But in 2011, Maryland’s highest court threw out the conviction, saying that crucial information had been wrongly withheld from jurors. Smith’s retrial began Aug. 30.
Trial Day 2
Aug. 31, 2012
9:10 a.m.: Montgomery County Circuit Court Judge Eric M. Johnson enters the courtroom. A few minutes later, defense attorney Barry Helfand compliments Johnson on a speech he gave Thursday at the swearing-in of a new district court judge.
“You were fabulous yesterday,” Helfand said. “For a guy with no sense of humor, you certainly had one.”
“I write my own stuff,” Johnson said.
9:18 a.m.: The jurors file in, pick up the notebooks they left behind after Day 1 of the trial, and sit in green seats directly in front of Glenda and Otto McQueen, the mother and brother of Michael McQueen, who was found dead of a gunshot wound in September 2006. Gary Smith, who was charged with a form of second-degree murder known as depraved heart murder, sat at a table with his attorneys.
:21 a.m.: Prosecutor Robert Hill calls Rafael Ferrer, a former high school football buddy of Michael McQueen’s.
McQueen and Ferrer formed a “natural bond,” Ferrer said. “He was a wide receiver, and I was quarterback.”
The two had hung out for a couple weeks in August 2006, shortly before McQueen’s death.
Asked by Hill about McQueen’s DUI in Georgia, Ferrer gave these details:
Ferrer, McQueen and a female friend went to Vegas Nights, a night club. After the woman passed out, McQueen helped her to the car and drove Ferrer to Ferrer’s girlfriend’s house. Even though McQueen had been drinking, Ferrer said he felt safe driving with him, and that McQueen didn’t weave on the road.
But McQueen got lost on the way home, and was pulled over and arrested for drunken driving. By the time Ferrer picked him up the next day, he was flirting with a female officer. “He was calling her by her first name,” Ferrer said.
His friend looked “like a guy who had a good night that didn’t end that well,” Ferrer said.
Helfand quizzed Ferrer on the types of drinks the men preferred. They tended more toward mixed drinks than beer, Ferrer said.
10:51 a.m.: Deputy State’s Attorney John Maloney calls Justin Jones, a friend and former Ranger. The jury was shown a picture of them together, in uniform, at a formal Ranger ball.
Maloney asked whether all Rangers drank.
“Yes, sir,” Jones said. “It was very common for Rangers to drink.”
In Afghanistan, Jones worked in counterintelligence and did battlefield interrogations. McQueen was an intelligence analyst, as was Gary Smith, Jones said. McQueen would say he was part of the “PowerPoint Rangers,” which included presenting intelligence to higher-ups, but generally meant “staying in the rear.”
Jones’s nickname was Jerk. Mike’s nickname was Showtime.
McQueen told him: “Hey Jerk, I got a DUI,” Jones said, and was “very casual” about it.
When Helfand asked whether there was ever a time McQueen seemed sad about anything, Jones answered that “Mike was not a sad guy.”
What about a single time McQueen might have been worried about anything?
Jones said a woman McQueen had been romantic with “was late getting her menstrual cycle and she possibly could have been pregnant.”
11:25 a.m.: Maloney called Kahn Sejour, a longtime McQueen friend, who had been in the Marines.
Sejour said he and McQueen spoke by phone shortly before his death.
“He said he was ready to move out,” and that Gary Smith “was kind of weird.”
Helfand pressed him on what McQueen meant.
“Dude was kinda weird,” Sejour recalled McQueen saying. “He didn’t really shower that much.”
Sejour also said he didn’t like the way Helfand had been characterizing McQueen up to that point. “The way you’re trying to portray him, it doesn’t make me feel right,” he said, then asked Helfand to back up and not be so close during the questioning.
Sejour said later that if McQueen were in the courtroom, he would bring a smile to everyone, even Helfand, who Sejour said was frowning.
Helfand said his expression was really about the fact that he wished that McQueen was indeed with them in the courtroom.
“You’re not the only one,” Sejour said.
12:08 p.m.: Shaieyann Williams, McQueen’s former girlfriend and a bartender, sat on the witness stand.
They had met in a chance encounter at a high school parking lot. They had broken up, and McQueen later had a relationship with the woman he thought might have become pregnant.
“He was a good person, we loved him,” Williams said.
A few days before McQueen died, they spoke on the phone.
“He was saying he missed me and wanted to see me,” she said. “Maybe later in the week, he was going to fly me out. It didn’t happen.”
12:16 p.m.: Judge Johnson sent the jury to lunch.
1:53 p.m.: Officer Joseph Marion II told the jury he drove up to 414 North Summit Ave. and saw Gary Smith outside screaming, crying hysterically, and covered in blood, repeating: “He’s dead, he’s dead.”
Marion, who is now with the Philadelphia police but was then an officer with the city of Gaithersburg, heard blaring noise from apartment No. 202. Michael McQueen was lying back in a chair, dead, “with the TV blasting.”
It was so loud, he and another officer couldn’t talk even when within a foot or two of each other. He turned the sound down on the TV.
Helfand asked him to read to the jury from his handwritten notes describing the scene and his actions, particularly the section where it said he had turned down the TV.
“It does not say that,” Marion said. The notes were not meant to be comprehensive, Marion added.
Prompted by Helfand and looking at a copy of his notes, Marion recollected that, at the time, he had described “massive amounts of blood on Smith’s face, hands and shoes.”
Helfand quickly gave the court a number of pictures of Smith, some of which did not show him covered in blood. Marion acknowledged that he did not “see any red marks” in particular areas.
2:39 p.m.: Letina Warner, an Army logistics specialist from Virginia’s Fort Eustis, testified about her brief romance with McQueen in 2006.
She told him by text and phone a week or two before he was found dead that she was not pregnant.
He told her he couldn’t join her on a trip to wedding reception because said he was “low on funds,” she said.
They were just friends, not dating, she said. Helfand asked her if she and McQueen talked about being a “power couple,” with her becoming a doctor, and she said they had not. That phrase had been used earlier in the trial by McQueen’s mother, Glenda McQueen, in discussing her son’s thoughts about the relationship.
3:01 p.m.: Gaithersburg police officer Lester Rice said Gary Smith appeared upset and was crying “forcefully” on the night McQueen died.
But, he added: “Even though he was crying, I didn’t see any tears coming from his eyes.”
3:13 p.m.: Vietnam veteran Carl Davis used a buzzing artificial voice aid to tell the jury that he saw McQueen and Smith playing pool together at a VFW post the hours before McQueen was found dead.
McQueen asked for an application to join the group.
“They were both very, very happy,” and getting along very well, Davis said.
Helfand pushed Davis, asking him to reiterate if he had said the men were “very, very” happy?
Judge Johnson cut him off
“Very, very?” Johnson asked. “You got a happy meter?”
Jurors cracked up at the judge’s quip.
As the afternoon wound down, a neighbor testified that he heard doors slamming shut and someone walking up and down the apartment building stairs near the time of McQueen’s death, and a Montgomery County police officer testified about finding a .38 caliber bullet in Smith’s messy car.
Another Montgomery police officer, Greg Knott, testified that he had taped paper evidence bags around a distraught Gary Smith’s hands so they could be tested for gun shot residue. Smith was cooperative. Knott said he didn’t have the usual kit for collecting such evidence, which includes plastic bags that look like short dishwashing gloves, so he made do with paper.
4:35 p.m.: Judge Johnson sent the jury home for the three-day weekend with instructions to avoid news about the case on their iPhones or computers. A juror asked him if it was safe to read the Wall Street Journal, and Johnson said that should be fine.
After the jurors were gone, Johnson told the lawyers he was concerned about one of them. He said he had been researching the law on when he can excuse a juror, and was considering shifting the juror into one of the two alternate juror spots. (The jurors don’t know who the alternates are.)
“I’m keeping my eye on this particular juror,” Johnson said, noting that the person had “not taken a single note” so far and that it escapes him how the juror could possibly keep what will be more than two weeks of testimony straight without notes. “The person maybe has a photographic memory, I don’t know.”
But Helfand asked Johnson not to remove the juror.
“Our business is guessing about jurors,” Helfand said. “He looks to me like the kind of juror . . .who might hang a jury.”
Read about Day 1 of the trial.