» IT WAS ABOUT HONEY, and a will, and land, and power of attorney, and family, and who was in charge, and size and age. It might have been about a couple of rum and cokes, a knee operation, an extra magazine and other things. At the critical moment, it was about a large angry man pushing a much smaller and significantly older man. A witness later said the larger man would never have done so if he had known the older man had a gun.
The two men had never met before but were carried on by other events. The older man was Mike Kimball. His wife was the protégé and business manager of a Maine beekeeper. She ran his honey business and was named in his will. The beekeeper’s family was not named in the will. This bequest was unnecessarily communicated to the beekeeper’s family. They were angry. One of them had power of attorney from the beekeeper and thought that it meant more than it did.
The beekeeper’s family announced that it would change the locks on the business, and events began to move. The manager called her husband and son for support, and both came to protect the $5,000 to $6,000 worth of honey that was there.
For lack of a few minutes, events continued … one man died, and another was convicted of murder.
The other family also called for help. Leon Kelley and his son arrived. There was an argument over who was in charge. Kelley’s wife called the police to enforce her family’s right to the property.
If the officer had arrived a few minutes earlier, he would have told the disputants that it was a civil matter and not his to settle. He would have advised them to consult lawyers and perhaps see a judge. The responding officer happened to be very experienced and would probably have ordered the parties to neutral corners until the lawyers sorted things out. For lack of a few minutes, events continued … one man died, and another was convicted of murder.
Argument slid into conflict. The testimony was that the Kelley son attacked Mrs. Kimball and her son. They would both require medical attention, and no one questioned the need.
Kelley, who was 63 years old and 286 pounds, began shoving Kimball, a man 111 pounds smaller than he and seven years his senior on that day in 2013. Kelley pushed Kimball 35 or 40 feet down the road. The prosecutor would later argue that there was plenty of room for Kimball to continue his retreat. This appears to be the case. He could have retreated in any direction not blocked by Kelley. Maine does not have a “stand your ground” law.
After being pushed 35 or 40 feet down the driveway, away from his family and his vehicle, Kimball drew his Ruger .380 and fired three times. Kelley died in the ambulance in route to the hospital.
Every homicide detective and pathologist has a story of a person who continued to march after receiving a fatal wound.
One bullet went into Kelley’s arm and into his abdomen. The medical examiner claimed that this was the first shot. Two others struck him in the abdomen.
A photo taken just “moments” after the shooting shows the scene. Kimball was frozen in place and Kelley was lying some 10 feet in front of him. Experts testified, probably from the gunshot pattern, that he was shot at a range of four to 10 feet.
The location of the parties in the picture is not definitive of the range, as the parties might have moved in the time before the photo was taken. Kimball might have continued to retreat. People with fatal wounds continue to move. In the 1986 Miami Massacre, Michael Platt was shot in the heart at the outset of the battle but went on to kill two FBI agents and wound five. Every homicide detective and pathologist has a story of a person who continued to march after receiving a fatal wound.
Kimball was questioned at the scene but not arrested. The grand jury ultimately indicted him for Kelley’s murder. Just before trial, he was offered a plea to manslaughter. He turned it down. After five days of trial, a jury of six men and six women found him guilty of murder. They considered the matter for six hours over two days. Kimball was sentenced to 25 years. He could have been sentenced to life. He will be 97 when he gets out, if he lives.
The Jury’s Decision
There is no way to be sure why the jury reached its verdict. Maine law prohibits asking jurors about their service without an order of the court. The defense asked for an order but was denied. This cuts down on appeals based on jury misconduct.
There are certain items of evidence — or at least testimony — that the jury might have found relevant. First, Kimball did kill Kelley. The jury was instructed on self-defense and manslaughter. While the jury was considering the case, defense counsel concluded that they had not been adequately instructed on manslaughter and petitioned the court for supplementary instruction. This was denied, and counsel thought the denial was grounds for appeal.
People cannot believe that a squeaky clean person has killed another person. People believe that there must be something wrong with them, and they invent stories about them.
Second, Kimball had a squeaky clean history. He had a concealed carry license. At sentencing, the judge referred to his squeaky clean history. However, he was bound by minimum sentencing laws to sentence him to 25 years. There were stories that Kimball was a braggart and had boasted of “not being afraid” to use his gun. The prosecutor did not know about these stories, so it is unlikely that they are true. These rumors pop up in many self-defense shootings. People cannot believe that a squeaky clean person has killed another person. People believe that there must be something wrong with them, and they invent stories about them.
According to the same stories, Kelley was a “gentle giant.” He is said to have been unfailingly good-humored and generous. There is a tendency to speak well of the dead. Every dead thug is described as “just getting his life together.” The stories might all have been true. Yet witnesses agree that he was pushing an older man that was half his size. His truck carried a license plate reading “AWFUL.” This is said to have been a family joke.
Evidence of character is not admissible in court. On occasion, evidence of habit might come in. Evidence of criminal or violent history will not come into evidence unless known to the other party.
Profanity is sometimes advised as a tool to gain dominance in a confrontation. There is evidence that criminals do not consider a command seriously unless accompanied by profanity.
Good manners help determine if a jury will like or dislike a party. The Kelley family testified that Kimball approached Kelley and demanded “Who the f*%$ are you?” Kelley, the testimony goes, held out his hand to shake but was ignored.
Profanity is sometimes advised as a tool to gain dominance in a confrontation. There is evidence that criminals do not consider a command seriously unless accompanied by profanity. It also provokes hostility in others. Observers — and jurors — might consider profanity as provoking the incident. It is possible to go from excruciatingly polite to profane but not the other way around.
Only the Kelley family testified as to the exchange between the two men. They might be considered to have their own prejudices. No similar testimony was advanced on behalf of Kimball. Of course, pushing a smaller man down the road is less than polite.
Retreat To Safety
The Kelleys demanded that Kimball leave the bee farm. They said that he was on “private property.” This was quite correct. However, he was not on private property the Kelleys had a right to control. The power of attorney could have been used to change that, but they made no legal efforts to do so. The Kimballs were there at the invitation of the manager. This could have proved confusing to a juror.
Kimball was being assaulted by a much larger and somewhat younger man. This gave him the “disparity of force” defense. In this defense, the relative physical condition, age or numbers of the parties can make one person a weapon in relation to the other. Courts have ruled that a “man, because he is the physical inferior of another … is (not) … bound to submit to a public (assault) … If nature has not provided the means for such resistance, art may; in short, a weapon may be used …”1 As the defense counsel put it: There is a reason for different weight classes in boxing. People have been beaten to death by larger opponents.
His family was prevented from coming to his rescue. There was no refuge to which he could safely retreat.
Was it possible to retreat? Of course; anything is possible. The question really is: Was it practical? Maine requires retreat if it can be done “with complete safety.”2 Complete safety is a very high standard for the prosecution to prove.
Kimball had a recent knee replacement. His doctor testified that he could have walked briskly away. Videos taken about the time of the shooting show him limping but mobile. The question is if he could have walked away from Kelley.
Kelley had no physical defects. He had pushed Kimball 35 to 40 feet down the road and showed no indication of stopping.
Kimball might have retreated in nearly any direction, but the ultimate question is: To where? He was 35 to 40 feet from the refuge of his truck. Kelley blocked that path. In every other direction lay open fields, woods and roads. His family was prevented from coming to his rescue. There was no refuge to which he could safely retreat.
As a rule, the first person to call 911 is the victim. There is a very small percentage of cases to the contrary. It is worth practicing fast draws with cell phones.
Mrs. Kelley was on the phone to the police. There is no indication that Kimball was aware of this. His attention was focused on Kelley. Under stress, people suffer from “tunnel hearing” as well as “tunnel vision.” A pre-war British officer in India went into the brush after a tiger that killed one of his men. From their position on higher ground, his troops could clearly see the tiger and shouted directions in company strength. Focused the officer heard nothing.3
One of the people commenting on the Portland Press website suggested that shooting was a bad legal choice. He advocated falling down and letting the other party go to jail for assault. There is some merit in this suggestion. However, after someone is on the ground, he is vulnerable to being stomped. This can be a very bad life choice.
All in all, retreat was possible but not practical.
Kelley’s wife was on the phone to 911 at the time of the shooting. She gave a commentary on the event as it unfolded. As a rule, the first person to call 911 is the victim. There is a very small percentage of cases to the contrary. It is worth practicing fast draws with cell phones.
Multiple shots are often used as evidence of malice. The medical examiner testified that any of the three shots could have been fatal. Kelley died of internal bleeding due to the effects of all three.
At the close of the state’s evidence, the defense asked for dismissal of the charges. This is a routine motion and is routinely denied. In denying this one, the judge said that the first shot might have been self-defense, but the jury might find the other two were not.4
The medical examiner testified that the shot through the arm was the first shot and that Kelley was probably falling as the other two shots were fired. This seems unlikely.
It is between extremely difficult and impossible to tell which bullet struck a torso first. It does not matter in this case. The medical examiner might have believed that the tracks of the other two bullets were consistent with wounds to a man falling. The medical examiner testified that Kelley was falling after the first shot, and the prosecutor stressed this point.
More serious is the claim that Kelley was falling after the first shot. This indicates that the other shots were unnecessary.
The track of the bullets depends on the relation of the gun to the body. The photo used at trial shows Kimball holding the gun at shoulder level. But this was taken after the shooting. He drew from waist level and might have fired as the gun came upward. Kelley might have leaned, twisted or turned as he did so. This would have affected the track of the bullets. It does not matter.
More serious is the claim that Kelley was falling after the first shot. This indicates that the other shots were unnecessary. Kelley died in the ambulance, and the jury might have believed he would have survived to receive medical attention without the second two wounds. The medical examiner testified that the second and third wounds would have been more difficult to survive.
The .380 cartridge is considered to be marginal for self-defense purposes. It is a light bullet with comparatively low velocity. It has no so-called “knockdown power.” Unless it hits a vital spot, it will not cause a man to fall. There was no hysterical testimony about hollowpoint bullets, which usually means the shooter used roundnosed bullets, which make a smaller wound channel.
Such a bullet can — and did — kill. It did not kill immediately. There is no compelling reason to believe that he would fall immediately. If a 6-foot 2×4 is set on end, it will fall, but not instantly.
A semi-automatic pistol can be fired six times a second if the trigger is pulled as fast as a panicked old finger can pull. The three rounds could have been fired in as little as half a second.
A semi-automatic pistol can be fired six times a second if the trigger is pulled as fast as a panicked old finger can pull. The three rounds could have been fired in as little as half a second. This is faster than a human mind can perceive a change in circumstances and faster than a human can fall.
It is possible that Kelley’s psychological reaction to the gun might have caused him to fall. There is the famous case of a police officer who was wounded in the arm by a .22 — the proverbial flesh wound. He fell to the ground and died. He had been told over and over that he would make a mistake, get shot and die. He made a mistake, was shot and died of shocked expectations. In another case, a man was confronted by a mugger, drew his revolver and fired. The hammer clicked on a defective cartridge; and the mugger fell in a dead faint.5
While it is barely possible that Kelley was falling after the first shot, it is very unlikely that Kimball would have realized this. His Ruger carried between seven and eight cartridges, including the one in the chamber. The exact model is not clear. He had an extra magazine. If he was shooting unnecessarily, he could have continued for some time.
The Medical Examiner
The medical examiner testified that Kelley’s death was the result of a “homicide.” Technically, legally, this is correct. It is also horribly wrong. Homicide means death by a person; it does not mean murder. People executed by the state are homicides. The Boston Marathon Bomber killed in a gunfight with police was a “homicide.” The term is not the same as “murder.”
Generations of TV shows portray homicide detectives investigating murders. The two words have become synonymous in the public mind. No forensic specialist should ever be allowed to testify that a killing was “homicide.” It is technically correct but prevents a fair trial.
Some people consider carrying extra ammunition as evidence of intent.
In Maine, the medical examiner is appointed by the governor but works for the attorney general’s office, which was prosecuting the case. Forensic specialists see law enforcement and prosecutors on a daily basis. They see defense lawyers only occasionally … and never defendants. When a prosecutor asks for a certain test or examination, it will be done. The defense must pay for its own expert. Government forensic specialists are under subtle, and occasionally blunt, pressure to come to the “right” conclusions.
This is not to suggest that evidence was deliberately slanted. The examiner’s autopsy was doubtlessly correct. He is an expert in this field. He is not an expert in gunfights though, and his conclusions about the gunfight are open to question.6
The prosecution stressed the number of rounds fired and the extra magazine. The prosecution repeatedly described Kimball as a well-trained good shot who knew what he was doing. Some people consider carrying extra ammunition as evidence of intent. Police carry extra ammunition — almost always hollowpoints — and a shotgun in the cruiser. They have a radio to call more police with guns and ammunition. Extra shots and extra ammunition are valid precautions.
Actions in the aftermath of a shooting can be critical. Kimball did not flee the scene, falsify evidence or engage in other stupid urban myths. In fact, he seems to have been frozen in place. From his actions and the photo, he appears to have been in shock. One of the Kelley family testified that he pointed the gun at her after the shooting. He was hesitant about obeying the orders of responding law enforcement. When he was told to drop his gun and lie down, he holstered his gun and eventually went to his knees.
Officers reported that his hand hovered near the gun and this increased their stress level. He ultimately cooperated. When officers respond to a gun call, they secure the party and the gun promptly and firmly. Their orders might seem unnecessary, but refusal to obey will only increase the stress level and look bad to the jury.
Adrenaline tends to eat alcohol. I once knew a man who had a near fatal auto accident. He retired to a bar and tried to get drunk. He was unable to do so.
Kimball’s first words were to the effect that he was 70 years old and could not risk a fight. He told responding officers that he was afraid for his life because of Kelley’s size, specifically the size of his hands and the fact that he kept coming. These statements were recorded and played for the jury. There is a legal fiction that the closer a statement is to the event, the more accurate it is. This is fiction, but when describing emotions, it is often correct. He gave the same testimony to the grand jury a month later. Consistent statements are usually considered to be a good thing.
Kimball had alcohol on his breath, according to one state trooper who responded. Another state trooper did not notice the odor. Neither officer thought that Kimball was impaired. Kimball admits having two rum and cokes between 1 and 2 p.m. that day. The shooting happened at about 3:15 p.m. No alcohol test was ever done.
It is possible that there was alcohol in Kimball’s system. The amount of alcohol in his blood depended on his size, if he had eaten before drinking, the ratio of coke to rum and the proof of the rum. Adrenaline tends to eat alcohol. I once knew a man who had a near fatal auto accident. He retired to a bar and tried to get drunk. He was unable to do so. The adrenaline in his system overwhelmed the alcohol as it arrived.7 People do not like drunk drivers. The inference that Kimball was a drunk shooter could not have helped his case.
The defense had to prove that the shooting was self-defense. In a “one-gun gunfight,” this is difficult.8 The lawyer had to show that after Kimball was pushed down the driveway, events at this particular moment created the need for deadly force. This can be cumulative. Under these circumstances, it is likely that body language, facial expression or increasing force of the blows escalated the danger. Women who have killed abusive husbands report that there was something different about the final incident that told them their lives were at stake.
Kimball did not testify. He gave recorded statements to law enforcement, and his lawyer had him go through a video-taped re-enactment, which allowed him to introduce testimony without the danger of cross-examination. This is a clever move.
Kimball was convicted. There does not appear to have been any one decisive factor but a number of little ones. His lawyer has promised an appeal. It’s doubtless that more information will come out in the course of the appeal. The appeal might very well be successful, but it will be at least a year in the process … and probably more. Kimball will be in prison. If successful, he will get a new trial and will get to do it all over again.
(1) State v Bartlett, 71 S.W. 148 (Mo. 1902). (2) State v Millett, 273 A.2d 504 (Me. 1971) at 510. (3) Masters, John, Bugles and a Tiger, The Viking Press N.Y., 1956 at 254-5. (4) These motions are heard and denied outside the hearing of the jury. (5) A one-shot stop. (6) Perhaps Massad Ayoob could begin certifying experts in gunfi ghts. (7) Adrenaline also eats blood sugar, which can make diabetics appear to be drunk. (8) See Jamison, “The One-Gun Gunfi ght,” Concealed Carry Magazine, April 2015 at 40 et seq.