An Act Of Murder (25 page)

When Steve went to get the
Playboy,
he also noticed the cigars in his suitcase. They had been lying on the dining-room table at home and at the last minute he threw them in his bag. Steve lay down on the floor and started looking through
Playboy.
Eventually he pulled his pants down. After he was finished, he lit the cigar and put the match inside the woodstove. What Steve had failed to notice was that when Kim opened the front door to leave, the rush of oxygen into the room caused the two fire logs in the stove to flare up. Some sparks had landed on the bedspread and were smoldering. As the sparks smoldered, Steve didn't smell the smoke, because there was already smoke in the room from the cigar, as well as the burning logs.

As Steve lay back down to enjoy his cigar, the bedspread totally ignited. In an instant the bedspread was engulfed in flames. Steve threw up his left hand to protect his face. (
Here Rosenberger was trying to explain why Steve's left arm was bent upward at the elbow when he was found).
The bedspread ignited the two pillows under Steve's head. Because of the speed of the fire and his shock when his head, neck, and shoulders caught fire, Steve never took another breath.
(This was Rosenberger's attempt to explain why there was no carbon monoxide in Steve's blood or soot in his lungs.)

“During the entire time since Steve's death, Kim has never changed the facts of the tragedy,” Rosenberger said. “It seems to me that after [all these years] it would be hard to continue to keep the story straight—unless it was the truth. Many times I tried to confuse Kim or catch her with her ‘story,' but it was always exactly the same.”

In fact, Kim's story did change. From the beginning Kim told everyone that Steve had been drinking heavily. However, speculating about what happened the night Steve died, Rosenberger said even though Steve appeared to be drunk when they got back to their room after dinner, “Kim knew he hadn't had much to drink all evening,” so his bizarre actions after they watched
Tommy Boy
didn't make sense to her. So which was it—had Steve been drinking heavily as Kim told police, or had he not had much to drink, as she told Rosenberger?

The problem with Cathy Rosenberger's assumptions was that all she knew about Steve's death and the events leading up to it was what Kim had told her. And Rosenberger took Kim at her word. When Rosenberger visited Kim in jail, they would talk about the case and then she would go home, write out their conversations as well as any questions she might have, then she would send her recollections and questions back to Kim so she could add more information.

Rosenberger shared some of that information with journalists covering Kim's case and her appellate attorney, Christopher Griffiths. Kim and Rosenberger spent many hours trying to debunk the testimony the prosecution elicited from witnesses during trial.

While reading this information put together by Rosenberger it's important to note that she believed then—and still does—that Kim absolutely, positively, did not murder her husband. All Rosenberger's explanations and speculation were based on Kim's version of what happened at Harbourtowne on Valentine's Day weekend, 1998.

One of the issues Kim and Rosenberger questioned was the prosecution's theory of how Steve ended up on the floor.

In a letter Kim wrote to Rosenberger on April 23, 2000, she said that she was still in awe of the prosecution's theory of “the crime”—that somehow she moved Steve onto the floor after killing him. Kim said the prosecution must have thought she had planned everything right down to the last detail. And the prosecution also must have believed she had incredible physical strength.

“What would make them think such a thing? It certainly wasn't physical evidence,” Kim said.

Kim said if she had attempted to move Steve, there should have been some evidence of it, like some kind of injury.

“Or do they think I was able to gently place him on the floor? It blows my mind,” she said.

And exactly how did Cathy Rosenberger think the fire started? A spark from the woodstove could have started it, she said. Rosenberger said Kim's trial attorneys submitted a fire log into evidence. She said the issue of the fire log was discussed briefly and then dropped.

About a month after Kim's trial Rosenberger said she was walking through a local pharmacy and noticed a display of fire logs. She purchased three different brands and said they all carried written warnings not to burn them in a woodstove. She said she even called one company that sold fire logs and told the customer service representative that she wanted to burn the log in her woodstove and wanted to know if she should leave the stove door open or closed (the door to the woodstove in the Hrickos' room at Harbourtowne was left open).

The company told her their logs were not to be used in a woodstove, with the door open or closed, she said.

“If you look at the diagram of the room, the woodstove is directly in front of the bed that burned. It is only about three feet away. The [fire marshal testified] that the doors were wide open and there was no screen,” Rosenberger said. “Could the fire log [in the woodstove] have thrown a spark that landed in the bedding?” she asked. “It could have smoldered for a period of time unnoticed before it finally created a flash fire.”

Rosenberger didn't put much stock in the state's theory that Kim injected Steve with succinylcholine to paralyze him before she set the fire.

“The prosecutor's position is that Kim used the drug on her husband to stop his breathing before the fire,” she said. “Because the drug was available to Kim, she therefore used it.”

And how did Kim, who weighed 155 pounds, convince Steve, who weighed 245 pounds, to cooperate and allow her to inject him with the drug?

“Three minutes is a long time when you're on the receiving end of a needle,” she said.

Rosenberger also questioned Judge Horne's decision to allow the medical examiner to offer his opinion that the cause of Steve's death was probable poisoning and the manner of his death was homicide.

“If Dr. Fowler could not determine how Steve died, why didn't he call in someone for a second opinion?” Rosenberger asked. “Should he have conducted more tests? Why did he release the body for cremation? It seems to me the autopsy report should consist of exactly what the medical examiner sees and the test results performed. Period. Fowler's opinion was based on interviews with witnesses and the defendant.”

In a letter to Rosenberger dated June 27, 2000, Kim wrote about a book,
Actual Innocence: When Justice Goes Wrong and How to Make It Right
by Jim Dwyer, Peter Neufeld, and Barry Scheck, that talked about miscarriages of justice in the American court system.

“I think it will be very helpful to us,” Kim said. “It is supposed to highlight the things that can cause a trial to be unfair. Like bogus testimony from a coroner. I think it will be information that we can use, as well as inspirational. . . . All of [the cases] are reversed decisions.”

Rosenberger put a lot more credence in the testimony given by defense witness Dr. John Adams than that of Dr. Fowler. She said Adams examined the autopsy and police reports, toxicology report, witness statements, and he examined the microscopic autopsy from duplicate slides.

“His professional opinion was cause unknown and manner undetermined,” she said.

However, she admitted his testimony could have been better.

Wanting a second opinion, Rosenberger shared some of the information regarding the succinylcholine with her surgeon, who often testified as an expert witness in various trials.

“He stated that with a small-town jury, such as in Easton, he would have put the drug in a syringe and actually injected ten to twenty cc's into a slab of raw meat,” she said. “He said that would closely mimic the shot going into a human muscle. It would also visually show the jury how long the victim would have had to be still and cooperate with the injection.”

Rosenberger also had some real issues with the testimony of Kim's friend Rachel McCoy. Referring to the night that Kim told Rachel about her plan to kill Steve, she commented, “If Rachel was so scared for Steve's life, why didn't she wake him up?”

Once Rachel talked to Maureen O'Toole-Miller and Kim about the circumstances of Steve's death, her story to police began to fit the crime scene, Rosenberger said.

“Would the story have been so similar if she had called the police before she talked to Maureen and Kim?” she asked.

Rosenberger wanted to know why Kim's friends, who got on the witness stand and told their stories about how she had plotted and planned the entire murder—and told them every detail—didn't go to the police with this information.

According to Rosenberger, there was a perfectly innocent reason to explain why Kim told her friends she wished Steve were dead. She said it started when Kim was just a child and living in Hollidaysburg with her mother and stepfather. Rosenberger got this information from Kim and Kim's friend Rachelle St. Phard.

“Rachelle St. Phard has been Kim's best friend since they met at Baptist high school. They were like sisters and spent many hours together and at each other's houses,” Rosenberger said. “[Kim's] stepfather, Jim, did drink and yell at everybody all the time and made everyone miserable. Rachelle and Kim didn't like him and spent many hours fantasizing, as teenagers might, about things they could do to him, or wishing he would get hurt.

“This was Kim's way of dealing with the pain and putting up with a situation that she couldn't control,” Rosenberger said, adding that Kim's stepfather had changed since Kim was a teenager, and had apologized to her for all the hurt he caused her while she was growing up.

“During their school years there were two other people that Rachelle and Kim didn't like and talked about all the time,” Rosenberger said. “They were both schoolmates. The people they didn't like they would talk about—wishing bad things would happen to them. They never took any action on anything they said. To help deal with it, she did talk with schoolmates. They never took any action on anything they said. Kim's marriage was also a miserable situation that she couldn't change. To help deal with it she did talk with some of her friends about wishing things on Steve. This was a pattern that was started in high school.”

Because she really didn't mean any harm to Steve, Kim wasn't very pleased with the fact that her friends turned against her. In her June 27, 2000 letter to Rosenberger, Kim said she had the information from her explaining how to be a good witness and she asked Rosenberger where she came across it.

“I couldn't help but think, though, that my ex-friends probably think that they did all that. They performed just as they were trained to by the prosecution,” Kim said, adding that it was easy to see just how much they had been manipulated by the prosecution.

In her letter Kim also asked Rosenberger to do some research on a phenomenon called “memory enhancement.”

“It is what happened to the people who were at the scene the night of Steve's death,” Kim said. “They wrote statements that said one thing, but a few months later, sang a completely different tune.”

Kim said what the witnesses at the scene believed happened superceded what they actually saw the night Steve died. She said the same principle also applied to the testimony of her friends.

In another letter dated May 20, 2000, Kim told Rosenberger she never understood what made all her friends feel as though they ought to testify against her. Kim said it was clear to her that one of her friends used guilt to convince the other women to testify.

“I had attributed it to the fact that they were convinced by the prosecutor and themselves that I am guilty, but making them feel somehow partially responsible for Steve's death would be an even stronger tool,” Kim said.

Kim also told Rosenberger she never understood why her defense lawyers didn't think it was important to talk to her friends. She said her friends testified for the side that sought them out. She believed that if the defense team had made any effort to get them to believe in her, they might not have testified for the prosecution.

Several days before Kim's appeals hearing in May 2000, Rosenberger received an e-mail from Texan Gerald Hurst, a Cambridge University – educated chemist who had investigated scores of fires in his career

Hurst was helping Kim's post-conviction attorneys poke holes in the prosecution's case. In the e-mail Hurst discussed the autopsy report, which listed the carbon monoxide level in Steve's blood as normal. Hurst said he had no idea what the pathologist considered normal.

“A heavy smoker will have a level of up to about twelve percent, whereas a nonsmoker will register near zero depending on the environment,” Hurst said. “This leads me to the point that one should always get the underlying data for any conclusory report.”

Hurst said he was sure the pathologist sent the blood sample to a toxicology lab that reported everything it found in numbers, including the values for ethanol, carbon monoxide and the drug metabolites. Hurst said the lawyer should obtain copies of the lab reports.

Hurst also told Rosenberger he had a “far-out” theory about Steve's death which he thought Kim's attorneys should consider.

Hurst gave some background from his own life. He said one day when he was in college, he was sniffing around the chemical stock room at college, using his nose as chemists do in order to develop their ability to identify various compounds.

“I forgot what chemical I passed my nose over. The substance was not particularly pungent but one whiff closed my epiglottis like a mousetrap and I was unable to breath at all for perhaps ten or fifteen seconds. It follows that there are vapors which might cause death by asphyxiation,” he said.

He then told Rosenberger about two accidental death cases he had investigated. He said although the two people died in a fire, no carbon monoxide was found in their blood.

However, he said because both of the decedents were rather old, it could be argued that they died of heart failure from the excitement rather than from the fire. However, their deaths occurred from some combustion product that had the same effect as that laboratory chemical he sniffed while in college.

Hurst told Rosenberger that he thought there was a remote possibility that Steve died as a result of a toxic chemical released by the fire.

“The police said that the pillows contained a fire retardant. They then ran a silly cigar ignition test,” Hurst said.

Hurst called the test silly because any fire expert knew that the elastomeric foam in untreated pillows and mattresses was not very susceptible to a smoldering ignition, but the untreated foam burned fiercely when ignited by an open flame like the open flame that might get kicked out of a stove in the form of a flaming ember.

Hurst said the most common foam in bedding was polyurethane, a nitrogen polymer, which produced, among other things, some small quantity of cyanide gas under fire conditions. If a fire retardant was added to the foam, its combustion products would become more toxic. Therefore, he said, it might be worth looking into the toxicology of the products of combustion of that particular fire, especially with regard to the foam in the pillows and mattress.

The fire expert also said he just couldn't understand how Kim could have injected Steve with the succinylcholine without his cooperation.

“It seems to me that a needle prick would lead to some rather violent reactions before the plunger could be depressed, unless he was passing-out drunk—which the blood test appears to rule out,” he said.

Maureen O'Toole-Miller said Steve's sister Jenny had a theory about how Kim was able to inject Steve with the drug. Jenny speculated that when Kim swiped the succinylcholine from Holy Cross Hospital, she also took some ether, which comes in a bottle and is highly flammable and odorless.

“What we think is she put the ether down on the pillow and got him to lie down and she massaged his back until the ether took effect, then she injected him with the succinylcholine and used the ether to light the pillow on fire,” Maureen said.

 

 

On May 5, 2000 Kim's appellate attorney, Christopher Griffiths, argued before the Maryland Court of Special Appeals that her life sentence should be overturned and a new trial granted. But Kim's friend Cathy Rosenberger said the hearing did not go very well for Kim. Rosenberger said she didn't like the judges' body language or their attitudes. She said one of the judges even made jokes about Monty Python during the hearing. It seemed to Rosenberger that the judges made up their minds even before hearing Kim's arguments.

Griffiths first argued that there was insufficient evidence to prove homicide beyond a reasonable doubt because the prosecution didn't prove cause of death. He also argued that the trial court erred in allowing the medical examiner to testify that the cause of death was probable poisoning. He said without a specific cause of death the medical examiner shouldn't have been allowed to offer his opinion about what killed Steve.

Finally, Griffiths argued that there wasn't sufficient evidence to convict Kim of arson because the state was unable to present evidence that the fire had been set.

“The state's evidence was insufficient to overcome the presumption that the fire in this matter was accidental,” Griffiths said.

Kim wrote to Gerald Hurst in June 2000, thanking him for taking an interest in her case. In the letter Kim told Hurst that his special talents and knowledge might be able to help her, even though no one else could. “Mr. Hurst, I did not murder my husband. Yet proving my innocence seems to be an impossible task,” she said, adding that she had been incarcerated for two years. She told Hurst that Sarah needed her home and she needed to be with her daughter. She begged Hurst to help her and said she was praying for a miracle.

But even with Hurst's help, Kim's miracle didn't come.

In an opinion, dated September 27, 2000, which upheld Kim's convictions, Maryland Court of Special Appeals judge Charles E. Moylan Jr. used quotes from William Shakespeare, Fyodor Dostoyevsky, Sir Walter Scott, Miguel de Cervantes, and others to dismantle Kim's arguments and grab the attention of readers.

Moylan began his opinion with this quote from
Hamlet:
“The play's the thing, wherein I'll catch the conscience of the king.”

Then he wrote, “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 act. As with the murder of Gonzago in
Hamlet
or Pyramis and Thisbe in
A Midsummer Night's Dream,
there is with 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. Michaels.”

Moylan said the highlight of the getaway weekend was the dinner theater murder mystery that the dinner guests were invited to solve. That play was called
The Bride Who Cried.
The real-life drama involving Kimberly might well be called,
The Widow Who Lied,
he said.

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 couple when they arrived at the inn, the judge said. In
The Bride Who Cried,
the wedding feast ended with a champagne toast proposed by the groom to his bride and shared by the actors and participating guests alike. 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, he said.

While the audience identified the culprit of
The Bride Who Cried
within an hour of the staged murder, Kimberly Michelle Hricko, was not indicted for her husband's murder until three and a half months after she contrived his accidental death. Moylan said, “Truth is both stranger and more complicated than fiction.”

And then he quoted
Richard III:
“Thus hath the course of justice whirled about.”

Moylan said Kim raised three contentions in her appeal: that the evidence was not legally sufficient to support the conviction for arson; that the evidence was not legally sufficient to support the conviction for murder; and that the medical examiner should not have been permitted to testify that the cause of death was probable poisoning.

Before getting into the background of the Hrickos' marriage, Moylan quoted the opening line from
Anna Karenina,
by Leo Tolstoy: “Happy families are all alike; every unhappy family is unhappy in its own way.”

Then Moylan talked about how Kim and Steve met and married and how “the domestic skies had been brighter” than they had in late 1997 and early 1998.

Next Moylan explained what happened after Kim reported the fire including the efforts of Philip Parker and Elaine Phillips to save Steve. He said what was obviously called for was some explanation from Kimberly about 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.

To introduce the section detailing Kim's statements to police about the events preceding Steve's death, Moylan referenced this line from
The Dunciad
, by Alexander Pope: “Explain a thing till all men doubt it.”

Moylan said that Kim gave a full account of the missing three hours to Maryland State Trooper Clay Hartness around 2:30
A.M.
Hartness accompanied Father Paul Jennings, who notified Kim of Steve's death. However, Moylan said Kim gave the most complete explanation to Maryland State Trooper Keith Elzey at approximately 5:00
A.M.
The judge then recounted Kim's story of what happened before Steve died.

Moylan said Kimberly's attempted explanation became part of the proof of her guilt. He said that it was a forensic fact of life that if a statement designed to prove that a person was not guilty of a crime was not believed, it then became highly incriminatory. In prosecutorial jargon, Moylan said that was called the “false exculpatory,” and it served to prove the consciousness of guilt. Indeed, her explanation began to unravel even as it happened, he said.

The first improbability was getting lost—not just getting lost, per se, but getting lost for two hours, Moylan said. The fact is that Easton is no more than a fifteen-minute drive from St. Michaels—a thirty-minute round trip. It probably didn't make sense to the jury that Kimberly would get lost for such a long period of time in such a confined area, especially since Kim had driven to the Millers' house in Easton just ten weeks earlier, he said. And, he said, Kim's brother lived just two blocks away from the Millers.

Moylan also questioned why Kim just didn't call the Millers or her brother for directions. The judge said when Kim told Maureen O'Toole-Miller that she was trying to find her house for nearly one and a half hours, Maureen asked the question the jurors would have asked themselves and received an improbable answer – that she didn't want to call because it was too late.

Kim's explanation just didn't make sense, the judge said. Moylan wondered why Kim didn't want to wake up the Millers with a telephone call when she fully intended to wake them up by ringing the doorbell.

Moylan also noted that Kim's attempted explanations that Steve was drinking heavily before he died simply generated greater and greater disbelief, especially since the medical examiner's report indicated his blood alcohol level was 0.00.

Before beginning to address the incongruities in Kim's story as well as her behavior, Moylan quoted from “To A Mouse” by Robert Burns: “The best laid schemes o' mice and men gang aft agley; an' lea'e us nought but grief and pain.”

“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.