It is rare that even serious criminal cases end up being tried three times. However, the Maryland Court of Special Appeals opinion last month in Gary Smith v. State shows that errors in criminal cases sometimes leads to multiple trials.
This case arises from the shooting death of Army Ranger Michael McQueen, which received notoriety in the press. The primary issue in the case was whether McQueen’s death was murder or suicide. The Defendant, McQueen’s roommate, was found outside his apartment covered in blood and in hysterics, and the victim was found in the apartment in front of the TV shot to death but with no gun in the apartment. The defendant gave the police different versions of what happened, which included that he panicked when he found the victims and threw the gun in a lake.
The defendant was originally convicted of second degree murder, but the conviction was overturned by the Court of Appeals for failure to admit evidence that the victim was depressed before the shooting. At the second trial, the judge failed to ask jurors a question during jury selection as to whether they would be less likely to believe a witness simply because that witness was called by the defense. The appellate court said this question must be asked, the defense attorney had preserved his objection, and this required a new trial.
The Court then took the unusual step of addressing two other issues that had been raised on appeal which it said were likely to come up in the third trial, perhaps hoping the third time might be the charm. It held that the trial judge had improperly admitted into evidence that Smith had eight firearms and ammunition in the apartment at the time. Since this was not illegal, the Court felt the prejudice outweighed any minimal probative value.
It did, however, say the trial judge did not abuse his discretion in admitting evidence that Smith had misused a gun at a barbecue several years before the shooting and been reprimanded, which the State claimed was a bad act showing a propensity to be careless with guns. We will see what happens in trial number three.