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Md. high court reinstates conviction in graduation eve murders

Court of Appeals Judge Robert McDonald wrote the majority decision in the 5-2 ruling. (Capital News Service Photo)

A divided Maryland high court Monday reinstated the first-degree murder conviction of a man who killed two Montgomery County teenagers on the eve of their high school graduation five years ago.

In its 5-2 decision, the Court of Appeals overturned an appellate ruling that Rony Galicia’s counsel was unfairly barred from questioning a prosecution witness whose testimony the defense believed was incriminating.

The high court also reversed the Court of Special Appeals holding that expert testimony was needed to explain to the jury how Galicia was able to turn off his smartphone’s location settings before the slayings of Northwest High School seniors Artem Zibarov, 18, and Shadi Najjar, 17.

Galicia and others were accused of shooting the teens as they sat in a car in a Montgomery Village cul-de-sac on the night of June 5, 2017.

Montgomery County State’s Attorney John McCarthy said Tuesday that he is “gratified” with the high court’s decision reinstating Galicia’s conviction and life sentence without the possibility of parole.

“The conviction was hard fought and won fairly,” McCarthy added.

Galicia’s appellate attorney, Isabelle Raquin, did not immediately return a message Tuesday seeking comment on the court’s decision. Raquin is with RaquinMercer LLC in Rockville.

Galicia was tried in Montgomery County Circuit Court with two co-defendants, brothers Edgar Garcia-Gaona and Roger Garcia.

At the trial, prosecution witness Luz DaSilva testified to the friendship among all the defendants and recounted that her boyfriend, Garcia-Gaona, had confessed to her his involvement in the murders. In her testimony, DaSilva recalled Garcia-Gaona telling her that “they just started shooting them.”

Galicia’s attorney objected to DaSilva’s use of the word “they,” saying it implicated Galicia when DaSilva’s testimony was to be limited to Garcia-Gaona’s involvement.

Montgomery County Circuit Judge David A. Boynton overruled the objection and later barred Galicia’s attorney from asking DaSilva about a statement Garcia-Gaona allegedly made to her implicating his brother in the shooting. The defense maintained that the statement would have clarified that the “they” who started shooting referred to the brothers and not Galicia.

Over the defense’s objection, Boynton also permitted Daniel O’Donnell, a records custodian at Google, to testify to a gap in Galicia’s location history between April 11, 2017, and June 8, 2017. Galicia’s attorney stated in vain that the tracking data could be introduced as evidence only if an expert explained for the jury the ability of smartphone users to cancel location information.

The Court of Special Appeals overturned Galicia’s first-degree murder convictions, saying Boynton’s denial of counsel’s request to cross-examine DaSilva based on her use of the word “they” violated the Constitution’s Confrontation Clause. The appellate court also said an expert was required to testify regarding a smartphone user’s control of location tracking because that ability was not “common knowledge.”

In reinstating the convictions, the Court of Appeals said DaSilva’s use of “they” did not implicate Galicia because his attorney had acknowledged that multiple gunmen had killed the teens but argued that Galicia was not among them. The high court also noted that Boynton had told the jury that DaSilva’s testimony addressed only Garcia-Gaona’s involvement.

“Both the state and Mr. Galicia’s defense agreed there were multiple shooters,” Judge Robert N. McDonald wrote for the high court’s majority.

“Certainly, the state hoped to persuade the jury, through evidence other than Mr. Garcia-Gaona’s statement, that Mr. Galicia was one of several shooters, just as Mr. Galicia’s defense hoped to persuade the jury that he was not – or at lease raise a reasonable doubt that he was,” added McDonald, a retired judge sitting by special assignment. “Ms. DaSilva’s testimony concerning Mr. Garcia-Gaona’s confession to her was neutral on who, in addition to Mr. Garcia-Gaona, those shooters were. Thus, there was no violation of Mr. Galicia’s rights under the (federal and state) confrontation clauses.”

The Court of Appeals added it does not take an expert to explain location tracking to jurors.

“When a court considers whether testimony is beyond the ‘ken’ of the average layman, the question is not whether the average person is already knowledgeable about a given subject, but whether it is within the range of perception and understanding,” McDonald wrote.

“Some smartphone users – and the minority of Americans who do not own smartphones – may not personally have experience toggling their location tracking on and off, but the simple fact that a mobile electronic device allows its users to customize the data they share with the manufacturer, the cell phone service provider, and various apps is common knowledge in our society,” McDonald added. “That a user’s customized or default settings may impact the records kept by those entities does not require specialized knowledge to understand.”

McDonald was joined in the opinion by Judges Michele D. Hotten, Brynja M. Booth, Jonathan Biran and Joseph M. Getty, another retired jurist sitting by special assignment.

In dissent, Judge Shirley M. Watts said DaSilva’s use of “they” in a case involving multiple defendants warranted cross examination because the plural pronoun “made it unclear to the jury which of the other three co-defendants he was referring to and unfairly prejudiced Galicia.”

Watts added that explaining location tracking to a jury requires an expert.

“An average member of the general public would not have the specialized knowledge and training necessary to identify and explain a gap in the ‘location history’ of a Google account – and has likely never even heard of ‘location history’ – to say nothing of being able to discern that there is a ‘gap’ in a user’s ‘location history’ just by looking at data from Google,” Watts wrote. “In other words, understanding how to evaluate Google ‘location history’ is a matter that is not within the purview of the general public, and only a properly qualified expert witness could draw such an inference.”

Watts was joined in the dissent by Judge Irma S. Raker, a retired jurist sitting by special assignment.

The Court of Appeals rendered its decision in State of Maryland v. Rony Galicia, No. 5, September Term 2021.

The jury at Galicia’s trial also found Garcia-Gaona guilty of two counts of first-degree murder. He was sentenced to life in prison without the possibility of parole.

Garcia’s attorney fell ill during the trial, resulting in a mistrial. Garcia was convicted of two counts of second degree murder in a separate jury trial and sentenced to 100 years in prison.

A fourth defendant, Jose Canales-Yanez, was convicted  of two-counts of first-degree murder in a separate, bench trial and was sentenced to life without the possibility of parole.

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 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.