An Act Of Murder

by Linda Rosencrance

  “Even before telling a story rent with incongruities, the well laid scheme of Kimberly had begun going ‘agley’ within minutes of going operational,” Moylan said.

  First, her behavior was inappropriate and therefore highly suspicious, he said. A reasonable person who discovered that her husband was trapped in a burning room would not have displayed the remarkable composure exhibited by Kimberly, he said. In fact, he said her screams should have awakened other occupants in building 500—but they didn’t.

  “Where one would have anticipated screams to pierce the very fabric of the night, none of the other occupants of building 500 was even awakened,” he said.

  Moylan noted that Kimberly’s arrival in the lobby of the resort was even more “bizarre.” As Elaine Phillips testified, there was neither excitement, nor for the longest time, even an indication that her husband was still inside the burning room, he said. Moylan said Elaine’s cousin, Philip Parker, also testified to Kim’s preternatural calm. Moylan noted, according to the testimony, the fact that her husband was in the burning room seemed almost an afterthought to Kimberly.

  “As a tell-tale reaction, Kimberly displayed a ‘sang-froid’ about her husband’s fate that was macabre, unless, of course, she already knew that the time of the response was not of the essence,” he said, adding that at trial Philip Parker gave a characterization of Kimberly’s almost icy demeanor, saying she appeared “really calm.”

  Next Moylan talked about how Kim’s behavior after Steve’s death betrayed sometimes-telling indications of consciousness of guilt. He led off this section with a line from Hamlet : “Foul deeds will rise, though all the earth o’erwhelm them to men’s eyes.”

  Moylan said even for the most hardened professional, it was difficult not to be anxious after committing a crime. He said Kim’s behavior after Stephen’s death betrayed a number of sometimes arguable, but sometimes telling, indications of consciousness of guilt.

  He then pointed to the comment she made to Bonnie Parker that “I want to go see his body.” Although it was an ambiguous statement, Moylan said it could be interpreted as revealing a concern about whether the charring of the victim’s skin adequately obliterated a puncture mark made by a needle. Such a reading takes on greater plausibility in conjunction with Kimberly’s later concern to learn the autopsy results and her strong desire to have Steve’s body cremated, he said.

  Moylan said the fact that Kim asked Maureen to call several of her friends to find out what, if anything, they said to police, also sent up a red flag. He said it wasn’t normal for someone who had just lost her husband to want to know what her friends had been saying to the police.

  In addition, the judge said, several conversations Kim had with Teri Armstrong shortly after she was taken into custody also betrayed a consciousness of guilt. In one of those conversations Kim told Teri that she was feeling a lot of remorse about what happened at Harbourtowne over Valentine’s Day weekend.

  And in a conversation Kim had with Jennifer Gowen shortly after her arrest, Kim said, “I don’t care what anyone says, it wasn’t for the money.”

  Moylan said that statement was a revelation as to her motivation and the rhetorical question that needed no answering was, “What wasn’t for the money?”

  The judge then referred to the meeting with Troopers Elzey and Alt at Harbourtowne on February 23, 1998. He said Kim’s statement to the troopers, “I really want to tell you the truth,” clearly implied that she had not told them the truth earlier.

  Then Judge Moylan took a swipe at the Maryland State Police, saying that the department was apparently not as relentless as popular legend would sometimes have people believe. The reason, he said, was that at that point Kimberly, who was obviously ready to break, was allowed to go home.

  Next the judge introduced his discussion of the testimony from the prosecution’s expert witnesses with this quote from Don Quixote, by Miguel de Cervantes: “The proof of the pudding is in the eating.”

  Moylan said Kimberly’s appellate contentions were obsessed with the expert testimony. He said two of her contentions went to the legal sufficiency of evidence to prove the corpus delicti (the proof that a crime has been committed) of arson and the corpus delicti of murder.

  He said Kimberly would like to look at the evidence supporting the corpus delicti of arson in a vacuum, as if only the physical examination of the fire scene by the fire marshal had pertinence and as if all of the other evidence in the case had no bearing on the question of arson.

  Similarily, her contention over the murder charge assumed only the physical examination of Stephen’s body by the medical examiner had pertinence and all of the other evidence in the case had no bearing on the question of murder, he said.

  “Unfortunately, from the state’s point of view, that is not the case,” Moylan said. “The state’s case on all charges is an intertwined totality.”

  The evidence of arson and the evidence of murder were not mutually exclusive, watertight compartments, he said. That meant that, in evaluating the evidence of arson, Moylan had to factor in all the evidence of murder, which indicated that the fire itself might have simply been part of the murder scheme, because of the bearing it had on the question of arson.

  Conversely, as Moylan evaluated the evidence of murder he had to factor in all the evidence of arson, which indicated that the fire was deliberately set in an effort to conceal the true cause of death, because of the bearing it had on the question of murder.

  “In determining the legal sufficiency issues, we will look to the expert opinion as to the cause of death that came into evidence, not simply to the evidence that Kimberly agreed should have come in,” the judge said.

  Next Moylan discussed the purely physical phenomenon of the fire in room 506. He led into this section with this Julius Caesar quote: “Those that with haste will make a mighty fire, begin it with weak straws.”

  In this section, Moylan referred to the trial testimony of Deputy Fire Marshal Mike Mulligan. Moylan said a significant aspect of the fire scene investigation involved the process of elimination. Mulligan testified that lightning and spontaneous combustion could be ruled out as causes of the fire and also said the fire did not have an electrical origin.

  So two possibilities remained—careless smoking and a spark from the fire log in the woodstove, Moylan said. Mulligan eliminated the woodstove as the possible source of fire because he didn’t believe it was possible for a spark to leap from the stove, travel to the pillows and ignite them, Moylan said. Ultimately Mulligan also eliminated careless smoking as the cause of the fire.

  Moylan went on to say that even though Mulligan had eliminated a number of possibilities as the causes of the fire, Judge Horne would not let him offer his opinion that the fire was set because there were other possibilities he did not consider. In arguing that the state’s evidence was not legally sufficient to sustain the conviction for first-degree arson, Kimberly relied entirely on that evidentiary ruling by Judge Horne, Moylan said. He said Kim argued that she shouldn’t have been charged with arson because Judge Horne wouldn’t allow Mulligan to say that the fire was set.

  Again Moylan said Kim’s argument didn’t distinguish between Mulligan’s opinion and the state’s total case. He said Kim’s brief confused what was before Deputy Mulligan with what was before the jury, which was not limited to a physical examination of the fire scene and was not asked to render an opinion based upon such a physical examination.

  Moylan said Kim’s argument was a “leap of faith” that fell far short of the mark, because the jury heard evidence of arson above and beyond the physical examination of the scene by Mulligan. And, Moylan noted, at the end of the third day of the trial as well as at the end of the trial, Judge Horne denied the defense motion for a judgment of acquittal and ruled that the totality of the evidence was enough to justify submitting the charge to the jury.

  The bridge between Mulligan’s physical examination of the fire scene and the evidence of arson developed be
yond that examination began when he eliminated careless smoking as a possible cause of the fire, according to Moylan.

  Kimberly had told Trooper Elzey that Stephen smoked when he was drinking and investigators recovered an open package of Backwoods cigars from the scene, so they immediately thought a carelessly smoked cigar caused the fire, he said. But try as he might, Mulligan couldn’t get the cigar to ignite a variety of materials found in the room, Moylan said. Initially Mulligan eliminated the Backwoods cigars as a possible source of the fire, the judge said. However, they would take on far greater significance as affirmative proof of both arson and murder, he added.

  Ultimately, investigators showed that the cigars were the centerpiece of an elaborate ruse carefully staged by Kimberly to make it appear that Steve had died in an accidental fire caused by careless smoking, Moylan said.

  “The setting of a false trail is strong affirmative evidence of guilt,” he said.

  In addition, Moylan said the Hrickos’ friends and coworkers all testified that Steve did not smoke. Moreover, the Hrickos’ room, room 506, was a non-smoking room, he said. And within weeks of Steve’s death, police uncovered evidence that Kim purchased the cigars at Astors Liquor shortly before the Valentine’s Day weekend getaway.

  Moylan added there was evidence to show that in staging the scene to make it look like Steve died in a fire, Kim lied to the police about Steve’s drinking; lied to police about Steve’s smoking; and planted the cigars to make it look like the fire was started by careless smoking. He said the ruse of an accidental fire had two purposes—primarily it was to serve as the apparent cause of Stephen’s death or, if all went well, it was to be the actual cause of Stephen’s death. The fire was also meant to obliterate, by charring the skin, any puncture mark left by the needle through which poison was injected, he said.

  But the ruse failed miserably because there was no soot or carbon monoxide in Steve’s lungs or in any other part of his body and it was conclusively established that he was already dead before the fire started, he said. In arguing that there was no evidence from which the jury could infer that the fire was set, the defense conveniently ignored that the most conclusive support for such an inference was that the fire was an integral part of a larger murder scheme, he said.The evidence throughout the trial overwhelmingly showed that Kim murdered her husband, he said.

  “The evidence abundantly supported the conviction for arson in the first degree, corpus delicti and criminal agency alike,” he wrote.

  Before introducing his opinion on whether the evidence presented was legally sufficient to establish the corpus delicti of criminal homicide, Moylan quoted Hamlet again: “Murder, though it have no tongue, will speak.”

  Moylan said on this point Kimberly also chose to look at the post mortem examination in a vacuum, arguing that if the autopsy didn’t reveal a trace of succinylcholine or any other poison, then the jury shouldn’t have been able to consider poison as the cause of Steve’s death.

  “She would deny the jury the prerogative of looking at mountains of other evidence, extrinsic to the post mortem examination,” Moylan said.

  The judge said all one needed to do was put oneself in the shoes of a reasonable and inquisitive juror to realize that Kimberly’s argument was absurdly self-refuting.

  Moylan then asked if Kimberly’s frequently expressed desire to kill her husband; her detailed intent to poison her husband; her ready access to the poison; her flawed attempt to disguise the poisoning as an accidental death in a fire; and her quasi-admission that she had done exactly what she intended to do, helped the jury to conclude that the cause of the otherwise mysterious death was probable poisoning?

  His answer was yes.

  Once again, Moylan noted, Kim ignored the totality of the prosecution’s case, which consisted of much more than the post mortem exam. He said if proof of the death itself could be circumstantial, then proof of the cause of death could be circumstantial as well.

  In fact, he said, there have been cases where someone had been convicted of murder even though no body had been found. In those cases the lack of a post mortem examination wasn’t an impediment to a conviction. In Kim’s case, the medical examiner’s post mortem examination and his trial testimony corroborated all of the state’s other evidence proving that she poisoned her husband with succinylcholine.

  “The two tributaries of proof converged into a single and inexorable stream of guilt,” Moylan wrote.

  The medical examiner, Dr. David Fowler, explained that Stephen’s body was initially brought to his office simply to confirm whether or not Stephen had, in fact, died in a fire, Moylan said. However, the examination revealed that he had not. In court Fowler testified that he had eliminated all the normal causes for a natural death and added that all of Stephen’s organs were also normal. In addition, the report from the toxicology laboratory showed there was no alcohol present in his bloodstream, and that finding was repeatedly rechecked and reconfirmed, Moylan said.

  And because of Kim’s statements that Steve had been drinking, Fowler had a second specimen of his blood and as well as his urine and liver tested, Moylan said. The results remained the same.

  Fowler then eliminated most poisons and operating room anesthetics because they could be detected in the blood and because he didn’t find any traces of them in Steve’s body, the judge said.

  “His focus turned to succinylcholine,” he said.

  Because the delivery method for succinylcholine would be through injection with a hypodermic syringe, Fowler examined Steve’s skin for a puncture mark, but couldn’t find one, mainly because the upper part of his body had been charred, Moylan said in his opinion. The autopsy and the subsequent toxicology tests did not reveal the presence of succinylcholine because the drug wore off naturally in the body, he said.

  After a vigorous legal argument, Judge Horne ruled that Fowler would be permitted to give his expert opinion as to the manner and cause of Stephen Hricko’s death, Moylan noted. Fowler testified “with a reasonable degree of scientific” certainty that the manner of death was “homicide” and the cause of death was “probable poisoning.”

  “Although in a separate contention Kimberly challenges the admissibility of Dr. Fowler’s expert opinion that the cause of death was probable poisoning, that opinion is nonetheless part of the indubitable evidence as we assess its legal sufficiency,” Moylan wrote. “We hold that the evidence was legally sufficient to establish the corpus delicti of murder.”

  Moylan also held that the evidence was sufficient to support the murder conviction in general.

  Citing the quote, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth,” from The Sign of the Four, by Arthur Conan Doyle, Moylan discussed Kim’s final contention that Judge Horne abused his discretion when he allowed Fowler to offer his expert opinion that the cause of Steve’s death was probable poisoning.

  Moylan said Kim’s argument rested on the supposition that the evidence from the post mortem examination alone did not support such an opinion. But, he said that was not the case. Moylan said the totality of the physical examination eliminated all reasonably foreseeable natural causes for Stephen Hricko’s death and Fowler’s examination also eliminated all external trauma to the body.

  Moylan said Kim was reluctant to acknowledge that the careful process of eliminating possible causes of death could provide proof of the actual cause of death.

  “We do not share that reluctance,” Moylan said.

  The judge explained that after eliminating natural causes, as well as causes of death based on physical trauma, Fowler, an experienced medical examiner who had conducted over 5,000 autopsies, offered his opinion that Steve’s death was caused by probable poisoning, an opinion that was allowed by law.

  However, he said, Kimberly still stubbornly relied on the fact that the autopsy itself showed no trace of succinylcholine to prove there was no succinylcholine, even though various experts testified that the drug gener
ally left no trace.

  “A negative, moreover, may sometimes have positive significance,” Moylan said. “Like the dog that did not bark in the night in Holmes’s [short story] ‘Silver Blaze,’ the utter absence of evidence may proclaim guilt as loudly as an affirmative clue. Although it does, to be sure, partake of the paradox of Catch 22, the best proof of a substance that leaves no trace is the complete lack of any trace.”

  Finally, Moylan said the court had not yet resolved Kim’s evidentiary contention because it had “a chameleon-like quality,” and just when he thought he had pinned it down, it took another form.

  Moylan said that sometimes Kimberly seemed to argue that Fowler’s medical opinion was based on too little, while at other times, she seemed to argue that Fowler’s medical opinion was based on too much.

  “The too little argument—the absence of affirmative traces of poison in the post mortem examination—we have now disposed of. The too much argument is that Dr. Fowler may improperly have taken into consideration extrinsic evidence from sources other than the post mortem examination itself,” he said.

  Moylan said in ruling to allow Fowler to give his opinion as to both the manner and cause of Steve’s death, Judge Horne properly looked to the three necessary requirements: the proposed witness must be qualified to testify as an expert; the subject matter about which the witness will testify must be appropriate for expert testimony; there must be a legally sufficient factual basis to support the expert’s testimony. Moylan said Horne satisfied the first two criteria, leaving only the third issue before the court.

  Kim’s argument, Moylan said, was that the evidence extrinsic to the post mortem examination itself might not contribute to that “factual basis.” Kim argued that in giving his expert opinion about the manner and cause of Steve’s death, Fowler relied on other evidence in the case—non-medical evidence—rather than on the science, or medical evidence. But Moylan said the court’s review of Fowler’s testimony didn’t suggest he relied, even in part, on extrinsic evidence in arriving at his conclusion. But there would have been no legal problem even if he had, Moylan said. In fact, he said, Maryland law mandated that when the medical examiner was investigating the manner and cause of a suspicious death “the police or sheriff immediately shall” give the medical examiner “the known facts concerning the time, place, manner and circumstances of the death.”