PORTLAND, Maine — As the 12 jurors prepare for their first full day of deliberations on Wednesday, a 911 tape of the October 2013 incident in which Merrill Kimball shot and killed Leon Kelley at a North Yarmouth bee farm might hold the key to a verdict in the murder trial of the 72-year-old lobsterman.
Less than three hours into their deliberations Tuesday afternoon and about an hour before they broke for the day, jurors asked to again hear the tape, on which Kelley’s wife, Kathleen Kelley, called for help after Kimball, his wife, Karen Kimball, and his stepson, Damon Carroll, arrived at the bee farm.
The three gunshots fired by Merrill Kimball at Leon Kelley are clearly audible on the recording, as is Kathleen Kelley’s shriek, “Oh my god, he just shot my husband. Oh my god.”
Assistant Attorney General John Alsop also highlighted the recording in his closing arguments Tuesday morning, noting it as the most important piece of evidence jurors had heard during six days of witness testimony.
“Bam, bam, bam,” Alsop said, describing the shots the jurors heard on an audiotape of the call made by Kelley on Oct. 6, 2013, at the North Yarmouth bee farm owned by Kelley’s father, 95-year-old Stan Brown.
As the Yarmouth lobsterman’s murder trial entered its seventh day, Alsop summarized the prosecution case while defense attorney Daniel Lilley urged the jury to acquit Kimball because he acted in self-defense.
The prosecution and defense acknowledge Kimball shot Leon Kelley, 63, three times that afternoon, when Kimball accompanied his wife and stepson to the bee farm to retrieve what Kimball’s wife said was $5,000 worth of honey that belonged to her.
Throughout the trial, Lilley has argued Kimball shot the much larger Kelley in self-defense because Kelley confronted him and pushed him in a threatening manner.
In his closing statement — reiterating earlier arguments — Alsop focused on the fact that someone acting in self-defense would not have fired three shots in rapid succession.
Alsop said that despite witness accounts that indicated the first shot hit Kelley, Kimball did not pause after firing one shot. Instead, he shot three times in rapid succession after a confrontation between the two men.
“In that instant, he did as he intended,” Alsop said. “In that instant, he knew what the results would be, and he did so without any legal justification. Simply put, Merrill Kimball murdered Leon Kelley. He acted in anger. He acted in frustration. He misread a situation. He overreacted. He turned what was a civil property dispute into a senseless and tragic killing. Simply put, he lost his temper.”
Alsop said Kimball could only justifiably use deadly force if he reasonably believed Kelley was about to use deadly force against him or a third person, and if he believed deadly force was necessary. He said Kimball had a duty to retreat from a threat of deadly force if he could.
“No reasonable person would believe this 63-year-old overweight, quiet man, Leon Kelley, who just happened to accompany his wife to a family meeting, would have an intention or reason to use deadly force on Merrill Kimball or anyone else, and it’s completely unreasonable for Merrill Kimball to believe it, even if he did actually believe it,” Alsop said.
Alsop said witnesses had testified that Kimball “clearly was drinking hard liquor,” and he questioned whether that played a role in his decisions that day.
In his closing statement, Lilley showed jurors on a television screen the words Kimball spoke immediately after the shooting, which were captured on an iPhone video by Brown’s granddaughter, Robin Rawnsley-Dutil.
“What am I supposed to do?” Kimball asked in the video. “He came at me. I’m 70 years old.”
Lilley built his closing argument around that comment, arguing that even prosecution witnesses had said the older man had no choice.
“The prosecution is saying he could have stopped, but what is Kelley going to do? He’s going to come after him … he’s closing the gap. What’s Kelley going to do? … They brought him along because he was mean … he’s big and he’s bad and he advertises that he is.”
Lilley said the state was required to prove that Kimball “could retreat from Leon Kelley in complete safety,” but described Kelley as “walking deadly force.”
“One smack from a guy that big, one punch in the face … could not only not cause bodily harm, but it could kill him,” Lilley said. “[Kimball] had a split second.”
Jurors deliberated until about 4 p.m. Tuesday before Justice Roland Cole dismissed them until 9 a.m. Wednesday.
Jurors could acquit Kimball or find him guilty of intentional or knowing murder or the lesser charge of manslaughter.
To find him guilty of murder, the jury must find that the state proved beyond a reasonable doubt that Kimball caused Kelley’s death, and that Kimball acted either intentionally or knowingly. However, the state does not have to prove the act was premeditated.
If jurors find the state has not proved that, they must consider reckless or criminally negligent manslaughter. To reach that verdict, the jury must find that Kimball caused Kelley’s death and acted either recklessly or with criminal negligence.
If they find Kimball guilty of either murder or manslaughter, they must consider whether the state has proved that Kimball did not act in self-defense. Deadly force is only justified if a person reasonably believes it is necessary and the other person is about to use deadly force against him or another person.
If Kimball is found guilty of manslaughter, he faces a sentence of four to 25 years in prison. If he is found guilty of murder, he faces a sentence of 30 years to life in prison.