Posted at: 11/15/2013 11:54 AM
Updated at: 11/15/2013 5:26 PM
By: Mark Mulholland
Photo: File / WNYT
QUEENSBURY - Gary Waite's own words were used against him Friday.
Waite, who turned 30 on Sunday, is accused of killing his 15-month old son, Jesse James Smith during a fit of anger in February 2012.
Friday, police who questioned Waite as his child lay dying in the hospital, told the jury what Waite told them.
Glens Falls police Captain Pete Casertino read Waite's entire 4-page statement to the jury.
At first, Waite saying the child fell off the couch inside the living room of the Glens Falls apartment.
"As I was washing dishes, I heard a loud bang. J.J. (Waite's nickname for Jesse), was on the floor, crying. Blood on his mouth. He may have landed on one of his toys."
Later on, police say Waite changed his story.
"He was freaking out and crying for 25 minutes. He was not listening to me."
"I got frustrated and I tossed Jesse to the other end of the couch and he bounced off and onto the hardwood floor and hit the rear of his head."
"I didn't mean to hurt Jesse, he just wouldn't stop bugging out and calm down," police quote Waite.
But during cross examination, Marc Zuckerman, Waite's attorney, repeatedly asked investigators if Waite was worried about his son, hoping to demonstrate for the jury that Waite didn't act with depraved indifference, as prosecutors contend.
Zuckerman: Did he seem concerned?
Investigator: "Somewhat, yes."
Zuckerman: Did he seem indifferent?
Captain Casertino testified that he had contact with Waite before that day and Waite recognized him.
"He hugged me and he told me he wanted us to help his son," said Casertino.
Attorney Zuckerman asked, "Any impression that he didn't care if his son died?"
The captain responded, "I didn't get that impression."
Zuckerman also took investigators to task on Friday for not videotaping their interrogation of his client.
One investigator testified that they had the equipment to record the interview, but didn't tape it because police hadn't yet worked out the procedure to do it.
Waite is charged with depraved indifference murder and manslaughter in the February 2012 death of his son.
Testimony in the trial is scheduled to resume Monday at 9:30.