Hricko v. State

MOYLAN, Judge. “The play’s the thing Wherein I’ll catch the conscience of the King” ... Hamlet Act II, Scene ii Taking that version of the facts most favorable to the State, what unfolds is the melodrama of an estranged wife, desperate to free herself from a marriage gone stale, leaving a trail of false clues and staging her husband’s death so as to make it appear a random accident. As with “The Murder of Gonzago” in Hamlet or “Pyramis and Thisbe” in A Midsummer Night’s Dream, there is within this real-life drama a play within a play. In the real-life drama, the husband was lured to the scene of his fatal poisoning by the reconciliatory promise of a romantic St. Valentine’s weekend at the Harbourtowne Resort in St. Michael’s.

A highlight of the getaway weekend was a dinner-theater murder mystery which the dinner guests were invited to solve. That play within a play was called “The Bride Who Cried.” Our real-life drama may well be called “The Widow Who Lied.” “Sleeping within my orchard, Upon my secure hour thy uncle stole, And in the porches of my ears did pour The leperous distilment” ... Hamlet Act I, Scene v ²²² In the real-life drama, the last hours of the ill-fated marriage began with a bottle of champagne provided by the host to each “romantic” couple on their arrival at the inn. In the play within a play, the wedding feast ended with a champagne toast proposed by the groom to his bride and shared by the actors and participating guests alike.

In the play within a play, the bridegroom died as he drank from the poisoned chalice. In the real-life drama, the husband died of poison within an hour of returning with his wife to their cottage. The audience identified the culprit of “The Bride Who Cried” within the hour of the staged murder. In the real-life drama, the appellant, Kimberly Michelle Hricko, was not indicted for her husband’s murder until three-and-a-half months after her staging of his accidental death.

Truth is both stranger and more complicated than fiction. “Thus hath the course of justice whirled about” ... Richard III Act IV, Scene iv A Talbot County jury, presided over by Judge William S. Horne, convicted the appellant of first-degree murder and first-degree arson. On this appeal, she raises the three contentions 1) that the evidence was not legally sufficient to support the conviction for arson; 2) that the evidence was not legally sufficient to support the conviction for murder; and 3) that the medical examiner should not have been permitted to testify that the cause of death was “probable poisoning.” “Happy families are all alike; every unhappy family is unhappy in its own way.” ... The opening line of Anna Karenina ²²³ Nine years into their marriage, Steven and Kimberly Hricko were an unhappy family.

Time was when the domestic skies had been brighter. Mike and Maureen Miller were the couple closest to Steven and Kimberly Hricko from the time of their first meeting and earliest courtship. All four close friends were either natives of State College, Pennsylvania, or students there while attending Penn State or, for three of the four, both. Steven Hricko and Mike Miller became mutual best friends in the seventh grade in the town of State College and maintained that friendship through the day of Steven’s murder.

Mike Miller had met his future wife, Maureen, when she was an undergraduate at Penn State in 1984. They dated steadily after that. It was Maureen who first met Kimberly, as they worked together as waitresses at a steakhouse in State College. It was Mike and Maureen Miller who then introduced Kimberly to Steven Hricko. “We introduced them and we went out on a double date and from that point on they seemed to hit it off.” As Maureen testified, “We went out on a double date one evening and Steve fell in love with Kim immediately.” When Steven and Kimberly were married in March of 1989, Mike Miller was Steven’s best man and Maureen Miller was Kimberly’s maid of honor.

When Mike and Maureen, in turn, were married a few months later, Steven Hricko was Mike’s best man and Kimberly Hricko was Maureen’s matron of honor. Within a year of their marriage, Steven and Kimberly gave birth to a daughter, Anna, who was nine years of age at the time of her father’s murder. Steven Hricko and Mike Miller took up the same occupation, the superintending and maintaining of golf courses. In the years after State College, Steven Hricko was the superintendent of golf courses in Western Pennsylvania; in Dundalk, Maryland; and, beginning in the early 1990’s, at the Patuxent Greens Golf Course near Laurel, Maryland.

Mike Miller’s career route took him first to New Jersey and then, in October of 1993, to the Harbourtowne Golf Course in St. Michael’s. Throughout the intervening years, and particularly ²²⁴ after they were both settled in Maryland, the two couples maintained close contact with each other. Kimberly Hricko was a certified surgical technologist, assigned to the operating room, first at Holy Cross Hospital from 1995 through December of 1997 and after that at Suburban Hospital. Included in her responsibilities as a surgical technologist in the operating room was disposing of all unused medicines arid drugs following an operation.

It was Mike Miller who was responsible for bringing the Hrickos to Harbourtowné on the fateful St. Valentine’s Day. Steven had telephoned him sometime in January and indicated that he “was looking for somewhere to go with Kim to spend a romantic evening.” The agenda was “to work on the marriage.” Mike knew that Harbourtowné, where he worked, “was having this Valentine’s getaway weekend with the dinner theater” and suggested it as a possibility. Steven seized the idea and Mike intervened to make certain that the Hrickos would have one of the better cottages with a view of the Miles River. Mike and Maureen Miller even offered to baby-sit for nine-year-old Anna, although that offer was never taken up.

Their motivation was clear, to give Steven and Kim “this time away.” As Mike Miller testified: Maureen and I offered, knowing that Kim and Steve were having some problems prior to that and knowing that they both were going to come down here to work on the marriage or view it as a first date. Maureen and I suggested that they needed this time away. (Emphasis supplied). Kimberly’s disenchantment with her marriage was in a relatively low key until November of 1997.

In addition to Mike and Maureen Miller’s awareness that the Hrickos “were having some problems” with their marriage, a number of Kimberly’s close friends were also fully apprised of growing discord. Theresa Armstrong was a friend and former neighbor from Laurel. When she on one occasion asked Kimberly to “explain her unhappiness” with Steven, she received essentially the following reply: ²²⁵ Basically that there was a lot of verbal abuse. He didn’t do anything.

She did everything. She was just completely unhappy with him anymore. She didn’t want to be married to him. Norma Walz was a former co-worker at Holy Cross Hospital.

Kim described to her the state of her marriage: [S]he said that she had been feeling really bad about their marriage for a long time.... She said that her and Steve had been having problems and had been having problems for a very long time. I told her that I had always suspected that something wasn’t right, but she would never confide in me and she agreed that she had been living a lie, she said, for a long time. She said that she had asked him to go to counseling sometime back in the late summer of ’97.

Jennifer Gowen was also a co-worker of Kimberly’s at Holy Cross Hospital. When she got married in November of 1997, Kimberly was her matron of honor. At the time of the final wedding preparations, the two discussed Kimberly’s marriage: [Kimberly said] that she was not happy in her marriage; that she was considering possibly getting a divorce. After my marriage, after the honeymoon, when I got back two weeks later, we had more conversations.

Rachel McCoy had been a friend of Kimberly since their days together in State College. Over the years, they talked at least once a week. In September or October of 1997, Kimberly confided in Rachel: She told me that she had been looking into getting a divorce, that she wasn’t happy in her marriage. That was really about it.

Q: Did she express at all how she felt about him? A: She felt that he wasn’t very helpful around the house or he didn’t like to go out and do stuff with her. She was much more outgoing than he was and that really bothered her and it started to bother her more over the years. ²²⁶ Thus far the low-pitched marital discord was, at worst, such stuff as divorce suits are made of and not the driving force behind murder. “Cupid is a knavish lad, Thus to make poor females mad.” ... A Midsummer Night’s Dream Act III, Scene ii Between Thanksgiving and Christmas of 1997, however, Kimberly’s smouldering discontent burst into raging claustrophobia.

What was the spark? Cherchez V autre homme! He arrived during the last week of November. Jennifer Gowen was to be married on November 29 and Kimberly was to be her matron of honor.

One week before the wedding, Kimberly hosted a bachelorette party for Jennifer in Easton. It began at the home of Maureen and Mike Miller and later adjourned to a restaurant and bar, which the partygoers closed at 1:30 A.M. Several days later, Kimberly threw a shower for the bride at the Hricko home in Laurel. The next day, the wedding party spent most of Thanksgiving Day at the Hricko home. At the very outset of that festive week there appeared at the edge of the crowd, like Darcy in Pride and Prejudice or Rhett Butler’s dark stranger from Charleston, an enigmatic new figure.

Brad Winkler was the 23-year-old cousin of the bride and a sergeant in the United States Marine Corps assigned to the Pentagon. Though ten years her junior, he immediately caught the eye of the discontented matron of honor. He reappeared at every event during the pre-nuptial week and increasingly was seen closeted in private conversation with Kimberly. Invariably, the two lingered after the rest of the guests had gone.

Norma Walz noticed that “Brad was ever-present.” Initially, Kimberly was simply a good listener. Norma Walz described a conversation she had with Kimberly ²²⁷ in the car, after we dropped Brad off. Brad had spoken of a bad marriage that he’d had and a pretty sad sob story. And after he got out of the car she made comments like oh, he’s such a nice guy and the girl who’ll catch him, you know, is going to be a lucky one.

And, you know, he’s really sweet and he’s really nice and too bad what she did. (Emphasis supplied). As the only male other than the host at the wedding shower at the Hrickos, Brad did not totally escape the notice of Steven Hricko. Again, Norma Walz described a conversation with Kimberly: Kim had mentioned that Steve had gotten kind of ticked off and kind of wondering, you know, who’s this guy, you know, what’s he doing hanging out here, you know, party’s over.

You know, it’s a wedding shower anyway. And the next day Kim told me oh, Steve was just a little jealous because, you know, Brad was hitting it off so well with Anna [the Hricko’s daughter]. (Emphasis supplied). The smouldering tinder of late November burst into flame in early December.

As a dutiful cousin, Brad volunteered to be both the house-sitter for the honeymooning couple and the occasional baby-sitter for the honeymooners’ year-old daughter. During that period, Kimberly went over on a daily basis to help Brad with his chores and to give him helpful pointers. Brad himself pinpointed the moment when the companionship turned sexually active: I think it was that Friday night. I kissed her or she kissed me.

That weekend, I believe, is when it started. Q: And where would you have your intimate interludes? A: First several times was at Shawn’s and Jen’s townhouse. Q: And they were still on their honeymoon?

A: Yeah, they were still on their honeymoon. Q: After that, where would you meet? A: At my aunt’s house where I lived. ²²⁸ As the affair reached the combustion point, the incendiary effect on Kimberly was such that she virtually lost all semblance of control. Compulsively, she telephoned Jennifer Gowen several times while Jennifer was still on her honeymoon and intimated that she was about to have an affair with Jennifer’s cousin, Brad.

When Jennifer Gowen returned from her honeymoon in mid-December, Kimberly immediately informed her of developments in lurid detail: She told me that they were having sex and that she was becoming more dissatisfied with her marriage to Steve. She told me that they met while I was on my honeymoon at my house to have sex and that she spent quite a lot of time with him while I was away. At about the same time she informed Jennifer Gowen of the extra-marital relationship, she was also on the long-distance phone to Norma Walz in Port Orchard, Washington. Again incautiously, she could not contain the fact that she “was' having an affair with Brad” and that “he was very affectionate and she really loved him.” It was on New Year’s Eve at a restaurant in Laurel that she informed her former neighbor Theresa Armstrong that she was having an “affair ... with her friend Jenny’s cousin; his name is Brad.” It was half-way through January when Kimberly met with Rachel McCoy, her old friend from State College, and informed her that “she was seeing somebody else.” She then offered, however, the dubious reassurance, “I’m not going to marry this guy.

This is just about sex.” “Why, I can smile, and murder while I smile” ... Henry VI, Part Three Act III, Scene ii Although Kimberly may not have wanted into a new marriage, she desperately wanted out of the old one. 'An ominous sign of that desperation was a bizarre conversation she had with a co-worker at Holy Cross Hospital. Kenneth Burges ²²⁹ was a surgical technologist at Holy Cross Hospital, who had come to work there at about the same time that Kimberly had in 1995. He had, coincidentally, been convicted of welfare fraud in Virginia about twelve years earlier and may have seemed to Kimberly a promising recruit for skullduggery.

At sometime during the month of December, 1997, he was standing in the back hall just outside the women’s locker room. As his back was turned to her, Kimberly said, “Ken, I want to talk to you.” Without warning, she blurted out that she wanted him to kill her husband. He wheeled around, thinking that it had to be some sort of a joke. When he saw that she was deadly serious, he immediately said that he would not get involved in anything like that and tried to convince her that she was experiencing an overreaction to marital ennui.

She nonetheless went on to ask if he knew “somebody that would kill her husband.” She mentioned, moreover, the figure of $50,000 as the contract price. After it became clear that Ken Burges had no intention of getting involved, Kimberly urged him to “forget about it” and not to tell anyone else about their conversation. Even as he declined the assassin’s role, Kenneth Burges may nonetheless have planted a deadly seed. As an apparently embarrassed reaction to his initial astonishment, he made the flippant remark, “You work in the operating room ...

You could just put him to sleep.” Whether planted by Kenneth Burges or not, the seed grew. So did Kimberly’s apparent compulsion to share her budding mens rea with anyone who would listen. In a New Year’s Eve restaurant conversation with her friend and former neighbor Theresa Armstrong, Kimberly first described how she was “very angry and upset with the relationship” between her and her husband; then announced that she was asking him for a divorce; and, in a “very upset” state, concluded “that she had even been thinking of different ways to kill him.” At one point during that conversation, Theresa Armstrong asked Kimberly, “What would you get out of it?” Ms. Armstrong described Kimberly’s response, “She said, well, the insurance ²³⁰ money, • so her and Anna can live their life the way they wanted, the way that she wanted to live her life.” Ms. Armstrong stated that that snippet of conversation came just after Kimberly had mentioned killing Steven. Other evidence showed that from two separate life insurance policies on Steven Hricko, Kimberly Hricko, as beneficiary, stood to receive as much as $450,000.

Another confidant, on almost a daily basis through January and early February, was Jennifer Gowen, Kimberly’s coworker at both Holy Gross and Suburban Hospitals and Brad Winkler’s cousin. After sharing with Jennifer “quite a lot of details about [her] intimate contact” with Brad and about how “very happy [she] was about what was going on with Brad,” Kimberly further revealed that, since November, “she had had sex with Steve once and that it made her want to throw up.” The marriage was obviously in trouble. In succeeding conversations with Jennifer, Kimberly’s revelations escalated from her being “interested in getting a divorce from Steve” to revealing “that she would like to kill him.” In their first conversation “about killing Steve,” Kimberly pointed out that one obvious disadvantage to traveling the divorce route would be that Steven might obtain custody of their daughter, Anna, or that, at best, “he would try to turn Anna against her”: The conversation started with Kim saying that Steve would be better off dead, that we had talked about divorce but ... she said that he would be nothing without her and Anna and that, that if they got a divorce that he would try to turn Anna against her or to keep her. And that he didn’t really have very much of a life outside of that marriage anyway, and that he would be better off dead.

(Emphasis supplied). In a subsequent conversation, Kimberly pointed out a second disadvantage to asking for a divorce. She acknowledged that it would be unwise for her to tell her husband “about Brad” because “maybe he would get depressed or angry enough to kill himself’ and “that if he did that, then they ²³¹ couldn’t collect the insurance because, I guess, it would be a suicide.” As discussion then became more detailed “about a way in which she would kill Steve,” Kimberly first made mention of the drug Sustinaleolene * : We had a discussion about a case history where a woman had injected some children with Sustinaleolene and that that was a muscle relaxing anesthesia agent and that, that it would go untraced. So that was that conversation that we had.

(Emphasis supplied). Jennifer Gowen further testified that Sustinaleolene was something regularly used by anesthesiologists in the operating room and that both she and Kimberly had ready access to it: Q: As a surgical technician, if you wanted to have access to it, could you? A: Oh, yeah, yes. Easily.

Although her resolve was hardening and her plan of action crystallizing, Kimberly still desperately needed moral support. She constantly sought reassurance as to Jennifer’s “being there for her”: Kim wanted me to support her. She mentioned to me that her brother was someone who supported her and that he would support her even if she killed someone and she was asking me for support. And used those words many, many times.

Q: Did she ask you if you would support her under those circumstances? A: She did not ask me that directly. However, she did tell me that if I killed someone that she would support me. (Emphasis supplied).

Jennifer Gowen also recalled that at sometime in January or February, ²³² Kimberly told me that “if I could kill Steve and get away with it, I would do it tomorrow.” (Emphasis supplied). “The game’s afoot!” ... Henry V Act III, Scene i As of Friday, January 30, Kimberly’s intended course of action had become sure. At about 7:30 that evening, she initially talked by telephone to her girlhood friend from State College, Rachel McCoy, then living in Baltimore. Rachel then went out to dinner with a friend.

When Rachel subsequently returned to her home at 9:30, there were five or six progressively more frantic messages from Kimberly on her answering machine: They were gradually sounding more panicky and they just said call me as soon as you get in. I really need to talk to you. Please, please call me. I just really need to talk to you.

Call me as soon as you get in. Rachel immediately telephoned Kimberly, who implored her to come down to Laurel as soon as she could get there: She said, “Rachel, you need to come down here now. I need you. Do you remember when I saved you in State College?

I need you. You have to come here now.” And I said give me fifteen minutes to let the dog out and Pm on my way. “O murderous slumber!” ... Julius Caesar Act IV, Scene iii Rachel arrived at Kimberly’s between 11 and 11:30 P.M. Kimberly had been drinking and was very distraught: She said, she was talking more about how it would be easier if Steve were dead and she told me that she had a plan on how to do it where she wouldn’t get caught. ²³³ Q: Did she tell the plan to you? A: Yes.

Q: Tell the ladies and gentlemen of the jury what she told you. A: She told me that she could get a drug that would paralyze Steve, that would stop his breathing and then she would set the curtains on fire with a candle or a cigar and that he would die of smoke inhalation in afire and nobody would know. (Emphasis supplied). Rachel McCoy attempted to dissuade Kimberly from committing murder.

She testified that she “tried to poke holes in the story” but that Kimberly “had answers for everything.” Rachel urged her to consider the alternative of divorce, but to no avail: Q: Did you try to tell her about the option of divorce? A: Yup, I said that to her a number of times. Why don’t you just get a divorce ? And she seemed to think that this would be easier.

(Emphasis supplied). Rachel raised the question of the effect of her father’s death on Anna, again to no avail: I also said what about Anna? You know she needs a father, and she told me that Anna would be better off without her father. (Emphasis supplied).

Apparently, the only variation between Kimberly’s plan of January 30 and its ultimate consummation on February 14 was the situs of the planned murder and staged “accidental” fire. As of January 30, that situs was to be the Hricko home in Laurel. Rachel McCoy warned Kimberly about the risks, once more to no avail: I tried to say ... what if your house burns to the ground, your brand new house? What if your neighbor’s house catches on fire? ²³⁴ She told me that the house wouldn’t burn down because there’s always neighbors up in that neighborhood and they would see the fire before the house burned and call the fire department. ' (Emphasis supplied).

Rachel probed Kimberly about the accessibility of the lethal drug, about its traceability, and about the method of delivery. Again, Kimberly had all the answers: She told me that she could get the drug at work very easily, that it was in every hallway or every OR; that they used it for trauma victims to stop their breathing so they could put a tube in their throat to put them on oxygen, so it was right there.... Q: Did she, when she discussed with you the drug, did she talk about its ability to be traced? A: Yeah.

She told me that it wasn’t traceable in the blood. Q: [Did] she mention at all how she would give it to him? A: She would inject it in a muscle. (Emphasis supplied).

Rachel McCoy ultimately ensured that no crime would be committed on the night of January 30-31. At about 1:30 A.M., Kimberly went upstairs ostensibly “to use the bathroom” but “didn’t come back right away.” Rachel went upstairs and found Kimberly “standing in the bedroom” where “Steve was asleep.” Rachel had not realized that Steven was even at home that night. She further described the scene: Steve was sleeping on the opposite side of the bed and she was just standing there staring, on the other side, staring at him with her arms down at her sides, just standing there. And I just told her to come back downstairs.

After persuading Kimberly to come downstairs, Rachel calmed her down, got her to stop crying, and persuaded her “that she needed to go to bed and go to sleep.” A few minutes later, Kimberly “did go upstairs and go to sleep.” Rachel waited for another twenty minutes to make certain that the immediate crisis had passed and then left for Baltimore at approximately ²³⁵ 2 A.M. She spoke by telephone with Kimberly early the next morning and received an ambiguous response to her inquiry: Q: Did you ask her anything about the plan that she told you about? A: Yes. I asked her was she really going to do this and she said I don’t know what I’m going to do, Rachel. That was her last communication with Kimberly before the fateful events of St. Valentine’s Day.

Her testimony contained one other item of note. In the nine years she had known Steven Hricko, she had never known him to smoke. “O true apothecary! Thy drugs are quick” ... Romeo and Juliet Act V, Scene iii Three separate expert witnesses — 1) Dr. David Fowler, the Deputy Chief Medical Examiner for the State of Maryland; 2) Marc LeBeau, a forensic chemist and toxicologist with the FBI Laboratory in Washington, D.C.; and 3) Dr. Timothy Wex, the anesthesiologist at Holy Cross Hospital — testified as to the effects and the characteristics of the drug Sustinalco-lene.

It is extremely dangerous, extremely fast-acting, and ultimately untraceable. The FBI toxicologist testified that Sustinalcolene “is a very dangerous fast-acting muscle relaxant” that is “typically administered in a clinical setting in a hospital.” “It’s very dangerous ... because ... you stop breathing.” The “typical administration of this drug in the hospital would require that you be on some sort of a life support so that your body will still be able to breathe.” In such a setting, it is closely monitored. Mr. LeBeau also testified that Sustinalcolene can take effect within five seconds of being administered intravenously and within less than a minute of being administered intramuscularly. He pointed out that the body’s natural defenses almost immediately break Sustinalcolene down into two ²³⁶ component parts that are found naturally in the body, so that “within a few minutes you may not be able to detect Sustinal-colene in a blood specimen.

It happens that quickly.” Dr. Fowler testified as to the potentially lethal effect of Sustinalcolene and to the speed with which it acts: The other substance which concerned me was Sustinalco-lene. It’s only found in operating rooms. It’s a drug which causes very, very rapid paralysis of all skeletal muscles which involves also the chest muscles. It’s been documented in fact to stop the heart for a few seconds after being given.

But that’s kind of uncommon. It acts within seconds if it’s given intravenously and usually will actually begin to wear off within two to four minutes. (Emphasis supplied). Dr. Wex, the anesthesiologist at Holy Cross Hospital, not only confirmed the characteristics of Sustinalcolene described by the other experts but elaborated on its effect on breathing: Q: When a patient is placed or when Sustinalcolene is placed into a patient, how does the patient breathe then?

A: It depends on the anesthesiologist to breathe for you. A patient will not breathe themselves. The anesthesiologist will have to establish an airway one way or another. You either have to establish an airway by putting this tube down through your mouth, down into your windpipe and breathing for you or we can mask you with a mask and a bag and mask that you would have to have somebody breathe for you.

Q: Some sort of artificial ventilation would have to be introduced? A: Exactly. He further pointed out that Sustinalcolene is “not inventoried as closely as narcotic drugs.” It is “routinely kept in the operating rooms or available in the operating rooms for the anesthesiologist.” ²³⁷ “Oh, what a tangled web we weave, When first we practice to deceive!” ... Sir Walter Scott The Lay of the Last Minstrel Canto VI, Stanza 17 The frantic meeting with Rachel McCoy had taken place on January 30.

At sometime within the fortnight, the venue for Steven Hricko’s temporarily prorogued “Appointment in Samara” shifted from Laurel to St. Michael’s. The last weeks of the Hricko marriage were filled with false hope in the one and false witness in the other. Ostensibly, they mutually committed themselves to an effort at reconciliation. Steven genuinely gave himself to the effort.

For Kimberly, it was a charade. She described to Theresa Armstrong how Steven was going to counseling and was making an effort to be both more communicative and more affectionate: After she asked Steve for a divorce in January, Steve did make a lot of effort on his part, to where he wrote her this beautiful lovely letter that she read to me over the phone, and it was beautiful and Steve was going to counseling. She also described to Theresa Armstrong her reaction to the effort: “He made her sick to her stomach.” Kimberly also shared with Rachel McCoy the effort being made by Steven and her reaction to it: We talked about he had ... started seeing a counselor and that ... he was talking more, being more outgoing like in their relationship and, but that he was talking to her all the time and that was driving her crazy. He wanted to talk to her all the time and talk about their feelings.

(Emphasis supplied). In a conversation with Norma Walz, Kimberly indicated that Steven had gone into counseling at her suggestion in order “to turn himself around”: ²³⁸ She told me that she had asked Steve for a divorce and that he had broken down and cried and begged her for a second chance. She told me that he had canceled a business trip the following Monday so he could get in to [see] a counselor, get in to [see] a doctor to get a referral to a counselor. She said that she gave him a week to see if he could get in to [see] a doctor and at least show that he was trying to turn himself around.

Her reaction to the turnaround was less than laudatory: She said that ... “he’s smothering me and following me around the house like a puppy dog.” (Emphasis supplied). In late January and early February, Kimberly was in daily telephone conversation with Jennifer Gowen. She informed Jennifer of the fact that Steven had “started some counseling” and of how he had “started to make changes.” Her description, however, of her own reaction to those changes revealed how the changes were an exercise in futility: She told me ... her reaction or what she said about them was that they made her sick and that he suffocated her and was stifling her and following her around all the time and cuddling up to her real close at night so that she felt like she couldn’t breathe. And wanting to know where she was going or what she was doing.

And maybe giving her phone calls that she wasn’t used to getting from him just to say “Hi.” (Emphasis supplied). The getaway weekend on Valentine’s Day was the idea of Mike Miller. At the end of January, Steven Hricko had called his friend and indicated that he “was looking for somewhere to go with Kim to plan a romantic evening” and wanted any suggestions that Mike or Maureen Miller might have. Mike Miller informed Steven about the Valentine’s Day getaway weekend at Harbourtowne with the dinner theater.

Steven was enthusiastic and had Mike Miller make the necessary reservations. Kimberly acquiesced in the plans for Valen ²³⁹ tine’s Day. Brad Winkler, incidentally, was due to be out of town on that weekend on an official assignment. As February 14 drew closer, the juxtaposition of respective attitudes toward the impending Valentine’s Day getaway is stark pathos.

On February 9, Steven committed his hopes to his journal: Life at home is improving and I am looking forward to Valentine’s weekend at Harbortowne with Kim. ... She called twice today and said “I love you” without [my] saying it first. I was very happy.... Kim and I have not made love yet and I want to but I will wait as long as it takes.

I love her____ I believe I know what being in love really is. We have been married 9 years but I feel like we just started dating. (Emphasis supplied). On February 13, the night before she and Steven were to leave for St. Michael’s, Kimberly, by contrast, made a trip to the house that Brad Winkler shared with his aunt.

She wanted to leave her Valentine’s Day gifts to him in his bedroom. The note accompanying the gifts read: Brad, I really wanted to give you all these gifts in person but I guess the Pentagon had a different idea. I am so proud of what you do so I’ll just go on missing you. Have a nice weekend at home, baby.

I look forward to seeing you soon. Happy Valentine’s Day, sir. I love you so very much. Hugs and Kisses, Kim On that same evening before the departure for St. Michael’s, Kimberly spent two hours in her kitchen with Theresa Armstrong.

Ms. Armstrong recalled: [S]he told me that ... Steven made plans to go to a resort and to see a play. And they weren’t leaving until the next day. Q: ... [D]id she say whether or not she was looking forward to this? ²⁴⁰ A: No, she was not looking forward to it.

(Emphasis supplied). The prospects of success for the romantic “getaway” weekend were dim. How dim was not yet apparent. “What masques, what dances shall we have, To wear away this long age of three hours Between our aftersupper and our bedtime?” ... A Midsummer Night’s Dream Act V, Scene i Steven and Kimberly arrived at Harbourtowne at about 3 P.M. on February 14 and were checked into Cottage 506.

On their arrival, they were presented with a bottle of champagne. At approximately 7 P.M., they went to the dining room and to the dinner-theater production of “The Bride "Who Cried.” Steven and Kimberly left the dinner theater and returned to their cottage together at between 10 and 10:30 P.M. Kimberly Hricko walked into the lobby of the resort alone at approximately 1:20 A.M. and reported that her room was on fire. The real-life drama in this case requires filling the gap of that “long ... three hours” between the “aftersupper” in the dining room and the “bedtime” in the cottage. Kimberly Hricko is the only living witness to that interlude and her account was suspiciously flawed.

It was Elaine Phillips, the Banquet Manager who was also serving at the time as the Night Duty Manager, who received the report from Kimberly that her room was on fire. Elaine Phillips’s cousin Philip Parker, along with other members of their family, was also standing in the lobby when Kimberly reported the room fire. After Elaine Phillips checked the register to determine the room number, she and Philip Parker ran out of the front door, across a parking lot, and toward Cottage 506, registered to the Hrickos. Cottage 506 is in Building 500, described as a villa, consisting of six cottage ²⁴¹ hotel rooms.

The door to Cottage Suite 506, which was on a porch shared with cottages 504 and 505, was locked. Philip Parker ran around to a back porch from which he could observe, through a glass door, smoke in room 506. He ultimately was able to open the sliding door through which he had observed human feet and legs. Crawling into the smoke-filled room, he found the body of Steven Hricko lying on its back between two twin beds.

With help from Elaine Phillips, Philip Parker ultimately was able to drag the body onto the back porch. Steven Hricko was already dead when dragged from the room. His body, clad in a tee-shirt and pajama pants, was badly burned from the mid-chest area upward, including his upraised left arm. What was obviously called for was some explanation from Kimberly Hricko as to where she had been and what she had been doing between leaving the dining room at approximately 10:30 P.M. and reporting a room fire to Elaine Phillips at approximately 1:20 A.M. “Explain a thing Till all men doubt it” ...

Alexander Pope The Dunciad, Book 4 Kimberly’s fullest accounts of the missing three hours were those given to Maryland State Police Trooper Clay Hartness, in the company of Father Paul Jennings, at approximately 2:30 A.M. and then, a slightly more detailed version, to Maryland State Police Trooper Keith Elzey at approximately 5 A.M. She did not testify at her trial. She told the troopers that on leaving the dinner theater, she and Steven had purchased four bottles of beer from the hotel bar and gone back to their room. She recalled seeing the end of a movie called “Tommy Boy” and then watching the late evening news come on. Despite a pre-Valentine’s Day covenant with her husband that they would refrain from having sex during the weekend ²⁴² getaway, he began pressuring her for sexual intercourse and an argument ensued between' them that lasted for approximately ten minutes.

Because she did not wish to continue the argument, she grabbed her purse and the car keys and left the room. She described how she then left the Harbourtowne resort and drove toward Easton to visit her friends Mike and Maureen Miller. She became lost, however, and had to stop and ask several persons for directions. She stated that she was not familiar with Easton and could not find the Millers’ home.

She stated that she could not even find Route 50 and then, abandoning the intended visit, had to ask further directions even to get back to St. Michael’s. She arrived back at Harbourtowne shortly after 1 A.M. She discovered at that point that she had forgotten to take with her the plastic key card for the door to room 506, which was locked. She walked around to the deck area at the back of the room, remembering that the sliding glass door at the rear of the unit had been opened earlier that evening. As she pushed it further open, she was met by a wall of thick smoke.

She reached inside to feel for a light switch but with no success. She then ran to the front of the unit and began knocking on a number of other doors and screaming for help but received no response. At that point, she jumped into her car and drove to the main lobby, using her cell phone to call 911 while on the way. In the lobby, she advised Elaine Phillips that her room was on fire.

Did Kimberly’s attempted explanation become part of the proof of her guilt? It most assuredly did. ' It is a forensic fact of life that an exculpatory effort that is disbelieved thereby becomes highly inculpatory. In prosecutorial jargon, it is called the “false exculpatory.” In the algebra of production burdens, it goes to prove consciousness of guilt. Kimberly’s attempted explanation fell into that category in several regards.

Indeed, it began to unravel even as it began. There was first the improbability of getting lost — not just getting lost per se but getting lost for two hours. Easton is no more than a fifteen-minute drive from St. Michael’s, a thirty- ²⁴³ minute round trip. Two hours could have seemed to the jury an inordinately long time to be lost in so relatively confined an area.

Kimberly had been — indeed, had herself driven — to the Easton home of Mike and Maureen Miller just ten weeks earlier. In terms of knowing the neighborhood, Kimberly’s brother, Michael Wolfe, also lived in Easton, just two blocks away from the Millers. Kimberly was very close to her brother Michael, for it was Michael whom she asked to have called and who drove immediately to the Harbourtowne resort in the pre-dawn hours of February 15. It was of Michael that she spoke when she told Jennifer Gowen that her brother would support her if she killed someone.

If lost, why not call the Millers for directions? As an alternative, why not call her brother Michael? Kimberly had and knew she had a cell phone with her in the car. It was operational, as she demonstrated at approximately 1:20 A.M. when she called 911.

Kimberly, moreover, knew the Millers’ number by heart. She recited it to Trooper Hartness who she asked to call Mike Miller for her at a little before 2 A.M. As Bonnie Parker said, she “rattled it off.” By 8:30 A.M. on February 15, Maureen Miller had joined Kimberly at Har-bourtowne. When Kimberly told her about “trying to find [her] house in Easton ... for an hour, hour and a half,” Maureen Miller asked the very question the jurors would have asked themselves and received an improbable answer: I asked her why she didn’t call me and she says well it was too late. I didn’t want to wake you up.

And I said why didn’t you call Michael? And she said that she was just driving around. The incongruity of the response was not even subtle. Why, at a given hour, would one be unwilling to wake up with a phone call the very people one was fully intending to wake up by ringing the door bell?

Kimberly’s explanation of the missing three hours also consistently referred to Steven’s intoxication. She told Maureen Miller that Steven “had drank a lot” and “had gotten fairly drunk.” Kimberly told Mike Miller that Steven was “sloppy drunk.” She described to Trooper Elzey her noticing ²⁴⁴ that Steven, during dinner, “was consuming a heavy amount of alcohol.” A Talbot County Assistant State’s Attorney, who was seated at the same table with the Hrickos throughout dinner, on the other hand, testified that Steven had had one beer. The bartender who served drinks at the table said the people at that table basically “didn’t drink.” The bar bill for the Hrickos collectively was $5.51, the price of two beers. The autopsy on Steven Hricko’s body showed a blood alcohol content of 0.00.

At a follow-up interview on February 23, Trooper Elzey pressed Kimberly more closely with respect to Steven’s drinking. She said that “Steven drank a bottle of champagne” on his arrival at the resort and that at the dinner table he “was drinking heavily,” both wine and beer. She stated that Steven purchased more beer to take back to the room. When confronted with the autopsy report and the blood alcohol content of 0.00, Kimberly had no explanation: After that I asked her would you please tell me the amount of alcohol that your husband consumed that night on February the 14th, 15th.

She advised me that he was drinking heavily that night. At that time I confronted her with the Medical Examiner toxicologist’s report information indicating 0.00 blood alcohol contents in her husband’s body. At that time she just stared for a second and said, I don’t understand that. And I don’t understand that.

I said well could you please explain to me if your husband was drinking this amount of alcohol why didn’t it register? Again she just said, I don’t understand why. I don’t understand. In instance after instance, Kimberly’s attempted explanations simply generated greater and greater disbelief. “The best laid schemes o’ mice and men Gang aft agley; An’ lea’e us nought but grief and pain.” ...

Robert Burns To A Mouse, Stanza 7 ²⁴⁵ Even before telling a story rent with incongruities, the well laid scheme of Kimberly had begun going “agley” within minutes of going operational. The first suspicious circumstance was the inappropriateness of her behavior on discovering a fire in her room. A reasonable person, returning to her hotel room with the ostensible purpose of going to bed and suddenly realizing that her husband was trapped in a burning room, would not have displayed the remarkable composure exhibited by Kimberly. The building block, of which room 506 was a part, contained five other units, all of which were occupied.

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. Kimberly’s arrival at 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: A: A woman walked into the lobby. She had a cell phone up to her ear.

It was turned upside down. She was just listening into it. She walked over to us, my cousin and me. She said, “I need to speak to someone who works here." My cousin, who was about a step ahead of me, kind of directed her to me.

I asked her, may I help you and she said, “My room is on fire.” Q: What did you do then? A: We immediately began to ask her her room number, where is her room and she wasn’t answering. We then said what is your name and she said Hricko. I knew that it was an odd spelling of the name so I spelled it out to the night auditor and he gave me the room number of 506 and I called 911.

I was on the phone to 911 when my cousin was questioning her, is she all right, is everything okay? Was she all right? Q: This is all right here in the lobby? A: Yes. ²⁴⁶ Q: Okay.

A: And they asked her was there anyone else in the room and she said, “My husband.” 911 at that time said that the call had already been called in. (Emphasis supplied). Elaine Phillips elaborated on Kimberly’s restrained demean- or as she reported the fire: She was, she walked in the lobby and 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, I know. We were asking her and trying to get the room number and we were all very excited and nervous as to what was happening. And I remember her just standing very, very calm and just being very calm.

The other key witness to Kimberly’s preternatural calm was Philip Parker. He described the initial approach of her car: We noticed a car pull up to the front of the lobby. We noticed a young lady get out of the car and walk into the lobby of the hotel. She did not screech to a halt and dash into the lobby with the lights on and the motor running: I noticed when the car came up that ... the ignition was turned off and the car was turned off and the lights also turned off.

Philip Parker gave his version of Kimberly’s report of the fire. Coming eerily late in that report, the fact that her husband was in the burning room seemed almost an afterthought: You could tell she was agitated or was upset about something. What it was at the time, we didn’t know. She had walked in the door and she asked for an employee of Harbourtowne. ²⁴⁷ Q: Who did she ask?

A: She asked the group of us, me, Elaine and my fiancee. Elaine spoke up and said that she was an employee of Harbourtowne and what was the problem. You could tell by her agitation that there was something wrong. As soon as Elaine said she was an employee, she informed us that her■ room was possibly on fire.

Q: Then what happened? A: Elaine kind of got a little upset herself and tried to find out what room she was in. She stated that she didn’t know what room she was in. She then told Elaine what her last name was.

Elaine went to the books. By this time my mom had come out of the coat room. At the beginning of this, she had walked out of the coat room. She was already behind the desk and they looked into the record I guess to find out what room she was staying at.

At this time, too, I don’t remember if it was me or Tracy or Elaine, but someone had asked her if there was anybody in the room that was on fire and she said that she thought that her husband could be in there. (Emphasis supplied). 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 response was not of the essence. Philip Parker gave his characterization of Kimberly’s almost icy demeanor: Q: Let’s go back to the hotel lobby.

The woman who came in and told you all about the fire. What was her demean- or? A: It was actually really calm. When she walked in at the time, she mentioned nothing about the fire.

As I said, all she did was ask for an employee at Harbourtowne. As soon as Elaine indicated that she was an employee of Harbourtowne, she then said that she, you know, after Elaine had questioned her about what the problem was, she ²⁴⁸ then said that there was a fire in her room. And once again, she seemed quite calm to me. (Emphasis supplied). “Foul deeds will rise, Though all the earth o‘erwhelm them to men’s eyes.” ...

Hamlet Act I, Scene ii Even for the most hardened professional, it is difficult, following the commission of a crime, not to exhibit anxiety about detection. Kimberly’s behavior after Steven’s death betrayed a number of sometimes arguable but sometimes telling indications of consciousness of guilt. As she stood outside Cottage 506 with Bonnie Parker and later back in Bonnie Parker’s room, her primary initial response was, “I want to go see his body.” That was, to be sure, an ambiguous response, but it could be interpreted as revealing a concern as to 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 that Steven’s body be cremated.

It was one week after St. Valentine’s Day that Kimberly called Trooper Elzey in Easton because she “wanted an update on the Medical Examiner’s report.” At a time when the assumed cause of death was still a very straightforward case of smoke inhalation from an accidental room fire, Kimberly’s curiosity might have raised an eyebrow: “What is there to be curious about?” In hindsight, of course, her curiosity as to what the autopsy revealed takes on far greater significance. So too it was with Kimberly’s desire that Steven’s body be cremated. On the Monday after Steven’s death, Maureen Miller offered to help Kimberly with the funeral arrange- ²⁴⁹ merits. In all respects but one, Kimberly was largely indifferent to the arrangements: We went through the list and she pretty much didn’t care about what the specifics were of the arrangements.

She was very noncommittal. The only thing that she was definite on was that she wanted the body cremated. She was very adamant on that because she said that’s what Steven had said he had wanted. (Emphasis supplied).

On the day after Steven’s death, Kimberly traveled to the home of his parents in Pennsylvania. In discussions with Steven’s sister, Jennifer Hricko, about the funeral, Kimberly’s only firm resolve was with respect to the cremation. As Jennifer Hricko testified: [S]he let it be known that it was fine with her if we took care of it all