Smith v. State

LAWRENCE F. R0D0WSKY (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: “1.

In this case where homicide versus suicide was the cornerstone issue, did the Court of Special Appeals err in affirming the trial court’s decision to admit prosecution evidence of the decedent’s ‘normal’ state of mind but refused to admit equally relevant defense evidence of the decedent’s ‘depressed’ state of mind?” As explained below, we shall hold that the trial court abused its discretion in excluding the evidence proffered by the accused. 1 ⁵⁷⁷ Undisputed Background Facts 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: ⁵⁷⁸ “Tina was a very attractive woman. As far as her being pregnant, like I said, he did feel some concern just because it wasn’t a planned thing. And you know, but he didn’t feel — he wasn’t overly worried about it. It was just one of those things that could be possible, and it ended up being not true anyway.

She wasn’t pregnant, so.” 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 ⁵⁷⁹ 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’s Statements 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 ⁵⁸⁰ 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 .88 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. “So, I put it in a case inside of the little shaving kit pouch and put it inside the bottom drawer. When I was there I realized I couldn’t fit the whole plastic case into my car so I was like I really don’t want to leave the gun out here so I grabbed it and put it in the laundry basket underneath some of the laundry.” Smith further stated that, back at the apartment, ⁵⁸¹ “I took [the gun] into the house.

I just put it in my pocket and took it upstairs. I put it on the floor. 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 I was about inside the room and I heard the bang.” Smith touched the body, panicked, and threw the gun and bullets into Lake Needwood.

The Trial This case was tried for twelve days, excluding jury selection. In its case-in-chief, the State presented twenty-two witnesses. The defense, in its case, presented twenty-five witnesses, including persons who had testified in the State’s case. There were nine rebuttal witnesses called by the State, and the defense called one surrebuttal witness.

The central issue at trial was whether McQueen’s death was a murder or a suicide. The jury was so advised by both parties in their opening statements. Expert evidence addressed to the issue was presented by both parties. Lay evidence addressed to the issue was presented by the State and admitted.

Lay evidence addressed to the issue was proffered by the defense and not admitted. Expert Testimony — Blood Splatter An assistant medical examiner, Dr. Carol H. Allan, determined that the manner of death was homicide. She was unable to reach that conclusion from the physical evidence, but based her conclusion on the police investigation. She found no blood splatter on the deceased’s right hand, but acknowledged that that absence did not exclude suicide.

The blood splatter expert for the State was Dr. William Vosburgh, the Director of the Consolidated Forensic Laboratory for the District of Columbia. In his opinion, the portion of the void toward the chair was formed by the outline of Smith’s right tennis shoe which had blood splatter on the right ⁵⁸² side and top. Under this view, the void was formed when blood was ejected from McQueen’s head immediately following the entry of the bullet, with the blood landing on the carpet around Smith’s foot. This would place Smith at the time of the shot to the right of the chair, within contact range of McQueen’s temple.

Dr. Vosburgh also discerned on the carpet the outline of a left hand and opined that it was caused by blood that created a mist that fell over and around the hand and between the fingers of a person standing to the right of the chair. This opinion was contradicted by the defense blood splatter expert, Professor Herbert MacDonnell, the founder of the International Association of Blood Stain Pattern Analysts. Professor MacDonnell was contacted by the State in August 2007 as a possible expert. After studying pictures of the blood splatter, Professor MacDonnell caused Smith’s sneakers, pants, shirt and the section of carpeting containing the blood stains to be hand delivered to him in upstate New York for his further study.

Four days later, Professor MacDonnell was discussing the case with the defense legal team. In his opinion, the outline of the void was inconsistent with its having been formed by Smith’s right sneaker. From the blood splatter on McQueen’s shoulder and upper arm, the witness concluded that the deceased’s right hand and arm were raised when the shot was fired. He also disagreed with Dr. Vosburgh’s view that an apparent palm print in the carpet was caused by a mist of blood.

Barton Epstein, who had thirty-two years experience with the Minnesota State Crime Laboratory, was called by the defense and accepted as an expert in blood stain pattern analysis. In his opinion, 1. the void was not formed by the outline of Smith’s right tennis shoe; 2. the blood on Smith’s pants and right shoe dripped from the wound toward the carpet and was not blood propelled by pressure from the wound on impact of the bullet; and ⁵⁸³ 3. the impression of a left hand on the carpet is a contact stain formed by placing the hand, with blood on the palm, on the carpet. The impression did not result from a mist of blood passing around, and through the fingers, of a hand at some elevation above the carpet. Vincent DiMaio, M.D., also called by the defense, qualified as an expert in forensic pathology.

He is the editor-in-chief of the periodical, Gunshot Wounds. In Dr. DiMaio’s opinion, the manner of McQueen’s death was suicide. He based this opinion on a number of factors, including the nature of the contact wound, the blood alcohol level, the absence of motive for murder, 3 and the gunshot residue (GSR). In its rebuttal case, the State called Jonathan Arden, M.D., a medical examiner of twenty years experience.

He testified that there were two major flaws in Dr. DiMaio’s opinion. First, Dr. DiMaio did not account for the blood splatter evidence, particularly that on Smith’s trousers. Second, the scene was “staged,” in that there was no gun found at the scene. Expert Testimony — GSR Gunshot residue consists of particles of three elements: antimony, barium, and lead.

Under the circumstances at issue here, the only source of GSR was the primer of a handgun cartridge. The State’s GSR expert, Alfred Schwoeble, explained that GSR particles are classified by the number of these elements that they contain. When all three elements are present in a particle, in a fused state, it is called “unique.” When two of the elements are present in a particle, it is “consistent” with gunshot residue. If only one element is present in a particle, it is a “single.” Mr. Schwoeble’s examination of the forensic evidence taken from McQueen and from Smith revealed that the back of ⁵⁸⁴ McQueen’s right hand contained over twenty-five unique and over fifty consistent particles.

There were 345 single particles. The palm of his right hand contained more than twenty-three unique particles, more than twenty-two consistent particles, and 570 singles. The back of Smith’s right hand contained two unique, two consistent, and nineteen single particles, while the palm of his right hand contained three unique, three consistent, and twenty-one single particles. Mr. Schwoeble further testified that activity was the greatest cause of loss of GSR particles from a hand. 4 Based on the GSR, Mr. Schwoeble was unable to conclude who the shooter was.

Dr. DiMaio based his opinion in part on the GSR forensics. He explained that while the absence of GSR is not proof that one is not the shooter, the presence of GSR is significant, and he found the number of unique particles on McQueen’s hands to be “most[ ] interesting.” Lay Evidence— McQueen’s State of Mind In its case-in-chief, and in rebuttal, the State presented a parade of witnesses who testified, inter alia, concerning McQueen’s state of mind. McQueen’s mother was the leadoff witness.' She was asked: “[STATE]: Was there anything, and I’m asking this question in the context of during the time he was in the military all the way up to the day he died, was there anything about Michael that you would think he was depressed, that he was depressed, anxious, suicidal, upset, anything? “[MRS. McQUEEN]: Absolutely not.” She was not aware that McQueen had been arrested for DWI in Georgia in August.

Mrs. McQueen talked on the telephone ⁵⁸⁵ to her son two days before his death, and he did not seem depressed in that conversation. The State called McQueen’s father, and asked: “Q. At any time, in his life, especially during the last year or so, did you notice anything about Michael that would make you think that he was depressed or anxious or upset or even suicidal? “A. No.” McQueen’s friend from the Rangers, Ronny McKay, with whom McQueen initially planned to live in the District of Columbia area, also testified concerning McQueen’s state of mind. He saw no signs suggesting that McQueen was depressed either in September of 2006, or “since [McQueen had] been back in June 2006” from his third deployment. Similarly, Justin Jones, who first met McQueen at Ranger indoctrination in September 2003, testified that McQueen was, “[n]ot at all” depressed when the latter “came home in 2006.” Jones testified on the fifth trial day.

At the conclusion of his redirect examination, the State, at the bench, inquired whether the defense intended to produce the Georgia trooper who had arrested McQueen for DWI. The State was unwilling to bring Jones back from Texas to rebut the trooper’s evidence and wished to put on, at that time, Jones’s proof that McQueen was not unduly concerned about the DWI. The court excused the jury, and a lengthy conference ensued in which Smith pointed out that the State “went back a year.” The court told the defense that, “you’re going to have to persuade me that [the trooper’s evidence is] admissible.” The matter was left on the basis that counsel would attempt jointly to interview the trooper by telephone so that the court could more clearly be advised of the anticipated testimony. Counsel were unable to reach the trooper.

When the jury returned, Jones testified, over objection, that McQueen was not unduly concerned over the pending DWI. On the sixth day of trial, the court took up Smith’s oral motion in limine that the trooper be permitted to testify. There was an extended argument. Again Smith referred to ⁵⁸⁶ the State’s evidence that went back “months and years, months and months[,] and a year or more” concerning McQueen’s state of mind.

The court considered the proffer to be that the trooper would testify that McQueen said (expletive reinserted): “ T don’t need this [shit] in my life at this point.’ ” Relying on Robinson v. State, 66 Md.App. 246 , 503 A.2d 725 , cert. denied, 306 Md. 289 , 508 A.2d 489 (1986), discussed infra, the court ruled that the trooper’s evidence was not trustworthy, was too remote, and was not relevant. The defense, nevertheless, persisted. On the tenth trial day, Smith produced the arresting officer, John Hegger, in person. 5 His testimony was taken out of the presence of the jury. Officer Hegger testified that, after McQueen had been arrested and brought to the police station, and while the breathalyzer was warming up, he had a conversation with McQueen. “[APPELLANT’S COUNSEL]: Tell us about the conversation? “[OFF.

HEGGER]: He basically appeared to be depressed, stressed about the situation, he was fidgeting. At one point, he, he put his hands down in his head, and he said this is the last thing I need in my life right now, on top of all the other, excuse my wording, other shit going on in my life. “And he kind of rested his head in his hands. And I, and I kind of just kept on doing my thing, and I said, you know, I understand, you’ll get through it, kind of just trying to move along.” The court ruled that this testimony was inadmissible, reasoning, in relevant part, as follows: “This Court ruled that this testimony is not helpful, it is so remote from the factual situation that we have before this Court. It won’t be helpful at all, that it was a traumatic experience, that I think it’s a reasonable, I think I can take ⁵⁸⁷ a reasonable inference, nobody likes getting arrested for DWI. “I’ve, in another life, arrested many people for DWI, many, more than this young man.

And the notion that a person would say, I don’t want this, can I get out of it, I’ve got a lot going on [in] my life, I don’t want, I don’t need this right now, and any such statement is hardly relevant in a case where it’s alleged that someone took their own life.” In the State’s rebuttal case, a number of Rangers testified on a number of points. Their testimony on McQueen’s state of mind is reviewed below. William Burkett had been deployed four times with Smith. He had also been McQueen’s supervisor in Afghanistan, where he had been in a social setting with McQueen “two, three, four times.” Asked if McQueen appeared to be depressed when drinking, Burkett replied, “Not that I observed.” William Ryan was another supervisor of McQueen’s in Afghanistan.

Ryan served two deployments, beginning around May 2004 and ending in March 2006. He testified that, “[f]rom where we deployed, and having spen[t] time over the holidays, and all that, I was not worried about [McQueen’s] emotional state.” Steven Porto, a former Ranger, testified that he met McQueen in 2005. The witness was in social settings with McQueen “a little bit,” because they “really didn’t have a lot of time in the [S]tates.” He was asked, “Did you ever see Mike McQueen after he had been drinking enough to where he maybe felt his liquor?” Porto said that McQueen could handle his liquor. Asked if, when McQueen was drunk, he appeared to be depressed, Porto testified, “Never.” In its opening summation to the jury, the State argued that “there is no evidence in this case that Michael McQueen was either depressed or suicidal.” Further, the State argued: “Nothing to indicate that he’s a depressed individual when he drinks.

He’s morose? He’s funny. Nobody in this case has been able to even suggest that he was depressed.” ⁵⁸⁸ Contentions Smith submits that the proffered testimony of Officer Hegger was relevant and admissible. He cites Case v. State, 118 Md.App. 279 , 702 A.2d 777 (1997), in which the issue was whether the manner of death was accident or homicide.

There, the Court of Special Appeals determined that the decedent’s state of mind was “of significant consequence” to that issue. Id. at 284 , 702 A.2d at 779 . This reasoning applies, a fortiori says Smith, to a murder/suicide issue. Smith also notes that Case did not even discuss the time frame within which the statements were made.

Smith further contends that the statements made to Officer Hegger were not too remote to preclude admissibility and, citing Snyder v. State, 361 Md. 580 , 762 A.2d 125 (2000), contends that remoteness goes only to the weight of the evidence. Smith also asserts that there was a “disparity in treatment of the two sides’ evidence” relating to McQueen’s state of mind, and that that disparity was “patently unfair and unduly prejudicial to Petitioner’s defense.” The exclusion was not harmless error because the testimony was of significant consequence to his foundational contention, Smith concludes. The State’s position begins with the principle that the admissibility of evidence is within the sound discretion of the trial court that should not be disturbed absent error or a clear abuse of that discretion. Myer v. State, 403 Md. 463, 476 , 943 A.2d 615, 622 (2008).

The State asserts that the excluded evidence is irrelevant because it was incompetent and remote. 6 It is said to be incompetent because “McQueen never said anything, directly or inferentially, to Officer Hegger about being suicidal or even entertaining suicidal thoughts.” The statement to Officer Hegger, the State urges, “does not