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 5
Sept. 6, 2012
Maryland Assistant Medical Examiner Carol Allan was sworn in. Defense lawyer Barry Helfand objected to an autopsy report being allowed, but Judge Eric M. Johnson overruled that objection.
Allan described the cause of Michael McQueen’s death for the jury: “A contact gunshot wound to the right temple.”
A bullet tore through McQueen’s scalp and skull, fragmenting as it moved from the right side of his brain to the left, Allan said. She said she knew this because the top of McQueen’s skull was removed and the brain was examined.
Deputy State’s Attorney John Maloney looked at Glenda McQueen, the victim’s mother, and she signaled that he should continue.
Allan said the “wound path” was “very slightly front to back and slightly upward.”
She said McQueen died quickly. His kidneys still appeared red-brown, like the table before the jury, not pale, one of many indications that his blood pressure fell before he could “bleed out,” she said.
Maloney asked her official conclusion about the manner of McQueen’s death.
“The manner of death was determined to be homicide,” Allan said, adding that the conclusion was based on results of the police investigation.
She told the jury that a number of “very concerning things” emerged in the course of that investigation.
“There wasn’t a gun found at the scene. It had been removed and disposed of,” she said.
The defendant, Gary Smith, had also told different stories about the incident, she said.
She also saw photographs of the blood pattern from the scene.
“There were voids where something blocked the flow of blood,” she said, adding later: “There was something blocking the flow when it was gushing” out of McQueen’s head.
Helfand launched a confrontational series of questions, pressing Allan on why her office received McQueen’s body Sept. 26, 2006, for the autopsy but did not issue a conclusion on the manner of death until Nov. 6.
She said her office’s work was marked “pending” as the police investigation continued.
She also said McQueen’s comments after a DUI arrest did not provide “clear and convincing” evidence that he engaged in “risk-taking behavior” or was depressed. In most cases, there’s a clear motive for a suicide, she said, and she didn’t see one here.
Helfand, in pressing her about the time it took to reach the homicide ruling, shifted between similar sounding words to describe her actions. He would sometimes ask about how she “appended” her decision, and at other times quizzed her on how she “upended” her decision.
Under his questioning, Allan also stated that she is not a blood spatter expert.
Montgomery homicide Detective Jim Drewry said he got a call at home around 2 a.m. on Sept. 26, 2006, and headed to the Gaithersburg apartment building where McQueen was found dead.
He stayed maybe half an hour, then went to police headquarters. Gary Smith was soon brought there as well.
They sat in an 8-foot by 10-foot interview room with fellow Detective Deborah Haba. A metal table was bolted to the floor, he said.
Maloney gave Drewry evidence bags holding socks, tennis shoes and blue jeans Drewry had taken from Smith that night.
He then showed Drewry a stack of DVDs of the resulting interviews. A technician began playing the first one on a pull-down screen behind the defense table, and on a TV beside the jury box. Smith and lawyer Andy Jezic pulled their chairs back so they could see, and Drewry watched from the witness stand.
The screens showed Smith in the interview room, being photographed. Smith was taken to the bathroom at 3:25 a.m. For a while, he was alone back in the room, resting his head in his hands.
Haba began quizzing him: name, birthday, how long did you know McQueen? Drewry asked Smith if he was drunk.
“Sober as I’ve ever f------ been,” he replied.
“Do you want to talk to me about what happened?” Haba asked.
Smith said he and McQueen were “chilling” at the apartment for a while, then went drinking at the VFW until they were kicked out because it was late. They moved to another bar, the Village Café.
Smith drove McQueen back to the apartment, dropped him off, then drove to his mom’s place to pick up a laundry basket with clean socks, he said. He returned to the apartment, came in, and saw McQueen “all slumped over.”
“I tried to pick him up” and put him back up on the chair, he said.
He thought the liquid on the floor was maybe spilled beer, then realized it was blood, he said. He ran to the car to get his cell phone, and called 911.
Smith described having marijuana in the house. Later, he could be seen crying. He said he rushed outside because the cell service was bad.
Haba asked if McQueen had a “beef with anyone.”
“It wasn’t like we were drug dealers or anything,” Smith said.
Smith described an earlier argument with “these Mexican guys” who lived in a nearby building. He said that at some point in the past, McQueen had said: “I was about to whup those guys’ a----.”
Haba asked if the blood on Smith’s hand came from repositioning McQueen. “I don’t know,” Smith responded.
Soon after that point in the video, Smith’s sister, who was sitting in courtroom, stood up and walked out in tears.
Haba asked about the laundry basket and socks. Smith said it was still in his car, “because I’m a lazy a------.”
Smith, appearing distraught, asked: “No one else called the cops? There was blood everywhere. . .There’s a f------ quarter-sized hole in the guy’s head.”
Smith said he was reminded of a situation when he had a gun stolen while he was away from his home. He said he thought a Jamaican man took it. Neighbors were no help in that case, he said, adding that illegal immigrants come here and don’t want to put down their names.
He said some “hajis” moved in next door.
Later, Drewry asked how many guns Smith and McQueen had.
Smith said he owned a .45 pistol, a 9mm rifle, a shotgun, and a Romanian rifle and AK-47, and that they were kept at his mother’s house. He said McQueen told him he had sold a gun because he had run into money trouble.
Smith mentioned that McQueen had been in Florida, adding that something “really bad” must have occurred to make someone want to come up and kill him.
After more back and forth, Drewry asked how McQueen died and who did it?
Smith described the circumstances again: McQueen was home eating Roy Rogers. Smith went out to get some too. They went drinking.
Did you and McQueen have “any kind of beef?” Drewry asked.
No, Smith said. McQueen was his “best friend.”
But best friends can have problems too, Drewry said.
“We didn’t have any problem,” Smith said. They were “fine as wine.”
Drewry asked if McQueen was “lit up.”
“No, he wasn’t drunk. Mike could drink a bottle of vodka and walk,” Smith said.
Judge Johnson told the jury to take a break. Smith, in a grey suit, smiled and chatted with the deputy sitting behind him in the courtroom, and picked up the smart phone she accidentally dropped on the floor.
The DVD started again.
“He wasn’t drunk. He was fine,” Smith said.
Drewry asked Smith about noticing the blood.
He didn’t notice right away, Smith said. Only after he looked at his hands.
Later, Drewry asked, “Did you and Mike get into it?” Drewry added that it’s usually easiest “to tell the truth and not make things up as you go along.”
“You always screw yourself up” because you’re not “thinking right,” Drewry said. “Lies are easy to forget.”
“You think I killed my friend?” Smith asked.
What happened? Drewry asked.
“Exactly what I told you. . .I didn’t get in a fight with Mike,” Smith said.
If he had, Smith said, it would be McQueen here, not Smith, apparently referring to the interview room.
“He’s about 75 pounds bigger than me. . .I’d be out within the first punch.”