State v. Kimball
| Decision Date | 24 May 2016 |
| Docket Number | Docket No. Cum–15–294. |
| Citation | 139 A.3d 914,2016 ME 75 |
| Parties | STATE of Maine v. Merrill KIMBALL. |
| Court | Maine Supreme Court |
Daniel G. Lilley, Esq. (orally), and Cheryl A. Richardson, Esq., Daniel G. Lilley Law Offices, P.A., Portland, for appellant Merrill Kimball.
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.
, J.
[¶ 1] Merrill Kimball appeals from a judgment of conviction for intentional or knowing murder, 17–A M.R.S. § 201(1)(A) (2015)
, entered in the Unified Criminal Docket (Cumberland County, Cole, J. ) following a jury trial. Kimball contends that the court erred in (1) declining to give a jury instruction addressing the affirmative defense of adequate provocation, 17–A M.R.S. § 201(3) (2015), (2) admitting evidence that he had been drinking on the day that he shot the victim, and (3) limiting evidence concerning the relationships between Kimball's family members and the victim's family members. We affirm the judgment.
[¶ 2] Viewed in the light most favorable to the jury's verdict, the evidence supports the following facts. See State v. Weaver, 2016 ME 12, ¶ 2, 130 A.3d 972
. Stan Brown is a ninety-five-year-old resident of North Yarmouth, where he lives on his farm and keeps bees. The shooting at issue in this case took place in the context of a dispute between members of Brown's family,1 and Merrill Kimball and his wife Karen Kimball.2 Karen helped Brown at the farm and also raised her own bees and harvested honey there. The inter-familial dispute centered primarily on the extent of Karen's purported influence over Brown and her inclusion in his will.
[¶ 3] On October 6, 2013, Craig Rawnsley, Brown's grandson, was at the farm. After he called Karen Kimball to tell her that “things were going to change around here,” Karen became concerned about the several thousand dollars' worth of harvested honey that she had stored at Brown's farm. Eventually, Brown's family members and Karen and Merrill Kimball all went to the farm.
[¶ 4] Kathleen Kelley, Brown's daughter, testified that when Merrill Kimball arrived in his truck, he drove down the driveway “[v]ery fast ... and the rocks were flying.” Rawnsley was standing by the shop where the honey was stored. When he asked the Kimballs to leave, Karen said that she would wait for the sheriff to arrive. Kathleen Kelley then called 9–1–1. Merrill and Leon Kelley, Kathleen's husband, encountered each other in the driveway; Merrill asked Leon, “Who the fuck are you?” After Leon took Merrill by the shoulders to turn him around and asked him to wait by the road, Merrill tried to push Leon but instead stumbled backward about three steps. He then pulled out a handgun and shot Leon three times; Leon died from his wounds
at a hospital soon afterward.
[¶ 5] The Cumberland County Grand Jury indicted Kimball for murder, 17–A M.R.S. § 201(1)(A)
. He pleaded not guilty and retained counsel. The case went to trial in April 2015; at its conclusion the jury returned a verdict of guilty. Kimball's post-trial motions for a judgment of acquittal and for a new trial were denied. At a sentencing hearing, the court entered judgment and sentenced Kimball to twenty-five years' imprisonment and ordered him to pay $5000 in restitution to the Victims' Compensation Fund. Kimball appealed.
[¶ 6] Kimball states that the “[m]ost serious” issue on appeal is the trial court's alleged error in declining to instruct the jury on adequate provocation manslaughter. In its initial charge, the court thoroughly instructed the jury on the elements of murder, manslaughter, self-defense, and imperfect self-defense. See 17–A M.R.S. §§ 108(2)
, 201, 203 (2015) ; State v. Hanaman, 2012 ME 40, ¶ 13 n. 4, 38 A.3d 1278 . After the court completed its instructions it asked the attorneys for comment at sidebar; Kimball said that he was satisfied, although he did not think that the written instructions should be sent into the jury room.
[¶ 7] The jury began deliberating on the afternoon of April 14, 2015, recessed for the evening without reaching a verdict, and continued the following morning. After the jury resumed deliberations on April 15, the court met with counsel in chambers concerning Kimball's request—apparently prompted by an article that appeared in that day's local newspaper—that the court give the jury an additional instruction concerning adequate provocation manslaughter. The statutory affirmative defense of adequate provocation, if proved by the defendant by a preponderance of the evidence, reduces a murder charge to manslaughter:3
17–A M.R.S. § 201(3)–(4) (2015)
.
[¶ 8] The State, relying on Hanaman, objected to the requested instruction. The court observed that “[f]rom the time that this case was assigned to me in meeting with the attorneys, it was described as being a classic case of self-defense ... it was never suggested that extreme anger or extreme fear were going to be a part of this case.” After discussing Hanaman, the court declined to give Kimball's requested instruction, ruling that (1) the affirmative defense of adequate provocation was not generated by the evidence; and (2) the instruction would be confusing to the jury.
2012 ME 40, ¶ 16, 38 A.3d 1278
(citation omitted).
Id. ¶ 18 (citations and quotation marks omitted). A court makes that determination in light of our observation that “[t]here are few instances when we have recognized conduct as being sufficient to engender extreme anger or fear and mitigate the conduct of a defendant.” Id. ¶ 23 (quotation marks omitted). That is so, in part, because the victim's provocation must be “of such a nature that [the defendant's] reaction to it with extreme anger or extreme fear was objectively reasonable.” Id. ¶ 20. We review questions of law de novo. Freeman v. NewPage Corp., 2016 ME 45, ¶ 5, 135 A.3d 340
.
[¶ 11] Here, the court found that the adequate provocation manslaughter instruction was not generated because the evidence was not legally sufficient to support an objectively reasonable conclusion that the victim provoked Kimball to such an extent that Kimball's culpability in using deadly force was reduced. We agree. The court accurately summarized the trial testimony:
[O]nce [Kimball and Leon Kelley] met in the driveway ... [Kimball] was told to leave in pretty abrupt language, [ ] his shoulders were taken and turned and he was directed to leave.... [H]e was pushed with open hands several times ... backwards and he retreated. [Kimball] elected to go there. He was requested to leave by the people there. I don't see that those facts would support a claim for adequate provocation.
[¶ 12] We conclude that Kelley, who was unarmed, did not act in a way that was objectively sufficient, as a matter of law, to provoke extreme anger or fear in Kimball and thereby justify Kimball's deadly response in wielding a firearm and shooting Kelley multiple times. See, e.g., State v. Lockhart, 2003 ME 108, ¶ 42, 830 A.2d 433
(). Similarly, neither the threat of economic harm to Kimball's wife posed by the potential loss of the honey that she had stored at the farm, nor any perceived threat resulting from the Brown family's hostility to her inclusion in Stan Brown's will, could constitute adequate provocation justifying Kimball's shooting Leon Kelley.
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