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FILED Jan 12 1998 At 5 o'clock PM. By JSR Clerk of Superior Court
NORTH CAROLINA GUILFORD COUNTY
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 97 CrS 39581
STATE OF NORTH CAROLINA, vs. Defendant.
OBJECTION TO PROPOSED TRIAL DATE
COMES NOW Theodore Mead Kimble, by and through counsel, Robert L.
McClellan arid John D. Bryson and upon having received
correspondence from the District Attorney's Office for the
Eighteenth Judicial District that the above captioned matter may be
placed on the trial calendar for March 2, 1998, the Defendant does
object to this scheduling and files this Objection, or in the
alternative, a Motion to Continue, on the basis that inadequate time
has been allowed for the defense in preparation of this matter for
trial and in support thereof would show unto the Court the
following: 1. The Defendant,
Theodore Mead Kimble, was charged with the offense of First Degree
Murder on or about February 28, 1997 by a Warrant for Arrest
alleging that he did with malice aforethought kill and murder
Patricia Gale Kimble, The Defendant was arrested on the charges and
taken into custody on or about April 1, 1997. 2. Patricia Kimble
was killed as a result of an alleged gunshot at her home in Pleasant
Garden, North Carolina on October 9, 1995. As a result of an 11
month investigation by the Guilford County Sheriffs Department, and
other law enforcement agencies, the Defendant was charged, on a
theory that he was not the perpetrator of the offense, but that he
did solicit, engage or conspire with his brother, who was alleged to
have actually committed the murder. 3. Subsequent to
the arrest of the Defendant, he was shortly afterwards indicted and
arraigned. Counsel did file a Request for Discovery and Inspection
on April 23, 1997. asking for all relevant evidence available to or
in the control of the State be furnished to the Defendant, 4. The Defendant
did not receive any immediate discovery response from the State,
other than representation that discovery would be forthcoming. As a
result o f not knowing the extent or course of the investigation of
the State, or possible evidence, the Defendant was unable to engage
in meaningful investigation or determine the need to retain an
investigator for such purpose. 5. The State of North Carolina requested and received a Rule 24 Conference setting, which was continued until July 29 upon request of the Defendant, in hope that discovery could be received or
considered at the time of this hearing. On July 29, Defendant,
co-Defendant, nor counsel had still received no discovery from the
State and at the time of the Rule 24 Conference the lack of
discovery was made this known to the trial court presiding, the
Honorable William Freeman, Superior Court Judge. At that time, the
defense told the Judge of information it had received that the State
would set this matter for trial in a time frame of April to May of
1998: This information was not contradicted at the hearing by the
State of North Carolina, nor was other information provided to the
Court or to the defense as to a more recent time frame for trial. As
a result, Judge Freeman ordered that the State provide discovery to
the Defendant within 45 days of that date. 6. The
Defendant did receive a portion o f the discovery available to the
State on or about Friday. September 19, 1997, approximately one week
after the 45 day period had expired, The State acknowledged at that
time that all discovery was not assembled and that further discovery
would be forthcoming. The bulk of the remainder of discovery was
received on or about November 3, 1997, approximately 95 days after
the Rule 24 Conference, and over 45 days after disclosure was
ordered to be produced by Judge Freeman. 7. The
discovery provided by the State of North Carolina was rather
voluminous, consisting of over 500 pages of a variety of documents
including medical and forensic examinations, information from law
enforcement agencies and investigators, over 100 separate interviews
or alleged contacts, and statements attributed to the Defendant or
co-Defendant which are purported to be incriminating. Certain
statements that are offered by the State as incriminating are not
consistent in factual allegation with other statements that me
offered. With few exceptions, virtually all the evidence had been
collected by the State prior to April 1, 1997, and could have been
produced to the Defense at that time, had the State so chosen, or if
time was of the essence.. 8. On or
about November 3, 1997, the Defendant, Theodore Kimble, was further
charged with an unrelated series of breaking and enterings and
larcenies to which counsel was further appointed. These matters
consumed time that would have been otherwise allocated for
investigation of the homicide case, and for which the prosecutor, Mr,
Panosh, indicated there may be a first priority to the Breaking and
Entering cases for hearing and disposal. 9. As a
result of receiving information from the State of North Carolina
regarding discovery, and determining that an investigator's
assistance was necessary in order to appropriately examine the
information, and to collect other relevant information, the services
of Mr. Danny Carter, a private investigator, were secured by counsel
and an Order allowing his services to be funded was signed by Judge
Albright on October 2, 1997. Mr. Carter had begun his initial
investigation when he suffered a serious and debilitating aneurism,
for which he was hospitalized for several weeks, and may have long
term care requirements. As a result of his mandatory withdrawal from
this case, counsel had to seek and engage a different investigator,
who would have no prior conflicts in his appointment and have
adequate experience in order to serve as investigator in a capital
case. 10. After considerable search, the services of a new investigator could not be obtained until the latter part of November, 1997. As a result of prior commitments and making adequate time available for investigation, the new investigator, Mr. Homer Young, indicated it may be mid- December or
later before he would be able to devote appreciable time to this
matter. In that virtually no experienced investigator would be
immediately available to devote all attention to this matter alone,
and that the experience of Mr. Young is considerable, and more time
would be necessary to secure the services of another investigator,
the Defendant's counsel found his employment be prudent and
necessary. 11. As a
result of the information received by counsel until November, 1997
that the trial of this matter would possibly be scheduled for trial
in an April or May, 1998 time frame, counsel had also communicated
this information to other courts and judges, to bar other conflicts
with trial matters. As a result, counsel did represent to several
judges, and courts of the ability to complete and hear matters for
trial or trial preparation in the February and March time frame, to
avoid conflict with the Kimble trial matter anticipated in April or
May. As a result, in the Fall of 1997, counsel did enter into
several Orders requiring trial and trial preparation matters to be
heard in the January through March time frame. To require counsel to
be available for trial on March 2 would preclude the ability to
complete these matters as previously ordered. 12.
Furthermore, the District Attorney's office has also given counsel
notice of the homicide trial of Mercy Hayes, in High Point Superior
Court, which is also to commence on March 2, 1998. Mr. McClellan and
Mr. Bryson each represent co-defendants who are material witnesses,
and whose testimony may require advice or presence of counsel
related to testimony, which would conflict with this time period. 13. On
November 6, 1997, trial counsel met with Mr. Panosh to discuss
scheduling of this case at a time of mutual convenience. Trial
counsel established that a date in late April or May on, or after,
would be suitable for trial. Mr. Panosh subsequently proposed March
2, 1998, approximately two (2) months before trial counsel indicated
they would be prepared or able to schedule this case. The scheduling
of this case, in a time purely of convenience to the prosecution,
and no consideration of defense issues, is in direct violation of
the Defendant's Right to Due Process as guaranteed by the 14th
Amendment of the U.S. Constitution, and the North Carolina
Constitution. This method of tactical scheduling is furthermore
indication of purposeful avoidance of the inherent power of the
court to schedule cases at a time suitable to all parties and
without prejudice. 13. As a result of the delay by the State in furnishing discovery, the requirement of securing a new investigator who has not had adequate opportunity to complete material investigation, and conflicts by counsel with previously entered Orders ofthose courts, the Defendant does request that the Court continue this matter from the March 2 term of Court, should it be so scheduled, until such time as the investigation of this matter can be completed and in no event sooner than April or May of 1998, when counsel was led to believe this matter would come for trial. Counsel to date is aware of no material prejudice that would occur to the State of North Carolina by SO MOVED, this the /1 day of January, 1998.
/signature/ Attorneys for Ted Kimble NCSB # 8385
/signature/ John D. Bryson
OF COUNSEL: P. 0. Box
3324 CERTIFICATE
OF SERVICE THIS IS TO
CERTIFY that on the day indicated below, the undersigned served a
copy of the foregoing OBJECTION TO PROPOSED TRIAL DATE AND MOTION TO
CONTINUE by depositing the same, enclosed in a postpaid wrapper,
properly addressed to the following parties in interest, at their
last known addresses as shown below, in a post office or official
depository under the exclusive care and custody of the United States
Postal Service, in the manner prescribed by law: Jack
Hatfield, Esq. 219 W. Washington Street Greensboro,
NC 27401 Richard E. Panosh, Esq, District Attorney's Office Guilford County Courthouse P. O. Box
2378 THIS the
12 day of January, 1998. /signature/ Robert L. McClellan Attorney for Ted Kimble NCSB # 8385 OF COUNSEL: IVEY, McCLELLAN, GATTON & TALCOTT, L.L.P. Attorneys
and Counsellors at Law
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