State v. Kimbrell – 2

State v. Kimbrell – 2

William Marshall Campbell(for the defense)

William Campbell is a nineteen (19) year old resident of Fentress County. After Mr. Campbell’s sixteenth (16th) birthday on May 26, 1996, he and Michelle Kimbrell engaged in sexual intercourse in the barn on James Kimbrell’s property. After Mr. Campbell went home, he noticed that there was blood on his genitals (Volume IV, Sentencing Hearing, page 9). A few days later, thereafter, Michelle called Mr. Campbell on the telephone. During this conversation, Michelle requested that Mr. Campbell return to her house, whereupon she performed oral sex upon him (Volume IV, Sentencing Hearing, page 9). At this meeting, Michelle Kimbrell told Mr. Campbell that she had had sexually relations with three (3) other boys, Travis Stowers, Nathan Elliott, and Jessie Brown ( Volume IV, Sentencing Hearing, page 10). Prior to these two encounters, Michelle and Mr. Campbell had “fooled around” sexually, but “nothing serious” had happened ( Volume IV, Sentencing Hearing, page 7-8).

The day before the trial of this matter, Mitch Stevens, the investigator from the District Attorney’s office, spoke with Mr. Campbell ( Volume IV, Sentencing Hearing, pages 10-11). Mr. Stevens asked Mr. Campbell if he had sexual relations with Michelle Kimbrell. At the time Mr. Campbell denied having a sexual relationship with Michelle Kimbrell because he did not feel comfortable discussing the situation ( Volume IV, Sentencing Hearing, pages 11-12).(1)

Danielle Faye Kimbrell (for the defense)

Danielle Kimbrell is the twenty-one (21) year old niece of James Kimbrell residing in Muncie, Indiana. James Kimbrell would bring his adopted daughters, Michelle and Bethany, to visit Ms. Kimbrell and their family in Indiana twice a year. On one particular visit, Michelle told Danielle that she loved her parents, but she did not like the way she had been raised ( Volume IV, Sentencing Hearing, pages 21-22).

On yet another occasion, Michelle approached Danielle about sex. Danielle was nineteen (19) years of age when this occurred in the summer of 1997 (Volume IV, Sentencing Hearing, page 21). Michelle and Danielle were on their way to the Wal-Mart store in Muncie, Indiana when Michelle asked Danielle if she ever had sex before. Since it was an “out of the blue” question, Danielle testified that she “sort of laughed about it”. Michelle proceeded to tell Danielle that she had been having sex with her boyfriend at the time and she “had been letting him go down on her.” Michelle asked for Danielle’s advice regarding sexual techniques and positions ( Volume IV, Sentencing Hearing, pages 20-21). Danielle declined to answer Michelle’s inquiry into her sexual background nor would she give advice about sexual techniques and positions.

Travis Stowers(for the defense)

At the time of the trial Mr. Stowers was an eighteen (18) year old resident of Fentress County. Mr. Stowers testified that he has never had sexual relations with Michelle Kimbrell.

Jessie Lee Brown(for the defense)

At the time of trial Mr. Brown was an eighteen (18) year old resident of Fentress County.Mr. Brown testified that he had sexual relations with Michelle Kimbrell when he was fifteen (15) years of age between two (2) oil tanks near a church in Clark Range, Tennessee (Volume IV, Sentencing Hearing, pages 26-27). He testified that the couple did not take all their clothes off, nor did they use condoms or any kind of prophylactics (Volume IV, Sentencing Hearing, pages 27). This was the only occasion he ever had sex with Michelle Kimbrell ( Volume IV, Sentencing Hearing, page 28).

Frances M. Kimbrell (for the defense)

Frances M. Kimbrell was married to James Kimbrell for over thirty-three (33) and a half years. The Kimbrell’s had separated and Mrs. Kimbrell had filed for divorce when the allegations of sexual abuse arose involving her husband and their daughter, Michelle. (Volume IV, Sentencing Hearing, page 34). As grounds for the divorce, Mrs. Kimbrell stated that the two were incompatible, their marriage had simply deteriorated over the years, and they just no longer got along ( Volume IV, Sentencing Hearing, page 35). However, their relationship was still cordial ( Volume IV, Sentencing Hearing, page 36). Regarding Mr. Kimbrell impotence, Mrs. Kimbrell testified that he had gone to Livingston to see a doctor and that temporarily helped the situation. However, Mr. Kimbrell quit seeing the doctor and his sexual problems continued ( Volume IV, Sentencing Hearing, page 44).

Mrs. Kimbrell testified that she had no knowledge of any sexual abuse by Mr. Kimbrell upon Michelle (Volume IV, Sentencing Hearing, page 38). Furthermore, Mrs. Kimbrell does not believe Mr. Kimbrell possesses the sort of character to have sexually abused Michelle ( Volume IV, Sentencing Hearing, page 38).

There was an occasion when the Department of Human Services investigated Mrs. Kimbrell when Mrs. Kimbrell hit Bethany on the back with a plastic spoon. At that time, the Department of Human Services asked Ms. Kimbrell if she was willing to undergo counseling which she did (Volume IV, Sentencing Hearing, page 37).

According to her adopted mother, there were many incidents over the years where Michelle did not tell the truth. Mrs. Kimbrell does not believe Michelle Kimbrell would tell the truth in a court of law (Volume IV, Sentencing Hearing, pages 38-39). Furthermore, Frances Kimbrell testified that she also believes that her other adopted daughter, Bethany, would lie in a court of law ( Volume IV, Sentencing Hearing, page 41).

James R. Kimbrell(for the defense)

James R. Kimbrell, the defendant’s son, was thirty-four (34) years old at the time of trial. When Michelle came to live with the Kimbrell family, Mr. Kimbrell was married and living in Ohio, but he returned frequently and maintained a good relationship with his father. In Mr. Kimbrell’s opinion, his father does not have the type of character to have molested Michelle or anyone else ( Volume IV, Sentencing Hearing, page 49). Mr. Kimbrell testified that he had never seen his father bare chested or without a shirt on in the house because of his modesty and his religious convictions ( Volume IV, Sentencing Hearing, page 50).

Danny Lee Kimbrell(for the defense)

Danny Lee Kimbrell testified that his brother, James Kimbrell, has always been an honest and moral person. Mr. Kimbrell testified that he had never even seen his brother do anything immoral (Volume IV, Sentencing Hearing, page 51). Furthermore, James Kimbrell is a very strict and religious individual.

As to Michelle, Mr. Kimbrell testified he would not believe anything she said in a court of law (Volume IV, Sentencing Hearing, page 52).

Mr. Kimbrell testified that one of their other brothers, Mr. Lonnie Kimbrell, had an adopted daughter, Margo, who made false sexual abuse allegations against her father a year or two prior to Michelle’s claims (Volume IV, Sentencing Hearing, page 53). However, the allegations against Mr. Lonnie Kimbrell never resulted in any criminal prosecutions. (Volume IV, Sentencing Hearing, page 53). [ Michelle was aware of this as her cousin would later testify (Volume IV, Sentencing Hearing, page 87). ]

H. Mitchell Stevens( for the State)

Mr. Stevens is employed by the district attorney’s office in Fentress County as a victim witness coordinator. Mr. Stevens spoke with Mr. William Campbell, prior to the trial, who told him that he never had sex with Michelle Kimbrell, nor had he ever even kissed her (Volume IV, Sentencing Hearing, page 58).

Bethany Kimbrell( for the State)

Bethany Kimbrell testified that as punishment her father, Mr. Kimbrell, made her eat soap on one (1) or two (2) occasions (Volume IV, Sentencing Hearing, pages 60-61). Bethany Kimbrell testified that on two (2) occasions, Mr. Kimbrell touched her in places he should not have, such as her breast (Volume IV, Sentencing Hearing, page 60). This occurred in the basement while passing up the stairs in the Kimbrell house (Volume IV, Sentencing Hearing, page 60). However, when Bethany spoke with her sister, Julie Kimbrell, about the allegations made by Michelle against her father and Julie asked her if anything like this had ever happened to her, Bethany replied nothing improper ever occurred (Volume IV, Sentencing Hearing, page 66).

Michelle (Kimbrell) Meadows (for the State)

Michelle (Kimbrell) Meadows testified that she never had sexual relations with Will Campbell, Jessie Brown, Nathan Elliot, or Travis Stowers (Volume IV, Sentencing Hearing, page 68). Michelle denied having the conversation about sexual techniques with Danielle on the way to the Wal-Mart in Indiana. Michelle denied telling Danielle that she ever had sex with her boyfriend or inquiring about Danielle’s sexual history (Volume IV, Sentencing Hearing, page 76-77).

Michelle admitted that she wrote letters to Mr. Kimbrell saying that he was her hero. ( Exhibit 3, Volume IV, Sentencing Hearing, page 80-81) Although Michelle acknowledged that she kept a personal dairy, she acknowledged that she never wrote anything in her diary that indicated that her father was abusing her in any manner ( Exhibit 5, Volume IV, Sentencing Hearing, page 83).

Danielle Kimbrell(for the Defense )

Danielle had a conversation with her cousin, Michelle, about the false sexual abuse allegations made by Margo against her adopted father, Mr. Lonnie Kimbrell. Michelle asked Danielle if Margo had gotten any money out of the sexual abuse accusations. Danielle responded that she did not know whether or not Margo received any financial benefits (Volume IV, Sentencing Hearing, page 87).

C. MAY 2000 MOTION FOR NEW TRIAL HEARING

Jessie Lee Brown(called by the Defense)

Jesse Brown confirmed his testimony that he gave at the sentencing hearing that he did in fact have sex with Michelle Kimbrell. However, Mr. Brown testified that the initial meeting with Michelle was not at a church, but was slightly “down the road” at another girl’s house. Mr. Brown testified said that he and Michelle still went back behind the same oil tanks and had sex ( Volume V, Motion For New Trial, page 13). Mr. Brown said that the reason he did not disclose the initial meeting location with Michelle was because of the presence of a girl by the name of Andrea Gunter. Mr. Brown testified that Andrea Gunter was there and had knowledge of his having sex with Michelle. Mr. Brown said that he did not want to involve Andrea Gunter in this matter and so he did not disclose this earlier (Volume V, Motion For New Trial, page 12).

Andrea Gunter (called by the Defense)

Andrea Gunter was a friend of Michelle (Kimbrell) Meadows. On one occasion, Michelle was visiting Andrea Gunter’s residence when Jessie Brown came over. Ms. Gunter testified that Michelle and Jessie went off alone near some oil tanks, about forty (40) feet from her house. When they returned together, Michelle kissed Jessie and told him that she loved him. Afterwards, Michelle told Ms. Gunter that she had sex with Jessie Brown (Volume V, Motion For New Trial, page 35: this testimony is reproduced verbatim later in this Brief). Subsequently, Ms. Gunter spoke with Jessie Brown, who confirmed that he had sexual relations with Michelle Kimbrell ( Volume V, Motion For New Trial, page 36). To Ms. Gunter’s knowledge, Mr. Brown and Michelle Kimbrell only engaged in sexual relations once ( Volume V, Motion For New Trial, page 37).

Jetta Fulmer(called by the Defense)

Jetta Fulmer, James Kimbrell’s sister, is a resident of Yorktown, Indiana. Ms. Fulmer testified that her brother, James, and his daughter, Michelle, would come to visit she and her family in Indiana. Ms. Fulmer testified that Michelle and Danielle Kimbrell were friendly with one another and had been together on approximately eight occasions (Volume V, Motion For New Trial, pages 47-49). Exhibits 1 and 2 to the Hearing on the Motion for a New Trial are photographs which show Michelle and Danielle together. [ This proof was to rebut the testimony of Michelle who said she had only seen Danielle three times in her whole life and thus could not know about the incident involving Margo. ]

Lonnie Kimbrell(called by the Defense)

Lonnie Kimbrell, James Kimbrell’s brother, was fifty (50) years old at the time of the hearing. In March of 1993, his adopted daughter Margo made a false allegation of sexual abuse against him (Volume V, Motion For New Trial, page 54). None of the allegations made by Margo were true (Volume V, Motion For New Trial, page 67). Fortunately, no criminal charges were ever brought against Lonnie Kimbrell. However, it was a long, arduous, and difficult process for he and his family. This matter (the false sexual abuse allegation made by Margo) was common knowledge to his family. Furthermore, it was the topic of conversation and it was made public ( Volume V, Motion For New Trial, page 56).

James D. White, Jr. (called by the Defense)

James D. White Jr., a graduate from the University of Louisville Law School, is an attorney who has been practicing law for seventeen (17) years.

Mr. White was aware of Danielle Kimbrell’s knowledge about her conversations with Michelle and in fact, she was subpoenaed to testify at trial ( Volume V, Motion For New Trial, page 77). According to Mr. White, his decision not to use Danielle, even though he knew about her testimony, was a tactical decision on his part because of the state of the law at the time. ( Volume V, Motion For New Trial, page 79).

Mr. White explained that he had discussed other-sex evidentiary issues with Mr. Kimbrell and felt that Rule 412 precluded inquiry into that area. Thus he did not pursue it prior to trial particularly since he could not anticipate that the District Attorney would “open the door.” ( Volume V, Motion For New Trial, page 78). Mr. White also said that until the release of the Supreme Court case it was ” less clear at the time” if the door had been opened so as to get into the issue of the proof of other sexual events. [ The trial took place in September, 1999 and State vs. Brown, 29 S.W.3d 427 (Tenn. 2000) was released on January 24, 2000 ].

Mr. White subpoenaed Will Campbell and his mother for trial (Volume V, Motion For New Trial, page 79). As a tactical decision, Mr. White did not use them ( Volume V, Motion For New Trial, page 80). However, Mr. White did not interview Will Campbell (Volume V, Motion For New Trial, page 82).

Mr. White never had a conversation with Jessie Brown prior to trial (Volume V, Motion For New Trial, page 83). However, had he known about the testimony of Jessie Brown or Andrea Gunter, Mr. White testified that he would have used them at trial (Volume V, Motion For New Trial, page 84). Furthermore, Mr. White would have used Danielle Kimbrell’s testimony if he would have known about Andrea Gunter and Jessie Brown (Volume V, Motion For New Trial, page 85).

If he had known about the false sexual abuse allegations made against Lonnie Kimbrell by his adopted daughter, Margo, Mr. White testified that he would have used that at trial as well, because it would have provided a motive for why Michelle did what she did ( Volume V, Motion For New Trial, page 85).

Mr. White was aware of the doctrine of election but never insisted on an election. (Volume V, Motion For New Trial, page 86).

Mr. White said he made “tactical decisions” not to call Mr. Kimbrell’s ex-wife, his son, or use Michelle’s letters and diary against her. ( Volume V, Motion For New Trial, pages 87 – 91).

Finally, Mr. White was unable to provide any reason why he did not object, or seek limiting instructions, or attempt to exclude in any manner the twenty (20) to thirty (30) additional, unindicted charges against James Kimbrell (Volume V, Motion For New Trial, page 91-2).

Michelle Kimbrell ( called by the Defense)

Michelle Kimbrell was called by the defense. She admitted that she once worked at a church near to where the oil tanks are located where Jessie Brown said he sex with her. (Volume V, Motion For New Trial, page 112 ) Ms. Kimbrell said that Andrea Gunter is an honest person (Volume V, Motion For New Trial, page 113) but that she never told Ms. Gunter about having sex with Jessie Brown. (Volume V, Motion For New Trial, page 114)

Mitchell Stephens( called by the State in rebuttal)

Mr. Stephens said he was a former sheriff and now works for the District Attorney’s Office. He took a statement from Will Campbell which is Exhibit 14 in the record (Volume V, Motion For New Trial, page 117) In this statement Will Campbell says he only had oral sex with Michelle. Mr. Stephens said that Will Campbell was in Florida. (Volume V, Motion For New Trial, page 118)

On cross-examination Mr. Stephens admitted that while Will Campbell had been given a polygraph test one was also administered to Jesse Brown. ( Volume V, Motion For New Trial, page 125). He also spoke with Andrea Gunter’s mother.

Shane Lyttle(called by the State in rebuttal)

Mr. Lyttle testified that he had interviewed Fran Kimbrell who was Mr Kimbrell’s ex-wife. The former wife had said at the beginning of the investigation that Mr Kimbrell could move Michelle into his bedroom because “she was practically there anyway.” (Volume V, Motion For New Trial, page129)

Reagan(called by the State in rebuttal)

Mrs. Reagan said that Jessie Brown was put into her foster care in 1996. (Volume V, Motion For New Trial, page 133) She said that Jessie told her he had had sex with Michelle in her bedroom. (Volume V, Motion For New Trial, page 133) She said that she had called Mr. Kimbrell about the sexual allegation involving Jessie Brown and Michelle. ( Volume V, Motion For New Trial, page 137). Mrs Reagan admitted that someone from the Kimbrell house had called her home but did not know it was Michelle Kimbrell at the time.(Volume V, Motion For New Trial, page 137).

ARGUMENT

I. MR. KIMBRELL IS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHICH IS MATERIAL AND IS LIKELY TO CHANGE THE RESULT OF THE TRIAL IF ACCEPTED BY THE JURY.

A.

Mr. Kimbrell was charged with thirty counts of alleged sexual abuse against his adopted daughter. The government alleged approximately fifteen separate factual occurrences wherein Michelle Kimbrell claimed to have been sexually abused by Mr. Kimbrell. She testified, however, that there were far more than twenty sexual assaults. Michelle said that this had happened to her more than fifty times! (Volume II, Trial, page 71).

Michelle claimed that she had been assaulted in just about every room in the house. She said she had been assaulted in the barn, in the bushes and in caves. She said this occurred in all manner of places in Fentress County. However, there was not one scrap of physical evidence to support her claim. There were no witnesses to any of this.

The State repeatedly told the jury that this case boiled down to just the credibility of the witnesses, one side or the other. The State advised the jury that what little extra evidence that they might have would come in the nature of expert testimony that Michelle had had sexual intercourse. But of course, that expert could not say whether the intercourse had occurred six weeks prior to the examination or six years prior to the examination. (Volume III, page 136).

The following statements of the District Attorney to the jury repeatedly focused on the fact that there was no other evidence other than Michelle’s claim that she had had sex with someone and that the case was simply a matter of the credibility of the witnesses:

GENERAL GALLOWAY: “Ladies and gentlemen, in these kinds of cases, you know, we all hope for, I guess, if there is a smoking gun or some kind of fingerprint, or something like that in some other kinds of crimes that – you know, is kind of conclusive proof which you can rely on, you don’t have to evaluate all the credibility of all of the witnesses, and I will tell you know that that will not be the fact. There was a medical examination done of the victim and this is not the kind of rape case where something – an examination was done right after something happened, and you have got some kind of DNA – and will say, that is his fingerprint and it is him that done it. There will be no such proof. There will be some medical proof that will show that the findings of the nurse were consistent with what the child says happened, but they will be consistent with other things. Now, the fact that there is not any absolute, concrete, one hundred (100%) percent medical proof that the defendant did this in this case, the fact that that’s not there, would you just – like the other situation, would you just simply be unable to convict anybody in the absence of that kind of proof, even if you are otherwise convinced – and just say – well, there ought to have been some medical proof, and there wasn’t any, so whatever I believe otherwise, I can’t find him guilty? Anybody fall in that category?” (Volume II, pages 16-17).

“And the lady from Our Kids Clinic in Nashville who examined her, will tell you that this young lady of seventeen (17) had had sexual intercourse on doing the pelvic examination. And Michelle will tell you – I have had no sex with anyone else before that examination but with the defendant, James Kimbrell.” (Volume II, page 50).

“As I said, ladies and gentlemen, – and this is – it is pretty clear to you after sitting through this trial, that there is – it is not a case where I have got DNA proof. He’s the one that done it. I don’t have fingerprints at the scene of the crime. There are no ballistics tests that this is the gun that fired – to say that this is the gun that fired the bullets that killed the person. In these kind of cases, you don’t have that. And it is not here either. It becomes a question of – your determination of who – based on – on the Judge’s instruction about what you are to consider about credibility of witnesses. Who is telling the truth.” (Volume III, page 204)(emphasis added).

“Now, Michelle tells you that prior to January 7th, 1998, when I was examined by Sue Ross, I never had sex with anyone but that man right there, James Kimbrell. That is the only man I ever had sex with before I was examined.” (Volume III, page 206).

With regard to her trial testimony Michelle stated that she had not had sex with anyone other than the defendant:

Q [By General Galloway]: “Now, up until that period of time, from the time that you were – had you had sex with any other person other than Mr. James Kimbrell?

A [By Michelle Kimbrell]: No, sir.” (Volume II, page 93).

There was a single reference in the trial to Michelle Kimbrell having sex with others but this drew an immediate objection from the District Attorney:

Q [By Mr. White]: “No problems about her passing out condoms at school?

A [By Shane Lyttle]: Yes, now he did say that.

Q [By Mr. White]: All right. About her having sexual relations with someone else.

GENERAL GALLOWAY: I object to that. He knows good and well – that that violates Rule 412, now he has complained every time about me.

THE COURT: Gentlemen, would you approach?

(WHEREUPON, there was an off the-record bench conference between Court and counsel, out of the hearing of the jury.)

THE COURT: Ladies and gentlemen, I sustain the objection made, that is to be stricken from the record, and is not to be considered proof of anything, or as any evidence or have any value to you in your deliberations at all, do you understand that? All right. You may proceed.” (Volume III, pages 193-194).

The defendant testified in this case that he did not sexually assault his daughter in any way. While he had some witnesses who supported his credibility, the defendant had no evidence to attack the credibility of Michelle Kimbrell. Mr. Kimbrell was convicted on 22 counts of sexual abuse and was sentenced to 40 years in prison. Given his age, Mr. Kimbrell will die in prison absent a new trial.

The evidence at the Sentencing Hearing and at the hearing on Motion for New Trial established that following Mr. Kimbrell’s conviction, Mr. Kimbrell’s family retained the undersigned counsel to investigate the case. The undersigned counsel found out the names of some of the acquaintances of Michelle Kimbrell.

The undersigned counsel summoned these boys and girls to court through the process of subpoena or through the assistance of the prosecutor. (2) Two of the three male acquaintances swore under oath that they had had sex with Ms. Kimbrell and both withstood rigorous cross-examination.

Jessie Brown testified both during the sentencing hearing and again at the hearing on the motion for a new trial that he had sex with Michelle near some oil tanks. See, Volume IV, Sentencing Hearing, pages 26-27 and Volume V, New Trial Motion Hearing, pages 6-15.

It is true that the other boy, Will Campbell, retracted part of his testimony about his own sexual adventure with Michelle but he still confirmed that he had had “oral sex” with her. See Exhibit 14 to the Motion for New Trial.

Apart from the proof of Jessie Brown, the most telling testimony was that of Michelle’s girlfriend, Andrea Gunter, who had heard Michelle admit to the sex with Jesse Brown at the oil tanks:

  • And did they come – did Michelle and Jessie Brown come back to where you were?
  • Yes, they did.

Q How long were they gone?

A About ten (10) minutes

Q . Now, when they came back, just tell me what happened.

A. Okay. They came back together. Michelle kissed Jessie, told him that she loved him and she ran inside my house.

Q. Okay. Did you have a conversation with Michelle about what had happened over there by the oil tanks?

A. She told me.

Q. What did she tell you?

A. She told me they had sex.

Q, When did she tell you that?

A. When I came back inside.

Q. I beg your pardon.

A . ..When I came back inside my house, ’cause she was already in there

Q. How did the conversation come up?

A. She just told me.

Q. Okay. Did you say anything to her?

A. I was shocked.

Q. And you saw her kiss Mr. Brown and say I love you?

A. Yes, I did.

Q. And then she ran in the house? And you questioned her – said she just had sex with Mr. Brown?

A. I didn’t question her, she just told me.

Q. She just came out with it – okay. Did you talk to Mr. Brown about any of this?

A. Yes, I did.

Q. When did you talk to him?

A. Later on.

Q. Huh?

A. Later on. I don’t remember when, but it was later.

Q. Later that same day or later No, later on. – days or weeks later?

A. Probably.

Q. Okay. What kind of conversation did you have with Mr. Brown about this?

A. He just told me what happened and then recently we talked about it, because all of this came up.

Volume V, New Trial Motion Hearing, pages 35-36.

The proof at the hearing on the Motion for New Trial established further that prior counsel had interviewed Michelle Kimbrell before the trial and she told him in an interview that she had never had sex with anyone else other than Mr. Kimbrell according to her. (Volume IV, New Trial Motion, page 72 ) There was no further inquiry on that point except for the fact that prior counsel did interview Michelle’s first cousin, Danielle Kimbrell, who gave information to prior counsel about her conversations with Michelle Kimbrell about sex. (Volume IV, New Trial Motion, page 77 ) Yet, prior counsel did not use that testimony even though he was aware of same at the trial. Danielle Kimbrell was subpoenaed to testify at the trial and, in fact, appeared at the trial but was never used. (Volume IV, New Trial Motion, pages 78-79 )

Further investigation by the undersigned counsel disclosed that Mr. James Kimbrell has a brother, Lonnie Kimbrell, who also had an adopted daughter who also made similar allegations against Mr. Lonnie Kimbrell. This was a matter of common knowledge in the family and Danielle Kimbrell testified that she had had actually discussed this matter with Michelle Kimbrell ! (Volume IV, Sentencing Hearing, page 87) Apparently the girl in the other matter (Margo) had made up these allegations so as to get away from her adopted father. This all sounds very familiar.

Mr. Lonnie Kimbrell appeared at the Motion for a New Trial hearing and testified about the allegations against him made by Margo, none of which resulted in any criminal prosecution whatsoever but which were subject to criminal investigation for quite some period of time on dates prior to the surfacing of the allegations by Michelle Kimbrell against Mr. James Kimbrell here. ( Volume V, Motion For New Trial, page 56)

Lonnie Kimbrell’s adopted daughter, Margo, claimed she was sexually abused “from the age of ten” and that she was “whipped and beaten.” The false allegations made by Lonnie Kimbrell’s adopted daughter became very public when Lonnie Kimbrell and his wife testified in committee of the Indiana legislature about their ordeal. Newspaper accounts of this ordeal were exhibited at the hearing of the Motion for New Trial in Mr. James Kimbrell’s case. See, Defense Exhibit 4 at New Trial Motion Hearing. As noted, Michelle was well aware of all this (Volume IV, Sentencing Hearing, page 87) and could well have cooked up a similar scheme to get away from her adopted father and his strict religious beliefs which she believed were oppressive. This is more than enough motive here for her to lie.

In summary, the defense showed that post-trial investigation established that Michelle Kimbrell had various sexual exploits with two other boys. Not only had the defense produced the credible testimony of the boys but there was the testimony of the Gunter girl who said that Michelle had admitted this to her! There was additional testimony available that Michelle Kimbrell had made statements about having sex with her boyfriend to Danielle Kimbrell but that testimony was not made known to the jury. The defense asserts that the testimony about Michelle’s sex with others either constitutes newly discovered evidence or that, in the alternative, the defense attorney rendered ineffective assistance of counsel in failing to acquire this proof and present it to the jury.

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