Smith v. State
| Decision Date | 29 November 2011 |
| Docket Number | Sept. Term,2011.,No. 10,10 |
| Parties | Gary James SMITH v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Gary E. Bair (Bennett & Bair, LLC, Greenbelt, MD), on brief, for petitioner.
James E. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, JOHN C. ELDRIDGE (retired, specially assigned), and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.
LAWRENCE F. RODOWSKY (retired, specially assigned), J.
Petitioner, Gary James Smith (Smith), was convicted at a jury trial in the Circuit Court for Montgomery County of depraved heart second-degree murder and use of a handgun in the commission of a felony. The court sentenced him to thirty years confinement for murder and to a second consecutive twenty year sentence on the handgun charge, with all but five years suspended and five years probation to be served upon release. The principal issue at trial was whether the deceased, Michael McQueen, Jr. (McQueen), was murdered or committed suicide. Smith appealed, contending, inter alia, that the trial court had erroneously excluded certain defense evidence relating to McQueen's state of mind. The Court of Special Appeals affirmed, 196 Md.App. 494, 10 A.3d 798 (2010), concluding that the excluded evidence was too remote and not reliable. This Court granted Smith's petition for certiorari. Smith v. State, 418 Md. 587, 16 A.3d 977 (2011). The lead question presented by the petitioner is:
As explained below, we shall hold that the trial court abused its discretion in excluding the evidence proffered by the accused.1
McQueen died in the early morning hours of Tuesday, September 26, 2006. The cause of death was a contact, non-through-and-through gunshot wound to the right temple. He died in the living room of an apartment in Gaithersburg that McQueen and Smith shared, beginning in early September 2006. McQueen was age twenty-two at the time, and Smith was age twenty-three. Both were former Army Rangers who, for two different periods, had served together in the same intelligence unit in Afghanistan. McQueen was a private, and Smith was his sergeant.
McQueen returned from his third Afghanistan deployment to Fort Benning, Georgia in late June 2006. While at Fort Benning, McQueen, in early August 2006, was arrested for DWI in Acworth City, Georgia. Evidence proffered by Smith concerning McQueen's arrest is the basis of the issue before us.
McQueen, on August 22, went on terminal leave and traveled north in a new car. His intention was to live in the Washington, D.C. area, rooming with a Ranger buddy, Ronny McKay. McQueen's plan was to attend the University of the District of Columbia and then transfer to Howard University, but he missed the registration for the Fall 2006 Term.
McQueen had told his mother that he had fallen in love with a young woman named Tina, who also served in the Army. On his way north from Fort Benning to Washington, McQueen visited in North Carolina for over a week with a close friend from the Rangers, Justin Jones. While there, McQueen told Jones about the Georgia DWI. When asked by the State, in its case-in-chief, whether McQueen was “overly distraught, or upset about” his arrest, Jones testified that McQueen was “pretty calm about it.”
In North Carolina, Jones and McQueen also talked about the possibility of Tina's being pregnant. Jones testified:
2
McQueen's plan to share living quarters with McKay did not work out, because McKay was living with his then girlfriend/future wife. When McQueen got to Washington, he stayed for a few days with Smith, his mother, and his grandmother until the two former Rangers occupied their Gaithersburg apartment under a lease signed September 2, 2006. Smith and McQueen had almost no living room furniture, and, on the fateful night, they were still keeping a considerable amount of clothing on the living room floor. Smith was attending school while McQueen had no fixed schedule. Smith did not testify, but he told the police that, in the evenings, he and McQueen went to the bars “a lot.”
On the morning of Monday, September 25, McQueen and McKay spoke on the telephone about attending a job fair on Wednesday, the twenty-eighth. In that conversation McQueen “was basically saying that he can't live with [Smith] anymore.” McQueen said, “He is not right in the head.”
Smith also told the police that when he returned to the apartment from school late on the afternoon of Monday, the twenty-fifth, he and McQueen smoked some marijuana, had dinner, and drank a couple of beers. Thereafter, they went to the VFW Post in Gaithersburg where they consumed several inexpensively priced mixed drinks and played pool until approximately 11:00 p.m. They then went to the Village Café where a patron treated each of them to a beer which neither finished. On autopsy, McQueen's blood alcohol content ranged from .20 percent per volume in the heart to .13 percent peripherally. There was no evidence from witnesses who observed the two ex-Rangers that evening of any bad feelings between them.
A few minutes before 1:00 a.m. on Tuesday, September 26, the Montgomery County police responded to a 9–1–1 call that had been placed by Smith. Arriving at the apartment house in less than a minute, they found Smith outside, hysterical and with blood on his face, hands, and clothing. In the living room of the apartment was McQueen, dead from a gunshot wound to the right temple, but there was no gun.
McQueen was found seated in a metal framed chair with a mesh scoop or sling type seat. His head had fallen back over the top of the chair. On the left side of his lap was a marijuana grinder. His right arm hung down over the right arm of the chair. On the floor to the right of the chair (from the perspective of one seated in the chair) were a bottle of beer and a television game joystick. The chair faced a wall against which were a television set, that was playing, and a monitor for electronic games, that was not playing. Several feet to the front of the chair was a loop-type, gun-locking device.
There was a considerable amount of blood to the right of the chair. On the carpet at the rear of the chair was a greater concentration of blood. In the latter area, blood had drained from McQueen's wound when his head flopped to the rear.
In the bloodied area of the carpet was a section in which there was either no blood, or a considerably lesser amount of blood in relation to its surroundings. The parties at times called this section “the void.” It is the field on which the battle of the experts was principally waged in this case. The outline of the void is roughly “V” shaped, with the angle of the V pointed toward the chair.
Smith was arrested and was interrogated, in taped interviews. He gave three versions of what had transpired after the two ex-Rangers had left the Village Café and before he made the 9–1–1 call. In all three versions, Smith stated that he dropped McQueen off at the apartment and continued on to his mother's house in order to pick up laundry because he had no clean socks to wear to school the next day.
In the first version, Smith stated that he was not in the apartment when the shot was fired. He said he came home to find McQueen slumped in the chair and, when he realized McQueen was not drunk, but that there was blood on the floor, he checked McQueen's neck and wrist for a pulse, but found none. He said there was no weapon in the apartment and suggested possible suspects, including some “Hispanic Mexican” guys in the community with whom he said McQueen had argued.
In the second version, Smith said that there was a gun in the apartment, a .38 caliber, five shot revolver, that belonged to Smith and that was kept hidden in a counter in the apartment. In this version, Smith reiterated that he returned to the apartment, found McQueen, and touched the body. He said that he panicked because the gun was his, his fingerprints would likely be on it, and because there was marijuana on McQueen's lap. He drove to nearby Lake Needwood, where he removed the four remaining bullets from the gun and separately threw it and the bullets into the water. Later, directed by Smith, the police recovered the weapon.
In the third version, Smith said that he brought his gun from his mother's when he picked up the laundry off of the porch at her house. He said:
“I put it in a case because I was going to go back over there and take the rest of my stuff with Mike's truck and I wanted the .38 there.
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