STARKS — Kerry Hebert, a self-employed contractor, had dropped off his wife and two children at a Halloween party at the Starks Community Center last fall. It was approaching dusk as he drove back home.

On Mount Hunger Road, which is also the driveway to his house — the only one on the dirt road — he stopped the van and got out to speak with a group of hunters.

Among the five hunters were two brothers — Burpey Pond, 72, and Robert Pond, 76 — who were tracking a deer they had shot in the nearby woods.

Hebert asked the hunters not to hunt near his home, and they began arguing. The argument turned into a fight. Burpey Pond and Hebert grappled and Pond lost three teeth. Robert Pond intervened and Hebert grabbed his rifle.

It ended when Hebert was shot in the side, the bullet breaking two ribs.

Hebert said, “You shot me,” and drove off, Burpey Pond told police afterwards.

Those details about the Oct. 31 shooting are from newly released police interviews and reports and are the first public view of the names of the hunters and what happened that late afternoon in the central Maine woods.

Those interviews and reports, from the Somerset County Sheriff’s Department, were released this month after the Morning Sentinel filed Freedom of Access Act requests for the documents.

The reports offer the most detailed description yet of the shooting.

The confrontation itself wasn’t unusual in a state where hunter access to private land is a tradition, but the result was: one of those involved was shot. The newly released information details just how difficult it was for authorities to determine what happened and who was at fault.

In the nine months since Hebert was shot, little information has been made public by police or Hebert. More questions were raised last month after the police investigation was brought before a Somerset County grand jury, which did not indict the Ponds or Hebert. Grand jury proceedings are private.

Somerset County District Attorney Maeghan Maloney said she made the decision to take the case to the 23-member grand jury because police couldn’t determine what really happened or who was at fault, even though Hebert was shot point-blank and authorities knew who was involved.

“There were two very different accounts and ultimately that is why we felt a grand jury should decide this case,” Maloney said.

The case was also unusual because both parties involved were injured and because forensic evidence, twice submitted to the Maine State Police Crime Laboratory, corroborated pieces of both sides’ stories, Maloney said. Robert Pond has maintained that he did not shoot Hebert and that Hebert pulling on the barrel of his rifle is what caused it to go off.

Hebert, 57, who is the husband of Town Clerk Jenn Hebert, declined to comment on the newly public information about the shooting.

In a prepared statement to the Morning Sentinel, Hebert said he was disappointed that the district attorney’s office didn’t pursue criminal charges against the Ponds and that there were “a number of discrepancies and inaccuracies” in the police reports.

Neither he nor his attorney, John Alsop, would say what in the police reports was inaccurate, however.

Tenuous relationship

The shooting highlights the tenuous relationship between Maine’s hunters and its property owners as both sides navigate the centuries-old tradition of open access to private land for hunters and other sportsmen.

Doug Rafferty, spokesman for the Maine Department of Inland Fisheries and Wildlife, said that in the past people have been accidentally killed by hunters who misidentify targets and they do not consider what is on the other side of a target, or are not aware how close they are to a home or camp.

In one of the state’s most notorious cases, in November 1988, 37-year-old Karen Wood, of Hermon, was hanging out laundry in her backyard when she was shot by hunter Donald Rogerson, who said he mistook her white-palmed mittens for a whitetail deer’s flag. Rogerson was indicted in 1990, the second time it went before a grand jury. He was found not guilty of manslaughter charges in October 1990.

Rogerson ended up paying a $122,000 out-of-court settlement to Wood’s family as the result of a wrongful-death civil lawsuit.

In 2007, Timothy Bean of South Paris pleaded guilty to manslaughter after fatally shooting 18-year-old Megan Ripley near her family’s farmhouse in Paris. He was sentenced to two years in jail, all but 30 days suspended. Ripley’s family agreed to the plea deal and reports at the time were that Bean’s willingness to take responsibility and the family’s willingness to forgive him played a part in the sentence.

Rafferty said that while hunters are not required to check in with landowners before hunting on private property, the warden service strongly recommends it.

Landowner disputes happen more often than most people think, though it’s rare for them to escalate to physical encounters, said Tom Doak, executive director of the Small Woodland Owners Association of Maine. His nonprofit organization aims to help small property owners protect and preserve their land.

He said that in most other states, hunters are not allowed on private land without permission and in some states they are required to pay landowners for access.

“Maine has some of the most open land policy rules in the nation and I think a lot of people forget that or take it for granted,” Doak said.

That tradition of access goes back to the Great Ponds Act of the 1600s, which allows hunters and fishermen to cross private land.

Hebert’s land isn’t posted against hunting. Doak said that while landowners are not required to ask permission to hunt on unposted property, it is the courteous thing to do.

Without the release of the hunters’ names and little information on the Starks shooting made public, many landowners were worried about their safety in the months following the incident, said Doak. He said his group heard from several people concerned about the situation.

“We just thought it was odd. People were asking what happened. No one knew the details but just the idea of something like this happening on your own land is chilling,” Doak said.

‘The gun went off’

According to the police report, Hebert got into an argument with the Ponds after he asked them to not hunt near his home, although he said they could look for the deer they’d shot.

The shot that injured Hebert was from Robert Pond’s gun. Pond, of Hartford, was hunting with his brothers Burpey Pond, of Naples, and Philip E. Gendreau Sr., 79, of Casco, in the woods along Mount Hunger Road that day. The brothers have a camp in Starks about six miles from where they were hunting and they have been coming to the area for about 30 years, according to their attorney, Woody Hanstein.

Also hunting with them were Robert’s son, Cary Pond, 42, of Cocoa, Fla., and Gendreau’s son, Philip E. Gendreau Jr., 43, of Beavercreek, Ohio.

Robert Pond was in the woods when he heard his brother yell as though he were in trouble. He told police he ran around a corner and saw Burpey Pond held in a headlock by Hebert. Blood was coming from his brother’s mouth.

The two men were upright and Burpey Pond, with his gun slung over his shoulder, was holding onto Hebert’s belt, Robert Pond told police.

Robert Pond was carrying a Remington .30-06 semi-automatic rifle in his right hand, holding it down by his side.

“Hey, that’s my brother. What’s the matter with you?” he said to Hebert. He said Hebert grabbed the barrel of the Remington and pulled it toward him.

Pond tried to hold onto the gun but one of his fingers “must have pulled the trigger and the gun went off,” he told police. He said he wasn’t sure whether Hebert had been shot. He didn’t remember seeing any blood.

Police also interviewed Nelly Rackliff, who lives in Starks and had driven down Mayhew Road — which connects with Mount Hunger Road — with her husband that afternoon.

Rackliff told police that she and her husband didn’t see the shooting. She thought something might be wrong because she saw Hebert’s van driving faster than normal and she saw some hunters leave the woods, but that was all.

Police also interviewed the other men in the hunting party and Hebert’s wife, Jenn, on the night of the shooting.

Hunter goes ‘ballistic’

Hebert was interviewed by police that night from his hospital bed at Central Maine Medical Center in Lewiston. He was awake, coherent and in stable condition, according to the police report.

He had stopped three times that night to tell different hunters from the party to be careful where they were shooting. Hebert’s property is not posted against hunting, but he was concerned because he has children and pets and didn’t want anyone hunting near his house or his sister’s house, which is also nearby.

Hebert said Burpey Pond “went ballistic” when he was asked not to hunt near the houses.

Hebert told police that Pond said, “I have been hunting here for 25 years and nobody is going to tell me I can’t.”

That made Hebert angry and he told Pond to get off his property. Hebert said when he pointed a finger at Pond, the hunter lunged at him and bit it.

Hebert punched Burpey Pond in the nose — “a light punch that caused no damage,” Hebert told police.

He said the finger bite did not leave a mark because he removed his finger quickly from Pond’s mouth and it was an “inconsequential” injury.

Hebert did not remember Burpey Pond losing any teeth or bleeding from the mouth and even remembers him smiling at one point after the punch. He said he never had him in a headlock.

The two wrestled with each other, but Hebert said he thought things had calmed down and the scuffle was over by the time Robert Pond arrived. Hebert said Robert Pond kicked him and hit him with the barrel of his rifle. He described the strikes as “not real hard” and that he didn’t think the argument was anything serious.

Then a single shot hit Hebert in the side. He fell into a mud puddle, got up and said to Robert Pond, “You shot me.” He placed his hand over the wound and showed the hunters the blood. He said Robert Pond replied, “No I didn’t.”

Hebert drove himself home and called 911. He was later taken by LifeFlight helicopter to Central Maine Medical Center, where he underwent multiple surgeries.

Jennifer Hebert told police that her husband also suffered two broken ribs and significant lung and tissue damage as a result of the shooting, although his injuries were not considered life-threatening.

Woody Hanstein, a lawyer for the Pond brothers, said Burpey Pond lost three teeth during the confrontation with Hebert. He said that the brothers called 911 to report what happened and to seek treatment for Burpey Pond as well as Kerry Hebert. Burpey Pond was treated by a rescue crew at the scene.

In an interview with police, Burpey Pond said he was punched in the mouth and picked one of his teeth up off the ground. He said he grabbed hold of Hebert’s belt because he was afraid of being thrown to the road.

He said he believed Hebert was crazy and yelled to his brother for help.

Hebert said he did not reach for — or ever touch — the rifle that shot him.

But forensic evidence says otherwise. A report from the crime lab shows that DNA found on the front sight of the rifle matches DNA collected from a mouth swab from Hebert.

‘Not a simple case’

Maine State Police and the Somerset County Sheriff’s Department both went to the scene of the 3:30 p.m. shooting.

Officers interviewed the Pond brothers, along with the three others in their hunting party. Police also searched the hunters’ vehicles, seized all their guns and took DNA swabs.

But they made no arrests.

Hebert was interviewed by Maine State Police Detective John Hainey at the hospital at 7 p.m.

The Somerset County Sheriff’s Department handled the investigation that followed. A box of clothing, Hebert’s shoes and Robert Pond’s gun, a Remington model 7400, were analyzed at the Maine State Police Crime Laboratory. Also analyzed were DNA swabs from Hebert and both Ponds.

A Nov. 1 incident report lists the offenses from the encounter: elevated aggravated assault, hunting an antlerless deer without a permit, and aggravated assault.

Burpey Pond was charged with the hunting misdemeanor and paid a fine, according to Maloney.

According to the police report, Hebert was a victim of elevated aggravated assault and Burpey Pond was a victim of aggravated assault.

During the investigation that followed, Hebert asked police whether Robert Pond was considered justified in shooting him because of his fight with Pond’s brother.

“This would depend upon the man who’d shot him perception of the events as he interpreted them at the time of the incident,” Detective Matthew Cunningham of the Somerset County Sheriff’s Department wrote in the police report. “I advised him that Burpey Pond reportedly had teeth knocked out so the matter was not a simple case of him being shot by another person.”

Forensic evidence from the crime lab didn’t offer much clarity.

While Hebert’s DNA was found on the gun that shot him, Burpey Pond’s blood and DNA were not found on Hebert’s clothing. Maloney said that if Hebert had knocked out Pond’s teeth, the clothing would likely have had traces of the hunter’s DNA or blood.

She also said that Robert Pond never claimed he shot Hebert, either intentionally or by mistake.

“Robert Pond did not have the intention of pulling the trigger. The gun was jerked out of his hand. It was (Hebert’s) movement that caused the gun to go off,” Maloney said.

A second round of forensic testing at the crime lab confirmed that the shot that pierced Hebert’s side was close contact, determined from the amount of gunshot residue on his T-shirt.

Maloney said this second piece of evidence, which her office received in May, was key to the decision to take the case to grand jury.

“When this came back we knew part of (Hebert’s) story simply wasn’t true,” she said.

Hanstein, the Ponds’ lawyer, said that both brothers feel terrible about what happened, adding that the experience has potentially ruined hunting for them. Neither brother had a criminal record and Hanstein said the case was concluded fairly.

Both Hebert and the Pond brothers testified before the grand jury on June 6.

“Everybody talked to the grand jury,” Hanstein said. “They told the grand jury their side of the story and the jury decided there would be no charges.”

Alsop, Hebert’s attorney, said in June he was surprised at the outcome of the grand jury hearing and felt that the Pond brothers — who had not been publicly identified at the time — “were allowed to explain away their conduct” to the jury.

Maloney said it is unusual for defendants to be allowed to give testimony before a grand jury, but that in this case the Ponds were allowed to do so after petitioning the district attorney’s office. Maloney said she allowed the testimony because of the forensic evidence revealing that Hebert was shot with the gun contacting his body.

Both Hebert and the Ponds say they’re considering civil claims against each other.

Rachel Ohm — 612-2368
rohm@mainetoday.com