A Maryland appeals court has upheld a man’s second-degree murder conviction in the killing of two Montgomery County teenagers on the eve of their high-school graduation, even though his role in the slayings ended before they occurred and without evidence he had planned for their deaths.
In its reported decision, the Court of Special Appeals said premeditation and deliberation were not necessary elements of Roger Garcia’s conviction for second degree intent-to-kill murder, which was based on his being an accessory before the fact.
The Montgomery County Circuit Court jury that convicted Garcia in 2019 of second-degree murder had found him not guilty of first-degree, premeditated murder 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.
In upholding Garcia’s conviction, the Court of Special Appeals rejected his attorney’s argument that the guilty verdict was illogical and invalid. The attorney argued that those who participate in planning someone’s death necessarily engage in premeditation and deliberation, which are elements of the first-degree murder charge for which Garcia was acquitted and cannot be tried for again.
But the appellate court said the same sudden impulse – and lack of premeditation and deliberation – that leads to second-degree murder can apply not only to the actual killer but to an accomplice involved before the slaying.
“(W)e believe an accessory before the fact who personally harbors the intent to kill can aid in the commission of a killing without the awareness and reflection required to justify a finding of deliberation and premeditation,” Judge Terrence M.R. Zic wrote for the court.
“It is plausible that an accessory before the fact…, acting on impulse without sufficient time to consider the decision whether or not to kill and weigh the reasons for or against such a choice, aids another in the commission of a homicide with the intent to kill and in the absence of mitigating circumstances,” Zic added. “In such circumstances, the accessory’s actions would likely not support a finding of deliberation or premeditation, though they would probably satisfy the requirements of second-degree intent-to-kill murder.”
The Court of Special Appeals originally issued the decision in October as “unreported,” meaning the ruling had no precedential significance beyond Garcia’s case. By re-issuing it as a “reported” decision on Wednesday, the court’s holding — that second-degree intent-to-kill murder based on accessory-before-the-fact accomplice liability is a legally viable theory of murder — carries statewide unless overturned by the Court of Appeals.
The Court of Special Appeals did not explain why it chose to report its previously unreported decision.
Garcia’s appellate attorney, John N. Sharifi, said Friday that he and his client will be seeking review by the Court of Appeals.
“This theory of Maryland homicide law that we’ve challenged is legally unsound,” said Sharifi, a Rockville solo practitioner. “When a legally unsound theory goes to the jury, then the verdict cannot stand.”
The Maryland attorney general’s office declined to comment on the decision.
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, they were shot and killed.
The prosecution said Najjar was the primary target in a revenge killing for his having allegedly stolen drugs recently from Jose 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 added.
Zic was joined in the opinion by Judges Stuart R. Berger and Steven B. Gould, who now sits on the Court of Appeals.
The Court of Special Appeals rendered its decision in Roger Garcia v. State of Maryland, No. 2355 September Term 2019.
Garcia, who is serving a 100-year prison sentence for the two murders and related firearm offenses, was one of three men convicted in the graduation-eve slayings.
Jose Canales-Yanez, and Edgar Garcia-Gaona were each found guilty of first-degree murder and sentenced to life without the possibility of parole.
The first-degree murder conviction and life-without-parole sentence of a fourth man, Rony Galicia, was overturned by the Court of Special Appeals in January. The court, in ordering a new trial, said alleged evidence of Galicia’s online searches for guns required support by expert testimony and that defense counsel should have been given greater opportunity to cross-examine a prosecution witness.
The Court of Appeals granted the state’s request to review that decision and heard the appeal on Sept. 13. The high court is expected to render its decision by Aug. 31 in that case, State of Maryland v. Rony Galicia, No. 5 September Term 2021.