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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 255 September Term, 1999

KIMBERLY MICHELLE HRICKO

v.

STATE OF MARYLAND

Moylan, Thieme, Sonner, JJ.

OPINION BY MOYLAN, J.

Filed: September 27, 2000

-2"The play's the thing, Wherein I'll catch the conscience of the King" ... Hamlet Act II, Scene ii Taking State, what that version is of the the facts most of an favorable estranged to the

unfolds

melodrama

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 in a random or is accident. "Pyramis within and this As with "The in A Murder of

Gonzago" Night's

Hamlet

Thisbe"

Midsummer a play

Dream,

there

real-life

drama

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. dinner-theater A highlight of the getaway weekend was a mystery which the dinner guests were

murder

invited to solve. Who Cried." Who Lied."

That play within a play was called "The Bride

Our real-life drama may well be called "The Widow

"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

-3In 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. 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 firstdegree arson. 1) On this appeal, she raises the three contentions that the sufficient for arson; evidence was not legally to support the conviction Truth is both stranger and more complicated

-42) 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." "Happy families are all alike; every unhappy family is unhappy in its own way." ...The opening line of Anna Karenina Nine years into their marriage, Steven and Kimberly Hricko were an unhappy family. been brighter. to Steven and Time was when the domestic skies had

3)

Mike and Maureen Miller were the couple closest 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. Maureen who first met They dated steadily after that. Kimberly, as they worked It was as

together

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

-5that 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 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

-6from 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 and drugs following an operation. It was Mike Miller who was responsible for bringing the Hrickos to Harbourtowne 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 Harbourtowne, 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 As Mike Miller testified:

and Kim "this time away."

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

-7and 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: 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

-8back two weeks conversations. later, we had more

Rachel McCoy had been a friend of Kimberly since their days together in State College. once a week. 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 about him? express at all how she felt Over the years, they talked at least

In September or October of 1997, Kimberly confided

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. 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 Kimberly's claustrophobia. Thanksgiving smouldering and Christmas of burst 1997, into however, raging

discontent

What was the spark?

Cherchez l' autre homme!

He arrived during the last week of November.

-9Jennifer Gowen was to be married on November 29 and Kimberly was to be her matron of honor. One week before the wedding, It

Kimberly hosted a bachelorette party for Jennifer in Easton.

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 The next day, the wedding party

at the Hricko home in Laurel.

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 He reappeared at

the eye of the discontented matron of honor.

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." Norma Walz

Initially, Kimberly was simply a good listener. described a conversation she had with Kimberly

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

-10got 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. 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. both the As a dutiful cousin, Brad volunteered to be for the honeymooning couple and the Again, Norma Walz described a conversation with

house-sitter

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. himself pinpointed the moment when the companionship Brad turned

sexually active:

-11I 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? they were still on their

A: Yeah, honeymoon. Q: A:

After that, where would you meet? At my aunt's house where I lived.

As the affair reached the combustion point, the incendiary effect on Kimberly of was such that she she virtually telephoned lost all

semblance

control.

Compulsively,

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

-12phone to Norma she Walz in Port Orchard, the Washington. fact that she Again "was

incautiously,

could

not

contain

having an affair with Brad" and that "he was very affectionate and she really loved him." restaurant in Laurel that It was on New Year's Eve at a 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. about sex."

This is just

"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 coworker at Holy Cross Hospital. Kenneth Burges 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,

-13coincidentally, 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 He wheeled around, thinking that it When he saw that she was deadly

him to kill her husband.

had to be some sort of a joke.

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. went on to ask if he knew "somebody that

She nonetheless would kill her

husband."

She mentioned, moreover, the figure of $50,000 as the After it became clear that Ken Burges had no

contract price.

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."

-14Whether 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 with listen. her In a and New Year's Eve

restaurant

conversation

friend

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 money, so her and Anna can live their life the way they wanted, the way that she wanted to live her life." conversation Steven. insurance came Ms. Armstrong stated that that snippet of just after Kimberly that had from mentioned two killing life as

Other

evidence on

showed Steven

separate Hricko,

policies

Hricko,

Kimberly

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 co-worker at both Holy Gross and Suburban Hospitals and Brad Winkler's

cousin.

After sharing with Jennifer "quite a lot of details intimate contact" with Brad and about how "very

about [her]

-15happy [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." was obviously in trouble. In succeeding conversations with Jennifer, Kimberly's The marriage

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"

-16and "that if he did that, then they 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 Sustinalcolene: We had a discussion about a case history where a woman had injected some children with Sustinalcolene 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

Sustinalcolene 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.

-17Q: 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, 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. went out to to dinner her more with a at friend. 9:30, When there Rachel were Rachel then subsequently five or on six her

returned

home

progressively

frantic

messages

from

Kimberly

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.

-18Rachel 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 I'm 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. Q: A: Did she tell the plan to you? 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 a fire 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 Rachel

story" but that Kimberly "had answers for everything."

-19urged 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? . . . She told me that the house wouldn't burn down because there's always neighbors up in that neighborhood and they would see the

-20fire 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 traceable in the blood. me that it wasn't

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. Kimberly went upstairs ostensibly "to use

At about 1:30 A.M., 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:

-21Steve was sleeping on the bed and she was staring, on the other with her arms down standing there. And I back downstairs. the opposite side of just standing there side, staring at him at her sides, just just told her to come

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 Rachel waited for another

"did go upstairs and go to sleep."

twenty minutes to make certain that the immediate crisis had passed and then left for Baltimore at approximately 2 A.M. spoke by telephone with Kimberly early the next She

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

-22Three separate expert witnesses--1) Dr. David Fowler, the Deputy Chief Medical Examiner for the State of Maryland; 2) Marc LeBeau, a forensic in chemist and toxicologist and 3) Dr. with the Wex, to FBI the the It

Laboratory

Washington, at Holy

D.C.; Cross

Timothy

anesthesiologist

Hospital--testified

as

effects and the characteristics of the drug Sustinalcolene. 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." dangerous . . . because . . . you stop breathing." "It's very 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." monitored. take effect In such a setting, it is closely

Mr. LeBeau also testified that Sustinalcolene can within and five seconds less than of a being minute administered of being

intravenously

within

administered intramuscularly. natural defenses almost

He pointed out that the body's break Sustinalcolene down

immediately

into two component parts that are found naturally in the body, so that "within a few minutes you may not be able to detect Sustinalcolene in a blood specimen. It happens that quickly."

-23Dr. 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 Sustinalcolene. 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 would have to be introduced? A: Exactly. ventilation

-24He 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." "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 temporarily prorogued "Appointment in Samara"

Steven Hricko's

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. they mutually committed themselves to an Ostensibly, effort at

reconciliation.

Steven genuinely gave himself to the effort. charade. She described to Theresa

For Kimberly, it was a

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.

-25She 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": 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).

-26In 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." however, of her own Her description,

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 Kimberly acquiesced in

Miller make the necessary reservations. the plans for Valentine's Day.

Brad Winkler, incidentally, was

due to be out of town on that weekend on an official assignment.

-27As February 14 drew closer, the juxtaposition of respective attitudes toward the impending Valentine's Day getaway is stark pathos. 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 The note On February 9, Steven committed his hopes to his

leave her Valentine's Day gifts to him in his bedroom. 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

-28On 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? 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 At

arrival, they were presented with a bottle of champagne.

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

-29this case requires the filling the gap in of the that "long ... three the

hours" between

"aftersupper"

dining

room

and

"bedtime" in the cottage. witness flawed. to that interlude

Kimberly Hricko is the only living and her account was suspiciously

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, the was room also fire. standing After in the lobby when Kimberly the

reported

Elaine

Phillips

checked

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 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

-30ultimately was able to drag the body onto the back porch. His

Steven Hricko was already dead when dragged from the room.

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. testify at her trial. She did not

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 Day evening news with come her on. Despite that they a prewould

Valentine's

covenant

husband

-31refrain from having sex during the weekend 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 She stated that she was not She then,

several persons for directions.

familiar with Easton and could not find the Millers' home. stated that she could not even find Route 50 and

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 She reached She then

further open, she was met by a wall of thick smoke.

inside to feel for a light switch but with no success.

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

-32that 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? fact of life that

It most assuredly did. an exculpatory effort

It is a forensic is disbelieved

that

thereby becomes highly inculpatory. is called the "false exculpatory."

In prosecutorial jargon, it In the algebra of production Kimberly's in several

burdens, it goes to prove consciousness of guilt. attempted regards. explanation fell into that category

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. no more than a fifteen-minute drive from St. Easton is a

Michael's,

thirty-minute round trip. jury an inordinately an area. long

Two hours could have seemed to the time to had be lost in so relatively herself

confined

Kimberly

been--indeed,

had

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

-33hours 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? alternative, why not call her brother Michael? knew she had a cell phone with her in the As an

Kimberly had and car. It was

operational, as she demonstrated at approximately 1:20 A.M. when she called 911. heart. Kimberly, moreover, knew the Millers' number by

She recited it to Trooper Hartness who she asked to call As Bonnie Parker

Mike Miller for her at a little before 2 A.M.

said, she "rattled it off." By 8:30 A.M. on February 15, Maureen Miller had joined Kimberly at Harbourtowne. 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?

-34Kimberly's consistently explanation to of the missing three hours She also told

referred

Steven's

intoxication.

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

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 The autopsy on

collectively was $5.51, the price of two beers.

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 When confronted

purchased more beer to take back to the room.

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

-35heavily 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 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. with the A reasonable person, returning to her hotel room purpose of going to bed and suddenly

ostensible

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, Where

contained five other units, all of which were occupied.

one would have anticipated screams to pierce the very fabric of

-36the 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: A: Q: This is all right here in the lobby? Yes. 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.

-37(Emphasis supplied). Elaine Phillips elaborated on Kimberly's restrained demeanor 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.

-38Q: 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 displayed supplied). a sang-froid As a tell-tale her reaction, fate Kimberly that was

about

husband's

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 demeanor?

-39A: 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 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 about the commission of a crime, not to exhibit anxiety death

detection.

Kimberly's

behavior

after

Steven's

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 Such with

adequately obliterated a puncture mark made by a needle. a reading takes on greater plausibility in conjunction

Kimberly's

later concern to learn

the autopsy results and her

strong desire that Steven's body be cremated.

-40It 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 might have from an accidental room fire, Kimberly's curiosity 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 In all to the

offered to help Kimberly with the funeral arrangements. respects but one, Kimberly was largely indifferent

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:

-41[S]he let it be known that it was fine with her if we took care of it all except that the cremation was decided on and that any other aspects she didn't have a strong opinion on but that it was up to us. A day later, Jennifer Hricko picked up Kimberly to take her to the funeral home. She described the anxiety exhibited by

Kimberly because "there had been some hold up on releasing the body for cremation": She explained when she was in the car that she was too anxious. She didn't feel that she was up to driving herself. She was pretty anxious. In fact when I picked her up at the curb she was, she appeared to be restless. She was walking up and down, pacing, and in an anxious manner. She got in the car. She affirmed that she felt too anxious and shaky to drive herself and that is why she had wanted someone to drive her to the funeral home. And the reason being she explained was that there had been a hold up on releasing the body for cremation and that she was instructed to come to the funeral home to, I believe maybe sign some papers to have that, the go ahead, to fax, they would have to fax that signature down I guess somewhere in Baltimore or down in Maryland. And she was concerned. She didn't quite understand why. She felt she had taken care of all those arrangements prior to coming up to Pennsylvania. (Emphasis supplied). Why the great concern over cremation? Self-evidently, the

destruction of yet undetected evidence of poisoning in the body of the victim would be an end much to be desired and any

-42unexpected "hitch" in that aspect of the concealment, a cause for significant alarm.1 A week after Steven's death, a conversation Kimberly had with Maureen Miller would also have sent up a red flag. After

coming to Easton for a follow-up interview by Trooper Elzey, Kimberly spent the night with Mike and Maureen Miller. The

following morning, Kimberly made a special request of Maureen Miller. She asked her to contact Jennifer Gowen, Theresa

Armstrong, and Rachel McCoy by phone and to discover what, if anything, any of those three friends had revealed to the police. Maureen Miller testified: She asked me to call them and find out what statements they had made to the police. To seek to learn what friends have been saying to the police is not normal behavior for one who has recently but innocently been widowed. Several conversations that Kimberly had with her friend

Theresa Armstrong shortly after being taken into custody also betrayed a consciousness Kimberly and of guilt. In one were of those

conversations,

Theresa

Armstrong

discussing

which of Kimberly's friends "had given some information to the

See, e.g., Jones v. State, 716 S.W.2d 142 (Tex. 1986), a case where a victim's body was exhumed eight months after her death and a gas chromatography mass spectrometry test revealed in the victim's tissues the theretofore undetected presence of Sustinalcolene. Kimberly incurred no such risk in this case.

1

-43police." Kimberly indicated that she was sure it had been

Rachel McCoy.

The conversation then turned to the question of

how much Rachel McCoy knew: A: I asked her, did you tell Rachel exactly what you were going to do? Q: A: Q: A: What was her answer? Yes. She answered you yes? Yes.

(Emphasis supplied). In another telephone conversation between Kimberly and Theresa Armstrong, Ms. Armstrong asked Kimberly

"how she felt about what happened in Harbourtowne the weekend of Valentine's Day." The answer was:

[S]he told me that she was feeling a lot of remorse. A conversation Kimberly had shortly after her arrest with Jennifer Gowen was even more revealing. Jennifer was visiting

Kimberly in jail and their conversation turned to the subject of the insurance money on Steven's life: Q: Did you have any questions to her about money? A: Q: In the jail? Yes.

A: Kim said that I don't care what anyone says, it wasn't for the money.

-44(Emphasis supplied). That was obviously a revelation as to her

motivation and the rhetorical question that needed no answering was, "What wasn't for the money?" In her second interview with Trooper Elzey on February 23, Kimberly teetered on the brink of a confession. Trooper Elzey

confronted her with his knowledge about her affair with Brad Winkler. Although subsequently acknowledging it, Kimberly was

initially stunned: At that time she never said nothing. She just stared. I advised her that ... we knew of her affair that she was having with Brad Winkler. At that time she still never said nothing. She just sat there and stared. And then she finally placed her face in her hands and looked up and said, yes. She was then confronted with the autopsy report showing that Steven had a blood alcohol content of 0.00. Her reaction was

just to stare for a second and then protest that she did not understand how that could be. She was finally confronted with

the fact that the autopsy report revealed that "there was no carbon monoxide or soot found in her husband's body." point, she appeared ready to confess: And again she stared and didn't say nothing and then she stared some more and she said I don't understand why. I don't understand. At that time, she hesitated and never said nothing and then she kind of bowed her face down towards her hands and started crying. She continued crying. I said to her, At that

-45Kimberly, please tell me what happened that night. And she continued crying. She gets up out of her chair, walks over and sat in another chair where she continued crying. Again I said please tell me what happened that night. Kimberly said to me, if I tell you what happened, can I go home tonight and see my daughter. I stated to her, Kimberly, please just tell me the truth and what happened the night your husband died. Kimberly looked up and stated to me I want to tell you but I want to see my daughter first. I told Kimberly, I said, Kimberly, I will make arrangements for you to see your daughter. She hesitated, sat there, looked up again and Kimberly stated to me, I really want to tell you the truth, but can I still go home? (Emphasis supplied). The statement "I really want to tell you

the truth" clearly implied that she had not earlier told Trooper Elzey the truth. The Maryland law enforcement establishment is

apparently not as relentless as popular legend would sometimes have us believe, for at that point Kimberly, obviously ready to break, was allowed to go home. "The proof of the pudding Is in the eating" ... Don Quixote Part I, Book IV, Ch. 10 At this point in our recital of the evidence, it may well be the case that testimony from several State experts as to 1) the nature of the fire in Room 506 and 2) the literal cause of Steven Hricko's death is already superfluous, at least in terms

-46of generating a prima facie case. Kimberly's appellate

contentions, however, are obsessed with that expert testimony. Two of her contentions, focusing on the expert testimony, go to the legal sufficiency of the evidence to prove 1) the corpus delicti of arson and 2) the corpus delicti of murder. The third

contention is an evidentiary one, concerning the admissibility of the expert opinion of the Medical Examiner. Kimberly would like to look at the evidence supporting the corpus delicti of arson in a vacuum, as if only the physical examination of the fire scene by the Fire Marshal had pertinence and as if all of the other evidence in this case, heretofore discussed in elaborate detail, had no bearing whatsoever on the question. Kimberly would like to look at the evidence

supporting the corpus delicti of murder in a separate vacuum, as if only the physical examination of Steven Hricko's body by the Medical Examiner had pertinence and as if all of the other

evidence in this case, heretofore discussed in elaborate detail, had no bearing whatsoever on that question. Unfortunately from the defense point of view, that is not the case. totality. The State's case on all charges is an intertwined As we engage in a discussion of Kimberly's As we

contentions, one overarching observation is in order.

evaluate the evidence of arson, all of the evidence of murder,

-47indicating that the fire itself may simply have been part of a murder scheme, will also be considered because of the bearing it has on the question of arson. Conversely, as we evaluate the

evidence of murder, all of the evidence of arson indicating that the fire was deliberately set in an effort to conceal the true cause of death, will also be considered as it bears on the corpus delicti of murder. The evidence of arson and the evidence of murder are not in mutually exclusive watertight compartments. In evaluating both legal sufficiency claims, moreover, Kimberly will not have the benefit of hypothetically prevailing on her third and evidentiary contention. In determining the legal

sufficiency issues, we will look to the expert opinion as to the cause of death that that came into evidence, should not simply come in. to the One

evidence

Kimberly

agrees

have

appellate contention may not "bootstrap" another.

"Those that with haste will make a mighty fire Begin it with weak straws" ... Julius Caesar Act I, Scene iii With respect to the purely physical phenomenon of the fire in Room 506, the key State's expert witness was Deputy Michael Mulligan of the Maryland State Fire Marshal's Office. At the

-48time the first police officers and fire-fighters entered Room 506, they confirmed that the prostrate body of Steven Hricko had been lying on the floor, between and parallel with two twin beds. head. Deputy Mulligan testified that the point of origin of the fire was those two pillows. He testified that intense heat from Two badly burned pillows had been beneath Steven Hricko's

the flaming pillows caused the fire to spread to an adjoining bedspread and that that, in turn, caused the mattress on one of the beds to be burned completely through. impingement on the headboard of that There was also flame bed and on the wall

adjacent to the burned bed.

The carpet in various places around The body of Steven Hricko was

that bed also showed burning.

badly charred from the chest area upward to the top of his head, including his upraised left arm. Deputy Mulligan was of the

opinion that the fire had burned for between five and fifteen minutes but then burned itself out when the oxygen level in the room fell below the point where it could sustain the fire. A significant aspect of the fire scene investigation

involved the process of elimination.

Deputy Mulligan testified

that 1) lightning could be ruled out as a cause of the fire, 2) spontaneous combustion could be ruled out, and 3) the fire did not have an electrical origin. Two possibilities remained. One

-49was careless smoking, which we will discuss more fully in a moment. The other possibility was a fireplace in the room.

Deputy Mulligan "eliminated" that as a possible source of the fire: [T]he only source of fuel in there ... was the store bought easy-light log. When I got there, it was still warm but it had been out obviously ... for some time and you had the crust of ash there with the paper match still eviden[tly] stuck into the ashes. I don't believe it's possible for a spark to have generated from that log and come out the doors and travel that distance to those pillows and ignited those pillows. It's physically impossible. As we shall discuss in a moment, he also eliminated There is

"careless smoking" as the possible source of the fire.

no dispute but that the expert testimony of Deputy Mulligan was that all of as these the aforementioned cause all of the in possibilities fire. Those could be

eliminated eliminations

respective Horne,

were

received

evidence.

Judge

however, would not allow Deputy Mulligan to offer his ultimate opinion that the fire was "incendiary" in nature. He felt that

the process of elimination employed by Deputy Mulligan, though itself admissible, was not adequate to serve as a predicate for the ultimate opinion that the fire had been "incendiary." ruled: In this case the expert, Mr. Mulligan, has attempted to prove that this was an He

-50incendiary set fire by the use of negative evidence saying it wasn't this, it wasn't that, and it wasn't this. I can't think of anything else and so therefore, it must have been incendiary. It couldn't be accidental. It couldn't be spontaneous. Had to be incendiary. ... I don't know that we have an exhaustive list from Mr. Mulligan of all the potential accidental or spontaneous causes of a fire. ... I don't think that his negatives are sufficiently complete to permit the introduction of his opinion as to the incendiary nature of the fire. ... The Court finds in this case that there has not been the proper foundation and accordingly without such proper foundation, the testimony of Mr. Mulligan as to the type of ... the fire incendiary, accidental or spontaneous will not be permitted to be introduced into evidence and the jury will be instructed to disregard the opinion that he expressed. In arguing to that the the State's evidence for was not legally arson,

sufficient

sustain

conviction

first-degree

Kimberly relies exclusively on that evidentiary ruling by Judge Horne. She blithely equates the inadequacy of the predicate for

Deputy Mulligan's ultimate expert opinion with the inadequacy of the predicate for permitting the charge of arson to be submitted to the jury. As expressed in her appellate brief, her argument

draws no distinction between Deputy Mulligan's opinion and the State's total case: In the case at bar, the evidence was equally insufficient. Mulligan was able to identify the area of origin of the fire, but was prohibited from rendering an opinion that the fire was incendiary in origin.

-51There was no accelerant detected, and there were several potential accidental sources for the fire. The state therefore failed to overcome the presumption that the fire was accidental in origin, and the evidence was insufficient for a conviction on the charge of arson. (Emphasis supplied). The appellant's brief doggedly confuses what was before

Deputy Mulligan with what was before the jury: It is significant to this issue that the trial court found an insufficient factual basis for Mr. Mulligan to render his opinion. It is difficult to conceive that there could have been insufficient evidence for an expert to render an opinion that a fire was incendiary, but sufficient evidence for the jury to make that same finding beyond a reasonable doubt. (Emphasis supplied). The jury, of course, was not limited to a

physical examination of the fire scene and was not asked to render an expert opinion based upon such a physical examination. K

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