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Md. high court weighs impossibility defense in graduation eve slayings

Maryland’s top court grappled Monday over an impossibility defense as it heard 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 graduations.

Attorney John N. Sharifi, pressing Roger Garcia’s case, told the Court of Appeals 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.

“Accessoryship presupposes premeditation,” said Sharifi, a Rockville solo practitioner. “You cannot conspire to commit a murder that does not require premeditation.”

But Assistant Maryland Attorney General Jer Welter countered that the hallmarks of being an accessory – aiding, counseling or encouraging – require neither premeditation nor a mutual understanding with the accomplice who subsequently pulls the trigger.

“You don’t need a meeting of the minds” to be an accessory before the fact in second-degree murder, Welter said. “It (accessoryship) can happen in a flash, It can happen rashly and not necessarily with premeditation.”

Welter urged the high court to uphold Garcia’s conviction for second-degree, non-premeditated intent to kill murder based on accessory before the fact accomplice liability.

Garcia is serving a 100-year prison sentence for the murders of Northwest High School seniors Artem Zibarov, 18, and Shadi Najjar, 17, who were shot as they sat in a car in a Montgomery Village cul-de-sac on the night of June 5, 2017.

In upholding Garcia’s murder conviction, the intermediate Court of Special Appeals ruled last year that the same sudden impulse, and lack of premeditation and deliberation, which leads to second-degree murder can apply not only to the actual killer but to an accomplice involved before the slaying.

As they heard Garcia’s appeal, Court of Appeals judges appeared to agree with Welter’s position that an act, even an impulsive one, can make one guilty of second-degree murder as an accessory before the fact.

For example, Judge Jonathan Biran pressed Sharifi on whether a defendant who blurted out the victims’ formerly secret location in a fit of anger at them — despite knowing their life would be endangered by the disclosure — would be guilty of their subsequent murder.

And Judge Shirley M. Watts said no statute or Maryland case law has held that premeditation is required to prove second-degree non-premeditated intent to kill murder based on being an accessory before the fact.

Garcia responded it is “legally impossible” to be an accessory to a non-premeditated, second-degree murder because the act of providing assistance “necessarily” involves premeditation.

But Welter, citing the lower court’s decision, said that “you measure intent of the accessory at the time of the assistance.”

That assistance, like the murder itself, “need not be premeditated,” Welter added.

The Court of Appeals 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.

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 has recused himself from the high court’s consideration of Garcia’s appeal.

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.