Appeals Court Judge Robert McDonald penned the majority decision in the 5-2 ruling. (Capital News Service Photo)
A divided Maryland Supreme Court on Monday reinstated the first-degree murder conviction of a man who murdered two teens in Montgomery County five years ago on the eve of high school graduation.
In its 5-2 decision, the Court of Appeal overturned an appeal ruling that Rony Galicia’s counsel had been wrongly barred from questioning a prosecution witness whose testimony the defense argued was incriminating.
The Supreme Court also overturned the Court of Special Appeal, ruling that expert testimony was needed to explain to the jury how Galicia was able to disable its smartphone location settings before the murders of seniors Artem Zibarov, 18, and Shadi Najjar, 17 from Northwest High School. †
Galicia and others were charged with shooting the teens while they were in a car on a cul-de-sac in Montgomery Village on the night of June 5, 2017.
Montgomery County state attorney John McCarthy said Tuesday he was “satisfied” with the Supreme Court’s decision to reinstate Galicia’s conviction and life sentence without the possibility of parole.
“The sentencing was hard fought and won fairly,” McCarthy added.
Galicia’s lawyer, Isabelle Raquin, did not immediately return a message on Tuesday asking for comment on the court’s decision. Raquin is at 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 between all the defendants and told her that her boyfriend, Garcia-Gaona, had confessed to her involvement in the murders. In her testimony, DaSilva recalled that Garcia-Gaona told her that “they just started firing at them.”
Galicia’s lawyer objected to DaSilva’s use of the word “she,” saying it implied Galicia when DaSilva’s testimony was limited to Garcia-Gaona’s involvement.
Montgomery County Circuit Judge David A. Boynton dismissed the appeal and later banned Galicia’s attorney from asking DaSilva about a statement Garcia-Gaona allegedly made against her, implicating his brother in the shooting. The defense insisted the statement would have clarified that the “they” who started firing were referring to the brothers and not to Galicia.
On the defense’s objection, Boynton also allowed Daniel O’Donnell, a archivist at Google, to testify to a hiatus in Galicia’s location history between April 11, 2017 and June 8, 2017. Galicia’s lawyer stated in vain that the tracking data will only be entered as evidence if an expert explained to the jury about the ability of smartphone users to cancel location information.
The Court of Special Appeals overturned Galicia’s convictions for first degree murder and said Boynton’s refusal of counsel’s request to cross-examine DaSilva on the basis of her use of the word “she” violated the Confrontation Clause of the Constitution. The appeals court also said an expert was required to testify regarding a smartphone user’s control over location tracking, because that ability was not “publicly known”.
In reinstating the convictions, the Court of Appeal said DaSilva’s use of “she” was not associated with Galicia, as his lawyer admitted that multiple gunmen had killed the teenagers, but claimed Galicia was not among them. . The Supreme Court also noted that Boynton had told the jury that DaSilva’s testimony related only to Garcia-Gaona’s involvement.
“Both the state and Mr. Galicia’s defense agreed that there were multiple gunmen,” Judge Robert N. McDonald wrote before the Supreme Court majority.
“Certainly, the state hoped to convince the jury, through evidence other than Mr. Garcia-Gaona, that Mr. Galicia was one of the many gunmen, as was Mr. Galicia hoped to convince the jury that he wasn’t — or cast a reasonable doubt on lease that he was,” added McDonald, a retired judge on special assignment. “Mrs. DaSilva’s testimony regarding Mr. Garcia-Gaona’s confession to her was neutral about who, besides Mr. Garcia-Gaona, those gunmen were. Thus, there was no violation of Mr. Galicia’s rights under the (federal and state ) confrontation clauses.”
The Court of Appeal added that no expert is needed to explain location determination to jurors.
“When a court considers whether testimony is beyond the ‘knowing’ of the average layperson, the question is not whether the average person already has knowledge of a particular subject, but whether it falls within the range of perception and understanding,” McDonald wrote.
“Some smartphone users — and the minority of Americans who don’t own smartphones — may not have personal experience with turning their location tracking on and off, but the simple fact that users of a mobile electronic device can customize the data they share with the manufacturer , the mobile phone and various apps provider is widely known in our society,” McDonald added. “That a user’s custom or default settings can affect the records maintained by those entities does not require specialized knowledge to understand.”
McDonald was joined in the advisory by Judges Michele D. Hotten, Brynja M. Booth, Jonathan Biran and Joseph M. Getty, another retired lawyer with special assignment.
Contradiction, Judge Shirley M. Watts said DaSilva’s use of “she” in a multi-defendant case 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 was unfairly biased.” ” Galicia.”
Watts added that explaining location tracking to a jury requires an expert.
“The average member of the general public wouldn’t have the specialized knowledge and training needed to identify and explain a gap in a Google account’s ‘location history’ – and probably never heard of ‘location history’ — not to mention 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 the Google’s “location history” is not within the purview of the general public, and only a well-qualified expert witness can draw such a conclusion.”
Watts was joined in the dissent by Judge Irma S. Raker, a retired lawyer on special assignment.
The Court of Appeal has ruled in State of Maryland v. Rony Galiciano. 5, September Term 2021.
The jury of the Galicia trial also found Garcia-Gaona guilty of two counts of first-degree murder. He was sentenced to life imprisonment with no chance of parole.
Garcia’s attorney fell ill during the trial, resulting in a mistrial. Garcia was convicted of two counts of first 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 trial in court and was sentenced to life without parole.
According to the prosecutor, Najjar and Zibarov were lured to the cul-de-sac on the assumption that they were selling extra tickets to the graduation ceremony on June 6. Instead, they were shot.
The prosecution said Najjar was the primary target in a revenge killing because he allegedly recently stole drugs from Canales-Yanez’s wife and then ran over her feet when he escaped. Zibarov was simply in the wrong car at the wrong time, prosecutors added.