PORTLAND — Assistant Attorney General John Alsop told jurors on Tuesday that a 911 call placed by shooting victim Leon Kelley’s wife as her husband was gunned down was the most important evidence they’d heard in the murder trial of Merrill Kimball.
“Bam, bam, bam,” Alsop said, describing the shots the jurors heard on an audiotape of the call made by Kathleen Kelley on Oct. 6, 2013, at the North Yarmouth bee farm owned by Kathleen Kelley’s father, 95-year-old Stan Brown.
In the seventh day of the 72-year-old Yarmouth lobsterman’s murder trial, Alsop summarized the prosecution case while defense attorney Dan Lilley urged the jury to acquit Kimball because he acted in self-defense.
The prosecution and defense acknowledge Kimball shot Kelley, 63, three times that afternoon, when Kimball accompanied his wife and stepson to the bee farm to retrieve what she 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 shot hit Kelley, Kimball did not pause after firing one shot. Instead, he shot three times in rapid succession following 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 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 could acquit Kimball or find him guilty of either murder or manslaughter.
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.