.S.A. § 101(2) (1983).  If
proved, it reduces murder to manslaughter.  17-A M.R.S.A. § 203(1)(B).  The
defendant has the burden of establishing that he (1) caused the death while
under the influence of extreme anger or extreme fear, and (2) that such
extreme fear or extreme anger was brought about by provocation that was
legally sufficient to reduce the crime from murder to manslaughter, i.e., that
the provocation was sufficient to allow the fact-finder to conclude that it was
"reasonable for [him] to react with extreme anger or extreme fear." 
17-A M.R.S.A. §  201(4); see State v. Cumming, 634 A.2d 953, 957 (Me.
1993).  In this case, the trial court took into consideration Pulsifer's mental
illness and found

. . . It is undisputed, clearly found from the evidence that the
defendant was under the influence of extreme anger and
extreme fear at the time of the confrontation.  The provocation
was real, and from any basis, any subjective basis, including his
abnormal condition of the mind and his lack of insight, he
was . . . fully provoked from anger or fear

That finding is not sufficient, however, to trigger the application of section
203(1)(B) and reduce the crime of murder to manslaughter.  In addition,
the provocation must be legally adequate, i.e., it cannot be self-induced and
the defendant's reaction to it must be objectively reasonable.  Section
201(4) provides:

[P]rovocation is adequate if . . . [i]t is not induced by the
actor . . . and . . . [i]t is reasonable for the actor to react to the
provocation with extreme anger or extreme fear, provided that
evidence demonstrating only that the actor has a tendency
towards extreme anger or extreme fear shall not be sufficient,
in and of itself, to establish the reasonableness of his reaction.

 
17-A M.R.S.A. § 201(4) (Supp. 1997).

	[¶14]  Having found that Pulsifer was under the influence of extreme
fear or extreme anger the trial court further concluded that the provocation
was not legally adequate: 

[T]he defendant's refusal to accept the restrictions induced by
the staff of AMHI or to otherwise deal with them was, to some
extent, self-induced.  The stress which apparently led up to his
avalanche of emotions took place over a period of time, and
there is no evidence of any particular triggering factor, so that
there is an element of remoteness with respect to that
provocation.  And under any circumstance, this court can not
find in the application of a standard of just and reasonable
person, because of the efforts of others to interfere with the
romantic relationship, that it was adequate provocation to
create such rage from fear or anger as to be reasonable under
the circumstances. 

Because the adequacy of the provocation is a conclusion of fact to be
determined by the trier of fact, see State v. Flick, 425 A.2d 167, 172
(Me. 1981),{3} and the trier of fact made a factual finding adverse to the party
with the burden of proof, we will overturn the trial court's finding of
inadequate provocation only if the record compels a contrary conclusion, see
State v. Brown, 675 A.2d 504, 505 (Me. 1996).
	[¶15]  The trial court found that Pulsifer's "refusal to accept the
restrictions induced by the staff of AMHI or to otherwise deal with them
was, to some extent, self-induced."  Pulsifer had the burden of proving that
he did not instigate or create the event that ultimately provoked him to
commit the crime.  See State v. Michaud, 611 A.2d 61, 63-64 (Me. 1992)
(defendant failed to meet his burden of demonstrating that he did not
instigate the fight); State v. Rainey, 580 A.2d 682, 685 (Me. 1990) (although
fear of the victim provoked the defendant to commit the crime, the
provocation was not adequate because the defendant had no legal right to be
on the property).  Pulsifer initiated the conversation he had with Hayne
about their relationship preceding the fatal attack.  By meeting with Hayne
and discussing their relationship, Pulsifer placed himself in a situation that
would arouse his anger and fear. 
	[¶16]  Moreover, the trial court further found that it was not
objectively reasonable for Pulsifer to react with extreme anger or extreme
fear to what it was that provoked him.  Pulsifer contends that his actions
must be viewed subjectively, and that his mental illness necessitates a
reduction of the crime from murder to manslaughter.  We disagree. 
Although the determination of whether a defendant acted under the
influence of extreme anger or extreme fear is necessarily subjective, the
legal adequacy of the provocation must be measured objectively.  See State v.
Rollins, 295 A.2d 914, 921 (Me. 1972); see also State v. Park, 159 Me. 328,
332-33 (1963) (provocation is not legally sufficient to reduce the severity of
the change unless it is of a character that would stir resentment to violence
endangering life in the mind of a just and reasonable person).
	[¶17]  Extreme anger and fear resulting from the efforts of others to
interfere with a romantic relationship would not cause a reasonable man to
stab the woman who is the object of his affection. We have previously
rejected similar contentions.  See Cumming, 634 A.2d at 957 (divorced man
was not adequately provoked when he found a note suggesting his former
wife had formed a new relationship); Tribou v. State, 552 A.2d 1262,
1263-64, 1265 (Me. 1989) (divorced man not adequately provoked when he
observed his former wife in a lounge dancing with another man).
	[¶18]   The trial court correctly rejected the adequate provocation
defense.{4}
	The entry is:
			Judgment affirmed.
Attorneys for State:

Andrew Ketterer, Attorney General
Donald W. Macomber, Asst. Atty. Gen.
William Stokes, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006

Attorney for defendant:

Walter F. McKee, Esq.
Lipman & Katz, P.A.
P O Box 1051
Augusta, ME 04332-1051

FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 201(1)(A) provides: "A person is guilty of murder if . . . [h]e intentionally or knowingly causes the death of another human being." {2} . 17-A M.R.S.A. § 201(3) states, "It is an affirmative defense to a prosecution under subsection 1, paragraph A, that the actor causes the death while under the influence of extreme anger or extreme fear brought about by adequate provocation." Causing the death of another person while under the influence of extreme anger or extreme fear brought about by adequate provocation constitutes a mitigating circumstance and reduces murder to manslaughter. 17-A M.R.S.A. § 203(1)(B). {3} . The court must first determine whether the evidence presented is legally sufficient to generate the affirmative defense to warrant a presentation of the factual question of the adequacy of provocation to the fact-finder. See State v. Michaud, 611 A.2d 61, 63 (Me. 1992). {4} . Pulsifer also questions the trial court's partial reliance on the remoteness of the provocation in ruling that the provocation was not legally adequate. The reasonableness of a defendant's provocation does depend in part on the extent of the lapse of time between the onset of the extreme fear and the violent act. Rainey, 580 A.2d at 685 (Me. 1990); see also Flick, 425 A.2d at 173. Pulsifer's anger developed over several days, perhaps weeks. Since the beginning of 1996, the AMHI staff gradually had placed more restrictions on the amount of time Pulsifer and Hayne could spend together. At the April 3rd meeting, the staff requested a permanent end to their relationship. The extended period through which these events spanned decreases the reasonableness of Pulsifer's extreme reaction.