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State v. Jason Poulliot
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MAINE SUPREME JUDICIAL COURT   					Reporter of Decisions
Decision:	1999 ME 39
Docket:	Ken-97-159
Argued:	February 3, 1999
Decided:	February 23, 1999

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



STATE OF MAINE v. JASON POULLIOT
RUDMAN, J.

	[¶1]  Jason Poulliot appeals from the judgments entered in the
Superior Court (Kennebec County, Delahanty, J.) on jury verdicts of
conviction for attempted murder{1} and aggravated assault{2} and from the
bind-over order of the District Court (Waterville, Gunther, J.), sitting as the
Juvenile Court.  Poulliot contends that:  (1) the Juvenile Court erroneously
bound him over to be tried as an adult; (2) the trial court erroneously
excluded his proposed expert testimony; (3) the trial court erroneously
allowed his retrial on the attempted murder charge; (4) the trial court
erroneously refused to give the jury instructions he requested; and (5) the
evidence was insufficient to convict him of attempted murder.  We disagree
and affirm the judgments.
	[¶2]  The juries would have been justified in finding the following
facts.  On October 30, 1994, two groups of young men angrily confronted
each other in Oakland.  Some of them were armed, but no weapons were
used and no blows were struck.  One of the two groups, which included
sixteen-and-a-half-year-old Jason Poulliot, left Oakland and drove to Fairfield
for reinforcements.  In Fairfield, Poulliot retrieved his .30-.30 rifle from his
grandmother's house.  He and his group then returned to Oakland in two
vehicles, a Pontiac Sunbird and a pickup.  Poulliot sat in the front passenger
seat of the Sunbird.
	[¶3]  In Oakland, Poulliot's group drove by several members of the
other group, who had congregated around a Chevrolet Nova that Aaron
Mullen owned.  Mullen had not been involved in the earlier confrontation,
but his friends had told him of it.  When the Sunbird and pickup drove by a
second time, Mullen and his friends got into the Nova and drove off in
pursuit.  The chase reached high speeds, and eventually the Nova passed
both the pickup and the Sunbird.  The pickup then passed the Sunbird, and
contact occurred between the front bumper of the pickup and the rear
bumper of the Nova.  Suddenly, Mullen brought the Nova to a stop in the
travel lane of Route 23.  He stepped out and walked toward the pickup,
which had stopped just behind the Nova.  
	[¶4]  At that point, Poulliot told the driver of the Sunbird, which was
behind the other two vehicles, to pull up alongside them.  Poulliot rolled
down the passenger-side window and raised his rifle as the Sunbird drove
forward.  He then shot Mullen in the face from a distance of a few feet or
less.  Poulliot's group fled the scene.  Soon thereafter, Poulliot boasted to his
friends about his exploit.  Although Mullen survived the gunshot, he never
regained consciousness and remains in a persistent vegetative state.
	[¶5]  The State brought a juvenile petition charging Poulliot with
attempted murder.  The Juvenile Court waived jurisdiction and bound him
over to the Superior Court.  A grand jury indicted Poulliot for attempted
murder and aggravated assault.  Thereafter, a jury found Poulliot guilty of
aggravated assault, but deadlocked on the attempted murder charge.  After a
retrial on the attempted murder charge, the second jury found him guilty.
I. BIND-OVER
	[¶6]  To bind a juvenile over for trial as an adult, the Juvenile Court
must find: (1) probable cause to believe the juvenile committed a Class A, B,
or C crime; and (2) by a preponderance of the evidence, that it is
appropriate to prosecute him as an adult.  See 15 M.R.S.A. § 3101(4)(E)
(Supp. 1993).  We review the probable cause determination for clear error,
see State v. Sanborn, 644 A.2d 475, 478 (Me. 1994), and the determination
of appropriateness for abuse of discretion, errors of law, or clear error in
subsidiary factual findings.  See State v. Rosado, 669 A.2d 180, 183
(Me. 1996); State v. Williams, 653 A.2d 902, 906 (Me. 1995).  During a
lengthy hearing, the Juvenile Court heard ample evidence suggesting
Poulliot had intended to kill Aaron Mullen.  The court's finding that probable
cause existed to believe Poulliot had committed attempted murder was not
clearly erroneous.  
	[¶7]  In deciding that it was appropriate to try Poulliot as an adult, the
court properly considered "the seriousness of the crime, the characteristics
of the juvenile, and the dispositional alternatives available to the Juvenile
Court."  15 M.R.S.A. § 3101(4)(E)(2).   The seriousness of attempted murder
is undisputed.  Poulliot's most notable characteristics, as multiple witnesses
portrayed them, included: (1) a tendency to violent anger when challenged;
(2) a thoroughgoing arrogance and egocentricity; and (3) a complete lack of
empathy or remorse.  The available juvenile disposition was a commitment
to the Maine Youth Center until Poulliot's twenty-first birthday.  The court
found, with ample support in the record, that this disposition would neither
rehabilitate Poulliot nor deter him from future criminal conduct.  On those
facts, the Juvenile Court did not exceed the bounds of its discretion in
concluding it was appropriate to try Poulliot as an adult.
II. EXPERT TESTIMONY
	[¶8]  During the first trial the Superior Court excluded the proposed
testimony of Poulliot's expert, psychologist Dr. Brian Rines, after concluding
pursuant to M.R. Evid. 702{3} that his testimony would not be helpful to the
jury.  We review that exclusion for abuse of discretion or clear error.  See
State v. MacDonald, 1998 ME 212, ¶ 7, 718 A.2d 195, 198.
	[¶9]  Dr. Rines would have testified regarding the "fight-or-flight
response" and the "weapons focus effect," two psychological reactions that
people in highly stressful situations experience.  On voir dire, Dr. Rines
explained that those two reactions are normal conditions of the mind that
can lead to poor judgment under stress, rather than abnormal conditions
sufficient to negate the culpable state of mind pursuant to 17-A M.R.S.A.
§ 38 (1983).  
	[¶10]  Poulliot argues that Dr. Rines's testimony would have been
helpful to the jury because it suggested that he did not act intentionally or
recklessly when he shot Aaron Mullen.  Primarily, Poulliot argues that if the
jurors believed his testimony that he intended merely to shoot out the tires
of the Nova, rather than at Mullen's face, they could have found that his
action was not reckless (i.e., a "gross deviation from the standard of conduct
that a reasonable and prudent person would observe in the same situation,"
17-A M.R.S.A. § 35(3)(C) (1983)), because he was acting pursuant to a
universal psychological response.  However, Dr. Rines testified on voir dire
that the fight-or-flight response and weapons focus effect do not preclude a
person from acting intentionally, knowingly, or recklessly; instead, he said,
"it may just be real dumb what they do.  Real poor judgment."  Given that
testimony, "the court could reasonably have concluded that this testimony
would do little more than reinforce a concept already well within the jurors'
grasps," that people in stressful situations frequently use poor judgment. 
MacDonald, 1998 ME 212, ¶ 10, 718 A.2d at 198.  The trial court did not
err or abuse its discretion in excluding Dr. Rines's testimony.
III. DOUBLE JEOPARDY
	[¶11]  Poulliot objected to his retrial for attempted murder on double
jeopardy grounds.  He argues that, because the charge involved the "same
conduct" as his aggravated assault conviction, the second trial constituted an
impermissible "second prosecution for the same offense after conviction."
State v. Savard, 659 A.2d 1265, 1266 (Me. 1995).  His argument is without
merit.   In considering a double jeopardy claim, the issue is not whether the
two offenses involve the "same conduct," but rather whether "a conviction
pursuant to each [statutory] provision requires proof of a factual element that
the other did not." State v. Fairfield, 644 A.2d 1052, 1054 (Me. 1994).  That
test is met here: aggravated assault requires proof of bodily injury, and
attempted murder does not; attempted murder requires proof of intent to
kill, and aggravated assault does not.  See 17-A M.R.S.A. §§ 152(1),
201(1)(A), 208(1).  Poulliot's retrial did not violate his double jeopardy
rights.
IV. JURY INSTRUCTIONS
	[¶12]  During both trials, the court refused Poulliot's request that the
jury be instructed on adequate provocation as an affirmative defense to
attempted murder.  Adequate provocation is an affirmative defense to
murder, and has the effect of reducing that crime to manslaughter.  See 17-
A M.R.S.A. §§ 201(3)-(5), 203(1)(B) (Supp. 1998).  Nothing in our criminal
code, however, suggests that that defense is available for attempted murder. 
Indeed, the plain language of the statute dictates that such a defense is
unavailable: "Nothing contained in subsection 3," which defines adequate
provocation as an affirmative defense to murder, "may constitute a defense
to a prosecution for, or preclude conviction of, manslaughter or any other
crime." Id. § 201(5) (emphasis added).
	[¶13]  In addition, recognition of an adequate provocation defense to
attempted murder would have a drastic result.  Under our criminal code,
there is no crime of attempted manslaughter to which attempted murder
could be reduced.  See State v. Huff, 469 A.2d 1251, 1253 (Me. 1984).   It
makes no sense to suggest that an attempted murder defendant who
established the affirmative defense of adequate provocation could be
convicted of the lesser included offense of attempted aggravated assault,
thereby reducing a Class A crime punishable by up to forty years
imprisonment to a Class C crime punishable by no more than five years.  See
State v. Howard, 405 A.2d 206, 212 n.6 (Me. 1979).  We cannot presume
that the Legislature intended such a result, especially in light of the recent
statutory amendment (which does not apply in this case), pursuant to which
a court's finding of adequate provocation limits an attempted murder
sentence to no more than forty years, with a life sentence possible under
other circumstances.  See P.L. 1995, c. 422, § 1 (codified at 17-A M.R.S.A.
§ 152(4) (Supp. 1998)).  The trial court did not err in refusing to instruct
the jury on adequate provocation.
	[¶14]  Poulliot also raises several other objections to the jury
instructions, although he failed to raise them before the trial court.  We
review for obvious error, see State v. Shulikov, 1998 ME 111, ¶ 7, 712 A.2d
504, 507, and we find none.
V. SUFFICIENCY OF THE EVIDENCE
	[¶15]  Finally, Poulliot contends that the evidence was insufficient to
convict him of attempted murder.  In considering that contention, we view
the evidence in the light most favorable to the State and ask whether the
jury could rationally have found beyond a reasonable doubt every element of
the offense charged.  See State v. Cooper, 617 A.2d 1011, 1015 (Me. 1992). 
The only element at issue here is intent, since there is no dispute that
shooting Aaron Mullen constituted a "substantial step" toward the
commission of murder.  17-A M.R.S.A. §§ 152(1), 201(1)(A).  The question
for the jury was whether Poulliot had the "conscious object" of killing
Mullen.  Id. § 35(1)(A) (1983).
	[¶16]  Poulliot testified that he did not intend to shoot Mullen.  He
claimed that he intended to shoot out the tires of Mullen's car, but that the
gun just "went off."  The jury could well have found it implausible that an
experienced hunter armed with a properly functioning rifle could intend to
shoot at a tire and yet wind up shooting an approximately six-foot-tall man in
the face.  In addition, several witnesses provided testimony concerning
Poulliot's statements before and after the shooting, from which the jury
could reasonably have inferred that he intended to kill Mullen.  On that
basis, a jury could rationally have found every element of attempted murder
beyond a reasonable doubt.
	The entry is:
				Judgments affirmed.
                
Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen., (orally) William R. Stokes, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorneys for defendant: Peter B. Bickerman, Esq., (orally) Verrill & Dana, LLP P O Box 957 Augusta, ME 04332-0947 (on appeal) David A. Cloutier, Esq. 341 Water Street Augusta, ME 04330 (at trial)
FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 152(1) (1983) provides: § 152. Attempt 1. A person is guilty of criminal attempt if, acting with the kind of culpability required for the commission of the crime, and with the intent to complete the commission of the crime, he engages in conduct which, in fact, constitutes a substantial step toward its commission. A substantial step is any conduct which goes beyond mere preparation and is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime. 17-A M.R.S.A. § 201(1) (1983) provides, in pertinent part: § 201. Murder 1. A person is guilty of murder if: A. He intentionally or knowingly causes the death of another human being . . . . {2} . 17-A M.R.S.A. § 208(1) (1983) provides, in pertinent part: § 208. Aggravated assault 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: . . . . B. Bodily injury to another with use of a dangerous weapon . . . . {3} . M.R. Evid. 702 provides: RULE 702. TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.