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Md. high court rejects impossibility defense, upholds conviction in graduation eve slayings

“An accessory’s aid can be provided on the spur of the moment, thoughtlessly, or rashly, and thus without premeditation,” Judge Angela M. Eaves wrote for the court. (Submitted Photo)

A unanimous Maryland high court Thursday upheld 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 five years ago.

In its 7-0 decision, the Court of Appeals rejected Roger Garcia’s argument through counsel that he could not be guilty of assisting in the planning of a second-degree murder, which by definition is not premeditated and thus not planned.

The high court said the impossibility defense does not apply because an accessory to a murder merely abets and is not involved in the planning, as a co-conspirator would be.

“An accessory’s aid can be provided on the spur of the moment, thoughtlessly, or rashly, and thus without premeditation,” Judge Angela M. Eaves wrote for the court. “An accessory before the fact to second-degree murder is different and distinct from conspiracy to commit second-degree murder.”

As a result of the decision, Garcia will continue to serve 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 Court of Appeals said 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.

“(A)n accessory, by nature, is guilty of planned and incidental crimes committed by another,” Eaves wrote. “That is, Garcia did not need to intend to aid in the commission of the murders but, as he did here, only intend to aid his co-defendants in some other crime.”

Garcia’s attorney, John N. Sharifi, stated via email Thursday that “I respectfully disagree with the decision and believe Maryland homicide law has certain incongruities that remain unrectified.”

Sharifi is a Rockville solo practitioner and teaches evidence and trial practice at Catholic University of America’s Columbus School of Law in Washington.

The Maryland Attorney General’s Office declined to comment.

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.

Prior to the slayings, Garcia had seen Najjar’s social media post about selling tickets and told his co-defendants, the prosecution said.

A 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 last year, prompting his unsuccessful appeal to the high court.

Eaves’ majority opinion marked her first as a judge on Maryland’s top court. She took her seat April 12 following her appointment by Gov. Larry Hogan.

The Court of Appeals rendered its decision in Roger Johann Garcia v. State of Maryland, No. 62 September Term 2021.

Garcia was one of three men convicted in the graduation-eve slayings.

Jose Canales-Yanez, Edgar Garcia-Gaona and Rony Galicia were each found guilty of first-degree murder and sentenced to life without the possibility of parole.

Galicia’s conviction was overturned by the Court of Special Appeals, which ruled that evidence he had deactivated his smartphone’s location settings before the slayings required expert testimony and that defense counsel should have been given greater opportunity to cross-examine a prosecution witness.

But the Court of Appeals reinstated the conviction in June, saying it does not take an expert to explain smartphone capabilities to jurors and that the witness’ testimony had not incriminated Galicia.

That case was docketed at the high court as State of Maryland v. Rony Galicia, No. 5 September Term 2021.