Professional Documents
Culture Documents
of Maryland
September Term, 2014,
Nos. 1553 and 2099
September Term, 2015,
No. 365
BRETT KIMBERLIN,
Appellant,
v.
AARON J. WALKER, ESQ., ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson and Terrance McGann, Judges)
BRIEF OF APPELLEE AARON J. WALKER, ESQ.,
APPELLEE WALKERS MOTION TO DISMISS APPEAL,
AND APPELLEE WALKERS MOTION FOR LEAVE TO FILE MOTION TO
DISMISS IN EXCESS OF PAGE LIMIT
Aaron J. Walker, Esq. (Va Bar# 48882)
[redacted]
Manassas, Virginia 20109
AaronJW72@gmail.com
(703) [redacted] (No fax)
ii
TABLE OF CONTENTS
Table of Authorities
Proposed Order Granting Appellee Walkers Motion to File Motion to Dismiss in Excess
of Page Limit
11
Motion to Dismiss
12
73
Appellees Brief
Questions Presented
Statement of Facts
I.
II.
III.
A.
B.
The Grant of a Motion for Judgment Should Be Affirmed Because There Was No
Evidence that Mr. Walker Made a False Statement
11
A.
B.
C.
iii
14
D.
E.
F.
G.
IV.
V.
The Appellant Serially Fails to Articulate Any Reason Why It Was Error to
Exclude Any of His Alleged Evidence
28
VI.
MD CODE Cts. & Jud. Proc. 9-104 Would Be Constitutional as Applied to the
Appellant
29
Conclusion
34
36
53
iv
TABLE OF AUTHORITIES
CASES
Bagwell v. Peninsula Regional Medical, 106 Md. App. 470 (1995)
12
13
11, 24
27
32
32
30-31
27
30
34
27
31
29, 30
Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010)
14, 19
14
2
Kimberlin v. KimberlinUnmasked, Case No. 8:13-cv-02580-RWT, 3-4 (D. Md., Feb. 28,
2014)
7
Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (2013)
Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992)
Kimberlin v. White, 7 F. 3d 527 (6th Cir. 1993)
16
2
2, 13
11
26
31
Pierson v. News Group Publications, Inc., 549 F. Supp. 635 (S.D. Ga. 1982)
27
Piselli v. 75th Street Medical, 371 Md. 188, 808 A. 2d 508 (2002)
33
31-32
33
13
Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628 (2005)
11
31
32
31
30-31
12
Trundle v. Homeside Lending, Inc., 162 F. Supp. 2d 396 (D. Md., 2001)
27
16
32
Wilson v. Sysco Food Services of Dallas, Inc., 940 F. Supp. 1003 (N.D. Tex. 1996)
27
Zitterbart v. Am. Suzuki Motor Corp, 182 Md. App. 495 (Md. App. 2008)
8-10
9-10
33
vi
29, 31
29
31
21, 25
23
34
passim
33
22, 29
33
23
35
35
13, 1, 11
29
24
29
18, 22, 29
28
7, 26
10
9, 12, 2
vii
25
Carl Sagan, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK (1996)
23
Los Angeles Times Editorial Board, Editorial: Paris Terrorists Aimed at Freedom of
Expression, We Must Defend it, LOS ANGELES TIMES, January 7, 2015 (available at
http://www.latimes.com/opinion/editorials/la-ed-paris-attack-charlie-hebdo-freedom-ofspeech-20150108-story.html) visited August 10, 2015
17
WEBSTERS NEW WORLD COLLEGE DICTIONARY 1310 (Victoria Neufeldt, 3rd ed. 1996)
25
viii
BRETT KIMBERLIN,
Appellant
v.
September Term, 2015:
No. 365
Consolidated Appeals
Under Md. Rule 8-504(a)(4), the Appellant is allowed to provide [a] clear
The Appellant has provided a statement of the facts that is not consistently
concise, material, or even factual, and certainly is not made with accurate citation of the
Record or Record Extract. This is equally true of facts stated throughout the remainder of
the briefthey are not supported by the Record or Record Extract.
3.
relevance, some of them go to the heart of the appeal. For instance, on page 30 of his
brief (hereinafter KBr.), the Appellant writes the Appellees had knowledge of and
Mr. Walker was previously represented by Patrick Ostronic on this appeal. A motion to
withdraw as counsel has been filed by Mr. Ostronic (with Mr. Walkers consent) and Mr.
Walker files this and other documents expecting this request to be granted.
1
ix
acted with reckless disregard to the falsity of these matters. There is nothing in the
Record or Record Extract supporting that assertion. As another example, the Appellant
falsely portrays a grant of summary judgment as a grant of a motion to dismiss (e.g. KBr.
10 and 33). Even his own Record Extract contradicts him. (Record Extract B)
4.
ten pages under Md. Rule 8-503(d)(2) [e]xcept with permission of the Court.
5.
the law and its application to the present facts amounts to about three pages total. It is the
necessity of correcting every time the Appellant misstated the truth that take up the bulk
of the Motion to Dismiss. Therefore, the length of the Motion to Dismiss is dictated
almost entirely by the number of times the Appellant has misstated the truth. Accordingly,
the Motion to Dismiss is twenty-five pages long.
WHEREFORE, Appellee Aaron J. Walker, Esq. should be granted leave to file a Motion
to Dismiss in excess of the page limitation and all other relief that is appropriate.
Tuesday, August 18, 2015
Respectfully submitted,
BRETT KIMBERLIN,
Appellant
v.
September Term, 2015:
No. 365
Consolidated Appeals
__________________________________________
Judge, Court of Special Appeals
xi
BRETT KIMBERLIN,
Appellant
v.
September Term, 2015:
No. 365
Consolidated Appeals
xii
moment to correct the misstatements of the truth in the Appellants brief. See Brief of
Appellee Walker (hereinafter WBr.) 6-10, 13-18 and 22-23. This motion incorporates
those pages by reference. In addition to those misstatements of the truth, the Appellant
makes the following misstatements in his brief (hereinafter KBr.), with the Appellants
words in boldface:
1.
favor.) (KBr. 1) There is nothing in the Record or Record Extract establishing either
that 1) there was a settlement, or 2) whether it was in the Appellants favor. Indeed, if it
was a confidential settlement, one wonders if it is proper to reveal any detail about the
agreement, including its existence.
2.
Maryland based non-profit called Justice Through Music, that works with bands
and musicians worldwide to promote pluralism, tolerance and progressive values.
(KBr. 3) Nothing in the Record or Record Extract establishes any of these claims. At
Because the Appellants Record Extract does not have a master numbering system, Mr.
Walker shall cite it as E.A., E.B., E.C., etc. to designate the specific section of the extract
being cited.
4
Under the Maryland Rules, a motion for a directed verdict is better described as a
motion for judgment. Md. Rule 2-519. See, e.g. Solesky v. Tracey, 198 Md. App. 292,
17 A.3d 718, 721 (2011), (quoting from Banks v. Iron Hustler Corp., 59 Md. App. 408,
423 (1984), which discussed granting directed verdicts, and substituting the phrase
motions for judgment in the place of that term).
3
xiii
most, Mr. Walker acknowledged that hes heard the Appellant claim he was the director
of a non-profit, but that is still hearsay. (E.D. 81) The Appellant introduced no evidence
of even the name of his alleged non-profit, let alone what it did.
5.
Maryland. (KBr. 3) Nothing in the Record or Record Extract supports a single word of
this passage.
6.
won a judgment against Mr. Allen for defamation, which included injunctive and
monetary relief. (KBr. 3) There is nothing in the Record or Record Extract to support
the assertion that he won a judgment after a trial, and it is not true. He won on default
judgment in Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010). Further, a
search of the Maryland Judiciary Case Search website indicates the same. (See Dkt. No.
66 in that case) Likewise, nothing in the Record or Record extract establishes what relief
he was awarded.
7.
Aaron [Walker], who was well known online as the publisher of the
anti-Muslim Everyone Draw Mohammed blog (KBr. 3) There was nothing in the
Record establishing that Mr. Walker was well-known. The baseless allegation that Mr.
Walker harbors prejudice toward Muslims is addressed in WBr. 18-18.
8.
judgment] overturned on a motion for new trial. (KBr. 3) Mr. Walker did enter into
an attorney-client relationship with Mr. Allen, but the entirety of Mr. Walkers testimony
on his legal aid to Mr. Allen is as follows: I provided [Mr. Allen] legal advice on how to
deal with your lawsuits. (E.D. 57) He did not testify as to specific goals of
representation or the contents of any privileged communication.
9.
the judgment. (KBr. 3) To be clear, since Mr. Walker is not, and never has been, a
Maryland lawyer, the Appellant is accusing Mr. Walker of unauthorized practice of law.
The accusation is categorically false and there is no evidence in the Record or Record
Extract that Mr. Walker did any such thing. Mr. Walker respectfully requests that this
xiv
Appellant advised the court that Mr. Worthing had filed the documents under a
pseudonym, and that he was really Aaron Walker. (KBr. 3) This is not supported by
the Record or Record Extract, and it is false. The Appellant is trying to suggest Mr.
Walker filed documents in the Circuit Court (on Seth Allens behalf), under a fake name
that he pretended was real. What actually happened was as follows. Mr. Walker wrote on
the Internet under the pseudonym, Aaron Worthing. The Appellant learned that Mr.
Walker gave Mr. Allen free legal help and sought to obtain his identity through the use of
subpoenas allegedly so he could force Mr. Walker to testify against his client. Mr. Walker
maintained that the Appellant was seeking Mr. Walkers identity so he could harass him
for having provided legal advice to his enemy. In the process of fighting those abusive
subpoenas, Mr. Walker (through counsel) sought and eventually obtained the right to file
pro se pleadings under a pseudonym,5 so he would not have to reveal his true identity in
order to fight the Appellants attempts to reveal his name. So the Appellant didnt
advise[] the court that Mr. Worthing had filed the documents under a pseudonym. The
court already knew Mr. Walker was writing under a pseudonym. Further, the Appellant
has portrayed himself as merely revealing Mr. Walkers identity. Heres Mr. Walkers
uncontradicted testimony about what the Appellant actually tried to put in the public
record:
When you learned what my true identity was then you put the motion to
withdraw on the record. That motion to withdraw included my real name
and the alias I went under online. It included my date of birth, my current
home address. It included where I worked. It included their address. It
included what college I went to. It included what law school I went to. It
included sealed information from a lawsuit I had filed and included all of
this information unnecessarily. And this was one day after you had sent a
letter to the police saying that your act of placing that information into the
public record would put my life in danger.
(E.D. 58) The Appellant was not playing the benign whistle-blower as he claimed. In
any case, the Appellants claims are not supported by the Record or Record Extract.
5
See Dkt. No. 125 in that case. Mr. Walker is the John Doe.
xv
11.
demanded that the judge seal his identity because Muslims could target him for
being the publisher of the Muslim hate blog. (KBr. 4) The Record and Record Extract
establishes that Mr. Walker went to court to successfully move to place a document the
Appellant filed under seal but not Mr. Walkers proffered reasoning for the seal. (E.D. 58)
12.
After the hearing, Mr. Walker followed Appellant to the Circuit Court
waiting room, committed battery against him, and took his iPad. Police responded
and Appellant was treated at Suburban Hospital for a contusion to the eye and back
pain. Appellant later filed for a Peace Order and criminal charges for assault
against Mr. Walker. (KBr. 4). The falsity of the claim that Mr. Walker battered the
Appellant is covered in WBr. 15-17. Further, while Mr. Walker testified that the Appellant
filed two peace orders against him, he did not state what they were related to. (E.D. 126127) Likewise, he only vaguely alluded to vexatious... criminal charges (E.D. 87) filed
by the Appellant, but didnt state what they were related to.
13.
Robert Stacy McCain to launch an online campaign called Everybody Blog About
Brett Kimberlin, using the template of his Muslim hate blog-i.e., create a false
narrative and then use social media to get others to pile on. (KBr. 4) First, any
allegation that the Appellees were acting in concert was dismissed when the court granted
summary judgment (R. 193-94) on the conspiracy to abuse process count (E.A. 19),
and, in any case, there was nothing in the Record or Record Extract supporting that claim.
Second, while a free speech protest called Everybody Blog About Brett Kimberlin Day
xvi
was mentioned, there is nothing in the Record or Record Extract showing that any of the
Appellees, solely or in concert, launched it. The only testimony on that subject was Mr.
Walkers, where he said he didnt start it or ask anyone to join in. (E.D. 123-24) Further,
there was no evidence that Mr. Walkers template on his Everyone Draw Mohammed
site was about creating false narratives. The only testimony as to its purpose is found on
E.D. 60-62. The purpose of the blog was simple: Islamofascist terrorists threatened to
murder anyone who depicted the religious figure Mohammed in even the most benign,
inoffensive way. Those who participated in the Everyone Draw Mohammed protest
believed that if enough people committed the crime of drawing Mohammed, that the
Islamofascists would realize it would be impossible to kill everyone who drew
Mohammed and stop issuing such threats. (E.D. 60-61) Events subsequent to the trial,
such as the massacre of employees working for the French publication Charlie Hebdo,
have only highlighted how serious this threat to freedom of speech and freedom of
religion truly is.6
15.
The stress from all this proved too much for Appellants wife and she
suffered a mental [sic] health issues. (KBr. 4) There is nothing in the Record or
Record Extract suggesting that Mrs. Kimberlin ever suffered from mental health issues.
Mr. Walker asks this Court to strike this despicable attempt by the Appellant to smear his
own wife as crazy.
16.
her, offered to pay her money to lie about Appellant, launched a fundraising
campaign which raised thousands of dollars to save Appellants wife, and foisted
an attorney on her to represent her in family law proceedings. (KBr. 4-5) Nothing in
Los Angeles Times Editorial Board, Editorial: Paris Terrorists Aimed at Freedom of
Expression, We Must Defend it, LOS ANGELES TIMES, January 7, 2015 (available at
http://www.latimes.com/opinion/editorials/la-ed-paris-attack-charlie-hebdo-freedom-ofspeech-20150108-story.html) visited August 10, 2015 (the terrorists, who reportedly said
they were avenging the prophet Muhammad, were aiming not only at individuals but at
an idea: that freedom of expression includes the right to criticize and, yes, ridicule the
cherished beliefs of others).
6
xvii
the Record or Record Extract supports the allegation that Mr. Walker (or Hoge) stalked
Mrs. Kimberlin, offered to pay her money to lie about the Appellant, or helped her obtain
local counsel that Mrs. Kimberlin did not want. The word save only appears once in the
whole transcript, and not in reference to Mrs. Kimberlin. (E.D. 213) Finally, the only
contacts in the Record or Record Extract between Messrs. Hoge or Walker and Mrs.
Kimberlin are 1) Mr. Walker entering into an attorney client relationship with her (E.D.
103-104), and 2) Mr. Hoge helping to raise funds to pay for local counsel (E.D. 141-142).
17.
(KBr. 5) There is no support for a single allegation in the paragraph, except that at some
point after Mr. Hoge began his fundraising, he stopped fundraising for Mrs. Kimberlins
legal defense fund at Mrs. Kimberlins request. (E.D. 141-142)
18.
Claims that several statements were admitted into evidence that were
not (KBr. 5-7). The following statements were not supported by evidence in the Record
or Record Extract although the Appellant represents that they were:
a.
Kimberlin (KBr. 6)
d.
13-She not only needs help... to ...Brett Kimberlin: Pedophile? (KBr. 6-7)
e.
within his power to harm you - even though he derives no benefit from these
destructive acts other than the sadistic vengeful pleasure of inflicting harm.
(KBr. 7)
f.
xviii
children!(KBr. 7)
19.
Appellees [sic] Walker and Hoge filed more than a dozen malicious
lawsuits, peace orders, and criminal charges (KBr. 7) The Appellants brief purports
to list the meritless legal actions filed by these Appellees in a footnote. (KBr. 8) First,
the Appellant doesnt list more than a dozen such suits. Second, the entire list is not
supported by the record in terms of dates, party names, and outcomes. Third, the
Appellant apparently blames the Appellees for every lawsuit filed by any person,
including ones where the Appellant is the plaintiff. For instance, his list (in footnote 1,
KBr. 8) includes Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010), where
the Appellees are listed neither as plaintiff nor defendant. Likewise, the allegation that
that Mr. Walker filed either July 30, 2013, Montgomery County District Court,
prepared false pleading in Family Court matter alleging sex offense (denied August
12, 2013) or July 29, 2013, Montgomery County District Court, prepared criminal
charge for third degree sexual assault (nolle prossed August 23, 2013) is not
supported by the Record or Record Extract, and, in fact, these charges/petitions were filed
by Mrs. Kimberlin. Nor is there anything in the Record or Record Extract supporting the
allegation that Mr. Walker prepared filings in either case. Finally, while Mr. Hoge
testified to filing unspecified criminal charges against the Appellant, nothing in the
Record or Record Extract shows that he filed for any peace orders.
20.
their reign of terror and as a strategy to use them for an improper purpose...
(KBr. 7) There is nothing in the Record or Record Extract showing that any Appellee
filed any legal action for any other reason than to seek justice in good faith or that they
were meritless.
21.
United States, 418 U.S. 424 (1974). (BKr. 8-9) The only allegation in this paragraph
supported by the Record or Record Extract is the fact he was convicted of perjury. Thus,
a convicted perjurer is asking this Court to take him at his word.
xix
22.
that they could file legal actions against Appellant with impunity because of an
arcane Maryland rule that prohibits persons convicted of perjury from testifying...
(KBr. 9) There was no evidence in the Record or Record Extract that the Appellees even
knew of the existence of this statute or that the Appellant was convicted of perjury before
this case was filed. Further, there was no evidence in the Record or Record Extract that
suggested that the Appellees decided to print falsehoods about Appellant because they
thought they could get away with it because of this statute. This fits a familiar pattern,
where the Appellant claims to know what his enemies are thinking, and, to hear him
tell it, it is always the worst motivations possible.
23.
Appellees and asked to answer them under oath, he filed a motion for protective
order, citing inconsistent 9-104 rulings. (KBr. 9) There is nothing in the Record or
Record Extract showing that his motion for a protective order cited inconsistent 9-104
rulings or even mentioned MD CODE Cts. & Jud. Proc. 9-104 at all. (R. 154)
24.
answering [interrogatories] under oath. (KBr. 9) While sanctions were imposed, the
Appellant has failed to provide a transcript of the July 1, 2014 hearing related to such
sanctions (the same one where summary judgment was granted on most claims).
Therefore, this allegation is not supported by the Record or Record Extract. It is worth
noting that the Appellees successful motion for sanctions was based in part on a
complete failure to answer the interrogatories, not simply a failure to answer them under
oath. (R.143-145)
25.
unconstitutional.... On August 7. 2014, five days before the trial was to begin, Judge
Richard Jordan held a hearing on the motion and stated that it was his opinion that
the Rule 9-104 is unconstitutional and that it would be found so if it were ever
challenged. (KBr. 8-9) First, the claim that Judge Jordan said it was unconstitutional is
contradicted by that Appellants own block quote just below it, where he merely says that
xx
defamation and false light claims were Appellants money counts (KBr. 10) Since
the Appellant has not bothered to include a transcript from the hearing in question,
nothing in the Record or Record Extract supports the alleged quote.
27.
She cant testify. (KBr. 12) The quote is taken out of context to imply
that Judge Johnson said that the Appellants self-described daughter, K.K., 7 couldnt
testify at all, when in fact it was a half-finished thought (as is common in spoken
conversation) where he was clearly trying to say she couldnt testify about her personal
harm, because she was not a party. To put the quote in fuller context:
THE COURT:
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
Judge Johnson clearly didnt mean to imply that K.K. couldnt testify at all, because he
did allow her to testify.
28.
are the party in this case, not your daughter. (KBr. 12) While the quoted words are
accurate the bracketed insertion of the word harm is inappropriate. Here is the
exchange in greater context:
Since she is a minor, Mr. Walker will only refer to this person by her initials. So there is
no room for ambiguity, all references to K.K. refers to the elder daughter of Tetyana
Kimberlin.
7
xxi
[Appellant]:
THE COURT:
In context, that refers to the alleged suffering K.K. has felt. But the Appellants
bracketed assertion of undifferentiated harm suggests that Judge Johnson felt that the
Appellant showed harm to himself when he hadnt.
29.
Im telling you youre risking putting this little girl, your daughter on
the witness stand and having her testimony not being admitted. Because what youre
telling the Court that shes going to testify to, shes not competent to testify to form
[sic] a legal point of view. A lay witness cant come in here and say somebody
suffered from depression. (KBr. 12) The Appellant has altered this quote without
marking that change. The original reads (with the omitted text in underline):
Well I dont even reach that. I mean I reach, I dont know what youre
going to ask her, but Im telling you youre risking putting this little girl,
your daughter on the witness stand and having her testimony not being
admitted. Because what youre telling the Court that shes going to testify
to, shes not competent to testify to from a legal point of view. A lay
witness cant come in here and I dont care if she was 35 years old, she
couldnt come in here and say somebody suffers from bipolar. She couldnt
come in here and say somebody suffered from depression. She couldnt
come in here and say that my mom did certain things, therefore it is because
of what the defendants did. Even an adult cant do that.
(E.D. 52)
30.
Appellant, his reputation, damages, or emotional distress. (KBr. 13) One would look
in vain for any question the Appellant attempted to ask, and was prevented by a sustained
objection, that was calculated to show harm to the Appellant, harm to his reputation, his
damages or his emotional distress by admissible evidence.
31.
THE COURT:
MR. KIMBERLIN:
xxii
Objection .....
(KBr. 13) What the Appellant was leaving out was how he was trying to bring evidence
of his wifes mental state in through the back door. The full exchange is as follows:
Q [Appellant]
A [K.K.]
MR. OSTRONIC:
Objection.
THE COURT:
MR. KIMBELIN:
MR. OSTRONIC:
Objection.
THE COURT:
MR. KIMBERLIN:
THE COURT:
32.
The Appellant has made it appear that Mr. Walker gave a different
A. [Walker]
(KBr. 15) In doing so, he seems to be trying to imply that the Mr. Walkers response was
in answer to his question. Heres the full exchange with the words he quoted in bold:
Q [Appellant]
A [Walker]
xxiii
I am attempting to.
MR. OSTRONIC:
BY MR. KIMBERLIN:
Q
THE COURT:
THE WITNESS:
BY MR. KIMBERLIN:
Q
33.
blog:
Q [Appellant]
A. [Hoge]
(KBr. 15) With the bracketed information from your blog the Appellant implies that
passage was from an authenticated document. However, in truth, he was asking Mr. Hoge
to read from a document that was not authenticated. Mr. Ostronic objected to it, and that
xxiv
objection was sustained. (E.D. 137-138) Therefore, nothing in the Record or Record
Extract established it was from Mr. Hoges blog. As far Judge Johnson and this Court is
concerned, anyone could have written that.
34.
the changes:
Q. [Appellant]
A. [Hoge]
Thats true.
Q.
A.
Yes.
Q.
A.
Q.
(KBr. 16) Here is the full exchange, with the missing text underlined:
Q [Appellant]
A [Hoge]
Thats true.
No.
Yes.
xxv
MR. OSTRONIC:
Objection.
BY MR. KIMBERLIN:
Q
THE COURT:
BY MR. KIMBERLIN:
Q
(E.D. 147-148)
35.
16) This passage is heavily and deceptively edited. The unedited version is as follows:
Q [Appellant]
A [Akbar]
Hello, hello --
xxvi
By this deceptive editing the Appellant makes it appear that Appellee Akbar implicitly
admitted to the writing when he had not.
36.
170 (KBr. 16-17) This passage is heavily and deceptively edited. The fuller context is as
follows:
Q [Appellant]
THE COURT:
THE WITNESS:
Yes.
BY MR. KIMBERLIN:
Q
A [McCain]
Right.
xxvii
Town.
A sense of humor, sir, is not a crime in this
country.
THE COURT:
THE WITNESS:
BY MR. KIMBERLIN:
Q
Highlighted in red.
xxviii
Yes, it does.
Its at the top of the page, hit the freaking tip jar.
Rule 5.
Rule 5 --
xxix
Yeah.
Christina Hendricks.
And then --
My wife --
37.
Appellee McCain said that he did not need to use the actual word
pedophile to cast Appellant as a pedophile. 208-9. (KBr. 18) That is not what he
said. He said he doesnt tell people what conclusions to draw: he lets them draw their
own conclusions. Here are his actual words:
Q [Appellant]
A [McCain]
xxx
The Appellant said that the Appellees called him a pedophile, said he
engaged in sex abuse, posted his face superimposed on a Pedo bear graphic, and
repeated this hundreds of times if not thousands. 245. (KBr. 18) First, the correct
citation is to E.D. 246. Second, while it is true that the Appellant said that, this assertion
is not evidence and it is not supported by the Record or Record Extract.
39.
In the instant case, the Appellees invoked the rule at every pretrial
hearing where Appellant was required to testify[,] (KBr. 20) Several judges ruled
that Appellant could not testify[,] (KBr. 20) and Appellees have used Rule 9-104 as
a grant of immunity to commit wholesale torts against Appellant and file malicious
litigation against him[.] (KBr. 23) There is nothing in the Record or Record Extract
showing any of these assertions to be true.
40.
104. (KBr. 21) According to the Maryland Assembly website and contrary to the
Appellants assertion, they did not vote to repeal and, in actuality, gave the bill to repeal it
an unfavorable report. See, Bill Info-2012 Regular Session HB 926 (available at
http://mgaleg.maryland.gov/webmga/frmMain.aspx?
tab=subject3&ys=2012rs/billfile/hb0926.htm), visited August 11, 2015; Bill Info-2012
Regular
Session
SB
673
(available
at
http://mgaleg.maryland.gov/webmga/frmMain.aspx?ys=2012rs/billfile/sb0673.htm),
visited August 11, 2015; and 2012 Regular Session Committee Vote House Judiciary
for Senate Bill 673 (available at http://mgaleg.maryland.gov/2012rs/votes_comm/
xxxi
arrested and prosecuted for sexual assault of a child (KBr. 27) and [t]he Appellees
even testified that they meant that Appellant was a criminal pedophile who
committed statutory rape and should be in prison. (KBr. 28) While Mr. Walker
stated that he sought justice for crimes committed against himself and his wife (E.D.
130), no Appellee testified that they wanted to see the Appellant charged with any sex
crime, let alone imprisoned.
42.
Appellant. (KBr. 28) There is nothing in the Record or Record Extract supporting this
allegation.
43.
disregard to the falsity of these matters. (KBr. 30) Not only has the Appellant
presented no evidence that any of the statements made by the Appellees were false WBr.
11-26, but he also failed to show that they knew these statements were false. As for
recklessness, the Appellant for the most part made no attempt to examine the basis of the
Appellees assertions. The sole exception is when the Appellant asked Mr. Walker why
Mr. Walker believed the Appellant was a pedophile. As noted in WBr. 19-25, Mr. Walker
demonstrated that his opinion was based on significant research.
44.
sentenced for any sex crimes. (KBr. 30) The Appellant has not established this to be
true, and the Appellees were never even asked if it were true. The only testimony as to the
Appellants criminal history in relation to sexual misconduct was when Mr. Walker stated
that he didnt know if the Appellant had been charged with any kind of sexual misconduct
in Indiana (E.D. 101), and when Mr. Walker discussed charges Mrs. Kimberlin filed
against him (E.D. 105), which were eventually dismissed on a plea of nolle prosequi
(E.D. 143).
45.
false narratives about sex abuse, perjury or any other nefarious, unethical or
xxxii
criminal activity. (KBr. 30) The Appellant has not established that this is the case so
necessarily he cannot establish that the Appellees knew this to be the case.
46.
They knew that Appellants wife and daughter had told Appellees that
their accusations were untrue. (KBr. 30) Nothing in the Record or Record Extract
establishes that either Mrs. Kimberlin or K.K. have told the Appellees this. Indeed, there
isnt even evidence in the Record or Record Extract of any communication between any
of the Appellees and K.K.
47.
ask him about their accusations. (KBr. 35) In relation to Messrs. Hoge, McCain and
Akbar, there is nothing in the Record or Record Extract indicating whether they had
contacted the Appellant. Mr. Walker, meanwhile, stated he had not contacted the
Appellant in the context of asserting that he left the Appellant alone as the Appellant
requested:
Q [Appellant]
A [Walker]
Sustained.
BY MR. KIMBERLIN:
Q
Right.
xxxiii
However, the real dishonesty is this: under MD CODE Crim. L. 3-803, if a person asks
you to leave them alone and you contact them, you might be committing criminal
harassment under Galloway v. State, 365 Md. 599 (2001) (holding that unwanted contact
can be harassment under the previous version of the harassment statute). So the Appellant
is complaining in his Brief that Mr. Walker failed to contact him, when the testimony
showed that the Appellant asked Mr. Walker to leave him alone, and, therefore,
contacting the Appellant could potentially be a crime because of the Appellants request.
48.
xxxiv
xxxv
Respectfully submitted,
xxxvi
EXHIBIT A:
Pages 1-35 of the Appellants Brief, with every factual assertion unsupported by the
record blocked out (and limited explanatory text in the blocked out areas)
xxxvii
xxxviii
xxxix
xl
xli
xlii
xliii
xliv
xlv
xlvi
xlvii
xlviii
xlix
li
lii
liii
liv
lv
lvi
lvii
lviii
lix
lx
lxi
lxii
lxiii
lxiv
lxv
lxvi
lxvii
lxviii
lxix
lxx
lxxi
lxxii
BRETT KIMBERLIN,
Appellant
v.
September Term, 2015:
No. 365
Consolidated Appeals
, 2015, hereby
ORDERED that Appellee Walkers Motion to Dismiss is GRANTED; and it is
further
ORDERED that the Appellants Appeals are DISMISSED; and it is further
ORDERED that the Appellees are entitled to attorneys fees and court costs; and it
is further
ORDERED that Appellees shall file within fifteen days a verified statement in
conformity with Md. Rule 1-341.
lxxiii
__________________________________________
Judge, Court of Special Appeals
lxxiv
BRETT KIMBERLIN,
Appellant,
v.
AARON J. WALKER, ESQ., ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson and Terrance McGann, Judges)
BRIEF OF APPELLEE AARON J. WALKER
ii
Whether Courts Article 9-104, which prohibits anyone convicted of perjury from
Mr. Walker writes a separate statement of the case because the Appellant has repeatedly
and pervasively misstated the truth in his Statement of the Case. See Appellee Walkers
Motion to Dismiss (hereinafter MTD), filed simultaneously with this Brief.
9
Mr. Walker refers to himself in the third person for stylistic purposes and to depersonalize this case.
10
Both the Appellant and the Appellees below used the more common term directed
verdict for what is better described as a motion for judgment. See, e.g. E.D. 265 (Judge
Johnson describing Mr. Ostronic as making a motion for judgment).
11
Mr. Walker is quoting the Appellants purported questions verbatim, including any
inaccuracies in them.
8
Whether the circuit judge erred in his ruling for a directed verdict on the
defamation and false light counts.
III.
Whether the Circuit Court judge erred in not following the law with regard to his
ordering a directed verdict, rather than allowing the jury to issue a verdict.
IV.
Whether the trial judge exhibited prejudicial conduct in the case that deprived
appellant of a fair trial.
V.
Whether the circuit court erred in denying pretrial appellants claims for abuse of
process, conspiracy and intentional infliction of emotional distress.
STATEMENT OF FACTS12
In relation to Judge McGanns grant of summary judgment on July 1, 2014, the
only relevant facts supported by the Record or Record Extract are as follows. In a series
of motions, Mr. Walker sought summary judgment on every count of the complaint. (R.
156, 158-159, 163, and 168) Judge McGann granted Mr. Walker summary judgment on
every count except defamation and false light. (R. 193-94) The Appellant provided no
evidence in either his oppositions to those motions for summary judgment or in his own
motion for summary judgment against Mr. Walker and other appellees. (R. 152, 155 and
174-179) No reasoning appears in the Record or Record Extract: the order does not state
its reasoning (R. 193-94) and no transcript of the hearing has been provided.
In relation to the trial, the following facts are relevant and supported by the
Record, the Record Extract, or other court cases. The Appellant is a convicted serial
bomber. Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993). He is also a convicted
perjurer.13 On August 8, 2014three days before trialthe Appellant filed a motion to
Ordinarily an appellee is supposed to include only those additional facts necessary to
correct or amplify the statement in the appellants brief. Md. Rule 8-504(a)(4). However,
as demonstrated in the MTD filed simultaneously with this brief, the Appellants
statement of the facts is so riddled with misstatements of the Record and Record Extract,
as well as irrelevancies, Mr. Walker believed it was simpler to start from scratch.
13
See, e.g., Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998) and Kimberlin
12
prevent the application of MD CODE Cts. & Jud. Proc. 9-104. (R. 222) On the first day
of trial, August 11, 2014, Mr. Walker filed a written motion in limine to prevent the
Appellant from testifying under 9-104 (R. 223), and an opposition to the Appellants
motion (R. 225). On the same day, the court ruled in favor of the Appellant, allowing him
to testify. (Dkt. No. 227-29) No reasoning appears in the Record or Record Extract,
because the Appellant did not include the transcript of the first day of trial.
On August 12, 2014, the trial court heard opening statements, testimony and
eventually granted a motion for judgment. (Record Extract D, hereinafter E.D.) 14
Before opening statements, Mr. Walker moved for reconsideration of the decision to
allow the Appellant to testify. (R. 226, E.D. 6-11) It was denied, Judge Johnson citing
fundamental fairness. (Dkt. No. R. 231, E.D. 11-12)
Mr. Walker was the first witness called by the Appellant (E.D. 54) and the only
witness who testified about what statements Mr. Walker made to third parties about the
Appellant or to authenticate documents showing what he wrote. (E.D. 53-133) Mr.
Walker stated that he is a Virginia lawyer (E.D. 104) who provided free legal advice to a
man named Seth Allen that the Appellant had sued for defamation (E.D. 56-57). After
this, Mr. Walker accused the Appellant of harassing Mr. Walker as follows: 1) causing
Mr. Walker to be terminated from his employment at Professional Healthcare
Management, Inc. (hereinafter PHMI) (E.D. 76), and 2) attempting to frame Mr.
Walker for the crime of assault. Specifically in relation to the framing, Mr. Walker
testified that he stated in Internet articles that the Appellant lied about the alleged assault;
that Mr. Walker did not injure the Appellant or even touch him; and that hospital records
produced by the Appellant in other settings that purported to show that the Appellant had
been injured by Mr. Walker, did not reflect any injuries inflicted by Mr. Walker and were
likely forged. (E.D. 70-73)
Further, Mr. Walker testified that the Appellants wife, Tetyana Kimberlin, came to
v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992).
14
Because the Appellants Record Extract does not have a master numbering system, Mr.
Walker shall cite it as E.A., E.B., E.C., etc. to designate the specific section of the extract
being cited.
Mr. Walker for legal help and they entered into an attorney-client relationship. (E.D. 103104) Mr. Walker stated that Mrs. Kimberlin had made the following accusations against
the Appellant by criminal charges and legal filings: 1) that she first met the Appellant
when she was fourteen and living in Ukraine and the Appellant was in his forties, 2) that
the Appellant seduced her at that time and made numerous trips back and forth between
the U.S. and Ukraine to court her, and 3) that at the age of fifteen, the Appellant brought
her to Maryland and engaged in sexual relations in violation of MD CODE Crim. L. 3307(a)(4)-(5) at least fifty times before she turned sixteen and was legally able to consent.
Mr. Walker stated that he believes Mrs. Kimberlin told the truth and that the Appellant is
a pedophile. (E.D. 105-6)
Turning to the issue of the truth or falsity of those statements, the only person to
testify about the loss of Mr. Walkers job was Mr. Walker. His uncontradicted testimony
was that his employers cited the Appellant as the reason for initially suspending him and
eventually firing him. (E.D. 75-76)
Likewise, on the issue of whether the Appellant attempted to frame Mr. Walker for
assault, the only person to testify on the subject was Mr. Walker. His uncontradicted
testimony was that he did not assault the Appellant, cause him any injury or even touch
him. (E.D. 67-69) He stated that the Appellant had released purported medical records at
different times,15 but those records did not match each other, calling their authenticity into
question. (E.D. 70-72) Mr. Walker stated further that courthouse security footage
obtained by both parties showed that no assault occurred. (E.D. 72)
Meanwhile, the only person to testify on the subject of the Appellants alleged
pedophilia (including allegations of criminal conduct with Mrs. Kimberlin) was K.K., 16
the Appellants self-described daughter. She stated that she witnessed no evidence that the
Appellant was a pedophile and he never touched her. (E.D. 238)
The Appellant presented no evidence he suffered any damages, and, likewise, no
No medical records were entered into evidence in this case.
Since she is a minor, Mr. Walker will only refer to this person by her initials. So there is
no room for ambiguity, all references to K.K. refers to the elder daughter of Tetyana
Kimberlin.
15
16
evidence that such non-damages were proximately caused by any of the Appellees
statements. In addition to the testimony of Mr. Walker and K.K., the Appellant also called
the other Appellees to testify and although they did speak to matters relevant to their part
of the case, they did not testify to any matter relevant to Mr. Walkers case. Finally, even
though he had been granted the right to testify, the Appellant chose not to and rested his
case. (E.D. 240-241)
At that time, Mr. Walker moved for judgment. (E.D. 241-265) Judge Eric Johnson
entered a judgment in all the Appellees favor. (E.D. 265-271) The court found that
[t]heres not one scintilla of evidence in this case that the statements that were made by
these individuals were false. (E.D. 266) He further found that the allegations of
pedophilia did not amount to defamation per se, because pedophilia is a mental state and
not a crime. (E.D. 266-271)
I.
THE APPELLANT IS PROCEDURALLY BARRED FROM CHALLENGING
THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. 9-104
One of the most absurd elements of the Appellants brief is that he thinks that the
first and most important question before this Court relates to a motion that he won.
Specifically, he asks this Court to declare that MD. CODE Cts. & Jud. Proc. 9-104, which
bars convicted perjurers from testifying, is unconstitutional. However, the Appellant filed
a motion to allow him to testify, and it was granted. The Appellant was told he could
testify (Dkt. No. 227-29, E.D. 11-12), and he chose not to. Therefore, he has no right to
appeal that rulinghe has no defeat on that question to appeal.17
The Appellant tries to side-step this limitation on the right of appeal by claiming
that although he won the right to testify, he won too late:
And then on the day of trial, minutes before evidence was to begin, the trial
court refused to find it unconstitutional but did rule that Appellant could
testify. By that time, Appellant had no time to prepare himself to testify,
thereby prejudicing him, and depriving him of due process and meaningful
See, e.g., Mugford v. Mayor, 185 Md. 266, 44 A. 2d 745, 746 (1946) (the court needs
no authorities to support the proposition that one cannot appeal from a decree wherein the
relief he prays for has been granted).
17
As Judge Titus wrote about the Appellant, The Plaintiff is no stranger to the processes
adjust his trial strategy for unexpected defeats on questions of evidence, as well as
unexpected victories, especially when he is given a whole night to prepare to testify.
Indeed, one has to wonder, how much preparation does one need to tell the truth?
Third, the Appellants real complaint is not about the outcome of the Courts
decision but rather about the timing, and the Appellant has not preserved that objection.
There is nothing in the Record or Record Extract indicating that he asked Judge Johnson
for a continuance, which is the ordinary remedy for unfair surprise, because he made no
such motion. Further, as noted above, there is no evidence in the Record or Record
Extract that he raised the issue prior to trial, demanding a quick resolution so he can
prepare to testify. Even when he told Judge Johnson that I may not testify, (E.D. 179),
he didnt mention any reluctance based on lack of preparation.
Maryland Rule 8-131 states what is elementary in appellate review, namely that
Ordinarily, the appellate court will not decide any other issue [besides
certain jurisdictional issues] unless it plainly appears by the record to have
been raised in or decided by the trial court, but the Court may decide such
an issue if necessary or desirable to guide the trial court or to avoid the
expense and delay of another appeal.
The Record and Record Extract does not show that the issue of the timing was raised or
decided in the trial court, and it was not. Nor do any of the exceptions apply. There is no
need to guide the lower court on when it is appropriate to spontaneously continue a trial
when a plaintiff unexpectedly wins an evidentiary motion. Likewise, there is no concern
for another appeal on the issue of timing. If this Court affirms the decision below, the
case will be over.19
Therefore, the Appellant is procedurally barred from raising this issue on appeal.
He won the right to testify in spite of 9-104, and one cannot appeal victory. Meanwhile,
of this Court. Kimberlin v. KimberlinUnmasked, Case No. 8:13-cv-02580-RWT, 3-4 (D.
Md., Feb. 28, 2014). In his opinion, Judge Titus went on to list ten different cases he had
participated in the U.S. District Court for the District of Maryland alone.
19
And even if this Court should remand for a new trial on any other grounds (and it
should not), there is no reason to think that the lower court is likely to have to confront
this issue of timing again.
the Appellant failed to preserve for review his real objectionthe timing of the courts
favorable decisionand therefore he cannot raise it for the first time on appeal.
II.
THE APPELLANT IS PROCEDURALLY BARRED FROM CHALLENGING
JUDGE MCGANNS SUMMARY JUDGMENT
The Appellant is also procedurally barred from challenging Judge McGanns grant
of summary judgment on July 1, 2014.
A.
The Appellant Misstates the Nature of Judge McGanns Decision and Claims
That Facts Were Proven That Have No Support in the Summary Judgment
Record.
Once again, it is necessary as a preliminary step to correct the Appellants
Specifically, on page 33, the Appellant writes that [a]s noted above and in the
Complaint, Appellees filed dozens of frivolous and malicious criminal charges, peace
orders and civil cases against Appellant[.] The Appellant certainly alleged that Mr.
Walker has done so, but there is no evidence in the Summary Judgment Record
supporting that claim (and it is not true). (MTD 19-19) Next, still on page 33, the
Appellant writes [t]hey then used those legal pleadings improperly as a basis for their
defamatory publications, and this inflicted special injury on Appellant. Again, there
can be little doubt that the Appellant alleged this sort of thing, but there is no evidence in
the Summary Judgment Record supporting these allegations (and they are not true). On
pages 33-34, the Appellant writes that [a]s noted above, the Appellees admitted that they
wanted to cause Appellant deep emotional distress with their publications. There is no
evidence in the Summary Judgment Record supporting the claim that any Appellee
admitted to such a motivation, or that the Appellant felt any emotional distress at all.
Likewise, on pages 34-35, the Appellant writes that
Appellees engaged in outrageous and extreme conduct by falsely publishing
the defamatory statements accusing him of heinous crimes and nefarious
conduct, and demanding that he be investigated, arrested and imprisoned
for pedophilia, rape, murder, and other serious crimes.
Putting aside that there is no evidence of falsity in the Record or Record Extract, infra
15-26, there is no evidence in the Summary Judgment Record supporting the claim that
they were seeking those consequences. There is also no evidence in the Summary
Judgment Record for the claims that they had falsely accused him of rape, murder, or
pedophilia.23 Finally, on page 35, he writes that [t]his abhorrent conduct has kept
Appellant under siege for years, and caused extremists to come to his home, take pictures
of him and his daughter, and make threatening calls to him, his family and his neighbors.
Again, there is no evidence in the Summary Judgment Record supporting a single
Md. App. 495, 501-02, 958 A. 2d 372, 376-77 (2008) cert. denied, 406 Md. 581 (2008).
This necessarily is limited to items pre-dating the grant of summary judgment, as well as
materials related to the summary judgment hearing, and the order granting summary
judgment.
23
The issue of falsity is addressed infra 11-26.
581 (2008), this Court has described the applicable standard of review as follows:
We review a circuit courts decision to grant summary judgment de novo....
Our review is two-fold. First, we determine whether there was or was not a
genuine dispute of material fact on the summary judgment record... A
material fact is a fact that, if found one way or the other, will affect the
outcome of the case.... Second, if there is no genuine dispute of material
fact, we determine whether the party that obtained summary judgment was
entitled to judgment in its favor, as a matter of law.
In this appeal, this Court cannot even begin the first step. The Appellant has not created a
sufficient Summary Judgment Record allowing this Court to determine whether there was
a material fact at issue. As it stands, the Record and Record Extract submitted to this
Court does not offer any evidence whatsoever as to critical elements of each claim. Most
basically there is no evidence in the Summary Judgment Record that the Appellant has
suffered any damages at all. 25 Indeed, judging by the plethora of facts the Appellant
alleged to exist that has no evidentiary basis in his brief and his mischaracterization of
Judge McGanns decision as an order on a motion to dismiss, the Appellant seems to be
attempting to argue that he should be granted a reversal based on a motion to dismiss
standard, rather than a motion for summary judgment standard. In any case, without a
The Appellant also misstates how two of the claims were disposed. The Appellant also
states on page 33 (in his section header) that Judge McGann dismissed only three
claims and on page 1, he claims he withdrew the stalking and harassment claims
because they did not allow any private cause of action. This is unsupported by the
summary judgment record, and it is false. If one examines the actual order granting
summary judgment on most of these claims, (R. 193-94) Judge McGann makes it clear
that he had granted summary judgment in the Appellees favor on counts I-II, and V-VII
for all four Appellees. There is no indication in the summary judgment record that the
Appellant consented to any part of that summary judgment and he did not.
25
This is not the only evidentiary failure in the case, but it is the one failure common to
all claims that were dismissed upon motion for summary judgment.
24
10
sufficient Summary Judgment Record to enable this Court to review the decision below,
or even any evidence at all to show a genuine dispute of material fact existed, the
Appellants attempt to challenge Judge McGanns summary judgment is procedurally
barred. Accordingly, the summary judgment should be affirmed.
III.
THE GRANT OF A MOTION FOR JUDGMENT SHOULD BE AFFIRMED
BECAUSE THERE WAS NO EVIDENCE THAT MR. WALKER MADE A
FALSE STATEMENT
Turning to Judge Johnsons grant of a judgment in under Md. Rule 2-519 (which is
referred to by Appellant as a directed verdict), this Court has described the appropriate
standard of review as follows:
In reviewing the grant of a motion for judgment, we assume the truth of all
credible evidence on the issue, and all fairly deducible inferences
therefrom, in the light most favorable to the party against whom the motion
is made.... Consequently, we may affirm the grant of the motion for
judgment only if . . . we conclude that there was insufficient evidence to
create a jury question. Wilbur v. Suter, 126 Md. App. 518, 528, 730 A. 2d
693 (1999) (alterations added)[.]
Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628, 637 (2005)
(internal quotation marks and citations omitted). Further, the standard for determining
whether a motion for judgment should be granted is much the same as when
determining whether to grant summary judgment, 26 and, therefore, the precedents related
to when it is appropriate to grant summary judgment are illuminating as well. For
instance, in Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39 (1993), the Court of
Appeals stated as follows:
[W]hile a court must resolve all inferences in favor of the party opposing
summary judgment, [t]hose inferences ... must be reasonable ones.
(Emphasis in original.) In that case, we quoted Professor Wright, as
follows:
Knisley v. Keller, 11 Md. App. 269, 272-73 (1971) ([t]he function of the judge [in
determining whether to grant summary judgment] is much the same as that he performs at
the close of all the evidence in a jury trial when motions for directed verdict... require
him to determine whether an issue requires resolution by a jury, or is to be decided by the
court as a matter of law).
26
11
12
made the statement and 2) that the statement was false. Indeed, in one casethe
allegation that he is a terroristit is undeniably true.
A.
record below. On page 4 the Appellant writes that [i]n the case of the Muslim blog, Mr.
Walkers false narrative was that the Prophet Mohammed was a pedophile and a terrorist,
and that was what he also called Appellant. First, there is nothing in the Record or
Record Extract suggesting Mr. Walker called the Islamic religious figure anything,
negative or positive. As Judge Johnson pithily noted when shutting down that line of
questioning: Prophet Mohammed is not in this case. (E.D. 66) Further, when the
Appellant states that that was what [Mr. Walker] also called Appellant, he is claiming
Mr. Walker called him a pedophile and a terrorist. While Mr. Walker did state that the
Appellant was a pedophile, this Court would look in vain to find any evidence in the
Record or Record Extract that Mr. Walker stated to third parties that the Appellant was a
terrorist.
However, the irony is that it is the truth. The Appellant is a convicted terrorist
known as the Speedway Bomber:
[Brett] Kimberlin was convicted as the so-called Speedway Bomber, who
terrorized the city of Speedway, Indiana, by detonating a series of
explosives in early September 1978. In the worst incident, Kimberlin
placed one of his bombs in a gym bag, and left it in a parking lot outside
Speedway High School. Carl Delong was leaving the high school football
game with his wife when he attempted to pick up the bag and it exploded.
The blast tore off his lower right leg and two fingers, and embedded bomb
fragments in his wifes leg. He was hospitalized for six weeks, during
which he was forced to undergo nine operations to complete the amputation
of his leg, reattach two fingers, repair damage to his inner ear, and remove
bomb fragments from his stomach, chest, and arm. In February 1983, he
committed suicide.
Kimberlin v. White, 7 F. 3d at 528-29. So in the case of allegations that the Appellant is a
terrorist, the Appellant failed to establish that Mr. Walker had made such a statement, but
13
him of murder. The only evidence on the question of whether Mr. Walker stated he is a
murderer is Mr. Walkers uncontradicted testimony that he did not. (E.D. 80)
However, while the Appellant has never had a finding against him that he
murdered a person, he is collaterally estopped from denying that his behavior cost a man
his life. As noted above, the last of his bombs maimed a veteran named Carl DeLong who
eventually killed himself. Subsequently, the Indiana Supreme Court affirmed that the
Appellant was liable for DeLongs suicide. Kimberlin v. DeLong, 637 N.E. 2d 121 (Ind.
Sup. Ct. 1994). In any case, since he failed to establish that Mr. Walker actually called
him a murderer, no defamation or false light claim can lie for such a claim.
C.
the Appellant committed spousal abuse. One will search Mr. Walkers testimony in vain
for any reference to a claim that the Appellant committed spousal abuse, domestic
violence, or similar terms. Indeed, the only time any of the Appellees discuss spousal
abuse, is when Mr. McCain denies ever having accused the Appellant of that. 28 (E.D. 176)
Likewise, the Appellants claim that Mr. Walker accused the Appellant of having falsely
imprisoned his wife, [and] threatened her (KBr. 4) was also unsupported by the Record
or Record Extract. At most, Mr. Walker mentioned that he had reported that the Appellant
caused his wife to be arrested, but didnt comment on the validity of the arrest. (E.D. 102)
Accordingly, without any evidence the Appellees even made such a statement to third
parties, there can be no claim for defamation or false light based on it, and this Court
should affirm the judgment as it relates to any claim that the Appellant committed spousal
abuse.
Mr. Walker does discuss allegations that the Appellant committed more or less
statutory rape under MD CODE Crim. L. 3-307 against his wife, Tetyana Kimberlin,
but the allegations are that he committed these acts before they were married, and thus are
not allegations of spousal abuse.
28
14
D.
Essentially, he has claimed that Mr. Walker beat him up in the Montgomery County
Circuit Courthouse. In the instant case the Appellant has claimed that Mr. Walker has
defamed him by stating that 1) Mr. Walker did not assault the Appellant, 2) the Appellant
lied when he made that accusation, and 3) the Appellant forged documents to support his
allegations of assault. In short, Mr. Walker accused the Appellant of trying to frame him
for that alleged assault, and the Appellant claims that accusation is in turn defamatory.
The only witness called to testify about the matter was Mr. Walker, and he testified
that he did nothing wrong. The relevant testimony can be found on E.D. 58-59 and 67-73,
and can be summarized as follows. On January 9, 2012, Mr. Walker attended a hearing
with the Appellant in a different case. (E.D. 58-59) As they left the courtroom, they
exchanged words (E.D. 67-68), and the Appellant went to use his iPad in some way (E.D.
68). Knowing the Appellants violent criminal history, Mr. Walker acted in self-defense
by taking the iPad from the Appellant. (E.D. 68-69) He did not harm the Appellant as he
took the iPad from him and kept it away from him until courthouse security arrived. (E.D.
68)
Mr. Walker stated that he was aware that the Appellant claimed that he
hospitalized him (E.D. 70), and in prior court hearings the Appellant had produced what
he claimed to be medical records, documenting injuries he supposedly received at Mr.
Walkers hands (E.D. 70-72). Mr. Walker also stated that courthouse security cameras
captured the entire incident and the footage showed the Appellants accusations against
him were false. (E.D. 72-73)
Mr. Walker did not state that Appellant definitely forged alleged those medical
records. (E.D. 71) Mr. Walkers testimony was that I said that I did not do any harm to
you. So necessarily those, any records that exist do not accurately reflect what
happened. (E.D. 71) That left only two possibilities. The first and least likely possibility
was that the Appellant was actually injured that day, but not by Mr. Walker. (E.D. 71-72)
15
The second possibility is that this convicted and admitted document forger 29 forged any
such documents. (E.D. 72) Mr. Walker even testified that he saw evidence that the
medical records had been altered. (E.D. 70-72) Mr. Walker continues to believe that
forgery is the more likely possibility.
Also, it is again necessary to correct the Appellants misstatements of the record
on the subject. On page 4 of his brief, the Appellant writes:
After the hearing [on January 9, 2012], Mr. Walker followed Appellant to
the Circuit Court waiting room, committed battery against him, and took his
iPad. Police responded and Appellant was treated a Suburban Hospital for a
contusion to the eye and back pain. Appellant later filed for a Peace Order
and criminal charges for assault against Mr. Walker.
The majority of that passage is not supported by any evidence. Mr. Walkers
uncontradicted testimony that he acted in self-defense negates any claim that he battered
the Appellant. Further, Mr. Walkers uncontradicted testimony is that he did not harm or
even touch the Appellant. Additionally, there was no evidence that the Appellant went to
the hospitalMr. Walker only noted that the Appellant says he did (E.D. 70), and pointed
to evidence the Appellant had forged the alleged hospital records (E.D. 70-72). There was
no testimony that the Appellant went to the hospital or indeed that he was injured at all;
the uncontradicted testimony is that Mr. Walker didnt harm him. 30 Moreover, while Mr.
Walker stated that the Appellant did file peace orders and criminal charges against Mr.
Walker, there was no testimony about the alleged basis of those charges and peace orders.
See United States v. Kimberlin, 805 F. 2d 210, 228 (7th Cir. 1986) (stating that when the
Appellant was caught with forged documents outside of a copy shop by an FBI agent, he
attempted to chew up the evidence), Verified Response to February 21, 2014 Order to
Show Cause Re Twitchy Summons, ECF No. 102, submitted in Kimberlin v. National
Bloggers Club, et al. (I), No. GJH-13-3059 (2013) (admitting to forging a summons in
that case but pleading that he was somehow ignorant of the fact that forging a court
document was wrong) Supplemental Memorandum of Defendants Michelle Malkin and
Twitchy in Support of Request for Dismissal (ECF No. 124) submitted in Kimberlin v.
National Bloggers Club, et al. (I) (documenting how the Appellant admitted to a forgery
in this case).
30
See E.D. 68 (I did not touch your body. I did not touch you with [the iPad]. I did no
harm to you).
29
16
(E.D. 126) Finally, the Appellant doesnt mention that Mr. Walker testified that both
peace order petitions were dismissed. (E.D. 126-127)31
In short, the only evidence presented on the subject of the alleged assault was Mr.
Walkers testimony and Mr. Walker maintained that he didnt do anything wrong. While a
defendant in a defamation or false light case is not obligated to offer any evidence of
truth, in this case the only evidence on this subject tends to show Mr. Walker spoke
truthfully and therefore a judgment was appropriate on this subject.
E.
counsel (E.D. 55) and that Mr. Walker stated that he lost his job there because of the
Appellant (E.D. 75-76). As with the issue of the non-assault, there is no question Mr.
Walker made statements to third parties that the Appellant caused Mr. Walkers
termination, and there is no evidence whatsoever that the accusation was false.
Mr. Walker was the only person with first-hand knowledge of the circumstances of
his termination who was called to testify on the matter. The entirety of his testimony on
this point was as follows:
Q [Appellant]
A [Walker]
So
(E.D. 75-76) Later, Mr. Kimberlin attempted to introduce an email written by outside
There was no discussion of the outcome of the criminal charges, but all were dismissed
on a plea of nolle prosequi.
31
17
counsel Jim Hodges, Esq., discussing that termination, but discussion of its contents was
excluded from evidence as hearsay. (Rule 5-802, E.D. 76-77) Appellant claims that this
decision was erroneous but offers no reason why this is the case. Therefore, the abovequoted passage is the only admissible evidence as to why Mr. Walker was terminated
from his job, and his testimony squarely supported Mr. Walkers contention that the
Appellant was to blame.
Further, it is necessary once again to correct the alleged facts in the Appellants
brief. The Appellant writes on page 4 that
A few days later, after Mr. Walkers employer found out about the assault
and his activities as publisher of the Muslim hate blog, the employer fired
Mr. Walker for attacking Muslims, doing so on company time and on
company premises, and for placing other employees in danger.
The only factual assertion in that paragraph that is supported by the Record or Record
Extract is that Mr. Walker was fired a few days after the non-assault.
There was no evidence that Mr. Walker ran a Muslim hate blog in the sense that
his website was Anti-Muslim (KBr. 3) or prejudiced against Muslims. The only
testimony about the purpose of the blog in question, Everyone Draw Mohammed, was
Mr. Walkers testimony. Mr. Walker testified that the purpose of the blog was to
participate in a protest to protect freedom of speech. (MTD 16-17, E.D. 60-62) Mr.
Walkers uncontradicted testimony was that he did not have any prejudice toward any
person based on their religion and that he believed religious tolerance is part of what
made America great. (E.D. 113-14)
Second, there was no evidence introduced that PHMI had learned of this blog or of
either the non-assault or allegations of the non-assault.
Third, there was also no evidence that Mr. Walker had been fired for attacking
Muslims, doing so on company time and on company premises, and for placing other
employees in danger. The only testimony about the motives of PHMI in its decision to
fire himMr. Walkers testimonysupported Mr. Walkers claim that the Appellant was
to blame.
So, as with the non-assault, the only witness called to testify on the subject was
18
Mr. Walker and he maintained that he did nothing wrong. While Mr. Walker was not
obligated to prove he had told the truth about the Appellant, the only evidence on the
subjectMr. Walkers testimonytended to show Mr. Walker did tell the truth.
Accordingly, with absolutely no evidence that Mr. Walker falsely accused the Appellant
of causing his job loss, judgment was appropriate on this point as well.
F.
pedophile, and, as counsel Patrick Ostronic said, he did not do so rashly, but rather that
his opinion was well documented and well researched. (E.D. 242) For instance, at one
point the Appellant asked Mr. Walker what he based this accusation on and it is worth
quoting extensively:
Q [Appellant]
A [Walker]
19
...So the question was where were you at that time and
the answer you eventually gave Mr. Singer, according
to Mr. Singer was that you were delivering tee shirts to
two young woman. One was the daughter of a friend of
yours and another was just identified as the friend of
this daughter and she was 15 years old and you had
said to Singer that you had kind of a romance with her.
I also have since learned that you also gave an
interview, again, this is according to the sources Ive
read in a magazine called the Loston City Paper.32 And
in that interview there was actually an album review of
an album you made called I believe something like,
something to the effect of Out Of Hell. But it was by a
band youre in called Poxy (phonetic sp.). You were
credited with writing the lyrics of these songs. One
was called Teen Dream and another one was called
Waiting to Meet. And both of these sings were about
adults having sex with teenagers. And you gave a
quote in an interview for this music review where I
wont repeat the explicative, but you talk about how
yes, its about having sex and where this is where you
used the explicative a teenager, okay. And then you go
on to say this is something all men want to do but they
wont actually act on it or something to that effect. And
32
20
A [Walker]
In what respect?
(E.D. 105-106) This testimony cannot be considered as evidence that the Appellant is a
pedophile since it is only hearsay on that question, but it can be considered as evidence of
the foundation of Mr. Walkers accusation. In other words, this information is why Mr.
Walker concluded that the Appellant was a pedophile.
The Appellant makes only three attempts to address the issue of falsity in his brief.
33
21
(KBr. 32-33) First, he writes that he attempted to introduce emails that Appellants wife
had sent to Appellees Walker and Hoge where she stated that the allegations were false.
However, the court sustained objections to those emails. The Appellant challenges this
ruling on page 33, but offers no reason to overturn that ruling except that he really, really
wanted to introduce that evidence. As demonstrated by the transcript, this email was
excluded was based on the rule against hearsay (E.D. 119-120; Md. Rule 5-802) and
because it was covered by attorney-client privilege (E.D. 122; MD CODE Cts. & Jud.
Proc. 9-108). If the Appellant wanted Mrs. Kimberlin to repudiate her prior statements
accusing him of pedophilia, he should have called her to testify herselfassuming she
would have testified in his favor.
Second, he wrote that Appellant showed through the testimony of various
Appellees that the false allegations of sex abuse were nolle prossed, investigated and
found malicious by the Department of Child Services. (KBr. 29) Even if every word in
that sentence were true, it is merely hearsay on whether the Appellant is a pedophile and,
thus, no evidence at all on that question. Indeed, the mere fact that a charge is dismissed
on a plea of nolle prosequi is only proof the state has chosen not to prosecute, nothing
more. As Appellee McCain colorfully explained on the stand: Noll[e] pross does not
mean you were falsely accused. Ive had traffic tickets that were noll[e] pross. That didnt
mean I wasnt going 85 miles an hour. (E.D. 217)
Further, once again is it necessary to point out that the Appellant is misstating the
truth. There was no evidence presented as to any investigation by the Department of
Child Services, let alone their outcome. The only testimony on that subject is Mr.
Walkers statement that he had no idea if any such investigation occurred. (E.D. 111)
The last piece of asserted evidence of falsity is when the Appellant writes on page
32 that:
Appellants daughter did testify that the allegations of pedophilia were false
despite the trial courts repeatedly ruling that she could not testify that
Appellant never showed any untoward inclinations toward her, her friends
or her sister. She also testified that Appellant was a good father who never
raised a hand to her or her mother.
22
Once again, it is necessary to correct his asserted facts because they conflict with the
Record Extract. While K.K. was not allowed to testify as to her fathers state of mind in
relation to her younger sister (E.D. 239), or her friends (E.D. 238-39), she was allowed to
testify she was unaware of any evidence that he was a pedophile, and that the Appellant
has never touched me in anyway. (E.D. 238) On the other hand, she did not and,
indeed, could not testify that he wasnt a pedophile.
Judge Johnson believed that this was no evidence at all on the question of whether
the Appellant was a pedophile. When Mr. Kimberlin was trying to make a proffer as to
why his K.K.s testimony was needed, they had this exchange:
MR. KIMBERLIN:
THE COURT:
The bare text of the transcript doesnt capture it, but Johnsons response is better phrased
like this (to capture how he presented a rhetorical question, followed by his own sarcastic
response): youre going to tell me that kids know everything about their parents?
Please. Common sense and human nature supports Judge Johnsons inference. Children
cannot be expected to see their parents with clear eyes.
Indeed, what do these two statements by K.K. actually show? Her statement that
her father never touched her can be taken as evidence that he is not an incestuous
pedophile,34 but does it follow that every pedophile is unable to resist incest as well?
Otherwise, there is no evidence that it is false to call the Appellant a pedophile. She could
only plead that she saw no evidence of it. The reason why it is a clich to say absence of
evidence is not evidence of absence35 is because it is true.
MD CODE Crim. L. 3-323(a) prohibits sex with any person you cannot marry under
MD. CODE Fam. L. 2-202. Meanwhile 2-202 is broad enough to prohibit pairings
between ones child by blood (2-202(b)(1)(iii)) or the child of ones wife (2-202(c)(1)
(vi)) even if you are not related by blood.
35
E.g., Carl Sagan, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK
213 (1996).
34
23
Further, while the allegations Mr. Walker outlined in his testimony supra 19-21,
cannot be considered in order to prove the truth of whether the Appellant is a pedophile,
it shows the kinds of things we cannot expect this fifteen year-old girl to know. She is not
going have first-hand information about the courtship of her mother, and she is not going
to know about an alleged underage girlfriend in the 1970s.
As previously stated,36 the motion for summary judgment standard is virtually the
same as the motion for default judgment. Knisley, 11 Md. App. at 272. Writing on the
legal standard for summary judgment, the Court of Appeals stated that
the mere existence of a scintilla of evidence in support of the plaintiffs
claim is insufficient to preclude the grant of summary judgment; there must
be evidence upon which the jury could reasonably find for the plaintiff....
We recognized in Clea v. City of Baltimore, 312 Md. 662, 678, 541 A. 2d
1303 (1988), that while a court must resolve all inferences in favor of the
party opposing summary judgment, [t]hose inferences... must be
reasonable ones.
Beatty, 330 Md. at 738-9 (1992). In the instant case the Appellant believes one can
reasonably infer from K.K.s testimony that the Appellant must not be a pedophile and he
must never have slept with any underage girl in his entire life. Judge Johnson did not
believe that was a reasonable inference, and Mr. Walker believes he was exactly right. To
be blunt, if the Appellant really wanted to create a sufficient quantum of evidence to put
the question to the jury, he should have testified.
It is also worth noting that the Appellant implicitly admits that he did not have
sufficient evidence to present a question to a jury. Specifically, he writes that
Specifically, [the court] refused to allow Appellants daughter to refute the
allegations of pedophilia by testifying that Appellant never exhibited any
untoward interest in her, her friends or her sister. 239 This testimony would
have created a factual issue for the jury to decide.
It is elementary that no lay witness can testify to the state of mind of another person, thus
the evidence was properly excluded under Md. Rule 5-602. However, if such (improper)
testimony would have created a factual issue for the jury to decide, then, by expressio
unius, without it there must not have been a sufficient factual issue to send the question to
36
Supra note Error: Reference source not found and accompanying text.
24
the jury. Thus, he has admitted that if the court was correct in its evidentiary ruling
excluding that testimony, it was also correct in granting a motion for judgment.
Accordingly, this Court should findas Judge Johnson didthat there was
insufficient evidence to justify submitting the question to the jury and affirm the
judgment on this point.
G.
statement by calling him a pedophile. It is the same accusationhe just says it two
different ways to make it sound like Mr. Walker made more accusations than he did. The
only reference to any rape by the Appellant in the entire transcript is when Mr. Walker
characterized the charges Mrs. Kimberlin filed (under MD CODE Crim. L. 3-307(a)(4)(5)) as statutory rape.
The term statutory rape is generally understood as referring to sex that is
criminal solely because it is with a person who is under the age of consent. For instance,
Websters Dictionary uses this somewhat sexist definition for statutory rape: the crime
of having sexual intercourse with a girl below the age of consent. WEBSTERS NEW
WORLD COLLEGE DICTIONARY 1310 (Victoria Neufeldt, 3rd ed. 1996). Meanwhile,
Blacks Law Dictionary includes this under the definition of rape: Modern statutes,
which often materially change the common-law definition, create an offense commonly
known as statutory rape, where the offense consists in having sexual intercourse with a
female or male under statutory age. BLACKS LAW DICTIONARY 1260 (6th ed. 1990).
Thus an accusation that a person committed statutory rape is understood as an
accusation that he or she had sex with a criminally underage person. Therefore, Mr.
Walker should prevail on this point for the same reason he should prevail in relation to
the allegation that the Appellant was a pedophile, and the judgment should be affirmed.
In short, the appellant has shown that Mr. Walker stated that the Appellant got Mr.
Walker fired from his job, attempted to frame him for a crime, and that he is a pedophile
who slept with his future wife when she was fourteen years old. But in the law of
25
defamation and false light, it is not enough to say a person said someone engaged in
reprehensible conduct. A plaintiff must also show it is untrue. The Appellant failed his
burden, and, therefore, the judgment should be affirmed.
IV.
THE APPELLANT IS PROCEDURALLY BARRED FROM RAISING CAUSES
OF ACTION ON APPEAL BASED ON INVASION OF PRIVACY THAT HE DID
NOT RAISE IN THE TRIAL
Another truly absurd element of the Appellants brief is on pages 29-30 where he
suggests the court erred by not considering causes of action not named in his complaint
or raised by the Appellant at trial, specifically 1) invasion of privacy by intrusion into
seclusion, 2) invasion of privacy by publication of private facts, and 3) invasion of
privacy by appropriation of his name or likeness. Once again, Md. Rule 8-131 states that
[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears
by the record to have been raised in or decided by the trial court[.] Having failed to
properly raise these issues before or during the trial and having failed to explain why this
case fits in any exception, the Appellant is procedurally barred from raising these issues.
And, contrary to the Appellants claims, he did not make out a cause of action for
any of these claims. Although his failures are legion, this brief will focus on one or two
failings per cause of action.
With respect to appropriation of likeness, the most absurd part is that it requires a
showing that the Appellees were benefitting from his good reputation. See Lawrence v.
A.S. Abell Co., 299 Md. 697, 702 (1982) (stating that a plaintiff must show the defendant
was taking advantage of his reputation, prestige, or other value associated with him, for
purposes of publicity) (emphasis added). The entire thrust of Appellants case is that the
Appellees allegedly ruined his reputation. Moreover, the Appellant would have to show
his name had valuea dubious prospect given his long criminal history. Id. at 706 (a
persons name or likeness must have commercial or other value before an appropriation is
actionable). There was not a scintilla of evidence that the Appellants name or likeness
has any value. Therefore, the Appellant presented no evidence of appropriation of name
or likeness.
26
Even more absurd is his assertion that the Appellees gave publicity to private facts.
Hollander v. Lubow, 277 Md. 47, 55, 351 A. 2d 421 (1976) lays out the elements of this
cause of action, but at its most basic he must first prove that the matters given publicity is
1) private and 2) a fact. That is, he must prove that the Appellees told the truth. As stated
in Doe v. U.S., 83 F. Supp. 2d 833, 841 (S.D. Tex. 2000), discussing the cause of action:
[t]o say that something is a fact is necessarily to say that it is true. Is the Appellant
now confessing he is a pedophile after all, that he did commit statutory rape on his future
wife, tried to frame Mr. Walker for a crime, and cost Mr. Walker his job, but it is a private
matter? Well, even if this were his confession that they are facts, they wouldnt be private
facts.
Finally, the Appellant also failed to offer any evidence of intrusion into seclusion.
Hollander provides the elements of this claim, 351 A. 2d at 55, but most basically a
plaintiff needs to show some kind of wrongful method of intrusion. Unlike defamation,
the intrusion on seclusion tort deals with the manner in which Defendant obtained the
information rather than the truth or falsehood of the information itself. Trundle v.
Homeside Lending, Inc., 162 F. Supp. 2d 396, 401 (D. Md., 2001). The Appellant never
proves that any of the Appellees did anything outside of using the ordinary tools of
journalismasking people questions, examining public records or reciting eyewitness
accountsand, therefore, the Appellant has failed to allege intrusion in a manner which
would be highly offensive to a reasonable person. Id. See also Beaumont v. Brown, 65
Mich. App. 455, 463, 237 N.W. 2d 501 (1975) (holding that merely writing a letter was
not an unlawful method of intrusion); Wilson v. Sysco Food Services of Dallas, Inc., 940
F. Supp. 1003, 1014 (N.D. Tex. 1996) (holding that inquiries into Plaintiffs private
affairs, particularly her sexual activities was not an unlawful method of intrusion).
Rather, [a]n essential element of this tort is a physical intrusion analogous to a trespass.
Pierson v. News Group Publications, Inc., 549 F. Supp. 635, 640 (S.D. Ga. 1982). Like in
Beaumont, the Appellant in reality objects to the allegedly false and scurrilous
comments, an objection not going to the method used to secure information. 237 N.W.
2d at 463. Thus, the Appellant has failed to allege that there is any unlawful intrusion.
27
Therefore, even if it was somehow error on Judge Johnsons part not to have
considered, sua sponte, causes of action the Appellant hadnt even raised, each of these
claims would have been included in the judgment, because the Appellant had presented
absolutely no evidence of critical elements of each claim. Therefore, the lower court
should be affirmed in regards to these invasion of privacy torts.
V.
THE APPELLANT SERIALLY FAILS TO ARTICULATE ANY REASON WHY IT
WAS ERROR TO EXCLUDE ANY OF HIS ALLEGED EVIDENCE
The Appellant articulates as this fourth major point that the trial court prejudiced
Appellant by depriving him of the right to put on evidence to prosecute his case. (KBr.
32). Judge Johnson didnt say he couldnt put evidence on at all, just that he had to
comply with the rules of evidence. This is the real crux of the Appellants complaint in
this section. The Appellant seems to believe that if the evidence is arguably relevant, it is
automatically admissible, hearsay rules, privileges, authentication be darned. Thus he
uses this section to state that he believes Judge Johnsons evidentiary rulings were wrong,
without any argument for why they were wrong.
Mr. Walker has already addressed the Appellants claim that K.K. should have
been allowed to testify to the Appellants state of mind, supra 24. As for the claim that
K.K. would have testified as to the harm to his reputation, Judge Johnson made it clear
that it could not come in unless he could connect it to anything the Appellees wrote. (E.D.
44, 48)
The Appellant vaguely claims that the court refused to allow Appellant to present
complete evidence about the courthouse assault by Appellee Walker. (KBr. 33) This
appears to be a reference to the courts refusal to admit alleged medical records on the
grounds that they were not authenticated. (Md. Rule 5-901, E.D. 70) The Appellant also
claims that [t]he judge would not allow Appellant to present evidence about the
employment termination of Appellee Walker, which would have shown that Appellees
defamed him by accusing him of causing that termination. (KBr. 33). This appears to be
an objection to a series of rulings that the Appellant could not introduce hearsay evidence
28
under Md. Rule 5-802 (E.D. 76-77), and he makes no attempt to explain why this hearsay
should be admitted. Hearsay was also the difficulty, as well as attorney client privilege
(MD CODE Cts. & Jud. Proc. 9-108), when [t]he judge would not allow Appellant to
present any evidence of emails sent to Appellees Walker and Hoge from Appellants
wife (E.D. 113-122, KBr. 33). The Appellant simply notes he was not allowed to present
that evidence, without making any argument as to why it should be admitted.
Each of these items of alleged evidence was excluded under basic evidentiary
rules. With the Appellant offering absolutely no argument why these decisions were
wrong, the judgment below should be affirmed.
VI.
MD CODE CTS. & JUD. PROC. 9-104 WOULD BE CONSTITUTIONAL AS
APPLIED TO THE APPELLANT
As noted above, supra 5-8, the Appellant is barred from raising this issue on
appeal because he won on this issue. However, in case this Court decides to consider his
challenge, Mr. Walker would like to address this issue.37
The Appellant has argued, in essence, that it would be unfair and thus a violation
of due process38 to apply 9-104 to him as a plaintiff in a civil suit. But Maryland courts
have been utterly unsympathetic even to criminal defendants burdened by this statute.
This is true even when the criminal defendant is seeking the testimony of third parties
The Appellant also speciously claims that 9-104 conflicts with other laws and rules.
He states, for instance, that the person filing a petition for a peace order, protective order,
or an application for a criminal charge must testify in court or else the Peace/Protective
Order and criminal charge will be denied. This is false. There is no law saying that the
person filing those petitions or applications must testify, and criminal cases can be built
without the victims cooperation. He also quotes Md. Rule 5-601 as saying [e]xcept as
otherwise provided by law, every person is competent to be a witness and thinks this is
somehow in conflict with 9-104, failing to recognize that 9-104 is an example of a law
declaring a person incompetent as a witness. Hourie v. State, 53 Md. App. 62, 84 n. 22
(1982) ([a] convicted perjurer is incompetent as a witness in Maryland). He also thinks
this contradicts Md. Rule 5-609(b) which limits the impeachment of witnesses based on
criminal history, forgetting the difference between impeaching a witness and excluding
one entirely.
38
U.S. CONST. amend 5 cl. 4 and MD. DECL. OF RTS. art. 24.
37
29
who had been convicted of perjury. In other words, even when a person is on trial with
her freedom in the balance, and it is not the defendants fault that the testimony was
subject to exclusion, the statute has still been applied.
For instance, in State v. Latham, 182 Md. App. 597 (2008), a criminal defendant
sought to overturn his conviction based on ineffective assistance of counsel and sought
that attorneys testimony to support his claim. However, even though Mr. Lathams
freedom was on the line, and even though he had not himself been convicted of perjury,
his attorneys testimony was excluded under this statute.
The most extreme application of this principle, however, comes only three years
ago in Colkley v. State, 204 Md. App. 593 (2012). In that case, two men were charged
with attempted murder. In the first trial, William Courts testified and the defendants
believed his testimony was helpful to them in terms of raising a reasonable doubt as to
their guilt in the alleged attempted murder. In Fields v. State, 172 Md. App. 496 (2007)
this Court reversed that conviction and remanded for a new trial. Between the first trial
and the second trial, Mr. Courts was convicted of perjury and therefore the defendants
could not call him as a witness at the second trial. In Colkley, the defendants argued that
the statute excluding of Mr. Courts testimony shouldnt apply because the state allegedly
engaged in selective prosecution of Mr. Courts for the specific purpose of excluding his
testimony in the second trial. If there was ever a time to limit the application of 9-104
because of an as applied challenge to its constitutionality, it was there. Instead, this Court
refused to do so.
The reason why this statute applies even in these extreme circumstances isnt to
punish the perjurer, but to protect the courts and parties from the testimony of a person
whose dishonest conduct was severe enough to motivate prosecutors to go to the trouble
to convict him or her of perjury. As written in Hourie v. State:
A convicted perjurer is incompetent as a witness in Maryland. Md. Cts. &
Jud. Proc. Code Ann. 9-104 (1980). The disqualification as a witness is
generally deemed to serve the collateral purpose of barring evidence
thought not to be entitled to credence. It is not looked upon as an additional
penalty imposed upon the perjurer himself R. Perkins, CRIMINAL LAW 454
30
2d ed. 1969).
53 Md. App. at 84 n. 22. This is also why 9-104 meets the equal protection requirements
of the Maryland and Federal Constitutions 39because there is a rational basis for this
distinction.40
Unlike the criminal defendants in Colkley and Latham, the Appellant was not a
defendant on trial for his freedom in the case below. He did not seek this testimony as a
shield to defend himself against incarceration. Instead, he wished to use his unreliable
word as a sword against the Appellees. Nor can he claim that he is suffering the
consequences of a third partys misconduct as the criminal defendants in Colkley and
Latham did. If the Appellant wanted to preserve his right to testify in Maryland, he
shouldnt have perjured himself.41 Thus, even if this Court might wonder if the statute
might be unconstitutional as applied in a case similar to Colkley and Latham, it would not
be unconstitutional as applied here.
The Appellant places great reliance on Rock v. Arkansas, 483 U.S. 44 (1987),
which held that per se exclusion of testimony induced by hypnosis was unconstitutional
when applied to a defendant in a criminal case, as a violation of ones right to testify in
U.S. CONST. amend 14 1 cl. 4 and MD. DECL. OF RTS. art. 24. See also Murphy v.
Edmonds, 325 Md. 342, 353 (1990) (holding that Article 24 has an equal protection
component coextensive with U.S. Constitutions).
40
Plainly, discrimination against convicted perjurers would be subjected to the rational
basis test. Murphy v. Edmonds, 325 Md. 342, 355-57 (1990) (describing the three tiers of
scrutiny under the equal protection requirements of the federal and Maryland
constitutions). As stated in State v. Good Samaritan Hosp., 299 Md. 310, 328 (1984), [a]
statutory classification tested by the rational basis standard enjoys a strong presumption
of constitutionality and a reasonable doubt as to its constitutionality is sufficient to
sustain it. Indeed, [t]he constitutional safeguard is offended only if the classification
rests on grounds wholly irrelevant to the achievement of the States objective, Gowan v.
Maryland, 366 U.S. 420, 425 (1961). It almost goes without saying that excluding the
testimony of perjurers is rationally related to the objective of ensuring accurate
determinations of fact in the trial process.
41
See, e.g., State v. Bryan, 145 Wash. App. 353, 362 (2008) (rejecting an equal protection
claim based on differing treatment according to a persons criminal record because [t]he
only reason Bryan is subject to this result is because of his own criminal acts).
39
31
ones own defense. However, even in Rock, the Supreme Court stated that this right is
not without limitation. The right may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process. Id. at 55 (internal quotation marks
omitted). For instance, Rock relied on Washington v. Texas, 388 U.S. 14 (1967) where, in
concurrence, Justice Harlan endorsed the rule excluding perjurers from testifying.
Specifically Harlan said the rule at issue in that caseforbidding certain co-defendants
from testifyingdid not present
a situation in which the State has determined, as a matter of valid state
evidentiary law, on the basis of general experience with a particular class of
persons, as for example, the mentally incompetent or those previously
convicted of perjury, that the pursuit of truth is best served by an acrossthe-board disqualification as witnesses of persons of that class.
Id. at 24-25. Rock also relied on Chambers v. Mississippi, 410 U.S. 284, 298 (1973)
which explained that hearsay is ordinarily excluded because they are statements that
lack the conventional indicia of reliability such as that it is not made under oath... that
impress the speaker with the solemnity of his statement. Here, the Appellant is
proposing to take an oath to tell the truth, but he has a verified history of disregarding that
oath. Indeed, given his serial dishonesty in his brief, it can be said that the Appellant is
the poster boy for why 9-104 exists. He cannot be expected to tell the truth even when
his falsehoods are certain to be exposed.
Further, Rock has not been applied in Maryland outside of the specific
circumstances of that case. By way of background, in State v. Collins, 296 Md. 670
(1983), the Court of Appeals held that hypnotically induced testimony was excluded
across the board. Obviously, Rock modified that decision four years later. In Burral v.
State, 352 Md. 707 (1999), the Court of Appeals was asked to extend Rocks holding
beyond the right of a defendant to testify, to witnesses for a defendant in a criminal case.
The Court of Appeals refused, holding that this right to testify only applied to a criminal
defendant and no one else.
There might very well come a day when this Court decides that a criminal
defendant has a right to testify on her own behalf that 9-104 abridges, but even if we
32
33
34
Respectfully submitted,
CERTIFICATE OF SERVICE
I certify that on Tuesday, August 18, 2015, I served copies of the Motion for Leave,
Motion to Dismiss and Appellees Brief on Brett Kimberlin at [redacted], Bethesda,
Maryland 20817, via U. S. Mail, on the following co-Appellees via email: William Hoge,
Robert Stacy McCain and Ali Akbar with their consent.
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All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 2:
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election for the choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty-one years of age,15
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in
such State. affects 2
Section 3:
Section 4:
The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
Section 5:
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(2)
(i)
(ii)
1.
2.
3.
4.
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(b)
(3)
engage in sexual contact with another if the victim is under the age of 14
years, and the person performing the sexual contact is at least 4 years older
than the victim;
(4)
engage in a sexual act with another if the victim is 14 or 15 years old, and
the person performing the sexual act is at least 21 years old; or
(5)
Penalty. -- A person who violates this section is guilty of the felony of sexual
offense in the third degree and on conviction is subject to imprisonment not
exceeding 10 years.
(b)
(2)
(3)
(b)
(c)
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(1)
(2)
(b)
(2)
(c)
(i)
grandparent;
(ii)
parent;
(iii)
child;
(iv)
sibling; or
(v)
grandchild.
grandparents spouse;
(ii)
spouses grandparent;
(iii)
parents sibling;
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(iv)
stepparent;
(v)
spouses parent;
(vi)
spouses child;
(vii)
childs spouse;
(2)
(ix)
spouses grandchild; or
(x)
siblings child.
Title 1. Title 1 applies to all matters in all courts of this State, except the Orphans
Courts and except as otherwise specifically provided.
(b)
Title 2. Title 2 applies to civil matters in the circuit courts, except for Juvenile
Causes under Title 11 of these Rules and except as otherwise specifically provided
or necessarily implied.
(c)
Title 3. Title 3 applies to civil matters in the District Court, except as otherwise
specifically provided or necessarily implied.
(d)
(e)
Title 5. Title 5 applies to all actions in the courts of this State, except as otherwise
provided by statute or rule.
(f)
Title 6. Title 6 applies to matters in the Orphans Courts and before the registers of
wills relating to the settlement of decedents estates.
(g)
Title 7. Title 7 applies to appellate and other judicial review in the circuit courts.
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(h)
Title 8. Title 8 applies to appellate review in the Court of Appeals and the Court of
Special Appeals.
(i)
Title 9. Title 9 applies to proceedings under Code, Family Law Article, Title 5,
Subtitles 3 (Guardianship to and Adoption through Local Department), 3A (Private
Agency Guardianship and Adoption), and 3B (Independent Adoption); and
proceedings relating to divorce, annulment, alimony, child support, and child
custody and visitation; and proceedings under Code, Family Law Article, Title 4,
Subtitle 5 (Domestic Violence).
(j)
Title 10. Title 10 applies to fiduciary matters in the courts of this State, except for
matters relating to the settlement of decedents estates governed by Title 6 of these
Rules and guardianships governed by Title 9 of these Rules.
(k)
Title 11. Title 11 applies to juvenile causes and expungement of juvenile records
under Code, Courts Article, Title 3, Subtitles 8 and 8A.
(l)
Title 12. Title 12 applies to property actions relating to writs of survey, lis
pendens, actions for release of lien instruments, condemnation, mechanics liens,
partition, redemption of ground rents, replevin, and detinue.
(m)
(n)
(o)
(p)
(q)
(r)
(s)
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(t)
Title 20. Title 20 applies to electronic filing and case management in the trial and
appellate courts of this State as specified in Rule 20-102.
Remedial Authority of Court. In any civil action, if the court finds that the conduct
of any party in maintaining or defending any proceeding was in bad faith or
without substantial justification, the court, on motion by an adverse party, may
require the offending party or the attorney advising the conduct or both of them to
pay to the adverse party the costs of the proceeding and the reasonable expenses,
including reasonable attorneys fees, incurred by the adverse party in opposing it.
A memorandum in support of a motion filed for an award of costs and expenses
shall comply with Rule 2-433 (e). In deciding a motion under this Rule, the court
may consider the Guidelines Regarding Compensable and Non-compensable
Attorneys Fees and Related Expenses contained in the Appendix to these Rules.
(b)
(2)
Costs and Expenses Other than Attorneys Fees. The statement in support of
a request for costs and expenses other than attorneys fees shall itemize the
type and amount of the costs and expenses requested and shall include any
available documentation of those costs and expenses.
(3)
Attorneys Fees.
(A)
(ii)
(iii)
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(B)
(iv)
(v)
(vi)
(c)
Response. Within 15 days after the filing of the statement, the offending party may
file a response.
(d)
Generally. A party may move for judgment on any or all of the issues in any action
at the close of the evidence offered by an opposing party, and in a jury trial at the
close of all the evidence. The moving party shall state with particularity all reasons
why the motion should be granted. No objection to the motion for judgment shall
be necessary. A party does not waive the right to make the motion by introducing
evidence during the presentation of an opposing partys case.
(b)
Disposition. When a defendant moves for judgment at the close of the evidence
offered by the plaintiff in an action tried by the court, the court may proceed, as
the trier of fact, to determine the facts and to render judgment against the plaintiff
or may decline to render judgment until the close of all the evidence. When a
motion for judgment is made under any other circumstances, the court shall
consider all evidence and inferences in the light most favorable to the party against
whom the motion is made.
(c)
Effect of denial. A party who moves for judgment at the close of the evidence
offered by an opposing party may offer evidence in the event the motion is not
44
granted, without having reserved the right to do so and to the same extent as if the
motion had not been made. In so doing, the party withdraws the motion.
(d)
Generally. For the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime shall be admitted if elicited from the
witness or established by public record during examination of the witness, but
only if (1) the crime was an infamous crime or other crime relevant to the
witnesss credibility and (2) the court determines that the probative value of
admitting this evidence outweighs the danger of unfair prejudice to the witness or
the objecting party.
(b)
Time limit. Evidence of a conviction is not admissible under this Rule if a period
of more than 15 years has elapsed since the date of the conviction.
(c)
(2)
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(3)
(d)
Effect of plea of nolo contendere. For purposes of this Rule, conviction includes
a plea of nolo contendere followed by a sentence, whether or not the sentence is
suspended.
(b)
(2)
(3)
(4)
(5)
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(6)
(B)
(7)
(8)
(B)
(C)
(9)
(10)
Generally. The issues of jurisdiction of the trial court over the subject matter and,
unless waived under Rule 2-322, over a person may be raised in and decided by
the appellate court whether or not raised in and decided by the trial court.
Ordinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court, but the
47
Court may decide such an issue if necessary or desirable to guide the trial court or
to avoid the expense and delay of another appeal.
(b)
(2)
(c)
Action tried without a jury. When an action has been tried without a jury, the
appellate court will review the case on both the law and the evidence. It will not
set aside the judgment of the trial court on the evidence unless clearly erroneous,
and will give due regard to the opportunity of the trial court to judge the credibility
of the witnesses.
(d)
(e)
Order denying motion to dismiss. An order denying a motion to dismiss for failure
to state a claim upon which relief can be granted is reviewable only on appeal
from the judgment.
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(b)
References. References (1) to the record extract, regardless of whether the record
extract is included as an attachment to the appellants brief or filed as a separate
volume, shall be indicated as (E ........), (2) to any appendix to appellants brief
shall be indicated as (App ........), (3) to an appendix to appellees brief shall be
indicated as (Apx ........), and (4) to an appendix to a reply brief shall be indicated
as (Rep. App ........). If the case falls within an exception listed in Rule 8-501 (b),
references to the transcript of testimony contained in the record shall be indicated
as (T ........) and other references to the record shall be indicated as (R ........).
(c)
Covers. A brief shall have a back and cover of the following color:
(1)
(2)
(B)
(C)
(D)
(E)
(B)
(C)
(D)
The cover page shall contain the name of the appellate court, the caption of the
case on appeal, and the case number on appeal, as well as the name, address,
telephone number, and e-mail address, if available, of at least one attorney for a
party represented by an attorney or of the party if not represented by an attorney. If
the appeal is from a decision of a trial court, the cover page shall also name the
trial court and each judge of that court whose ruling is at issue in the appeal. The
name typed or printed on the cover constitutes a signature for purposes of Rule 1311.
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(d)
Length.
(1)
(2)
(3)
Reply Brief. Any reply brief filed by the appellant shall not exceed 15
pages in the Court of Special Appeals or 25 pages in the Court of Appeals.
(4)
Amicus Curiae Brief. Except with the permission of the Court, an amicus
curiae brief:
(A)
(e)
(f)
(g)
Effect of noncompliance. For noncompliance with this Rule, the appellate court
may dismiss the appeal or make any other appropriate order with respect to the
case, including an order that an improperly prepared brief be reproduced at the
expense of the attorney for the party for whom the brief was filed.
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Contents. A brief shall comply with the requirements of Rule 8-112 and include
the following items in the order listed:
(1)
(2)
A brief statement of the case, indicating the nature of the case, the course of
the proceedings, and the disposition in the lower court, except that the
appellees brief shall not contain a statement of the case unless the appellee
disagrees with the statement in the appellants brief.
(3)
(4)
(5)
(6)
(7)
(8)
(9)
If the brief is prepared with proportionally spaced type, the font used and
the type size in points shall be stated on the last page.
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(b)
Appendix. Unless the material is included in the record extract pursuant to Rule 8501, the appellant shall reproduce, as an appendix to the brief, the pertinent part of
every ruling, opinion, or jury instruction of each lower court that deals with points
raised by the appellant on appeal. If the appellee believes that the part reproduced
by the appellant is inadequate, the appellee shall reproduce, as an appendix to the
appellees brief, any additional part of the instructions or opinion believed
necessary by the appellee.
(c)
Effect of noncompliance. For noncompliance with this Rule, the appellate court
may dismiss the appeal or make any other appropriate order with respect to the
case, including an order that an improperly prepared brief be reproduced at the
expense of the attorney for the party for whom the brief was filed.
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Meaning
Dkt. No.
E.A.
E.C.
E.D.
E.E.
KBr.
Appellants Brief
K.K.
MTD
WBr.
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BRETT KIMBERLIN,
Appellant
v.
September Term, 2015:
No. 365
Consolidated Appeals
day of
, 2015, hereby
ORDERED that the Judgment of the Circuit Court for Montgomery County is
AFFIRMED; and it is further
ORDERED that the Appellant shall pay costs.
__________________________________________
Judge, Court of Special Appeals
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