Maryland’s top court has agreed to consider an impossibility defense when it hears the appeal of a man’s second-degree murder conviction for being an accessory before the killing of two Montgomery County teenagers on the eve of their high school graduation.
In papers filed with the Court of Appeals, Roger Garcia argued through counsel that a person cannot be guilty of assisting in the planning of a second-degree murder, which by definition is not premeditated and thus not planned.
“It is impossible to be an accessory before the fact to non-premeditated intent to kill murder,” attorney John N. Sharifi wrote in Garcia’s request for high court review, which was granted last week.
“An accomplice cannot … provide aid or encouragement to the principal before the murder without also premeditating the murder,” added Sharifi, a Rockville solo practitioner. “Consequently, a conviction for second-degree non-premeditated intent to kill murder based on accessory before the fact accomplice liability is legally impossible as a matter of law.”
The intermediate Court of Special Appeals rejected that argument last year in upholding Garcia’s conviction 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.
The Court of Special Appeals said that 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.
Assistant Maryland Attorney General Daniel Jawor requested in vain that the Court of Appeals decline to hear Garcia’s appeal, saying the murderous actions of an accessory before the fact depend not on an intent to kill but an intent to assist the killer.
“The (legal) rule operates on the premises that an accessory’s mental state floats freely from that of the principal and is assessed at the time the aid is provided,” Jawor wrote to the high court.
“For these reasons, it is not true, as Garcia contends, that an accessory to criminal homicide must, by virtue of aiding and abetting in advance of the crime, entertain the intent to kill – much less the premeditated intent to kill – or else not qualify as an accessory at all,” Jawor added. “An accessory may also be found culpable based on either intent to cause grievous bodily injury or hot blooded stimulation of a compatriot.”
The Court of Appeals is scheduled to hear arguments in May. The high court is expected to render its decision by Aug. 31 in the case, Roger Johann Garcia v. State of Maryland, No. 62 September Term 2021.
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.
The Montgomery County Circuit Court jury convicted Garcia in 2019 of second-degree murder after finding him not guilty of first-degree premeditated murder. He is serving a 100-year prison sentence for the two murders and related firearm offenses.
The Court of Special Appeals affirmed Garcia’s conviction in a reported opinion written by Terrence M.R. Zic and joined by Judges Stuart R. Berger and Steven B. Gould, who now sits on the Court of Appeals.
Gould did not participate in the high court’s consideration of Garcia’s request for review.
Garcia 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 2021. 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.