MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 75
Docket:   Cum-15-294
Argued:   April 7, 2016
Decided:  May 24, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.


                                 STATE OF MAINE

                                          v.

                                MERRILL KIMBALL

MEAD, 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.

                                 I. BACKGROUND

         [¶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
2

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,


    1
     Members of Brown’s family present at the shooting were Kathleen Kelley, Brown’s daughter; Leon
Kelley, the victim and Kathleen’s husband; Robin Rawnsley-Dutil, Kathleen’s daughter and Brown’s
granddaughter; and Craig Rawnsley, Kathleen’s son and Brown’s grandson.
    2
        Damon Carroll, who is Karen Kimball’s son and Merrill Kimball’s stepson, was also present.
                                                                                   3

“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.

                                 II. DISCUSSION

A.    Adequate Provocation Instruction

      [¶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 (“If a defendant acted with imperfect self-defense, in that it may

have been unreasonable for him to believe that deadly force was necessary, then
4

the defendant cannot be held criminally liable for any crime requiring intention or

knowledge of the actor, but he can be held responsible for a crime for which

recklessness or criminal negligence suffices as the culpable mental state.”

(citations and quotation marks omitted)). 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

        3. It is an affirmative defense to a prosecution [for intentional or
        knowing murder] that the person causes the death while under the
        influence of extreme anger or extreme fear brought about by adequate
        provocation.

        4. For purposes of subsection 3, provocation is adequate if:

    3
      17-A M.R.S. §§ 101(2), 203(1)(B) (2015); see State v. Hanaman, 2012 ME 40, ¶ 1 n.1,
38 A.3d 1278.
                                                                                  5


        A. It is not induced by the person; and

        B. It is reasonable for the person to react to the provocation with
        extreme anger or extreme fear, provided that evidence
        demonstrating only that the person has a tendency towards extreme
        anger or extreme fear is not sufficient, in and of itself, to establish
        the reasonableness of the person’s reaction.

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.

      [¶9] In Hanaman, we said that

      [w]e will vacate a judgment based on a denied request for a jury
      instruction if the appellant demonstrates that the requested instruction
      (1) stated the law correctly; (2) was generated by the evidence;
      (3) was not misleading or confusing; and (4) was not sufficiently
      covered in the instructions the court gave. In addition, the court’s
      refusal to give the requested instruction must have been prejudicial to
      the requesting party.

2012 ME 40, ¶ 16, 38 A.3d 1278 (citation omitted).
6

      [¶10]    Concerning the question of whether the adequate provocation

instruction was generated in this case,

      [i]t is the [trial] court, in the first instance, that must determine
      whether the evidence is legally sufficient to generate the adequate
      provocation manslaughter defense. Viewing the evidence in a light
      most favorable to the defendant, the court must determine as a
      question of law whether there is any evidence from which the jury
      could find provocation and other elements that would reduce the
      offense to manslaughter. The test for measuring the sufficiency of the
      evidence is whether a jury could rationally have found that the
      defense was established by a preponderance of the evidence.

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, --- A.3d ---.

      [¶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:
                                                                                   7

       [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 (concluding that the victim heatedly arguing with, slapping, and

hitting the defendant did not constitute adequate provocation to extreme anger

justifying the use of deadly force). 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.

       [¶13] Concerning the relationship between instructions on self-defense and

adequate provocation and the potential for jury confusion, we said in Hanaman

that

       [w]e recognize that both instructions are sometimes given. However,
       it is the rare case in which a fact-finder could find that the State has
       carried its burden of disproving self-defense and then go on to find,
8

      under the same set of facts, that the defendant has nonetheless carried
      his burden of proving adequate provocation manslaughter. This is not
      one of those cases. Under the facts of this case, we cannot conclude
      that the court erred when it determined that self-defense instructions,
      with a burden of proof more favorable to [the defendant], subsumed
      an instruction as to adequate provocation manslaughter.

Hanaman, 2012 ME 40, ¶ 28, 38 A.3d 1278 (citation and footnote omitted). As an

example of a case where both instructions might be given, we hypothesized

“a parent observing severe abuse of his or her child, confronting the perpetrator,

and killing the perpetrator after the perpetrator attacks the parent.” Id. ¶ 28 n.6.

      [¶14] The trial court, relying on Hanaman, did not err in concluding that

this was not a case where both instructions were required. The court instructed the

jury that

      if the State proves beyond a reasonable doubt at least one of the
      following three things, that is, one, that Merrill Kimball did not
      actually believe that Leon Kelley was about to use unlawful deadly
      force against him or a third person or, two, that Mr. Kimball did not
      actually believe his use of deadly force was necessary to defend
      himself or a third person against Mr. Kelley or, three, that
      Mr. Kimball or a third person failed to retreat from the encounter with
      Mr. Kelley, despite the fact that he or that person knew that he or the
      third person could do so with complete safety, then the State has met
      its burden of demonstrating beyond a reasonable doubt the absence of
      self-defense and you should find Mr. Kimball guilty.

See 17-A M.R.S. § 108(2)(A)(1), (C)(3)(a) (2015); Alexander, Maine Jury

Instruction Manual § 6-61 at 6-112 (2016 ed.). Because it found Kimball guilty,
                                                                                     9

the jury necessarily found that the State proved at least one of the three alternatives

beyond a reasonable doubt.

        [¶15] In this case, any of the three alternatives makes an “extreme anger or

extreme fear brought about by adequate provocation” defense4 untenable, in that

Kimball could not have been adequately provoked to use deadly force to ward off

Leon Kelley if he believed that (1) there was no imminent threat of deadly force

from Kelley, or (2) the use of deadly force against Kelley to defend himself was

unnecessary, or (3) he could have safely retreated. For that reason, it would be

confusing to the jury for it to find that the State had disproved Kimball’s need to

use deadly force in self-defense beyond a reasonable doubt, only to then be asked

whether Kimball had proved by a preponderance that the same deadly force was

nevertheless a mitigating circumstance. See 17-A M.R.S. § 203(1)(B) (“The fact

that the person causes the death while under the influence of extreme anger or

extreme fear brought about by adequate provocation constitutes a mitigating

circumstance reducing murder to manslaughter . . . .”). As the court found, this is

not the “rare case” requiring that both self-defense and adequate provocation

instructions be given. See Hanaman, 2012 ME 40, ¶ 28 & n.6, 38 A.3d 1278.




  4
      17-A M.R.S. § 201(3).
10

B.    Kimball’s Additional Arguments

      [¶16] Kimball makes two other arguments in his initial brief, neither of

which is persuasive. He first contends that evidence that he drank alcohol on the

day of the shooting, absent any evidence that he was impaired, was irrelevant and

unfairly prejudicial. We review the trial court’s “determination of relevance for

clear error,” State v. Adams, 2015 ME 30, ¶ 11, 113 A.3d 583 (quotation marks

omitted), and reiterate that “pursuant to M.R. Evid. 403[,] [t]he trial court has

broad discretion to weigh the relevance of evidence against the danger of unfair

prejudice to the defendant.” State v. Jackson, 1997 ME 174, ¶ 9, 697 A.2d 1328

(footnote omitted).

      [¶17] There was evidence admitted at trial that Kimball had consumed two

rum and cokes over the course of an hour at a friend’s house on the afternoon of

the shooting. Although there was no evidence that he was physically impaired, the

fact that Kimball had been drinking on the afternoon of the shooting was relevant

because the jury could consider whether it had an effect on Kimball’s state of

mind, judgment, or impulsivity, as well as his credibility on other issues. See

M.R. Evid. 401 (“Evidence is relevant if [] [i]t has any tendency to make a fact [of

consequence] more or less probable . . . .” (emphasis added)). It was therefore

presumptively admissible. M.R. Evid. 402. On this record, the court acted within

its broad discretion in determining that the evidence of Kimball’s drinking was not
                                                                                    11

unfairly prejudicial, and that it was for the jury to determine the weight to give that

evidence. See M.R. Evid. 403; State v. Allen, 2006 ME 21, ¶ 13, 892 A.2d 456

(“To sustain a Rule 403 objection, the prejudice must be more than simply damage

to the opponent’s cause.” (quotation marks omitted)).

      [¶18] Second, Kimball contends that the court erred in limiting evidence of

the animosity between Stan Brown’s family and the Kimballs resulting from Karen

Kimball’s inclusion in Brown’s will.       “We review a trial court’s decision to

exclude or admit evidence for an abuse of discretion or clear error.” State v.

Waterman, 2010 ME 45, ¶ 35, 995 A.2d 243 (quotation marks omitted). Contrary

to Kimball’s contention, our review of the record reveals that the court admitted

extensive evidence concerning the inter-familial dispute. The court did not abuse

its discretion in its very minor limitation of evidence concerning that issue in order

to keep the trial focused on the central issue of whether Kimball was criminally

culpable for killing Leon Kelley. See Laux v. Harrington, 2012 ME 18, ¶ 37,

38 A.3d 318 (stating that a court has the discretion under M.R. Evid. 403 to avoid

“a potentially lengthy mini-trial”).

C.    Brady v. Maryland Issues

      [¶19] The sole issue raised in Kimball’s reply brief is his contention that the

State committed a discovery violation, pursuant to Brady v. Maryland, 373 U.S. 83

(1963), and its progeny, when it did not make him aware of information
12

concerning the Chief Medical Examiner’s former employment as the

Chief Medical Examiner for the Commonwealth of Massachusetts.              Kimball

himself notes that the information at issue was contained in a published opinion of

the Massachusetts Supreme Judicial Court. See Flomenbaum v. Commonwealth,

889 N.E.2d 423 (Mass. 2008).              The record does not indicate whether this

information was available to, or in the possession of, the State to any greater

degree than it was to Kimball. We discern no Brady violation upon these facts.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Daniel G. Lilley, Esq., 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., Office of the Attorney General, Augusta, for
        appellee State of Maine

At oral argument:

        Daniel G. Lilley, Esq., for appellant Merrill Kimball

        Donald W. Macomber, Asst. Atty. Gen., for appellee State of
        Maine


Cumberland County Unified Criminal Docket docket number CR-2013-7553
FOR CLERK REFERENCE ONLY
