A lawyer for Merrill Kimball told a panel of justices on Maine’s highest court Thursday that the jury got it wrong when it convicted the 73-year-old of murder in a 2013 shooting at a North Yarmouth bee farm.
Attorney Daniel Lilley, who represented Kimball in his trial last year, went beyond his written appeal arguments filed with the Maine Supreme Judicial Court and asked the Maine Supreme Judicial Court justices to reject the verdict or have it sent back to a lower court.
“We think it’s a manifest error to allow this conviction to continue,” Lilley said.
Chief Justice Leigh Saufley questioned whether Lilley was changing direction from his written appeal, which said the trial judge made several errors. In Lilley’s written appeal, his chief arguments were that the trial judge’s instructions to jurors were insufficient and that he was wrong to admit some evidence and leave other evidence out.
“Are you suggesting that the jury erred in not accepting the self-defense argument?” Saufley asked, as soon as the green light at the front of the courtroom came on, indicating Lilley’s time for introductory remarks was over.
“That’s one of our claims,” Lilley answered.
Since the shooting on Oct. 6, 2013, Kimball has maintained that he acted in self-defense when he shot 63-year-old Leon Kelley three times at Brown’s Bee Farm after Kelley assaulted him repeatedly and kept coming at him.
A jury rejected Kimball’s self-defense argument and convicted him of murder, rather than the lesser charge of manslaughter.
The shooting followed a confrontation between the family of Kelley, whose father-in-law, Stan Brown, owned the farm; and the family of Kimball, whose wife, Karen Thurlow-Kimball, managed the bee farming business for Brown.
Jim Burke, a professor at the University of Maine School of Law, said direct appeals of a jury verdict are not unheard of and have been successful in the past in Maine. But they can be the most difficult type to argue.
“It’s a very high hurdle,” Burke said. “Arguing that the jury made a mistake by finding a fact is a very high hill to climb.”
Burke said direct appeals of a verdict are more common in jury-waived trials, where a single trial judge hands down a verdict. In such cases, a panel of justices on the supreme court would review the judge’s finding of facts in the case. In a jury trial, the difference is that the 12 jurors are the finders of fact.
In Lilley’s introduction Thursday, he echoed the closing arguments he made at trial nearly a year ago in the Cumberland County Courthouse, the same building where the high court heard Thursday’s appeal.
“This case is a modern David and Goliath case. Leon Kelley was a 6-foot-4, 285-pound giant of a man who did everything in a big powerful way. … He was not a man to mess with,” Lilley said Thursday. “As Kelley was closing in on him, Mike drew his gun and he got three shots out of five off before Kelley could crush him, something like David did with his slingshot to Goliath.”
Assistant Attorney General Donald Macomber, who argued against Kimball’s appeal, said Lilley’s argument that the jury got the verdict wrong has no bearing in the high court appeal.
Macomber said Lilley did not address in his written appeal whether the jury got the verdict right, and therefore shouldn’t be raising it in oral arguments.
“Taken in the light most favorable to the state, if the court wants to entertain that argument raised at oral arguments for the first time, the jury determined that Mr. Kimball rationally and knowingly fired three shots at Leon Kelley’s chest at close range. It was justified in finding him guilty of murder.”
Kimball was sentenced last June 5 to serve 25 years in prison. He remains in custody at the Maine State Prison in Warren while his appeal is pending.
The animosity between the Kelley and Kimball families started after Brown, who was 95 when he died last year, had Thurlow-Kimball run the bee operation and said he made her a beneficiary to inherit the business and some of his land. But the two sides learned only after Brown’s death that he never made a will.
The fate of Brown’s estate is now pending in Cumberland County Probate Court, where Kelley’s widow, Kathleen Kelley, filed a petition to become representative for the estate last Nov. 18.
In Kimball’s written appeal, his lawyers argued that the trial judge failed to adequately instruct the jury. They also say the judge erred in allowing testimony that Kimball had been drinking alcohol on the day of the shooting because no one said he seemed impaired. The attorneys further contend that the judge improperly ruled to exclude evidence that Kelley’s wife had been upset with Kimball’s wife over the inheritance of the bee farm business.
The Supreme Judicial Court adjourned Thursday without making an immediate ruling on the appeal and gave no indication of when it may rule.