An Act Of Murder (17 page)

The motion was ultimately denied.

Shortly after Walsh filed the motion to dismiss the charges, he withdrew as Kimberly's lawyer. He gave no reason for his withdrawal except to say it was in Kim's best interest. Kim, however, said once she was indicted, Walsh panicked and started calling her several times a day at Perkins pressuring her to plead guilty, and say she was insane at the time she killed Steve. Walsh told Kim that if she did plead guilty he could probably get her a sentence of only five years. Kim said he also wrote to her telling her that he didn't have the time or the staff to represent her at trial.

Not knowing what to do, Kim asked a close friend for advice. The friend said she should not plead guilty to killing Steve if she didn't do it. Looking back, however, the friend said, “If he could have gotten her off with just five years, she'd be out now.”

When Kim's new lawyers, Harry Trainor and William Brennan, came on board, Judge Horne postponed until January 1999 Kim's trial, which was slated to begin in October, to give them more time to prepare her defense.

“Bill and I, we were involved in a capital case—the first federal capital case ever tried in Maryland, the Anthony Jones case in Baltimore,” Trainor said. “At some point, just as that trial was ending, we got a call from someone who was trying to help Kim and he asked us if we would get involved with the case. It had already got a little notoriety, I think. We agreed to do it as long as we could do it together, because Bill and I were in separate law firms then. We met with Kim and worked out the arrangements. We always found her quite pleasant to deal with,” he said.

In an order signed on October 27, 1998, Judge Horne took the Talbot County prosecutor's office off the case. The order came in response to a request from Trainor asking that Patterson not be allowed to prosecute Kim's case because Henry Dove, one of Patterson's assistants, was involved in the murder-mystery dinner-theater production at Harbourtowne and had sat at the table with Kim and Steve.

Patterson agreed with Trainor's motion and said it was better to assign a special prosecutor to handle Kim's case. Patterson tapped Montgomery County prosecutor Robert Dean to take over the case as a special assistant state's attorney for Talbot County. At that time Dean, who had been a prosecutor in Montgomery County for twenty-one years, was in the process of changing jobs to become a prosecutor in Prince George's County.

“Patterson decided to bring in another prosecutor because his office was such a small office, and one of his trial prosecutors was a key witness in the case, so Scott called me and asked me if, in the interim, I'd be interested in taking this case, and I told him I'd be glad to,” Dean said. “So in October 1998 he had me appointed a special prosecutor for the case and sent me the file and I got working on it.”

Although technically Dean was acting state's attorney for Montgomery County until January 4, 1999, he was able to conduct the investigation and the interviews because he was still a sworn state's attorney. Dean worked the case from October to November. He made numerous telephone calls, went through the police reports, went out to Easton a number of times, and did what any prosecutor would do—he totally immersed himself in the case.

“I went out to the crime scene and met with Joe Gamble and Keith Elzey and familiarized myself with the case as much as I could,” Dean said. “I also spent a lot of time with Deputy Fire Marshal Mulligan. But I didn't interview some people until right before the trial in January because I knew what they were going to say and I didn't need to spend a lot of time with them. In November and December I did spend a lot of time with some people as I was working the case up and before I shifted my headquarters over to Easton, which I did for a few weeks in January during the trial.”

By the time Dean got involved, Mulligan had completed his investigation and went over it with the new prosecutor. Dean was pleased with Mulligan's work and told him he had made his case that the fire in the Hricko room was set.

“You've made your point—you looked at your burn patterns, you determined your point of origin, and you eliminated all your possible sources of ignition—but you haven't eliminated the possibility that it was a set fire,” Dean told Mulligan.

In part, Mulligan's conclusion was based on the medical examiner's report that found that Steve wasn't breathing at the time the fire was set because there was no soot or ash in his airways and because there was no carbon monoxide in his blood.

“But Dean asked me if I could prove my case without bringing in the medical examiner's report,” Mulligan said. “I told him I would never try to do that because you would never make your determination of whether a fire was accidental, or set or undetermined, unless you had the medical examiner's report.”

Dean, however, insisted that Mulligan get on the stand and make his case that the fire was incendiary without using the ME's report, because he wanted that information to come in to the jury from the doctor.

“When I look back on my time on the stand, Brennan was attacking my expert opinion that this fire was a set fire. He was saying it was an accidental fire and that it could have been started by the wood-burning stove—by accidental burning,” Mulligan said. “I kept looking to Mr. Dean because it was like trying to fight a fight with one hand tied behind your back. I had the information that there was no soot in the airway and the carbon monoxide level was normal. That meant the victim didn't start this fire. It wasn't started by smoking. Although Judge Horne recognized me as an expert in fire investigation, he wouldn't allow me to put my opinion in—in order to get your opinion you can only testify to facts, but if you're qualified as an expert witness, you're allowed to put your opinion in. Brennan accepted me as an expert, but they still wouldn't let my opinion in. I kept looking to Mr. Dean to let me say what was in the medical examiner's report, but he didn't.”

Dr. David Fowler, the medical examiner, testified after Mulligan and he told the jurors that there was no soot in Steve's lungs or carbon monoxide in his blood, which meant he was dead or not breathing when the fire was set.

“Looking at the whole case, Dean probably did the right thing because Kimberly was convicted and he won his case,” Mulligan said.

In the months and weeks before Kim's trial, Dean also met with Rachel McCoy a couple of times in Baltimore. And he also met with Jennifer Gowen. He went to the liquor store in Laurel to talk to witnesses, and he went to the Hrickos' house, which wasn't very far from the liquor store.

“I talked to the medical examiner extensively and I spent a lot of time working on the case,” Dean said. “There was no one who testified that I didn't spend time with before the trial talking to them.”

It wasn't until December that police also met with Kim's childhood friend Rachelle St. Phard, who thought it was odd that they hadn't contacted her before that time.

“In December the police talked to me, but Kim's friends never talked to me because they thought I was so close to Kim that I would never say anything against her, even if I knew anything,” Rachelle said.

Rachelle said she believed police waited until December to get in touch with her because they made a mistake.

“I think when they heard about me, they thought I was Rachel McCoy,” she said. “What finally brought them to me was a card I had written to [Kim] after she told me she wanted to get divorced. I said, ‘Whatever you need I'll help, you just let me know.' I meant I'd help her financially, but the police thought I was going to help her murder her husband. I wanted her to be happy. I was going to tell her to move here, live with us for awhile until she got on her feet. But I truly think all along police thought that card was from Rachel McCoy because it was just signed Rachelle. I don't know that they put two and two together. But at the same time, the other women had to have mentioned me to them. Her lawyers knew I existed.”

Although Rachelle initially questioned Kim's involvement in Steve's death, she ultimately concluded that it just wasn't possible for Kim to have killed her husband.

“Was there ever a time where there was doubt? Certainly there was a question about whether she did it,” Rachelle said. “But I believe Kim, and I don't believe she'd do this to the father of her child. I didn't know a whole lot about the relationship. She told me in recent times that she loved him. She doesn't strike me as a person who would be capable of that. She really is a kind person—all the things she was involved in, the child advocacy issues—murdering your husband doesn't go along with advocating for children. I can't grasp that.”

Rachelle said she didn't find out about Kim's affair with Brad Winkler until just before Kim's trial, and she didn't believe Kim murdered Steve to be with Brad.

“I was certainly disappointed that she did that,” Rachelle said. “I think if she wanted out, she should have just gotten out rather than abusing their marital vows. I think that Brad probably went a long way in making Kim feel good; because for a long time in Kim's life, she didn't feel good. But I really don't think she killed Steve.”

With Kimberly's trial set to start January 11, 1999, her lawyers filed motions to keep certain statements she made to police, as well as the statements of other potential witnesses, out of court.

Defense lawyer William Brennan argued that the statements Kim made to police at Harbourtowne just after Steve died were not made voluntarily because she was under extreme emotional distress. And Brennan said the statements she made to Sergeant Alt and Corporal Elzey on February 23 were not admissible under the Supreme Court's Miranda ruling. According to Brennan, if Kim was in police custody when she was being questioned on February 23, then she should have been read her constitutional rights. Police, however, said she was always free to leave at any time, and ultimately she did leave.

But on Wednesday, December 2, 1998, Judge Horne ruled that Kim was not in custody on either February 15 or February 23 and the statements she made to police at those times were made voluntarily. That meant those officers could testify about what she said to them in court. However, Horne ruled to exclude testimony about Kim's suicide attempt because it would be prejudicial to her case.

Horne also ruled that the Astors Liquors clerk Doris Grave Coles, who identified Kim from a photo that Corporal Gamble showed her, would be allowed to testify that Kim purchased a package of Backwoods cigars at the store a day or two before Valentine's Day, 1998.

In motions filed at the end of December, Kim's lawyers asked Judge Horne to allow jurors to travel to Harbourtowne at some point during the trial to see the room where Steve died. The defense argued that photographs and a video of the room didn't adequately represent the site. The judge denied this motion, saying viewing the room was unnecessary and would just waste time.

Kim's attorneys also asked Horne to exclude information about the hypodermic syringe found at Harbourtowne, as well as one found at the Hrickos' Laurel home. The defense team argued that there was no evidence connecting any needle to Steve's death. In fact, Kim's attorneys said because there was no evidence Steve was injected with poison, allowing jurors to hear about the needle would cause them to speculate that there was a connection between the needle and Steve's death. Judge Horne agreed with defense lawyers that the needles were not relevant to the charges against Kimberly and granted the defense motion to exclude testimony about the needles at trial.

In addition, defense lawyers asked Horne to exclude testimony about the behavior of Bear, the K-9 dog that accompanied Deputy Fire Marshal Mike Mulligan to the scene of the fire at Harbourtowne. Even though Bear's actions signaled the presence of an accelerant at the fire scene, his findings could not be verified by scientific means, Kim's lawyers said. Horne also granted this motion.

Kim's trial began on Monday, January 11, 1999. After spending the first day of trial questioning potential jurors, prosecution and defense attorneys finally selected a jury consisting of nine men and three women, as well as four alternates—three women and one man. After the jurors were seated, Judge Horne told them they would be working long hours each day in order to wrap up testimony from the eighty-three potential witnesses by the end of the week.

The next day prosecutor Robert Dean gave his opening statement to the jury.

“Last year, at a beautiful and pleasant location known as Harbourtowne here in Talbot County, a resort located just outside of St. Michaels, tragedy struck. A young man, Stephen Hricko, married and the father of one, came to Harbourtowne with his wife for a Valentine's Day weekend. And as this trial will show, his wife, the defendant in this case, planned and successfully arranged to have her husband of nine years murdered and to [have him] die here in Talbot County on the Miles River.”

Dean told the jury that over the next week they would be dealing with the entire spectrum of human emotions—hate, love, betrayal, loyalty, and greed. But, he said, the hardest of all the emotions to deal with was the torment Kim's friends felt knowing that they had to do the right thing and provide police with the information necessary to solve Steve's murder—information that could send their friend to jail for the rest of her life.

Dean told the jurors that the evidence would show that Kimberly wanted nothing more than to get rid of her husband. He said through witness testimony they would learn that the Hrickos' marriage started to fall apart in the fall of 1997 and that Kim told her friends how unhappy she was with Steve. She told them that Steve was boring, that he didn't do his share of the housework, that he was too wrapped up in his job, and that he didn't make her feel good anymore.

“To put it bluntly, the evidence will show that she was sick and tired of her husband,” Dean said.

Dean explained that no matter what Steve did to make the marriage work, it didn't do any good. In fact, she complained constantly about him and even asked him for a divorce.

“She even, ladies and gentlemen, went to the extent of telling her friends, or a few of them, that Stephen would be better off dead,” Dean said.

Dean told the jury that Kim even asked a coworker at Holy Cross Hospital if he would kill Steve for $50,000 or find someone else who would do it for her. The jurors heard that Kim told other friends that she was thinking of ways to kill Steve. And just two weeks before Steve died, Kimberly told a friend exactly how she was going to murder her husband. Her plan was to steal a drug from the hospital to paralyze Steve and then set a fire to make it look like he died in the blaze.

“Ladies and gentlemen, you will see that the defendant was progressively digging herself into a hole of violence from which she could not escape and which was being created by her own obsession to get out of a marriage, but which she was unwilling to do in a civilized manner,” Dean said. “After all, the evidence will show that there was a bit of insurance money to collect with the death of Stephen.”

Dean then talked to the jury about Kim's affair with Brad Winkler and how she became increasingly infatuated with him and wanted to spend more and more time with him.

The jury also heard about the Hrickos' trip to Harbourtowne on Valentine's Day weekend 1998. Dean told them about the murder-mystery dinner-theater production the Hrickos attended, where they just happened to be seated at the same table as Henry Dove, an assistant state's attorney for Talbot County.

When the play ended around 10:30
P.M.
or so, the Hrickos returned to their room.

“Those were Stephen Hricko's last moments alive,” Dean said.

Dean then told the jury how Kim left Harbourtowne and came back between 1:15 and 1:30
A.M.
to discover her room on fire and then went to the lobby to get help. Then some “brave people,” who were there, went to the room, pulled the charred remains of Stephen Hricko out of the room, and tried unsuccessfully to save him. There was no reason for Stephen to die, Dean said. He was healthy. He was strong.

“But what makes your skin crawl is that the autopsy revealed that this man was dead before the fire,” Dean told the jurors. “And you will learn in the fire marshal's determination, this fire was set.... Not an accident. Not spontaneous. Set. The question will then be, who set the fire? It wasn't Steve. Stephen was dead.”

Dean then told the jury that Kim's story about what happened that night was “patently absurd.” He said the evidence would show that Steve died just as Kimberly had planned. Steve was murdered by his wife—a wife he so desperately loved, Dean said.

Defense attorney Harry Trainor rose next to give his opening statement.

“On February fifteenth of last year [Kimberly and Stephen Hricko] were at the Harbourtowne inn,” he said. “Stephen Hricko tragically died. That's the part that's undisputed. That's a fact. But what you will see as this case proceeds is that there is a great deal of this case that is undisputed.”

But there was considerable doubt about the circumstances surrounding Steve's death, as well as what caused it, he said. If the prosecution wanted the jury to believe that Steve was poisoned, then it was up to the prosecution to produce evidence that some toxic substance was delivered into his body, Trainor told the jury. If prosecutors couldn't do that, then they were obligated to rule out every other reasonable explanation for Steve's death. And even though the prosecutor said Steve was a healthy man—he really wasn't, Trainor said. In fact, shortly before his death he was referred to a cardiologist by his doctor for a stress EKG because of some sign of heart trouble, he explained.

Trainor asked jurors to consider whether Steve committed suicide because he was depressed. Or maybe the fact that he worked with toxic pesticides on a regular basis had something to do with his death, Trainor said.

“These are examples of issues that ought to be examined before one can say fairly and reasonably that all causes of death other than poisoning have been ruled out,” he said.

Trainor told the jury that because the scientific evidence didn't point to a cause of death, the medical examiner shouldn't have speculated that Steve was poisoned. He should have listed Steve's cause of death as unknown, or undetermined, Trainor said.

“And I submit to you in fairness that if the prosecution is going to call a medical doctor to tell us what caused Stephen Hricko's death, then that medical opinion should be based on science and not guesswork, not in a serious criminal case such as this,” he said.

Trainor also asked the jurors to examine all the evidence before deciding whether Kimberly actually set the fire, as the prosecution alleged. He then reminded them that every defendant is innocent until proven guilty and told them to use the presumption of innocence as an analytical tool to analyze the testimony in the case.

“If you look at, for example, that fire in room five-oh-six, and you absorb all of the testimony, all of the evidence about the fire and you look at it and you're left with two fairly equal inferences, one that would be supporting guilt and one that would be consistent with innocence; the presumption of innocence is powerful enough that you would have to reject the inference consistent with guilt in favor of the inference that supports innocence,” Trainor said. “That's an example of the power of the presumption of innocence.”

Trainor then told jury members that the prosecution had to prove its case beyond a reasonable doubt—meaning that through the evidence presented, the prosecution had to prove each element of its case to eliminate any reasonable doubt about that particular element.

“Unless the evidence reaches that level of proof beyond a reasonable doubt, the presumption of innocence standing alone is enough to require a not guilty verdict at the end of the case and send Kimberly Hricko home to her family,” he said, adding that it wasn't up to the defense to prove Kim's innocence.

Then, alluding to the statements Kim made to her friends about killing Steve, Trainor told the jurors that while loose talk, inappropriate comments, or conduct before the fact were suspicious, they were not enough to convict a person beyond a reasonable doubt.

“The presumption of innocence is not refuted by suspicions,” Trainor said. “The prosecution's case against Kimberly Hricko cannot rise to the level of proof beyond a reasonable doubt without hard evidence to corroborate the suspicions.”

Finally Trainor asked the jurors to wait until they heard all the evidence before deciding Kim's guilt or innocence.

“If you will approach your job as jurors in this case in that way, Mr. Brennan and I know that our client, Kimberly Hricko, will have a fair trial,” he said. “And I can tell you basically, at this point, fair consideration is all we're asking.”

Harbourtowne banquet manager Elaine Phillips and her cousin Philip Parker were among the first witnesses to testify on Tuesday. The pair told the jury about their actions the night Steve died. They also testified about Kim's demeanor when she entered the resort's lobby to report the fire. But their testimony about Kim's behavior wasn't quite the same as their statements to police on February 15, 1998—something the defense team immediately pounced on.

At that time Elaine Phillips told police Kim was “shaking” when she walked into the lobby. But at trial when Dean asked Phillips to describe Kim's demeanor, she said, “She walked in the lobby . . . there was no evidence. I mean, there was nothing that she was upset . . . she was just walking into the lobby. She was very calm. Even when she said, ‘There's a fire in my room,' we were more excited . . . and we were all very excited and nervous as to what was happening. And I just remember her just standing very calm and being very calm.”

On cross-examination Trainor asked Phillips to read the statement she wrote for police that Valentine's Day weekend.

“If you look at the second page and see if you wrote in your own handwriting on February 15, 1998, at four-thirty
A.M.
, whether Mrs. Hricko was shaking?”

“Uh-hum.”

“Did you write that she was shaking?” Trainor asked.

“Yes, yes, I did.”

When Philip Parker got on the witness stand, he initially told the jurors that Kim was “agitated or upset about something” when she walked into the Harbourtowne lobby. Later when asked by Dean to describe Kim's behavior, Parker said, “It was actually really calm.... She seemed quite calm to me.”

When Trainor cross-examined Parker, he called attention to his earlier testimony.

“In response to Mr. Dean's questions, you described the demeanor of Mrs. Hricko when she came into the lobby as calm?”

“Yes, sir.”

“But you've also described her as upset and agitated, correct?”

“Yes, sir.”