Anatomy of a Negative Outcome

I’m shocked because I thought the case was a question of manslaughter. Hung jury, possibly guilty of manslaughter, but more likely ‘not guilty.’ It just seemed to me that the relative sizes of the two people made it clear that my client was in a jam that he couldn’t get out of except to use a firearm.

So said the defense attorney for Merrill “Mike” Kimball after his client was found guilty of murder for fatally shooting 63-year-old Leon Kelley in 2013.  Obviously, things did not come to pass the way he thought they would. Regardless of the outcome of an appeal, being convicted of murder is a Negative Outcome.

ruger LCP

Cast of characters for the drama:

  • Stan Brown – 95 year old owner of Brown’s Bee Farm
  • Karen Thurlow-Kimball – shooter’s wife. Managed the farm and sold the honey
  • Merrill “Mike” Kimball – shooter (5 feet 11 inches tall, 170 pounds)
  • Damon Carroll – Thurlow-Kimball’s son
  • Daniel Lilley – Kimball’s attorney
  • Leon Kelley – victim (6 feet 4 inches tall, 285 pounds)
  • Kathleen Kelley – victim’s wife, Stan Brown’s daughter, and witness
  • Craig Rawnsley – Kathleen Kelley’s son (6 feet 2 inches tall, 205 pounds)
  • Robin Rawnsley-Dutil – victim Kelley’s stepdaughter and witness
  • Daryl Rawnsley – deputy chief of the Cumberland Fire Department
  • Libby Adams – Brown’s daughter-in-law, bookkeeper for the bee business
  • Matthew Crockett – Assistant Attorney General
  • John Alsop – Assistant Attorney General

Events preceding the day of the shooting.

  • Thurlow-Kimball begins working for Brown at the farm in 2009, when Brown’s son died.
  • Thurlow-Kimball becomes manager of the bee farm.
  • Brown eventually includes Thurlow-Kimball in his will, leaving the bee business and a part of his property to her. The family deeply resents this.

Oct. 6, 2013

kimball trial photo crop

  • Around 1 p.m., Craig Rawnsley calls Thurlow-Kimball and accuses her of wrongdoing. He tells her “things were going to change at his grandfather’s farm.”
  • At the time of the phone call, Merrill Kimball had just gotten off his boat and gone to a friend’s house to watch a Patriots game. He drank two rum and cokes while he was there.
  • Thurlow-Kimball immediately calls Brown’s daughter-in-law, Libby Adams. Adams tells her the Kelley family plans to change the locks on the bee farm sales shop.
  • The shop contains about two dozen jars of honey, totaling about 700 pounds. The honey, which contractually belongs to Thurlow-Kimball, has a value between $4,000 and $7,000.
  • Rawnsley-Dutil calls her mother and Kelley, her stepfather, at their home 40 miles away, and asks them to come to the farm. The senior Kelleys then drive to the Bee Farm and arrive before the Kimballs.
  • Thurlow-Kimball enlists her husband and son to help her get the honey out of the shop. They drive to the shop in two vehicles.
  • Around 3 p.m., Kimball and his family arrive to load the honey jars.
  • Rawnsley-Dutil and her brother follow the vehicles up the driveway on foot. Kelley drives up in his 3½-ton truck with the license plate ‘AWFUL.’
  • Kelley family confronts Kimball family.
  • Craig Rawnsley blocks the shop door and accuses the Kimball family of trespassing.
  • Kimball asks who Kelley was. The two men had never met before that day.
  • Kathleen Kelley calls the police.
  • Thurlow-Kimball refused to leave the property, insisting on waiting for a police officer to arrive.
  • Kelley put his hand on Kimball’s shoulders, spins him around, and follows as Kimball backs down the driveway. Kimball later states that Kelley shoved him five or six times total.
  • Kimball retreats roughly 35 feet being followed by Kelley until he is in the driveway nearly to the treeline. The driveway extends to his right and left, at this point.
  • Kimball, who is licensed to carry a concealed weapon, draws his Ruger LCP .380, and fires three shots into Kelley’s torso at a range of 4 -10 feet.
  • Kelley falls down after being shot and clutches his abdomen.
  • Robin Rawnsley-Dutil immediately takes a photograph of the scene and then begins recording a video.
  • Kathleen Kelley remains on the 911 call after her husband is shot.
  • Rawnsley calls his brother, Daryl Rawnsley, deputy chief of the Cumberland Fire Department, for medical assistance.
  • Kelley is transported by ambulance to a hospital and dies shortly thereafter.
  • The state police sergeant who was the first officer to arrive at the scene said he could “smell the odor of liquor” on Kimball. Kimball did not seem impaired, other than failing to immediately respond when when the sergeant commanded him to put his hands up and get on the ground.
  • Kimball maintains the shooting was done in self-defense. “The man attacked me. The man pushed me back. I was in fear for my life. I nearly fell down, and he kept coming.” Kimball’s words were captured on a police cruiser’s onboard camera.
  • Kimball is questioned but not arrested.

November 2013

  • A video re-enactment is recorded by Kimball at Brown’s Bee Farm on November 4.
  • Kimball is indicted on the charge of murder.
  • He posts bail and remains free.

April 2015 (not necessarily in chronological order)

  • Kimball rejects a plea offer to manslaughter before the start of the trial.
  • The trial commences on April 6, 2015.
  • The prosecution contends that Kimball could have continued to retreat by turning left or right down the driveway rather than shooting.
  • Maine is one of 16 states whose self-defense laws require retreat for as long as safely possible before using deadly force.
  • The prosecution alleges that Kimball took a concealed pistol and an extra clip [sic] of ammunition to Brown’s Bee Farm because he expected trouble from the Kelley family.
  • Kelley family members admit in court that Thurlow-Kimball was not trespassing and that they had no right to tell her to leave.
  • Members of the Kelley family make several contradictory statements about the events leading up to the shooting.
  • Rawnsley-Dutil states that Kelley put his hand on Kimball’s shoulders shortly before the shooting, spun him around and followed Kimball as he backed down the driveway. She admits Kelley may have shoved Kimball additional times.
  • Craig Rawnsley admits he put his hand on Carroll’s shoulder to stop him from moving and states “Damon (Carroll), he is not as big as me.”
  • Assistant Attorney General Alsop describes the shooting as: “Bam. Bam. Bam. There was no pause. Merrill Kimball fired three rapid shots right in the middle of Leon Kelley.”
  • The video re-enactment recorded by Kimball is played for the jury.
  • The state’s chief medical examiner testifies that the first shot had most likely felled Kelley. He also stated that “All three of these were potentially fatal.”
  • The cellphone photo taken after the shooting is shown to the jury.
  • Craig Rawnsley testifies that Kelley wouldn’t have “escalated the situation” if he had known Kimball was armed.
  • Defense Attorney Lilley says “They brought him [Kelley] along because he was mean and he was a badass. They brought him along because he was big.”
  • “The issue for me in this case is there were three shots fired and whether he was acting in self-defense in all three shots or less,” said Justice Roland Cole.
  • The jury deliberates for six hours over two days. They have the options of finding him guilty of murder, manslaughter or acquittal.
  • The jury finds Kimball guilty of murder on April 15, 2015.
  • The possible sentence is 25 years to life in prison.
  • Kimball is taken into custody.
  • Kimball’s lawyer indicates the intent to appeal, which cannot be filed until after Kimball is sentenced. Sentencing will be scheduled in the next six weeks.

The above account is based on the trial reporting of Scott Dolan, Staff Writer for the Portland Press Herald newspaper.

I’ll look at the implications of this over the next few days.

15 responses

  1. seems like not only the shooter’s training is of critical importance, but also the training of the jury by expert witness(es). it does no good to take actions that can not be explained and understood by regular non-gun folk.

    i find it very alarming that rapid shots and carrying an extra magazine played a significant role in the prosecution’s case, and apparently not effectively counter-argued by the defense, based on justice cole’s old fashioned bias.

    1. Agreed
      seemingly the thinking is one shot is justified two is not runs contrary to almost all training

      1. Unfortunately, the jury isn’t trained.

  2. “The prosecution alleges that Kimball took a concealed pistol and an extra clip [sic] of ammunition to Brown’s Bee Farm because he expected trouble from the Kelley family.”

    There are many stupid things contained in this sad tale. But the above prosecutorial claim may be wrong but it is to be expected and any qualified criminal defense attorney should be prepared to counter any such statement or position.

    I carry during my waking hours, a 45 ACP and five or more reloads in magazines. I do this when at home, at Wakmart buying jeans or making a bank deposit or buying gasoline. I carry everyday.

    If I expect trouble I don’t go.

    Reasonable fear of death or great bodily harm must be believable to a juror in a quiet courtroom. Placing “hands on” or crowding a person out is an assault and battery but it is not necessarily a justification for use of force.

    Taking a “gun” shows either premeditation or ordinary care, be prepared to document what you do.

    1. I agree completely.The entire situation would have been changed had he continued backing down the driveway whilst pulling his gun, pointing and warning the man that he would shoot if he continued to follow. That is where the difference in assault vs. fear could be explained. ” I warned him of what I was going to do, If he is crazy enough to continue his pursuit then I felt he would go to any extent to continue his assault as well.” I carry every day as well and based solely on the facts in this article would have found him guilty of murder too!

  3. Reblogged this on Growing Up Guns and commented:
    The Tactical Professor breaks down a Negative Outcome from the news. Most gun people would get much more utility out of understanding how these events shake out in court and the possible repercussions of choosing to deploy their firearm than buying RECOIL magazine and drooling over the new Glock 43. My tune has changed DRAMATICALLY over the last 8 years of studying this art. Giving these sorts of cases consideration will help you make a better decision at the moment of truth.

  4. As a trial attorney, I became acutely aware, many years ago, of a couple things clients needed to know if they wanted to go to trial, convinced they would win.

    First, the laws of physics and math are precise and certain. For example, in F=ma, force can always be determined if mass and acceleration are known. And it is always the same if mass and acceleration are also always the same. With math, 2+2 always equals 4. Doesn’t make any difference who you ask. In the legal world, however, the law is never that certain. If the best attorney in the world took a case with the exact same facts, wintesses, plaintiff, defendant, attorneys and law but tried it a dozen times in different jurisdictions with different judges and juries, I could just about guarantee the verdict would not be the same in each case. I think this phenomonon is because the case is viewed through different eyes and mulled over with different minds and experiences which will never be the same in every case. It’s a fact that drives every trial attorney nuts.

    Second, while it makes perfect sense to get the best experts to help a jury understand issues with which they are not familiar, juries just don’t always listen. Additionally, even when the clear and unambiguous letter of the law is spelled out to juries, they do not always listen. Add to this the natural human tendency to get very emotional over cases in which someone dies because of something someone else did, and there are never slam dunks. (Believe me, I have used some of the best experts in both medical malpractice cases and police excessive force cases and juries don’t always listen to the experts.)

    With this background, as I have also been a firearms instructor, I would advised my students to prevent, avoid, deescallate or escape bad situations and bad people, if possible, rather than go for the gun. The quote: “The best gunfight is one that never happens” maks a lot of sense. It is the aftermath of the gun fight, assuming one survives, that many people do not consider. It can be a very unplesant and expensive experience. When challenged by someone who would use the old chestnut: “Better to be judged by 12 than carried by 6.” I would simply tell that person that they are preaching to the choir, but one also needs to consider the two points I mentioned above. And I would add, if you don’t know a good criminal defense attorney who knows guns and the laws related to guns and self-defense, find one. But even then, there are no guarantees.

    1. Richard Koefod, excellent reply. This is the scenario that we all face, the uncertainty of our “peers” in a court, whether it is an issue with weapons, dogs, cars or airplanes. I have always loved the logic of machines and hated that of people! BTW, I’ll have to look you up if I ever get in trouble with a gun.

    2. Richard,

      Your comment is spot on. The evidence in this case was not sufficient for a murder verdict, but jury selection is an imperfect science and sometimes the only explanation is that the jury that did not spend the time and/or understand the instructions. If it were a manslaughter verdict, it would be unfortunate but we wouldn’t be having this discussion. Either way, it is important to realize that just because someone uses their weapon “within the the law” does not mean they will be judged that way.

      Regards.

  5. Reblogged this on Women and Guns and commented:
    This article really shows how easily a situation can turn deadly, and the negative outcome that could eventually result. Just learning to operate your gun is not enough. Mindset, planning and training are of equal importance, if not more important.

  6. This article really shows how easily a situation can turn deadly, and the negative outcome that could eventually result. Just learning to operate your gun is not enough. Mindset, planning and training are of equal importance, if not more important. As an instructor I find my students looking surprised when I start every class with a lecture and discussion on situational awareness, mindset and legalities of using deadly force. By lunch time, they can’t stop talking about it, and it appears as though their eyes have been opened for the first time. This is what motivates me to continue to teach. I love my job.

    1. The training community doesn’t harp on the software side nearly enough. Good for you for working on their full education.

  7. […] The outcome of this case may surprise all of you folks who are in the “I’d just shoot him” camp.  The jury ignored a significant disparity of force issue when a man shot another person (who was 6″ taller and 100 pounds heavier) during a physical assault.  Guns aren’t the only answer.  You better have some physical skills and/or a less lethal weapon as well if you want to stay out of prison.  Claude discusses the basic facts of the shooting HERE. […]

  8. Document your training by word processing it and mailing it Fedex/certified mail to yourself and storing it closed and unopened.

    Having this material time and date stamped allows for it to be included in discovery.

    You can document you knew what you knew and acted reasonably under your training.

    You can then teach the jury the practice and theory of exactly why your training told you to act as you did.

    – a Mas Ayoob MAG 20 graduate

  9. […] drawn my weapon for real but not needing to fire. My experience is perhaps more relevant to Claude Werner’s work regarding “Negative Outcomes,” even though I was fortunate to have a good outcome. I thought it might be illustrative to […]

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