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State v. Kimball

Supreme Judicial Court of Maine

May 19, 2015


Argued April 9, 2015.

Page 586

On the briefs: Darrick X. Banda, Esq., Law Offices of Ronald W. Bourget, Augusta, for appellant Richard J. Kimball.

Maeghan Maloney, District Attorney, and Tyler LeClair, Stud. Atty., Kennebec County District Attorney's Office, Augusta, for appellee State of Maine.

At oral argument: Darrick X. Banda, Esq., for appellant Richard J. Kimball.

Tyler LeClair, Stud. Atty., for appellee State of Maine.



Page 587


[¶1] In this appeal we address, again, issues that arise when a victim of domestic violence claims lack of memory of critical events or otherwise becomes unavailable or unwilling to testify against the accused. The State, to maintain the prosecution in such cases, often must rely on alternatives to first-person testimony to bring the victim's statements before the jury. The challenges for trial courts addressing such evidence have been enhanced in recent years by opinions of the United States

Page 588

Supreme Court, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that have significantly developed the standard of admissibility, under the Confrontation Clause, of out-of-court statements made by persons who do not testify at trial. This appeal focuses on how the trial court addressed out-of-court statements by a reluctant victim to permit the statements to come before the jury.

[¶2] Richard J. Kimball appeals from a judgment of conviction for domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2014), entered by the Superior Court (Kennebec County, Marden, J. ) following a jury trial. Kimball argues that his right to confront witnesses against him pursuant to the United States and Maine Constitutions, see U.S. Const. amend. VI; Me. Const. art. I, § 6, was violated when the victim was unwilling to testify and the court admitted hearsay statements by the victim in the form of (1) an emergency 9-1-1 recording and (2) the victim's statements to an emergency medical technician paramedic (" EMT" ). Kimball contends that the victim's statements were testimonial in nature and barred by the Crawford opinion and its progeny, even though the statements at issue may have traditionally qualified for admission as exceptions to the hearsay rule. Concluding that the victim's prior out-of-court statements were properly admitted at trial, we affirm the judgment.


[¶3] The relevant facts, viewed in the light most favorable to the jury's verdict, are as follows. See State v. Medeiros, 2010 ME 47, ¶ 16, 997 A.2d 95. On September 15, 2013, at 6:56 p.m., the victim called 9-1-1, stating that she had been attacked by her husband, Kimball, at a home in Oakland. The victim sounded as if she was in distress, and the dispatcher requested that the victim " take a deep breath . . . so [the dispatcher could] understand where [she was located]." The victim reported to the dispatcher that Kimball had beaten her " to a bloody pulp." She told the dispatcher that she had locked Kimball outside, and that he was outside the house. She stated that she " just want[ed] somebody to look at [her] house so he doesn't come back . . . ." The call lasted approximately two minutes.

[¶4] Officers from the Oakland Police Department arrived at the victim's residence approximately four minutes after she placed the 9-1-1 call. The police found Kimball sitting on the back steps of the residence, barefoot and smoking a cigarette. Kimball appeared intoxicated, and the knuckles of his index and middle finger on his right hand were observed to be red and swollen.

[¶5] Kimball stated to the police that the victim was inside the house " going crazy and . . . beating herself up." He stated that he had asked the victim for cash to go to the store, that he and the victim had argued, and that he had " gotten mad at [the victim] and punched the wall." He told the police that he had left the residence to take a walk. The back door by the stairs where Kimball was sitting was locked.

[¶6] The police made visual contact with the victim, who motioned to one officer from inside the home and let the officer enter through the front door of the residence. The officer described the victim's demeanor as " in hysterics," " crying very loud," " hard to understand," " very worked up," and " very scared." The officer saw that the victim's injuries included a severely bruised eye that was swollen to the point of closing, redness around her throat, bruising around her jaw, ...

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