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Man convicted in graduation-eve killing appeals to Supreme Court

A convicted first-degree murderer of two Montgomery County teenagers on the eve of their high school graduation has told the U.S. Supreme Court his attorney was unconstitutionally barred from questioning a prosecution witness whose testimony the defense believes was incriminating.

In papers filed with the justices last week, Rony Galicia stated through counsel that Maryland’s top court wrongfully deferred to the trial judge’s decision that cross-examination was unnecessary because the witness had not implicated Galicia in the slayings.

To protect defendants’ Sixth Amendment right to confront their accusers, the Maryland Court of Appeals and other appellate courts must decide for themselves whether cross-examination was warranted and not merely defer to judges unless their ruling was so wrong as to abuse their discretion, attorney Stephen B. Mercer wrote in Galicia’s petition for Supreme Court review.

“The (Supreme) Court has recognized that a defendant’s right to confront the witness against him is central to the truth-finding function of the criminal trial,” wrote Mercer, of RaquinMercer LLC in Rockville. “Precisely for that reason, the total denial of cross-examination about a subject area of such importance as an accomplice’s confession that implicates others is subject to de novo review (on appeal) for harmless error.”

Galicia was tried in Montgomery County Circuit Court with two co-defendants, brothers Edgar Garcia-Gaona and Roger Garcia, for murdering Northwest High School seniors Artem Zibarov, 18, and Shadi Najjar, 17, on June 5, 2017.

Prosecution witness Luz DaSilva testified to the defendants’ friendship and recounted her boyfriend, Garcia-Gaona, had confessed to her his involvement in the murders. DaSilva recalled Garcia-Gaona telling her “they just started shooting them.”

Galicia’s attorney objected to DaSilva’s use of the word broad 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 barred Galicia’s attorney from asking DaSilva about the statement. The defense said the cross-examination of DaSilva would have clarified that the “they” who started shooting referred only to the brothers and not Galicia.

The Court of Special Appeals said the Sixth Amendment was violated and overturned Galicia’s conviction. But the Court of Appeals reversed last June and reinstated the conviction, prompting Galicia to seek Supreme Court review.

“The Court of Appeals has effectively lowered the threshold of the Confrontation Clause guarantee,” Mercer wrote.

“To be sure, once the threshold measure of inquiry is met, the trial court has the discretion to limit the scope of cross-examination to prevent, for example, prejudice, confusion of the issues, repetitive questions, or inquiry into irrelevant areas,” Mercer added. “Still, within the constitutionally prescribed zone of confrontation, a defendant must be free to cross-examine as a matter of right that is the essence of a fair trial.”

The Maryland Attorney General’s Office has waived its right to respond to Galicia’s request for Supreme Court review unless the justices ask for a response.

The high court has not stated when it will vote on Galicia’s request.

The case is docketed at the Supreme Court as Rony Galicia v. State of Maryland, No. 22-441.

In its 5-2 decision, 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.

“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,” McDonald added. “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.”

McDonald was joined by Judges Michele D. Hotten, Brynja M. Booth, Jonathan Biran and Joseph M. Getty.

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 was joined in the dissent by Judge Irma S. Raker.

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, like Galicia, 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 Montgomery Village 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.