An Act Of Murder

by Linda Rosencrance

  In his summation Brennan referred to Judge Horne’s instructions to the jury to evaluate the credibility of the witnesses. Brennan said jurors should not just determine whether witnesses were telling the truth, but also whether those witnesses were exaggerating or putting a spin on their testimony.

  “Many times as people talk, as they think about things, as they tell one another, as they talk about things, they sometimes will say what they think it should be, or what they want it to be, or what they thought it should be, or what they believe it to be, not what it really was,” he said.

  Brennan recalled the testimony of Elaine Phillips, who said that when Kim went into the lobby of Harbourtowne to report the fire she wasn’t shaking, she was calm. But when he was cross-examining Phillips, Harry Trainor showed her the statement she wrote a couple of hours after Kim went into the lobby. In her statement Phillips said Kim was shaking.

  “Didn’t remember that. Didn’t want to remember that,” Brennan said. “I’m not saying she’s lying about that. Just that she felt, ‘Well, I’m a prosecution witness. I shouldn’t remember those things.’”

  Her cousin Philip Parker did the same thing, Brennan said. When asked by Trainor if Kim ran into the lobby, screaming, Parker said no. She was calm, he said. In his statement written shortly after Steve had died, Parker said she ran into the lobby, screaming, but he didn’t remember that when he was on the witness stand.

  “Why?” Brennan asked. “Is he lying? No. Has he got it wrong? Has his memory failed him? . . . It serves to illustrate the point that oral testimony, what people say, what people hear, how they report things, how they want to report things, how they think they should report things, is inherently unreliable. It does not reach the quality of proof that the judge has talked about.”

  Brennan made it clear to the jury that Teri Armstrong, Jennifer Gowen, Rachel McCoy, and Norma Walz had plenty of time to talk to each other and compare their stories in the year or so before the start of Kim’s trial. How much of that, he wondered, was reflected in their trial testimony. Brennan’s point was that the jury shouldn’t always trust the oral testimony of a witness.

  For example, take the testimony of state Trooper Clay Hartness, who told the jury that Kim was slightly intoxicated when he interviewed her after Steve’s death. However, Brennan said, no one else at the scene made the same observation. Not Bonnie Parker, who was in close contact with Kim, and not Father Paul Jennings, who was also very close to her when he delivered the news that Steve had died. Trooper Hartness was the only person who testified that Kim was slightly intoxicated.

  “Why does he say that?” Brennan asked the jury. “Again, perceptions, unreliability.”

  Rather than relying on witnesses’ recollections during deliberations, Brennan told the jurors they should, instead, look at the scientific evidence, because those personal recollections were often based on the moral beliefs of the witnesses.

  Brennan asked the jurors first to focus on the arson charge against Kimberly. The first issue to think about was how the fire started, because no one really knew how it started. What jurors did know was that by the time people arrived at the Hrickos’ room the fire had already burned itself out. And they knew it was a dirty fire, a smelly fire, a very short, intense fire, but it was also an odd fire, because it only burned the bed closest to Steve.

  “But how did it start?” Brennan asked. “Can anyone in this courtroom tell us how the fire started? . . . There was no accelerant.”

  Because no one knew how the fire started, the jury would have to play detective and guess and speculate about how it started.

  “You are trying to fill in the blanks on how this fire started,” Brennan told the jury. ““Then you’ve got reasonable doubt.”

  Brennan said the prosecutor didn’t prove the arson count against Kimberly because the state couldn’t say how the fire started. He said because there was no expert testimony that the fire was set, and because the jury would have to guess and speculate about its cause, then the law required them to find Kimberly not guilty on the arson charge.

  And if the jurors weren’t satisfied about how Steve died, then they should find Kim not guilty on the murder charge as well.

  “How did he die?” Brennan asked.

  Dr. Fowler testified to a reasonable degree of medical certainty that Steve was probably poisoned, but there wasn’t a single piece of medical or scientific evidence to show that succinylcholine was ever injected into Steve’s body, Brennan said. But Dr. Adams, the forensic pathologist, said the cause of Steve’s death was unknown and the manner of death should be classified as undetermined, rather than homicide, he said.

  To put doubt in the jurors’ minds about the cause of Steve’s death, Brennan reminded them that just weeks before he died, Steve didn’t keep an appointment with a cardiologist for a stress echo test which had been set up by his physician, and he never called to reschedule.

  “Were there heart problems?” Brennan asked.

  Steve was also suffering from depression, Brennan said. So even though Steve appeared to be a strong, physically fit, healthy man, he really wasn’t.

  Next Brennan tried to discredit the testimony of the medical examiner, Dr. Fowler, by telling the jury that Fowler admitted that there had been cases where someone had died in a flash fire, a sudden fire, a fire that just bursts up, and the fire shut down that person’s airways so there was no carbon monoxide in the blood, no soot in the airways. However, what Fowler actually had said in his testimony was that even though there was an absence of carbon monoxide in a flash fire, there would still be heat damage to the lining of the mouth, the tongue, and the upper airway. Fowler testified those injuries were not present in Steve’s case; therefore, he did not die in a flash fire.

  Even though there was no scientific evidence that succinylcholine killed Steve, Brennan asked the jurors to think about how Kim could have injected Steve with the drug.

  “Dr. Wex, the anesthesiologist, says it would take two to four minutes to take effect,” Brennan said. “Dr. Adams says intramuscularly you need ten cc’s of it, which means you’d need [a large needle]. And for a noncooperating person you’re only going to get about one cc in. Dr. Fowler [agreed] that even if you use a small needle, you’re going to feel it; it’s going to hurt.”

  Brennan said it didn’t make sense to think that a physically fit, 6-foot three-inch, 245-pound man, who wasn’t drunk, would just let someone stick him with a big needle and not react.

  “You’re going to pull it out. You’re going to struggle. You’re going to break the needle off. Something’s going to happen,” he said. “You’re going to sit there willingly while someone takes a few seconds to pump that kind of drug into your body? Does that make sense? No, it makes no sense evidence. There is no scientific evidence that succinylcholine was used. There is no medical evidence that succinylcholine was used. And there is . . . no common sense evidence that succinylcholine was used, because they don’t have a delivery vehicle to get it in the body. The only nonsense about succinylcholine comes from the Four Musketeers. And it cannot be backed up by facts, by science, by medicine, or by common sense. The state has not proven, beyond a reasonable doubt, the delivery mechanism. They have not proven, beyond a reasonable doubt, this theory. And that’s what it is, a theory.”

  Brennan then read some of Stephen’s journal to the jurors, implying that he was so depressed he could have committed suicide. He reminded the jury that the state had the burden of proving that Kim killed Steve—beyond a reasonable doubt.

  “They have a theory, want you to guess, speculate, that a physically fit, six-foot three-inch, two-hundred-forty-five-pound man, unbeknownst to him, got shot full of a deadly drug,” Brennan said. “If this were a case where someone’s charged with enabling a suicide, it might be one thing. But it’s not. It’s a murder case. It’s not first degree. The law, the science, the evidence, common sense, says that the state of Maryland has not met its burden in a courtroom according to law to co
nvict Kimberly Hricko of murder. Your verdict should be not guilty. Thank you.”

  Bob Dean had the final word before the jury.

  The first thing Dean told the jurors was that he was waiting for Brennan to make some reference to the fact that Kim told her four closest friends that she wanted Steve dead. Brennan did mention her friends, but in a disparaging way, calling them the Four Musketeers, Dean said.

  “Now think about that for just a moment and I think you can then appreciate what the defense theory is,” Dean said. “The theory is to ignore the fact that their client, Kimberly Hricko, indeed did want Stephen dead. Indeed did have a plan to kill her husband. Indeed did have a motive to kill her husband. Indeed had every reason in the world, in her own twisted mind, to have her husband taken away.”

  The defense, though, didn’t mention any of that to the jury, he said. Dean told the jury that the state’s theory of how Kim killed her husband wasn’t really just the state’s theory—it was really Kim’s own plan. The plan she talked about with Rachel McCoy. Dean scoffed at the defense’s contention that Kim’s friends made up the story that she told them she was going to kill Steve. Why would they do that? The defense implied that it was because they didn’t approve of her affair with Brad Winkler, he said. Coming forward to tell police about Kim’s plan was probably the most difficult thing they had ever done and it wasn’t right for the defense to demean their actions, he said.

  As for the testimony of Dr. Adams, Dean said he just wasn’t believable. In fact, he was the only person in the courtroom, actually the only person in the city of Easton, who didn’t know that succinylcholine disappeared in the body.

  “That tells you how much he knows about the subject matter we’re dealing with,” Dean said. “He doesn’t know [anything] about it. There’s a lot more to this case as you well know and as he would not acknowledge. I suggest to you his understanding of the case is rather limited. It’s as limited as his understanding of the substance used and the plan to kill Steve.”

  Dean told the members of the jury they needed to focus on the evidence, not what a paid witness came in and said, especially when he really knew nothing about the case.

  Next the prosecutor talked briefly about the fire and its point of origin, which was on the floor where Stephen’s head was resting on the pillows. Dean said the pillows were set on fire by a flame. And setting Steve on fire was part of Kim’s plan.

  “And when Kimberly Hricko says, ‘I’m going to set him on fire as part of my plan,’ you have the answer to the arson,” Dean said. “You have the answer to the murder.”

  The jurors were told to use their common sense as well as all the information from the case during their deliberations. Dean told the jury that Kimberly really didn’t have a theory as to how Steve died. All the defense said was that the medical examiner didn’t find any succinylcholine in Steve’s body, so no one can be sure that’s how he was killed.

  “Kimberly, the defendant, was on a mission of death,” Dean told the jurors. “That woman had ice water running through her veins. Kim nearly, nearly committed the perfect crime. Staging an accident, using the substance that disappears in your body. She knew more about the substance than her expert witness did.”

  But, he said, Kim’s tormented and brave friends knew what was going on and they knew what they had to do.

  “You can’t just sweep a life under the rug,” Dean said. “All that’s left of Steve now is his memory and his ashes. Justice and decency demand that the defendant be held accountable.”

  Dean, like Brennan, read a portion of Steve’s diary to the jury: “‘I have a lot to offer someone. I eventually will need more from her.’ Here’s the phrase I want you to remember. ‘This weekend will tell me a lot about her feelings.’ Well, I guess so, folks,” Dean said. “That weekend said an awful lot about her feelings. Truer words were never written.”

  Finally Dean told the jury members to use common sense as they considered the evidence.

  “There’s only one verdict that’s consistent with the facts. There’s only one verdict that’s consistent with justice,” he said. “The only verdict consistent with justice in this case, ladies and gentlemen, is guilty as charged. Thank you.”

  Chapter 19

  The jury deliberated approximately three hours before reaching guilty verdicts on the arson and murder charges. As the foreman announced the verdicts, Kim remained stoic, showing no emotion. Steve’s family and friends, however, hugged each other and cried after the jury was excused.

  Jury foreman Curt Hutchinson explained what happened in the jury room.

  “We took an initial vote and there were about five people who didn’t want to vote at that time—not that they thought she was not guilty—they just said they needed further information,” Hutchinson said. “The other people were ready to vote. I took a secret ballot—the five wanted more deliberation and the other folks were leaning toward guilty.”

  Hutchinson said after the initial vote, the jurors went through the notes they took during trial.

  “We talked about it and we got different people’s viewpoints, particularly the ones who had questions,” he said. “They were looking at motive and going back and looking at the information that was provided by the various witnesses. Over several hours it became very evident to most people on the jury that there really wasn’t a lot of doubt that she was guilty.”

  Hutchinson said one thing that came out during trial that helped the jury reach its verdict was the fact that Kim had ready access to the succinylcholine because she was a surgical technologist.

  In addition, testimony by state fire marshal Mike Mulligan also played a part in the jury’s decision. Hutchinson said Mulligan spent a lot of time on the stand and basically demonstrated to most people that there was no way the fire had been started by careless smoking, as Kimberly had claimed.

  “Steve had burned from the head down to the midchest, and she had said that he had smoked a cigar, but she bought the cigar and he didn’t typically smoke, from what I understood,” Hutchinson said. “And the fire marshal was unable to get any of the materials to burn, using the cigar, although they smoldered a little bit.”

  Hutchinson said the jury also believed Mulligan’s testimony that an ember from the woodstove couldn’t have started the fire. He said the scientific evidence was pretty much overwhelming and the prosecutor did a good job laying out a very succinct case. The facts were there, he said.

  “There was so much real evidence against her,” Hutchinson said. “I based most of my decisions on the scientific evidence that was presented. I was surprised that I got on the jury, because I told them I was a toxicologist—but I looked at pretty much the scientific evidence and to me it was irrefutable that there was no other way it could have happened.”

  Hutchinson said he didn’t know what the defense could have done differently. They just didn’t have a good argument, he said.

  “They brought in some witnesses, but their medical guy was just a hired gun, a charlatan, who really didn’t help at all. He almost got laughed out of the place. He was so pathetic,” Hutchinson said. “He tried to say it could have been this, it could have been that, but it was obvious that those were not really choices.”

  Hutchinson said the testimony from Kim’s friends also played a part in the jury’s verdict, but that wasn’t the overriding factor.

  “It added fuel to the decision that she had motive and she had discussed it and she had the means,” Hutchinson said. “To me it was a slam dunk.”

  After the jury talked long and hard about the trial, Hutchinson took a second vote.

  “Once everything got talked out—the sequences, the fire marshal, the medical examiner, seeing the pictures and listening to Kim’s friends, all the jurors—except one—believed Kim was guilty,” he said. “But once she read all the letters Steve had written to Kim, she, too, agreed to go along with the guilty verdict. It really took her reading the letters that he had sent—that’s what finally won her o
ver. It can be exasperating when people don’t believe the way you think they should, but in the end it was total commitment to the verdict.”

  Kim’s attorneys were a bit surprised to hear that Hutchinson mainly based his decision on the scientific evidence.

  “As we’re sitting there in the courtroom and the testimony is coming in, we felt that we were winning on the science and we were winning on the technical aspects of the case,” Harry Trainor said. “But what we felt hurt us the most was when her girlfriends came in and testified regarding what they claimed she had said. We felt that’s where we sustained a lot of damage in our case. We were damaged by the personal stuff—the testimony from people who knew her. And clearly the access to medications that might have been used was not helpful to us, even though no doctor ever found any point of entry for the succinylcholine—no needle marks or any delivery device, such as a syringe or anything like that. The gamble in a trial is that you don’t know how the twelve people you pick are going to interact with each other and who will be the opinion leader and how strong people will hold to their views—that’s the riskiest factor in a jury trial.”

  Judge Horne set Kim’s sentencing hearing for Friday, March 19, 1999.

  The first person to give a victim’s impact statement at Kim’s sentencing was Steve’s mother, Mary Esther Hricko, who said it was impossible to put into words the effect Steve’s death had had on the Hricko family.

  “But nothing has been the same,” she said. “My husband can’t talk about him without crying. I don’t sleep. It really has had a rather devastating effect on us.”

  Mary told the judge that since Steve was murdered, her husband had suffered two devastating illnesses, although she said she didn’t believe the illnesses were just the result of an elevated stress level. Steve’s mother told the judge that since Steve died, she had only been able to see Sarah a couple of times. She said Sarah was the person who would suffer most from Steve’s death.