Former Army Ranger Gary Smith is on trial in Montgomery County Circuit Court, accused in the 2006 fatal shooting of his roommate, fellow Ranger Michael McQueen. You can follow the daily court proceedings at washingtonpost.com/crime .
McQueen was found dead in the Gaithersburg apartment the two men shared. Although Smith’s attorneys argued that McQueen shot himself, Smith was found guilty in 2008 of “depraved heart murder,” a form of second-degree murder.
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 9
Sept. 12, 2012
9:16 a.m.: Barry Helfand started the first day of Gary Smith’s defense with a motion for acquittal, saying the prosecution hadn’t presented enough evidence to convict.
With the jury outside of the courtroom, Helfand said Smith is facing, as he understands it, three charges in the death of his roommate, Michael McQueen: depraved heart second degree murder, involuntary manslaughter and the use of a handgun in the commission of a felony.
“There is simply no evidence in this case” that Gary Smith used a handgun at all, Helfand said, even when viewed in the light most favorable to the prosecution, which is the standard Judge Eric M. Johnson had to consider.
Helfand ticked through the evidence, characterizing the testimony of prosecution witnesses: A gun shot residue expert said the results don’t show who the shooter was; a medical examiner couldn’t say who the shooter was.
“Nobody can put the gun in his hand. His own statements don’t put the gun in his hand,” Helfand said.
A prosecution blood spatter expert testified that Smith was “close to the deceased when the shot was fired,” Helfand said, but offered “nothing” to show Smith fired the shot that killed McQueen.
“There is no one — no one — who says he fired the shot,” Helfand said of his client. “They just didn’t get it from any of the witnesses.”
On the question of manslaughter, Helfand did allow that “I’m a little concerned whether they have that,” referring to the prosecutors. But Helfand added that the prosecutors have not presented a manslaughter theory to the jury. Instead, prosecutors have argued that Smith held the gun and fired it into McQueen’s head.
Deputy State’s Attorney John Maloney said under Helfand’s logic, “most murder cases would never get to the jury,” since there are often not eyewitnesses and most cases are proven with circumstantial evidence. Maloney pointed to a “void pattern” in the carpet blood stains that he said was caused by Smith and to testimony that McQueen wanted to move out because McQueen said Smith was strange.
Johnson recounted other evidence, including the fact that Smith was at the scene and left before calling 911 and his hands were tested. He said there was “a void . . . that was on the floor.” Johnson also noted that Smith said there was blood spurting out of McQueen, but that there was testimony that “blood doesn’t spurt from dead people.”
Johnson said such questions were for the jury to decide. “They are the fact finders,” he said, and ruled that the trial would move forward.
The jury was brought in.
10:19 a.m.: Luis Aceves, a friend Smith met when both were Rangers, described Smith’s actions in Iraq, including taking part in a raid and being involved with security while a group faced heavy fire.
Aceves also characterized two of McQueen’s friends as “less than credible individuals,” prompting a furious response from Maloney, who walked up to him and yelled in his face. The judge struck the comments from the record.
Isaiah Ruffin, another former Ranger, testified about the good times between the Rangers, including Smith and McQueen. He said he spoke by phone with McQueen, who said told him he was planning to move to the Washington area to live with Smith.
11:32 a.m.: Herbert MacDonell, a longtime blood-stain-pattern analyst who has trained many people, including a prosecution witness, testified from New York by video.
He said it appeared McQueen’s right arm was up at the time he was shot.
MacDonell also said the angular, V-shaped void in the blood stains on the carpet would not have been created by Smith’s shoe, a key prosecution contention.
“It could not have been there,” MacDonell said of Smith’s shoe.
MacDonell said a shoe with rounded edges would not create the angular pattern seen in the evidence. “The roundness of the toe did not form the same pattern as the V,” he said.
1:45 p.m.: Traci McKenzie, a Montgomery County police officer, was the quickest witness in the trial so far: 2 minutes. She said she saw Smith outside his apartment on the night of McQueen’s death.
Andrew Jezic, attorney for Smith: “Did you observe any tears as you were standing with him.”
1:50 p.m.: MacDonell was tapping a song on the table with his fingers in New York before connecting again with the lawyers on the video feed. Some jurors cracked up.
Asst. State’s Attorney Robert Hill asked him about how the V on the carpet was created.
“This is made from a series of gushes?” Hill asked.
MacDonell said the shape was created “very quickly.”
Hill asked MacDonell if it was his testimony now that there was not a void, and that the pattern was created randomly, and MacDonell agreed.
Hill pointed to MacDonell’s previous testimony in 2008, in which he used the word “void” and said it could have been made by a large object blocking the blood.
MacDonell clarified: “If a V-shaped object was there…” before Hill cut him off.
Still, MacDonell added later, “it’s more likely it’s just the way the blood came out” that caused the pattern.
With MacDonell in New York, awaiting cataract surgery next week, he and the lawyers at times had difficulty getting on the same page. There were two sets of transcripts with different numbers. “I don’t have the right page,” MacDonell said.
MacDonell said the blood on Smith’s right shoe appeared to be a transfer stain — like from the shoe brushing up against something or having something brush up against it — not a stain caused by blood dripping down on top of the shoe. In an answer to a question from Hill, MacDonell said he did not see any evidence that a large blood stain had been disturbed.
Pointing to a photograph of McQueen and his head wound, Hill asked MacDonell if there was any evidence someone had tried to cup the wound. Jezic objected, saying Hill was assuming facts that had not been put in as evidence.
Hill rephrased: Any evidence McQueen’s body had been disturbed or touched? No, MacDonell said.
Jezic made clear to the jury that it was prosecutors who had originally hired MacDonell. The prosecution emphasized MacDonell’s high hourly rate: $500. MacDonell said most of his time was pro-bono.
3:36 p.m.: Marcia Desouza testified that she met Smith in Oct. 2005 at a children’s entertainment production company. “He was our marketing assistant,” she said, and the two spent time together outside of work.
3:46 p.m.: Jake Wagner, a former Ranger, said he served with Smith in Afghanistan during what was known as the spring surge of 2004.
Smith joined a small convoy that traveled beyond a forward operating base and came under fire. It was raining, there were five vehicles, and they “ended up taking fire from high ground.” There were casualties. As the group engaged the enemy, Smith “was pulling rear security” and he “would have been the one who would engaged them” if enemy fighters were toward the back.
3:52 p.m.: Smith’s father, Randy, said he works for the federal government. He and Smith’s mom split in 1995. Smith had full time work after returning from Afghanistan in 1995, and did some contract work for a former sergeant.
3:58 p.m.: John Hegger, a probation and parole training officer with the North Carolina Department of Public Safety, testified about working as a police officer in Acworth, Georgia in 2006.
It was Judge Johnson’s decision not to allow Hegger to testify before the jury in Smith’s 2008 trial that led Maryland’s highest court to throw out Smith’s conviction for second-degree depraved heart murder. The current jury has not been told that, or even that there was an earlier trial. Lawyers and witnesses testifying a second time refer to an ”earlier hearing.”
Jezic asked Hegger what happened in August 2006.
Late one night, or early in the morning, Hegger said, he saw a large white SUV weaving.
“It was having trouble staying within the lines,” he said.
He pulled the SUV over. Michael McQueen was the driver and appeared intoxicated, with glassy eyes and blurred speech, Hegger said.
“He stumbled with his driver’s license and insurance,” Hegger said, adding that had to ask him for it more than once.
McQueen failed the “one-leg stand” test, and he had a “strong odor” or alcohol.
One reason the night is so memorable all these years later, Hegger said, is because of what he saw behind McQueen.
“I saw what I thought was a body” on the floor board, Hegger said. “All I saw was a foot that didn’t appear to be moving. “I immediately called for backup,” he said, but soon realized that it was a woman who decided to sleep on the floorboard.
McQueen sought leniency from Hegger.
“He said, ‘Does this have to be like this?’ He tried to talk me out” of arresting him, Hegger said. Hegger handcuffed him behind his back.
McQueen continued, according to Hegger:““Is there anything I can do to get out of this?’” McQueen did not resist, but “he did not want to come to the station with me,” Hegger said.
At the station, the breath machine needed to warm up. Hegger began working on the DUI paperwork, and there was a change in McQueen, he said.
“His demeanor was definitely different. He was no longer trying to get out of it. He went from trying to talk me out of the arrest to appearing depressed,” Hegger said.
Hegger said McQueen had initially refused to take the breath test.
“He began talking and fidgeting and appearing nervous,” Hegger said, as if he didn’t know what was going to happen next.
Then McQueen said, according to Hegger: “This is the last thing I need in my life on top of all the other sh-- going on.”
McQueen repeatedly dropped his head into his hands.
He said he had been in the military.
“He pulled up his shirt and explained he had been shot,” Hegger said, though he didn’t see whether there were signs of injuries. “He was concerned how it was going to affect his future,” including a job, Hegger said, and he talked a lot about the military.
McQueen ended up changing his mind, and took the breath test. He failed it twice. Jezic asked if McQueen tried to talk Hegger out of the arrest once they were in the station, but Hegger said he did not. McQueen hit a blood alcohol level of .19 and .18 in the tests.
Maloney challenged Hegger sharply. Didn’t he say in an earlier conversation that he did not know if McQueen was trying to get out of it? The lawyers met with Johnson at the bench, behind the husher and out of earshot of the jury.
“You don’t know what’s in his head,” Maloney continued. “You don’t know he never got shot?”
“He wasn’t crying was he?” Maloney said.
No, Hegger said. And sometimes people do in that circumstance.
You wouldn’t put someone who was suicidal behind bars, without making clear there was a problem, would you?
“I would have told the jailer,” Hegger said.
You didn’t, and you didn’t include it in your report, either, Maloney pressed.
That’s right, Hegger said.
Maloney said McQueen had some gold teeth with him, suggesting a “comical” purpose?
“I’m not sure why anybody has gold teeth,” Hegger said.
“You don’t know he was flirting with an officer when he got out?” Maloney asked.
The defense objected.