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 7
September 10, 2012
1:07 p.m.: Deputy State’s Attorney John Maloney played a tape of Michael McQueen’s father, also named Michael, testifying at the original 2008 trial. The elder Michael McQueen has since passed away. The tape indicated that a defense lawyer questioned McQueen about what he knew about his son being detained for driving under the influence. There was sparring on the recording over whether there were detentions, plural, and what he knew about any detention. Objections followed and the testimony was not allowed in at the time.
Defense lawyer David Martella argued to Judge Eric M. Johnson that Michael McQueen’s responses should be allowed at this trial because his answers demonstrated an “absence of knowledge about important events of his son’s life.”
Johnson pushed back, declaring “it’s a real stretch…that somebody’s going to kill himself because of a DUI.”
Johnson asked what the implication was, that the elder Michael McQueen “didn’t know his son?” He said he would have allowed the testimony if the question had been phrased, “Did you know your son had a DUI?” Instead, though, the question “was, ‘Did he tell you?”’ And that was unacceptable, Johnson said.
1:19 p.m.: Montgomery police forensic specialist Grant Lee testified that he took pictures inside Gary Smith’s blue 2001 Honda Civic, and searched the car and trunk for evidence. There was no obvious blood. A clothes basket was among the items removed.
1:38 p.m.: Kimberly Clements, also a forensic specialist with the Montgomery police, described the affect of a chemical that she sprayed on the tan carpet that was in the Gaithersburg apartment shared by McQueen and Gary Smith in 2006.
Clements says she looks for an “immediate color change” when she sprays the chemical, showing where trace amounts of blood are located. But as days — and now years — have passed, the chemical leaves a broad area of purple staining that “would not be considered a blood reaction,” she said.
Prosecutor Robert Hill told Judge Johnson that he wanted to recreate the crime scene in the well of the court.
He and Maloney put on latex gloves and spread out a plastic tarp. The jurors, alert, moved forward on their chairs. Clements used a knife to cut open the sheet of heavy brown paper covering a roll of carpet. The prosecutors unfurled the carpet, which had been cut out of the Gaithersburg apartment shared by McQueen and Smith. There were deep brownish blood stains and light-colored specks, from McQueen’s head wound, and bright purple patches from the enhancement chemical.
The jury was sent out of the room while the setup continued.
Clements cut open a package holding a Samuel Adams beer bottle that had been found beside McQueen’s right hand after his death. She stood it on the carpet beside the low-slung black chair that McQueen had been sitting in. Beneath where his head would have been were some of the dark blood stains. She also set out a white-and-purple glass bong, and placed a lighter in a tan-ish patch of carpet amidst all the stains.
The jury returned and was told the scene was recreated according to Clements’ photographs. Jurors leaned forward to get a closer view.
Hill asked about why he can’t see blood on the chair leg anymore.
“The blood probably just flecks off as it dries,” Clements said.
Hill put up a photograph of what he called a “V-shape” void in the blood stain on the carpet.
Barry Helfand, one of Smith’s lawyers, asked if anyone had measured the distance from McQueen’s head wound to the carpet.
Not that she knew of, Clements said.
What about from the height of where McQueen’s head was when he was sitting up before it fell backward following the gunshot? Helfand asked.
That measurement had not been taken, she said.
Clements described a photograph taken “on the day of the murder.”
“Of the alleged murder,” Helfand said.
“Of the alleged murder,” she repeated.
Helfand pointed to dark spots a few feet from the chair and asked Clements if they were blood, and she said she did not know.
A short while later the latex glove Helfand had been using to cover a pointer popped off like a flying rubber band, leading to nervous laughter from a juror.
Helfand got on his hands and knees and was given a bloody shoe that had been taken from Smith on the morning of McQueen’s death. He repeatedly turned and arranged it and picked it up from a lighter patch of carpet that looked to the jury sort of like an upside-down V. The unspoken questions were how the shoe might fit into that area, and what that might show about the night of the crime and who pulled the trigger. He grabbed the chair and lifted himself up.
Helfand asked Clements if there was blood on the bottom of the shoe. She said she didn’t see any.
Clements also told Helfand she did not find evidence of blood in apartment sinks, even using blood enhancement chemicals.
Under questioning, Clements said a glass bowl used as an ashtray — which, in a photograph, could be seen behind McQueen — was not collected as evidence.
2:59 p.m.: Helfand and Maloney talked about Helfand’s dinner plans at the Palm, as Maloney, Hill and Clements worked to disassemble the recreated living room and wrap the bloody carpet and other evidence back up in brown paper and bags. “Is it a coincidence that this is the day the two interns can’t come in?” Maloney asked.
3:28 p.m.: Montgomery Homicide Detective Jim Drewry sat on the witness stand as prosecutors continued to play a video of Smith’s interrogation on the morning of McQueen’s death.
Smith described McQueen as “a great guy. He likes hip hop. He likes big trucks with big rims” and would give you his shirt off his back if you ask for it. Smith also called him “cocky,” and a “bada--,” but not any type of “gangster bada--.”
“He looks good. He maintains his appearance,” and he presents himself well professionally, Smith said.
Smith attended a military academy for part of high school, and later went to Montgomery College for a while. He was interested in early childhood development and criminal justice, and said he considered trying to work at the FBI, with a focus on child abuse and exploitation. He said his dad had been a cop in Ocean City, and his uncle had been a police officer in Prince George’s County.
Drewry asked him again what happened, noting that police should have found a gun if McQueen really had committed suicide.
“Please don’t tell his mom...I want to tell her,” Smith said. News like that should come from him, he said.
Smith said he came home in the early morning of Sept. 26 and found McQueen dead, with Smith’s gun in McQueen’s hand.
“I don’t know if he was playing around with it or what,” Smith said.
Smith said he then took the gun, drove off, and threw it in a lake.
“I just didn't want his mom to think he killed himself...The guy’s a hero,” Smith said.
He told the detectives he wasn’t home at the time. “I wish I was,” he said.
Smith said he tossed the gun in a lake because he was scared and “the cops were going to think it’s me.” He was also concerned his fingerprints would be discovered on the bullets.
He returned home to find the gun in McQueen’s hand, he repeated. He later said McQueen’s hand was on the floor and the gun was next to it. His hand “was just touching it,” McQueen said.
He touched McQueen to see if he was dead, he said.
The gun had been given to Smith years before by his mother, Smith said, adding that she had worked as a police officer somewhere in Montgomery. He said he would sometimes keep it in his pillow case. “No one would ever think to look for it there,” he said.
In the apartment with McQueen, he kept the gun on a ledge under the counter.
He blamed himself for the shooting.
“It was my fault. I shouldn’t have left it there,” Smith said, adding that he should have locked the gun away.
He said maybe McQueen didn’t realize the gun was loaded and pulled the trigger.
Smith continued making contradictory statements.
“I don’t think Mike shot himself,” he said.
Shortly after, he said: “I’m afraid of going to jail because my friend killed himself with my gun.”
4:30 p.m.: Judge Johnson sent the jury home, and a few minutes later State’s Attorney John McCarthy walked into the courtroom with a delegation of judges and prosecutors from Buenos Aires. McCarthy asked the judge to describe the case, and complimented the lawyers on both sides. Of defense attorney Andrew Jezic, McCarthy said, “I think I hired him in another lifetime.”
Jezic spoke to the Argentines in Spanish, then switched to English when recounting a coincidence. “The mother of my defendant was on a jury of his,” he told the group, referring to Gary Smith’s mom and McCarthy. “She told me after the case that she thought he was the greatest attorney in the case,” Jezic said.
McCarthy said he had sat down beside Smith’s mother during Smith’s 2008 murder trial.
“I said, ‘Why are you here?’ and she said, ‘I’m here because my son is on trial,’” McCarthy recalled.
The conversation was “very awkward...for me,” he said, and the situation was “a very heart-wrenching thing” for her as a mother.