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Army Ranger gets a third trial; Gary Smith’s Manslaughter conviction is reversed

Washington DC criminal lawyers

August 31

A Maryland appeals court reversed the conviction of Gary Smith, a former U.S. Army Ranger charged in 2006 with fatally shooting his roommate inside their Montgomery County apartment — setting the stage for a third trial in the case.

In the latest iteration, filed Thursday, the Maryland Court of Special Appeals ruled that Montgomery Circuit Judge Eric Johnson erred by not asking prospective jurors a question that defense attorneys wanted him to ask: “Is there any member of the panel who would be less likely to believe a witness simply because they were called by the defense?”

Omitting the question was grounds for reversal, according to the appeals court, which also addressed other possible trial errors. Among them, prosecutors were permitted to admit evidence relating to Smith owning eight firearms and keeping ammunition in his apartment, issues that the appeals court termed “highly prejudicial” and, at best, only of limited relevance.

“We’re ecstatic to get another opportunity to prove Gary’s innocence,” said one of Smith’s attorneys, Andy Jezic.

Montgomery Deputy State’s Attorney John Maloney — who has twice tried Smith in the fatal shooting of Michael McQueen, another former Ranger — said that prosecutors will ask the state’s higher appellant court to reverse Thursday’s ruling.

If the ruling stands, the case would be sent back to Montgomery for a possible third trial.

“We’re confident that if he has to be tried again, he will again be found responsible for killing Michael McQueen,” Maloney said.

The case has significant trial-appeals-reversal history.

In 2008, Smith was convicted of depraved-heart, second-degree murder and use of a handgun in the commission of a felony. During the trial, jurors watched a video recording of Smith speaking with detectives, during which Smith changed the details of his story but asserted that McQueen shot himself. Prosecutors said that Smith shot McQueen at close range.

But that conviction was later reversed on a witness issue, setting the stage for a trial that began in 2012. This jury convicted Smith of a lesser charge — involuntary manslaughter — as well as use of a handgun in the commission of a felony. It was that trial that was the subject of the latest appeal.

Amid the appeals, Smith’s attorneys persuaded a different panel of judges to reduce Smith’s sentence — from the second trial — from 28 years to 15 years. Jezic said Smith will be eligible for a second parole hearing in two years.

A new trial in the case could start within eight months, Jezic said.

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Post staff writer Dan Morse covers courts and crime in Montgomery County, Md.



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June 20, 2006 – Teenager Is Released After Establishing Alibi in Montgomery County.

WHEATON SLAYING

Teenager Is Released After Establishing Alibi

By Ernesto Londoño
Washington Post Staff Writer

Tuesday, June 20, 2006  

Montgomery County prosecutors dropped murder and assault charges yesterday against an 18-year-old Silver Spring man arrested in the May 10 fatal beating of a 30-year-old man.

Jose Garcia’s attorney, Andrew Jezic, said the charges were dropped after he pieced together a “nearly airtight” alibi for his client, including errands Garcia was running that day to buy a Mother’s Day gift.

“I missed my graduation,” Garcia, a Wheaton High School graduate, said yesterday in an interview shortly after his release. “Supposedly, someone said my name” to police. “I have no idea who said my name.”

Garcia was arrested June 1 in the beating of Josue A. Lagos-Rivera of Silver Spring, whom police initially identified as Roque J. Rivera.

Four other people remain charged in the case. Garcia had been charged with second-degree murder and first-degree assault.

Montgomery County Deputy State’s Attorney John McCarthy said a witness’s identification of Garcia as one of the assailants seemed dubious to authorities after further investigation.

“We didn’t feel probable cause continued to exist, and we thought it was inappropriate for him to remain in custody,” McCarthy said.

Police said in a charging document that an unidentified witness incriminated Garcia in the fight.

Jezic said Garcia’s alibi included e-mails, an ATM transaction, a letter from his principal indicating what time he had left school, a statement from a classmate with whom he walked home and the recollection of his 9-year-old brother who saw him hug his mother at home to wish her a happy Mother’s Day. May 10 was Mother’s Day in El Salvador, Garcia’s homeland.

Police found Lagos-Rivera’s body early May 11 at Wheaton Forest Park in the 1700 block of University Boulevard. Four people are charged with second-degree murder and first-degree assault in the case: Wayne A. Davis, 18, of Silver Spring; brothers Robert Goodwin Jr., 17, and Antonio D. Goodwin, 18, both of Silver Spring; and a 15-year-old male who has not been identified because he was charged as a juvenile.

Lagos-Rivera died of internal injuries after being punched, kicked and possibly hit on the head with a rock, police said.




Charges Dropped Against Man Accused of Assaulting Girl, 8 in Prince George’s County.

Prince George’s County Sex Assault attorney

Charges Dropped Against Man Accused of Assaulting Girl, 8

By Ruben Castaneda Washington Post Staff Writer
Saturday, March 10, 2007
 

Prince George’s County prosecutors yesterday dropped charges against a 35-year-old man who was accused of sexually assaulting an 8-year-old girl as she walked from a school bus stop to her Upper Marlboro home last fall.

The decision came after prosecutors obtained DNA test results that exonerated Andre C. King and read statements from defense witnesses who provided a solid alibi for him, said both Prince George’s State’s Attorney Glenn F. Ivey and Andrew V. Jezic, King’s defense attorney.

At the request of Assistant State’s Attorney Donine Gaynor, Circuit Court Judge Sherrie L. Krauser dismissed the charges of first- and second-degree rape against King.

King, who had been jailed without bond at the Prince George’s Detention Center since he was arrested shortly after the alleged attack in September, was to be released yesterday afternoon or evening, Jezic said.

Jezic said he commended Gaynor and Ivey during the brief court hearing. The alleged victim and her mother have continued to accuse King, even as evidence pointing to his innocence has mounted in recent weeks, Jezic said.

“The state’s attorney’s office in this case did everything right,” Jezic said. “We had many conversations about whether the defendant was innocent.”

Ivey said he decided that charges against King should be dropped because DNA evidence produced no connection between the defendant and the victim and because “the defense produced multiple, credible alibi witnesses.”

“We’re not only here to convict the guilty but to exonerate the innocent,” Ivey said.

DNA results from the county police lab became available about two weeks ago. Genetic material from a swab taken from the victim did not match King’s DNA, Jezic said.

Jezic and Ivey both said they believe the girl was sexually assaulted.

The incident occurred about 2:30 p.m. Sept. 28. The girl had stepped off a school bus and was walking through a neighbor’s back yard along Brimfield Drive when she was grabbed from behind by a man who threatened to kill her, then sexually assaulted her, the documents said.

The girl ran home and told her mother; police found King at his home about four blocks from where the girl said the attack occurred, Jezic said. Police brought the girl to see King, and she identified him as the attacker, according to police charging documents.

Private defense investigators located three witnesses who said King was in his back yard during the time the rape allegedly occurred. The witnesses said King was sitting in a chair from the time the school bus would have arrived until the time police arrested him, according to defense papers that were part of an unsuccessful motion to persuade a judge to grant King a bond.

Ivey said the investigation into the assault would continue.




Montgomery County Teenager’s Murder Charges Dropped, 6 Others Accused in July Stabbing.

District of Columbia Criminal defense lawyers
Maryland Community Newspapers Online
Tuesday, Aug. 25, 2009
by Amber Parcher | Staff Writer

Six alleged gang members were indicted on murder charges in Montgomery County District Court on Thursday in the stabbing death of a 21-year-old Wheaton man, a county state’s attorney’s spokeswoman said.

The following Montgomery County residents were each charged with first-degree murder, conspiracy to commit murder, first-degree assault, conspiracy to commit first-degree assault, riot and participation in a gang activity resulting in death:

Christian Salmeron, 20, and Jose A. Hernandez, 16, both of the 4300 block of Ferrara Drive in Wheaton; Deshaun Budd-Bey, 18, of the 12800 block of Bluhill Road in Wheaton; Jose Vasquez, 21, of the 4400 block of Sigsbee Road in Aspen Hill; Kevin Miranda, 17, of the 10800 block of Georgia Avenue in Silver Spring; and Anthony Racedo, 18, of the 12700 block of Bushey Drive in Wheaton.

The six, believed to be members of the Chicago-based Latin Kings gang, were indicted in the July 7 murder of 21-year-old Edwin Umana of Wheaton, said spokeswoman Emily White.

A trial date for the six is set for Nov. 23 in Montgomery County Circuit Court, but several defense attorneys representing some of the defendants say they don’t believe the case will be taken that far.

County police say Umana was chased by the males, assaulted and killed after calling out to several women sitting on the porch of a home in the 13100 block of Matey Road in the Greenwood Knolls community of Glenmont.

Rockville-based defense attorney Charles Lipscomb, speaking for his client Racedo, said he thinks the first-degree murder charges against his client will be dropped because of a lack of evidence.

“It’s clear that my client didn’t stab this guy,” Lipscomb said.

Vasquez admitted to police he stabbed Umana in the temple while six others kicked him as he lay on the ground, according to charging documents filed in District Court.

Umana died the next day in the hospital, police said.

Rockville-based defense attorney Jennifer Page, who is representing Budd-Bey, said she also believes murder charges will be dropped against her client and that each defendant will be prosecuted according to his connection to the assault.

“The different young men had very different involvement,” she said.

On Aug. 13, prosecutors dropped related first-degree murder charges against another teen, Hirbin Bladimir Guerrero, 16, of the 11300 block of Schuylkill Road in Rockville.

Original witness accounts placed Guerrero close to Umana’s body, but prosecutors later found evidence proving he didn’t leave the porch during the murder, said his attorney, Wheaton-based Andrew Jezic.

“It’s just really sad that he spent 45 days in jail,” Jezic said.

Alex Foster, a Rockville-based attorney representing Salmeron, said he’s hesitant to comment until he receives more information from the state.

Hernandez’s attorney, Rockville-based Esteban Gergley, could not immediately be reached for comment.

Public records did not list an attorney for Miranda, and a public defender will be assigned to Vasquez.




Montgomery County Jury finds ex-Army Ranger not guilty of Depraved Heart Murder.

Washington, DC criminal defense law

Maryland Community News


Published: Wednesday, September 19, 2012

Jury finds ex-Army Ranger guilty of involuntary manslaughter.

This story was updated at 4:55 p.m. on Sept. 19, 2012.

In spite of his conviction Sept. 19 of involuntary manslaughter and a handgun offense, former U.S. Army Ranger Gary Smith remained determined to prove his innocence.

“I’ll survive,” Smith said the day before as he waited for the jury’s verdict with family and friends. “Either way, I’ll survive, but it is very hard. Even if I go back to jail, I’ll never give up.”

Smith, 29, was found guilty of involuntary manslaughter and the use of a handgun in a crime of violence in Montgomery County Circuit Court at 1:30 p.m. Sept. 19 — nearly 12 hours after the jury began its deliberation. The trial itself, ordered by the Maryland Court of Appeals after Smith’s first conviction was overturned last year, lasted more than three weeks.

Smith was originally convicted in 2008 of the second-degree depraved heart murder of 22-year-old Michael McQueen, Smith’s roommate and fellow combat veteran who was found dead from a single gunshot wound to the head in the Gaithersburg apartment the two shared on Sept. 26, 2006.

That conviction was overturned last year after the appeals court determined Judge Eric M. Johnson had erred in not allowing Smith’s defense attorneys to present a police officer’s testimony on McQueen’s state of mind before his death as evidence at trial.

Andrew Jezic, one of Smith’s defense attorneys, confirmed that Smith will appeal his manslaughter and handgun convictions.

“I think it’s safe to say we are grateful to the jury for their careful consideration of the evidence and for their acquittal of the depraved heart murder charge, but we are very disappointed that it was not a complete acquittal,” Jezic said. “We will certainly be appealing.”

Leeanne Soltes, Smith’s sister, left the courtroom in tears after watching her brother being led away in handcuffs. Soltes also maintained her brother’s innocence and vowed to appeal, despite the heavy toll she said each trial has taken on her family.

“We’re never going to give up hope but this has ripped holes into the hearts of everyone who knows [Gary],” she said through sobs after hearing the verdict. “He’s going to miss his 30th birthday, which is a week before his sentencing hearing. He’s going to miss my daughter’s second birthday a week after his sentencing. I don’t have my baby brother.”

Glenda McQueen, Michael’s mother, was also dissatisfied with the verdict. She believed the jury did not go far enough in holding Smith responsible for her son’s death.

“I was disappointed that he did not get second-degree murder but I was satisfied that he will receive some time,” she said outside the courtroom. “Gary Smith is guilty of killing my son, and he will serve time in jail for that.”

Montgomery County State’s Attorney John McCarthy, speaking on behalf of Deputy State’s Attorney John Maloney and Assistant State’s Attorney Robert Hill, said his office was pleased with the sentence and will be prepared to reply to any future appeals Smith may file.

“There are always appeals,” McCarthy said. “Justice can sometimes be appealed but we are hopeful that ultimate justice was served here today.”

Both McCarthy and McQueen pointed out that, considering the first jury’s verdict in 2008, this marks the second independent panel of jurors to rule against the defense’s claim that McQueen killed himself.

Smith will receive at least five years in jail and could serve up to 30 years at his sentencing hearing Oct. 15. Smith’s handgun charge carries a mandatory minimum sentence of five years in jail and a maximum possible sentence of 20 years. Involuntary manslaughter carries a maximum penalty of 10 years in jail.

“I hope the judge gives him the maximum penalty,” Glenda McQueen said. “ … I would love to have closure in this, but until we see that appeal I won’t have any.”




Montgomery County Man not guilty of manslaughter in 2008 crash.

Washington, DC Homicide lawyer
Maryland Community Newspapers Online
Wednesday, May 12, 2010

by Erin Donaghue | Staff Writer

 A Rockville resident was found guilty of manslaughter by motor vehicle in April in a 2008 car crash that killed a Montgomery Village woman.

Jeffrey Priscillano Samonte Nunez, 28, and Dexter Ingram, 24, of Washington, D.C., were found not guilty April 30 of racing their cars. Ingram was found not guilty of manslaughter by motor vehicle.

Nunez was driving north on Rockville Pike near White Flint mall Dec. 9, 2008, when his Honda Civic hit the median, went airborne, and landed on top of 18-year-old Ngoc Xuan Thi Lai’s 1995 Toyota Camry. Lai, a Montgomery Village resident and a recent Watkins Mill High School graduate, had been driving south on Rockville Pike. She was pronounced dead at the scene.

Nunez was charged alongside Ingram, who was driving another car north on Rockville Pike at the time of the accident. According to court records, Ingram had switched into the left travel lane in front of Nunez, who lost control of his car.

Who was at fault for the accident remained at issue throughout the trial. Attorneys for Nunez argued that Ingram had cut off Nunez, causing the accident, according to court records.

Andrew Jezic, a lawyer for Ingram, said he argued that Nunez caused the crash. At trial, one expert estimated that Nunez had been travelling as fast as 67 mph on the road, which has a speed limit of 40 mph.

Ken West, an attorney for Nunez, did not return several calls for comment. West filed a motion May 10 with Montgomery County Circuit Court Judge Nelson W. Rupp asking the judge to withdraw the verdict finding Nunez guilty of manslaughter, according to court documents.

In the motion, West argued because Nunez was found not guilty of drag racing, his speed alone was not enough to convict him of manslaughter. West also argued Ingram caused Nunez to lose control of the car.

Both Ingram and Nunez were indicted on charges of speed contest — or drag racing — in July 2009. Both men were found not guilty by a jury on that charge. Ingram also was indicted on charges of manslaughter by motor vehicle and was found not guilty. Ingram was found guilty of reckless driving and failure to remain at the scene of an accident resulting in bodily injury.

They are both scheduled to be sentenced July 20.

Jezic said his client was humbled by the verdict.

“I think the jury did the right thing. They were able to put aside the tragedy of this awful death and decide the case on the evidence.”




Montgomery County Correctional Center Nurse Acquitted on Sex Offense Charges.

Washington, DC Gun Charges lawyers

Maryland Community Newspapers Online

Wednesday, Jan. 28, 2009
by Andrew Ujifusa | Staff Writer

An employee at a Montgomery County correctional facility was acquitted earlier this month on charges that he committed a sexual offense with a male inmate last year.

Francisco Modesto Redona, 51, of Walkersville, was found not guilty on Jan. 18 of one charge of correctional-inmate sexual offense and one charge of second-degree assault stemming from allegations from April 2008 at the Montgomery County Pre-Release Center. The trial took place over four days before Circuit Court Judge David Boynton in Rockville.

Redona was employed as a nurse at the Montgomery County Pre-Release Center on Nebel Street in North Bethesda when he was accused of performing a sexual act on a 35-year-old male inmate on April 29, 2008. The inmate originally came to Redona to obtain nasal spray and a physician’s referral for a medical condition. The inmate told center staff there had been an incident at least 45 minutes later, and the staff subsequently called police.

According to charging documents, police obtained DNA evidence from the inmate and the inmate’s boxer shorts that matched Redona’s DNA.

Redona’s attorney, Andrew Jezic of Wheaton, said the inmate admitted that he was alone for a short period of time in an examination room with tissues and paper towels that had been used by Redona.

Two employees at the Pre-Release Center, including a counselor who had worked with the inmate in 2005, also testified that the inmate was “not a truthful person,” according to Jezic.

Jezic said Redona was currently in the process of trying to get his job back at the Pre-Release Center, where he is on unpaid administrative leave. He said his client had gone through “eight or nine months of hell.” Redona had worked for the county’s correctional system since 2003 and for the Pre-Release Center since 2006.

“The jury got to hear that this is an exemplary person, an exemplary nurse, an exemplary father and husband, and these are false charges,” Jezic said.




Former Md. trooper found not guilty of 3 sex offense charges in Montgomery County.

By Dan Morse

Washington Post Staff Writer
Tuesday, April 20, 2010

A Montgomery County jury Monday acquitted former Maryland State Trooper Marlon Iglesias of three sex offense charges related to a woman handcuffed after a DUI stop but found the trooper guilty of a charge of misconduct in office.

Charges against the trooper hinged primarily on the word of the alleged victim, who nearly a year after the traffic stop told authorities Iglesias has inappropriately touched and fondled her after she’d been pulled over on Interstate 270, handcuffed and taken to a nearby station. But during testimony, the alleged victim’s record for honesty was cast in doubt.

At the trial, the alleged victim testified that Iglesias handcuffed her and placed her in the front seat of his police car. She said that on the way to the station, he touched her thigh. She alleged that after she’d gotten to the station, he touched or fondled her at least two more times. And as he was letting her go from the station, she said, he also kissed her.

The jury deliberated for about four hours Friday. Jurors came back Monday morning and deliberated for nearly an hour.

The split verdict may have reflected jurors’ thinking that something untoward happened after the stop but not enough to deliver a more serious finding.

“We are very pleased that the jury acquitted him of all three felony charges,” said Iglesias’s attorney, Andrew Jezic, adding he will appeal the guilty charge.

“We are quite pleased with the jury’s verdict,” said Montgomery County Deputy State’s Attorney John Maloney. “The jury did not hear about a very similar incident that former trooper Iglesias had with another female, whom he had in his cruiser in January of 2009, shortly before he resigned in April 2009. That previous incident will be addressed along with his misconduct with the victim in this case at sentencing.”

Jezic said the incident was “investigated fully” by the state police, and charges were never brought.




New Trial Granted 15 years later in Howard County murder.

Posted 12/16/10

A former Wilde Lake woman who pleaded guilty to voluntary manslaughter after fatally stabbing her live-in boyfriend more than 15 years ago has been granted a retrial.

Tatyana Kogan, 42, was sentenced to six months in prison in 1995 after her defense attorney convinced a Howard County Circuit Court judge that Kogan lived in constant fear of her abusive boyfriend and that she stabbed him to death with a steak knife in order to defend herself during a domestic dispute.

On Oct. 11 1994, Kogan, then 26, placed a panicked phone call to 911, informing the dispatcher that she had just “killed her boyfriend” and “stuck a knife in his heart,” according to a March 9,1995 article in the Howard County Times.

Officers arrived on the scene to find Andrei Gordon, 31, still alive, clutching his chest in pain and bleeding severely.

At the time, Kogan pleaded guilty to manslaughter.

Now, however, she has been granted a retrial after asserting that she did not realize the plea would affect her immigration status. She and her new defense attorney, Andrew V. Jezic, also say that she entered the plea under emotional distress because her boyfriend’s associates had threatened her young daughter’s safety.

Kogan, originally from the Republic of Belarus, a small Eastern European country, has been a legal resident of the U.S. since 1990.

She owns a consulting firm that helps American companies sell products to Eastern Europe.

In 2007, she received a notice from the Department of Homeland Security stating that she was not allowed to travel abroad, which she asserts is essential for her profession, and that she might face removal charges as a result of her guilty plea, according to court documents.

“The reason that she took this compromise deal was because she was not in the right frame of mind and did not get good advice,” Jezic said. “She had every right to do what she did and she would have been acquitted had the case gone to trial.”

Prosecutors oppose retrial

In a March decision, Circuit Court Judge Diane Leasure permitted the retrial, but last week the Howard County State’s Attorney’s Office appealed her decision.

“We don’t have any evidence anymore; its been destroyed. This case is over; it’s been over for 17 years.” said state prosecutor Todd Taylor.

Taylor said the state destroyed the evidence after Kogan completed her probation. He said the lack of evidence puts an unfair burden on the state.

“I have no evidence to put on, so it would be an automatic not guilty,” he said.

Jezic disagreed. He said witness testimony would allow the state to present the necessary evidence.

“Most, if not all, of the key investigators of the case are alive and live in Maryland,” Jezic said.

He said he is confident Leasure’s decision to allow a retrial will hold up under the scrutiny of an appeals court.

According to reports at the time, Kogan told police that she awoke in the early morning hours of Oct. 11, 1994 to the sound of her 4-year-old daughter screaming. She told authorities that she went downstairs and discovered Gordon hitting the child because she had thrown away a piece of pie. She said Gordon then proceeded to hit her in the face, stomach and chest.

At that point, Kogan said she picked up the knife and stabbed Gordon.

‘Vicious career criminal’

During her sentencing hearing, medical experts testified that Kogan suffered from spousal abuse syndrome and that Gordon had mentally and physically abused her.

Other witnesses testified that Gordon was a “vicious career criminal” and “a violent and abusive individual, as well as a prominent figure in the Russian underworld,” according to court documents.

The defense argued that Gordon was suspected in two murders, including one in Italy that was “believed to be over a ‘clash of interests linked to the black market,’ ” court documents state.

One neighbor, who testified at the hearing, told the Howard County Times that she had witnessed Gordon striking Kogan.

“I saw it. He hit and kicked her in the stomach,” the neighbor said at the time.

At the sentencing hearing, Circuit Court Judge Dennis M. Sweeney sentenced Kogan to about six months in prison — the time she had already served while awaiting court hearings. According to court documents, he said he was sufficiently convinced that Gordon was violent toward Kogan.

“I think that it is fairly clear, and I don’t think that the state argues to the contrary, that this was a relationship in which violence was a specter, if not a frequent visitor, both against Ms. Kogan and … the child in this case,” Sweeney said.

Jezic agreed, arguing that his client was a constant victim of her boyfriend’s abusive temper, and she acted in self-defense when she stabbed him.

“She has been innocent from the beginning,” he said. “She was the victim.”




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