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Killer of graduating teens appeals conviction in Md. high court

Attorney Nancy S. Forster. (file)

Attorney Nancy S. Forster told the Court of Appeals that the contents of the undisclosed interview undermined a key witness’s credibility. (The Daily Record/File Photo)

The attorney for a convicted killer of two Montgomery County teenagers on the eve of their high school graduation urged Maryland’s top court Thursday to overturn the first-degree murder conviction, saying the state’s failure to disclose the investigators’ interview with a witness’s parents denied the convict a fair trial.

Nancy S. Forster pressed the appeal of Jose Canales-Yanez, who was found guilty after a bench trial in the shooting deaths of Northwest High School seniors Artem Zibarov, 18, and Shadi Najjar, 17, as they sat in a car in a Montgomery Village cul-de-sac on the night of June 5, 2017.

Forster told the Court of Appeals that the contents of the undisclosed interview undermined the witness’s credibility. As a result, the state was obligated to disclose this potentially exculpatory evidence to the defense under the U.S. Supreme Court’s 1963 decision in Brady v. Maryland, Forster said.

During the controversial interview, the investigators essentially told Victoria Kuria’s mother and stepfather that she would be charged with having lied to the police during her earlier statement to officers unless she spoke with them again, Forster said. After speaking with her mother, Kuria was interviewed again by investigators and implicated Canales-Yanez in the slaying, Forster added.

“By withholding the evidence, the state has misled the defense,” Forster told the high court.

“You have heavy-duty coercion to get Ms. Kuria to talk (again) to the police,” Forster added. “The defense very easily could have impeached her with that.”

But Assistant Maryland Attorney General Benjamin A. Harris defended Montgomery County Circuit Judge David A. Boynton’s finding of guilt, saying – as Boynton had – that the state’s failure to disclose was not “material” because the interview had no effect on the verdict due to overwhelming evidence against Canales-Yanez.

Harris added that the intermediate Court of Special Appeals correctly upheld the conviction because Boynton’s finding of guilt was not “patently unreasonable” despite the state’s failure to disclose the interview.

“The judge has to rely on his own findings of credibility,” Harris told the high court. “The trial judge is the one who heard all the evidence.”

Court of Appeals judges appeared to be as divided as the attorneys.

For example, Judge Robert N. McDonald seemed to support Harris, saying that Canales-Yanez’s trial attorney adequately raised the investigators’ threat of possible charges in cross-examining Kuria.

But Judge Shirley M. Watts, in apparent agreement with Forster, said the prosecution’s failure to disclose the interview with Kuria’s parents might have deprived Canales-Yanez’s counsel of an additional line of questioning.

“Defense counsel wouldn’t know to ask, ‘Is there more?’” in the absence of the undisclosed information, Watts said.

In line with Watts’ inquiry, Forster said evidence is material under Brady if the prosecution’s failure to disclose it denied the defendant a complete defense.

If the interview were disclosed, Canales-Yanez’s trial attorney would have altered trial strategy by perhaps having the parents testify regarding their threatening conversation with investigators or by opting for a jury trial, Forster told the high court.

The investigators essentially told the parents during the undisclosed interview that “’we now can prove Vickie lied to us and that’s not a good thing,” Forster said. “That’s the inducement of why she came forward.”

But Harris, the assistant attorney general, said the threat of prosecution for lying to police was addressed when she was cross-examined at trial and that nothing the investigators discussed with the parents contained exculpatory evidence in the state’s case against Canales-Yanez.

According to the prosecution, Najjar and Zibarov were lured to the cul-de-sac in the belief they were selling extra tickets to the June 6 graduation. Instead, Canales-Yanez and three other men shot them.

The prosecution said Najjar was the primary target in a revenge killing for his having allegedly stolen drugs recently from Canales-Yanez’s wife and then driving over her feet as he escaped. Zibarov was just in the wrong car at the wrong time, prosecutors said.

In addition to murder, Canales-Yanez was found guilty of conspiracy to commit murder and sentenced to life in prison without the possibility of parole.

Canales-Yanez’s co-conspirators — Roger Garcia, Rony Galicia and Edgar Garcia-Gaona — were found guilty of murder in separate trials and are not parties to the high court appeal.

The appeal centered on the investigators’ undisclosed interview with Kuria’s mother and stepfather, which occurred after Kuria had told them she was at the home of Garcia, her boyfriend, shortly before the killings. A friend of Garcia and Garcia’s father were also in the house, Kuria said in the interview disclosed to the defense.

The investigators, believing Kuria was untruthful, then interviewed the mother, who told them Kuria had told her that she knew nothing of the killings. The investigators then told the mother and stepfather that they would not charge Kuria with lying to the police if she told them the truth when they interviewed her again.

In that subsequent interview, Kuria told the investigators that the crowd at Garcia’s house was much larger and included Canales-Yanez and Galicia. She also said she saw a map of where the killings occurred later that evening.

Kuria reiterated that statement in her testimony at Canales-Yanez’s trial, at which the defense had no knowledge of the investigators’ interview with the parents.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Jose Canales-Yanez v. State of Maryland, No. 11, September Term 2020.

 

 


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