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Smith v. State

Court of Special Appeals of Maryland

August 28, 2014


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Appeal from the Circuit Court for Montgomery County. Eric M. Johnson, Judge.

Argued by: Bradford C. Peabody (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Argued by: Cathleen C. Brockmeyer (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Kehoe, Hotten, Nazarian, JJ. Opinion by Nazarian, J.


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[218 Md.App. 695] Nazarian, J.

During voir dire, counsel for Gary Smith asked the Circuit Court for Montgomery County to include a mandatory Defense-Witness question to the jury panel. The court did not ask the question, but as the court and parties recapped the questions after the court read them, the prosecutor told the court that it had in fact asked it, and Mr. Smith's counsel did not correct him. The State agrees with Mr. Smith that under Moore v. State, 412 Md. 635, 989 A.2d 1150 (2010), the failure to ask the mandatory Defense-Witness question requires us to reverse his convictions for involuntary manslaughter and use of a handgun in the commission of a felony. The State argues nevertheless that defense counsel's failure to correct the prosecutor's misstatement to the court " invited" the error, and thus Mr. Smith failed to preserve it. We disagree with the [218 Md.App. 696] State and reverse, and we address two other issues that are likely to recur on remand.


This appeal represents the latest chapter in a case that started on September 26, 2006 with the shooting death of Army Ranger Michael McQueen, Mr. Smith's then-roommate. Mr. Smith was tried and convicted once before, but the Court of Appeals reversed Mr. Smith's original convictions for depraved heart second-degree murder and use of a handgun in the commission of a felony. See Smith v. State, 423 Md. 573, 32 A.3d 59 (2011). This appeal arises from his second trial.

Between 12:00 and 1:00 a.m. on September 26, 2006, police responded to a 911 call by Mr. Smith and found him outside of the apartment he shared with Mr. McQueen. When the police arrived at the apartment, Mr. Smith was in hysterics, sitting on the sidewalk curb and covered in blood. Inside the apartment, the police found Mr. McQueen in the living room, dead from a gunshot wound to the right side of his head. His body was sitting in a chair facing a television, with a marijuana grinder in his lap and a bottle of beer, a bong, and a remote control on the floor next to the chair. Police did not find a gun next to the chair or anywhere else in the apartment.[1]

Police took Mr. Smith into custody and began questioning him at approximately 3:30 a.m. During the interrogation, Mr. Smith accounted for his contact with Mr. McQueen over the course of the evening. The pair began the evening by smoking marijuana in their apartment before going to several bars and consuming multiple alcoholic beverages. Mr. Smith then gave three different versions of the events that transpired after he and Mr. McQueen left the bars.

In the first version, Mr. Smith dropped Mr. McQueen off at the apartment before driving to his mother's house to pick up some clothes. Upon returning, Mr. Smith said he found Mr. [218 Md.App. 697] McQueen dead in the chair and dialed 911. Mr. Smith alluded to some potential suspects and stated that he did not keep any weapons in the apartment.[2]

In the second version of events, Mr. Smith described how he came home from his mother's house to find Mr. McQueen dead with a .38 gun on the floor next to his

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hand. Mr. Smith testified that he owned the gun and realized that his fingerprints would be on the gun and ammunition. Mr. Smith said that he panicked, took the gun, and threw it away in a nearby lake. After disposing of the weapon, he returned to the apartment and called the police.

After the interrogating officers pressed Mr. Smith regarding inconsistencies in his stories, Mr. Smith offered a third version. This time, Mr. Smith said that he had put the .38 inside the laundry basket at his mother's house, then went back to his apartment. Mr. McQueen was watching television, and Mr. Smith then took the gun out of the laundry basket and placed it on the floor, warning him that the gun was loaded. Mr. Smith proceeded to use the back bathroom in the rear of the apartment; as he was exiting the bathroom, he heard a gunshot and came out to see blood coming out of Mr. McQueen's head. Upon seeing the body, Mr. Smith grabbed the gun and threw it away in the nearby lake, then returned to the apartment and called the police.

Mr. Smith was convicted at trial for depraved heart second-degree murder and use of a handgun in the commission of a felony, but the Court of Appeals reversed the conviction and remanded the case for a new trial. The second trial began on August 30, 2012 and lasted through September 17, 2012. The main issue at trial was whether Mr. McQueen's death was a homicide or suicide, and both the State and Mr. Smith presented a large amount of witnesses and evidence in support of their respective theories. The jury convicted Mr. Smith of involuntary manslaughter and use of a handgun in the commission [218 Md.App. 698] of a felony on September 19, 2012. Mr. Smith filed a timely appeal.


Mr. Smith raises six issues on appeal, but our resolution of the first limits the number we need to address.[3] We hold that the trial court's failure to ask the Defense-Witness question during voir dire requires us to reverse Mr. Smith's convictions. Additionally, and to guide the circuit court on remand, we hold that the trial court erred in admitting the unfairly prejudicial gun ownership and ammunition bag evidence, but we find no abuse of discretion in the court's decision to admit testimony regarding a witness's prior encounter with Mr. Smith.

A. The Trial Judge Committed Reversible Error When It Refused To Ask The Defense-Witness Voir Dire Question.

Mr. Smith begins by arguing that the trial judge committed reversible error by refusing to ask his Defense-Witness voir dire question. The State does not dispute

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that the question was mandatory, that Mr. Smith asked the court to ask it, or [218 Md.App. 699] that omitting the question normally requires reversal. Instead, the State argues that Mr. Smith waived any complaint about the omission by " inviting" the court's error when defense counsel did not catch and correct the State's misstatement to the court. We decline to hold defense counsel responsible for the State's mistake.

Under Maryland law, " if a question is 'directed to a specific cause for disqualification' then the question must be asked and failure to do so is an 'abuse of discretion.'" Moore v. State, 412 Md. 635, 654, 989 A.2d 1150 (2012) (quoting Casey v. Roman Catholic Archbishop of Balt., 217 Md. 595, 605, 143 A.2d 627 (1958)). An abuse of discretion in this context is reversible error. Id. at 668 (citations omitted). During voir dire, Mr. Smith asked the court to ask the following question (the " Defense-Witness question" ) designed to identify jurors who might harbor a bias against defense witnesses:

Is there any member of the panel who would be less likely to believe a witness simply because they were called by the defense?

The trial judge omitted this question from voir dire intentionally, and for two reasons: because " the issue in the question was . . . raised by another question" and because the court " found the question to be inappropriate for voir dire." Following voir dire, the court asked the parties to make any objections they had concerning omitted voir dire questions. Counsel for Mr. Smith then identified different omitted voir dire questions with which he took issue. In response to each question, the trial judge stated whether he had asked the question or explained his reasoning for why he did not.

Among these objections, Mr. Smith expressly challenged the omission of the Defense-Witness voir dire question:

[COUNSEL FOR MR. SMITH]: And then [the Defense-Witness voir dire question].
[COUNSEL FOR THE STATE]: You've already asked that question. If you'll believe the credibility equally on both sides.
[218 Md.App. 700] THE COURT: That issue has been covered, just different words[.]

After Mr. Smith went through all of the questions whose omission he challenged, the Court proceeded to swear the prospective jurors into the jury. The trial judge asked the defense three times whether it was satisfied with the jury; each time, counsel for Mr. Smith expressed satisfaction qualified by the exceptions he had made at the bench.

Maryland Rule 4-323(c) governs the " manner of objections during jury selection," including objections made during voir dire. Marquardt v. State 164 Md.App. 95, 142, 882 A.2d 900 (2005) (citing Baker v. State, 157 Md.App. 600, 609, 610, 853 A.2d 796 (2004); Newman v. State, 156 Md.App. 20, 50-51, 845 A.2d 71 (2003), rev'd on other grounds, 384 Md. 285, 863 A.2d 321 (2004)). In order to object to a trial court ruling made during voir dire,

it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.

Md. Rule 4-323(c); see also Marquardt, 164 Md.App. at 143. This objection does not need to be a formal exception to the ruling, Md. Rule 4-323(d); rather, the objector simply needs to make " known to the circuit court 'what [is] ...

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