Defense Opens, Seeking an Acquittal

Barry Helfand opened Gary Smith’s defense Wednesday with a motion for acquittal, saying that the prosecution hadn’t presented enough evidence to convict the former Army Ranger of killing his friend and former comrade and that it was insufficient to continue.

Smith, charged with second-degree “depraved-heart” murder, is accused of shooting Michael McQueen in the head with a .38-caliber handgun in September 2006. The charge requires prosecutors to demonstrate that Smith acted with “an extreme disregard for human life.”

The two served in Afghanistan together and shared an apartment in Gaithersburg, where McQueen suffered the fatal gunshot wound.

“There is simply no evidence in this case” that 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 gunshot-residue expert said the results don’t show who the shooter was, and 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 that 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.”

Johnson listened, then recounted other evidence from the bench, including that Smith was at the scene and left before calling 911 and that his hands were tested. Johnson said that there was “a void” in bloodstains on the carpet that a prosecution expert said had been caused by Smith’s shoe.

In any event, Johnson said the case was for the jury to decide. “They are the fact-finders,” he said, ruling that the trial would move forward.

The defense, by video conference, called Herbert MacDonell, a longtime bloodstain-pattern analyst, to testify. He said it appeared that McQueen’s right arm was up at the time he was shot.

He also said the “void” in the bloodstains on the carpet would not have been created by Smith’s shoe, as prosecutors contend. MacDonell said a shoe with rounded edges would not create the angular pattern seen in the evidence.

Later in the afternoon, the defense called John Hegger, a law enforcement officer who testified that he arrested McQueen on driving under the influence in Georgia shortly before his death and quoted him as saying: ” ‘This is the last thing I need in my life on top of all the other s— going on.’ “

Hegger said 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. “He was concerned how it was going to affect his future,” including a job.

Smith’s defense argues that McQueen shot himself and has used McQueen’s statements to Hegger to suggest that he might have been suicidal.