Smith v. State , 1178, Sept. Term, 2008.

CourtCourt of Special Appeals of Maryland
Citation10 A.3d 798,196 Md.App. 494
Docket NumberNo. 1178, Sept. Term, 2008.,1178, Sept. Term, 2008.
PartiesGary James SMITH v. STATE of Maryland.
Decision Date28 December 2010
10 A.3d 798
196 Md.App. 494

Gary James SMITH
STATE of Maryland.

No. 1178, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Dec. 28, 2010.

10 A.3d 803

Gary E. Bair (Erica J. Suter, Bennett & Bair, LLC, on the brief) Greenbelt, MD, for appellant.

James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, JAMES R., MATRICCIANI, and RAYMOND G. THIEME, JR. (Retired Specially Assigned), JJ.

RAYMOND G. THIEME, JR. (Retired Specially Assigned), J.

196 Md.App. 503

Appellant, Gary James Smith, was indicted in the Circuit Court for Montgomery County, Maryland, and charged with the murder of Michael McQueen and use of a handgun in the

196 Md.App. 504
commission of a felony. Following a twelve-day jury trial, appellant was convicted of second-degree depraved heart murder and use of a handgun in the commission of a felony. Appellant was sentenced to 30 years for second-degree depraved heart murder, to be followed by a consecutive sentence of 20 years for use of a handgun, with 15 years of that latter sentence suspended, followed by five years supervised probation upon release. Appellant timely appealed and presents the following seven questions for our consideration:
1. Where suicide versus homicide was at issue, did the trial court err in refusing to admit evidence of the decedent's state of mind?
2. Did the trial court err in giving the jury a voluntary intoxication instruction,
10 A.3d 804
an affirmative defense, that was not generated by the evidence and was not asserted by the defense at trial?
3. Did the trial court err in admitting the hearsay statement of Michael McQueen that "Gary is not right in the head" as relevant for purposes of establishing motive?
4. Did the trial court err in refusing to allow the defense to question the State's expert about prior cases for bias and prior inconsistent statements?
5. Did the trial court err in permitting the improper rebuttal expert testimony of Dr. Jonathan Arden?
6. Did the trial court err in not granting a mistrial when the prosecution improperly commented on sentencing during rebuttal argument to the jury?
7. Did the trial court abuse its discretion by repeatedly questioning State and defense witnesses in a manner which appeared to support the State's theory of the case, thereby depriving Appellant of his right to a fair and impartial trial?

For the following reasons, we shall affirm.


Michael McQueen died of a contact gunshot wound to the head in the early morning hours of September 26, 2006. His roommate, Gary Smith, the appellant, was the only one present at the time of the shooting. Appellant and McQueen had

196 Md.App. 505
been roommates for about three weeks prior to the shooting. Both had served as U.S. Army Rangers and had been deployed several times together in Afghanistan.

On the night of September 25, 2006, at around 5:30 p.m. or 6:00 p.m., appellant and McQueen smoked some marijuana in their apartment, had dinner, and drank a couple beers. After that, they went to the VFW post in Gaithersburg, where, over the course of two or three hours, they drank mixed drinks and played pool. After leaving the VFW at 11:00 p.m., McQueen and appellant went to the Village Café, where they stayed between a half hour and an hour, and left without finishing their beers.

When he was interviewed by police during the early morning hours of September 26, 2006, appellant gave police at least three versions of what happened next. According to the testimony of Detective James Drewry, of the Montgomery County Department of Police, in the first version, appellant dropped McQueen off at their apartment, then traveled to his mother's house to pick up clean socks. Appellant returned to the apartment at around 12:30 a.m., found the door unlocked, and called out, "Did you pack that bong again asshole." Appellant found McQueen "sitting half-way on his chair. I tried to take him back up and put him back up on the chair. Because I thought he was drunk at first. Just kind of slumped. But then I saw the blood on the floor, and then I thought maybe he knocked over his beer, and then I knew it was blood. I ran back downstairs and grabbed my phone from the car. Called 9-1-1." Appellant ran back upstairs, touched McQueen's hand and neck to see if he had a pulse, but felt none. Appellant thought it was possible that the blood on his person got there when he checked on McQueen.

While appellant admitted that he owned a .45 caliber pistol, a .9 mm rifle, and an AK47, he indicated that these weapons were stored at his mother's house. McQueen used to own a .9 mm pistol, but that pistol had been sold. Thus, according to appellant's first version, while there may have been loose ammunition in his car

10 A.3d 805
on the night in question, there were no guns either in the house or in his car.
196 Md.App. 506

Also in this first version of events, appellant gave police information concerning other possible suspects. Appellant informed police that McQueen had a history of arguing with some "Hispanic Mexican" guys who lived in the community. Appellant also indicated that they normally purchased their marijuana from a person named "P.J.", but appellant did not believe P.J. was involved. The marijuana they smoked earlier that night was from a different dealer, an African-American male that drove a beige Jaguar. Appellant also told police that McQueen was in Florida for two weeks prior to the shooting, and that "he must have done something really bad to have someone drive all the way up there and want to kill him. And Mike wouldn't do anything like that."

Later during his interview with Detective Drewry, appellant told a second version of events. In this version, appellant informed police that there was, in fact, a gun in the apartment when he discovered McQueen. Appellant maintained that he dropped McQueen off while he went to his mother's house to pick up his clean laundry. When appellant came home, "Mike was dead. The gun was in his hand. It was a .38. I didn't know if he was playing around with it or what. I got so scared when I found him lying there dead that I took the gun and I threw it away. And I called the cops and I called an ambulance." The gun was appellant's own Smith & Wesson .38 special that he kept under the kitchen counter, a location known both to appellant and McQueen.

Believing that his fingerprints were on the weapon, appellant took the gun and drove to nearby Lake Needwood. He removed the bullets out of the gun, and then threw the gun and the bullets into the lake. Appellant maintained that McQueen's blood got on him when he checked on McQueen and when he put the gun in his pocket. After he disposed of the gun, appellant drove back to the apartment and then called 9-1-1.1

196 Md.App. 507

When asked why he lied in his first version, appellant stated: "I just came home and my friend's fucking dead and he's got a big hole in his head and it's like, how hard would it be for me to, you know, shoot you and put the gun in your hand and then, you know, it's, I was just so scared." Appellant stated it was his "responsibility and it was my fault. I shouldn't have left it there." Although appellant initially denied that McQueen committed suicide, he later told police that McQueen "killed himself." Finally, in this second version, appellant swore that he was not present when the shooting occurred.

Appellant gave a version of events toward the end of his September 26, 2006 interview with Detective Drewry. In this final version, appellant finally admitted he was inside the apartment when the shooting occurred. Appellant stated,

"When I went to my mother's house I put the .38 inside the laundry basket, and when I took it into the house I just put it in my pocket and took it upstairs. I put it on the floor.2 I was like, you see this one, right, Mike? He goes "Yeah." I said "Okay. Watch out. It's loaded." I went into the back bathroom. I was going number two. I came out and as I was walking out in the hallway
10 A.3d 806
I was about inside the room and I heard the bang."

Appellant "saw the blood coming out of [the victim's] head," and stated:

I absolutely went ballistic. I didn't know what to do. I didn't know to call 9-1-1. I didn't know whether to grab him and pick him up. I didn't know whether to throw him in [the] car. I didn't know what to do. And you train for this [in] combat, when your buddy gets shot in combat, you know what to do.

Appellant then decided to dispose of the gun. After returning to the apartment, appellant maintained that he still did not know what to do. Appellant contemplated retrieving

196 Md.App. 508
the gun, or putting another gun in McQueen's hands, but realized the ballistics evidence "won't match up." At that point, appellant finally decided to call 9-1-1, stating: "I knew the longer I waited the more suspicious it would look, so I called 9-1-1."

In addition to these different accounts surrounding the shooting, at some point during his interview with police, appellant told Detective Drewry that he shot a twelve-year-old boy wearing grenades on a vest, as well as the boy's mother, while he was deployed in Iraq. Appellant also told the detective:

I tried to tell my best friend, I said, I told him I shot a 12-year-old boy and I saw the look on his face when he, that look right there, like if you shot a 12-year-old boy, you're a monster. You know, I told him. He gave me that look and I saw it. He lost so much respect for me when I told him that. And, people don't understand that. People don't understand, even if it was a grown man, that, that catastrophic, the things that go on up here every single day.

In addition, after returning from overseas, appellant sought treatment at Walter Reed Hospital for depression, but was turned away because he was not active Army at the time. Appellant stated: "They told me I had to leave, you can't talk. You try to talk to people and no one ever understands."

Appellant swore that McQueen "killed...

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