Canales-Yanez v. State

Jose O. Canales-Yanez v. State of Maryland, No. 2209, September Term 2018. Opinion by Beachley, J. BRADY VIOLATION—MATERIALITY After a non-jury trial, defendant was convicted of first-degree murder, conspiracy to commit murder, and other related offenses. Defendant moved for a new trial on the basis that the State failed to provide the recording and transcript of a police interview of the parents of a State’s witness prior to trial. The witness spoke with police the day after the undisclosed interview with her parents and changed her version of events from what she had previously told police.

Defendant alleged that failure to disclose the interview was a Brady violation. The judge who presided over the trial denied the motion, stating that even if the witness’s testimony were completely removed from the trial, there was still sufficient evidence to convict the defendant. The defendant appealed. Held: Judgment affirmed.

Accepting that the interview was favorable to the defendant and had been withheld by the State, the evidence was nonetheless not material as it would not have affected the outcome of the case. When a case is tried without a jury and the trial judge is the one ruling on a motion for new trial, the trial judge’s finding that the evidence was not material should only be set aside if it is patently unreasonable. Circuit Court for Montgomery County Case No. 132902C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2209 September Term, 2018 JOSE CANALES-YANEZ v. STATE OF MARYLAND Fader, C.J., Beachley, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. Opinion by Beachley, J. Filed: January 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-01-30 10:14-05:00 Suzanne C. Johnson, Clerk Following a bench trial in the Circuit Court for Montgomery County, the court convicted Jose O. Canales-Yanez, appellant, of two counts of first-degree murder, conspiracy to commit murder, and other related offenses.

Before sentencing, the State revealed a previously undisclosed recording and transcript of a police interview of the parents of one of the State’s key witnesses. Appellant filed a motion for new trial, alleging that the State’s failure to disclose the interview constituted a Brady1 violation. The court denied the motion. Appellant presents the following question on appeal, which we have slightly modified: Did the circuit court err in denying a new trial based on a Brady violation stemming from the State’s failure to disclose a police interview of the mother and stepfather of one of the State’s principal witnesses?2 For the reasons to follow, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND On June 5, 2017, the night before their high school graduation, Shadi Najjar and Artem Zibrov were shot and killed. The two were gunned down at approximately 10:30 p.m. while sitting in Shadi’s car in Gallery Court, a cul-de-sac in Montgomery Village, Maryland. Police arrested four individuals suspected of conspiring to commit 1 Brady v. Maryland, 373 U.S. 83 (1963). 2 Appellant presented the following question in his brief: “Did the circuit court err in denying a new trial based on the Brady violation stemming from the State’s failure to disclose the police interview of the mother and stepfather of Victoria Kuria, the State’s principal witness, that occurred the day before Ms. Kuria, for the first time, implicated Appellant to the police?” these murders: Roger Garcia, Edgar Garcia-Gaona, Rony Galicia, and appellant. Ms. Kuria’s First Interview Victoria Kuria was dating Roger Garcia, one of the suspects, at the time of the murders.

Detective Frank Springer interviewed Ms. Kuria on June 29, 2017. During that interview, she stated that she knew nothing about the murders, but that she was at Roger’s home the night the murders took place. In that interview, Ms. Kuria gave the following version of events: After she left work that day, she went to her parents’ house, picked up her dog, and then went to Roger’s house. Present at Roger’s house when she arrived were Roger, Roger’s father, and a friend of Roger’s known as “Joker.” After smoking marijuana, Ms. Kuria napped in Roger’s bedroom from approximately 9:30 to 10:20 p.m.

When she woke up, Roger was still in the bedroom. She left shortly after waking up, to return home before her midnight curfew. When asked about appellant, she told police that she had “seen him before,” but did not know him well. Detective Springer told Ms. Kuria that he did not believe that she was being truthful.

He emphasized multiple times that it was a crime to lie to the police, and suggested that Ms. Kuria take a polygraph test. Ms. Kuria refused the polygraph and asked to speak with a lawyer. This concluded Ms. Kuria’s first interaction with the police. The Undisclosed Interview with Ms. Kuria’s Parents On October 10, 2017, Detective Springer and Detective Gwynn3 visited the home of Ms. and Mr. Bell, Ms. Kuria’s mother and step-father, hoping to contact Ms. Kuria. 3 Detective Gwynn’s first name does not appear in the record. 2 When Detective Springer stated that the police were investigating the murders, Mr. Bell said, “[Ms. Kuria] knows about that, she knows about that.

She said she knew who did it, don’t you remember?” In response, Ms. Bell stated that Ms. Kuria told her she did not know who committed the murders. A short argument between the two followed, without further details being elicited. The detectives then made it clear that they believed Ms. Kuria had lied in her first interview with police. They emphasized that Ms. Kuria could be prosecuted for lying to the police, stating, “when you have information in a case and you lie to the police about it, that can turn into a crime for you.” The detectives also explained that they were not looking for Ms. Kuria to arrest her for making false statements, but to “give her a second chance” to “tell the truth.” Detective Springer said, “She’s not in trouble, the problem is, because she’s lied to us and we can prove it now, that could be an issue for her and I’m trying to make it so that it’s not an issue for her. . . .

But in order for that to happen, I need her to come in and talk to me and tell me the truth.” Notably, the State did not provide the recording and transcript of this interview to defense counsel prior to trial. This omission became the basis for appellant’s Brady claim and the focus of this appeal. Ms. Kuria’s Second Interview On October 11, 2017, the day after the undisclosed interview, Detective Springer again interviewed Ms. Kuria. This time, Ms. Kuria told the detectives that she arrived at Roger’s house with her dog, smoked marijuana, and fell asleep in Roger’s bedroom at approximately 7:00 p.m.

When she went to sleep, Roger, his brother Edgar, Joker, and a 3 large Hispanic man she did not recognize were in Roger’s bedroom. She woke up shortly before 9:30 p.m. and recounted that seven individuals were in the room: Roger, appellant, two African-American men she did not recognize, Joker, Edgar, and the large Hispanic man who was there before she fell asleep. Most of these people were huddled in a small group, looking at a phone. She overheard someone say the word “court” in the context of an address, and heard someone say, “Montgomery Village Avenue” or “East Montgomery Village Avenue.” Once she was fully awake, she immediately gathered her things and left the house.

As she was leaving at approximately 9:30 p.m., she noticed that the phone that had the small group’s attention was displaying a map. Outside, Ms. Kuria saw a silver SUV that she had seen before, but which was not typically in the neighborhood. Within a week after the murders, Roger told Ms. Kuria, “whatever you do, don’t ask me why, but whatever you do, if anyone asks you any questions, say you left my house at like 10:20, 10:30,” because “if you say that, you know, it only gives me 10 minutes.” Ms. Kuria told the police that she had spoken with three individuals about the events of the night of the murders. She said that she spoke with her mother about it, “but [she] didn’t tell her everything.” She also spoke with an ex-boyfriend named Diego, saying, “I didn’t tell him too much, but I would tell him enough to try to make sense of it.” She asked Diego if he thought people at Roger’s house that night might have committed the murders.

Ms. Kuria also indicated that, shortly after the murders, she had spoken in greater detail about the events of June 5 with a co-worker named Jasmine. During this second interview, both Detective Springer and Ms. Kuria acknowledged that the detectives had spoken with Ms. Bell. Indeed, Ms. Kuria confirmed that she had 4 spoken with her mother the previous evening. Ms. Kuria revealed that she lied during the first interview because she was living with Roger’s family and feared retribution.4 Trial Appellant was arrested on June 17, 2017, and was charged with first-degree murder, conspiracy to commit murder, and other related offenses.

Three other co-conspirators, Roger Garcia, Edgar Garcia-Gaona, and Rony Galicia, were also arrested. Appellant waived his right to a jury trial and proceeded to trial before the court. During the trial, the State presented evidence that Roger Garcia was in contact with one of the victims, Shadi Najjar, through Snapchat5 shortly before the murders, arranging to meet him at Gallery Court to purchase an extra graduation ticket. Cell tower data showed that appellant’s phone and the phones of two other co-conspirators were all in the vicinity of Roger’s house from 9:26 to 10:11 p.m. on June 5, 2017.

The cell tower data also showed that the phones moved toward the location of Gallery Court at the time of the murders, and then moved back to Roger’s house shortly thereafter. Call and text messaging history from 4 Ms. Kuria’s living arrangements apparently changed frequently between the date of the murders and the date of the trial. On June 5, she was living with her parents. She moved in with Roger’s family on June 19, two days after Roger was arrested, and was living there at the time of the first interview.

At the time of the second interview, Ms. Kuria was homeless and living out of her car. Shortly after the second interview, the Montgomery County State’s Attorney’s Office paid for Ms. Kuria to stay at a hotel for a few weeks, then paid the security deposit and first month’s rent for an apartment for her. She was living in that apartment at the time of trial. 5 Snapchat is a smartphone application which allows users to communicate instantly, primarily through pictures and video. 5 March 6 to June 5, 2017, was deleted from appellant’s phone. An eyewitness to the murders testified that she saw “an old, gray van” drive around the cul-de-sac.

Immediately after the witness lost sight of the van, she heard “rapid fireworks” coming from the area where the van was traveling. Another witness who lived near the scene of the crime heard gunshots and saw what he described as either a silver or beige minivan or SUV leaving Gallery Court shortly thereafter. Forensic specialists testified that four handguns were used during the murders. DNA found on casings at the crime scene matched Rony Galicia, who was living at Roger’s house.

Police found appellant’s fingerprint on a box of live cartridges retrieved from Roger’s house. The cartridges matched the caliber and brand of some of those used in the murders. Outside Roger’s house, police found a live cartridge of a different caliber from those in the box. This cartridge had been loaded into one of the weapons used in the murders.6 Edgar’s girlfriend, Luz DaSilva, testified that she saw Edgar alighting from appellant’s silver or gray hybrid SUV at midnight on the night of the murders.

None of the other co-conspirators owned a vehicle at the time. Ms. DaSilva testified that Edgar was acting nervously and watching television news reports about the murders the next day. On June 15, appellant was talking to Edgar at Edgar’s house about leaving a box of bullets 6 Police did not recover any of the weapons used in the murders. However, Detective Grant Lee testified that the tool marks on the cartridge found outside the house matched tool marks on a casing found at the murder scene, indicating that the cartridge had been loaded into and then removed from one of the weapons used in the murders. 6 there “because it was too hot outside,” which Ms. DaSilva understood to have something to do with the police.

During cross-examination, Ms. DaSilva testified that Edgar sold drugs out of Roger’s room, using the outside entrance near where police found the single live cartridge. She also stated that appellant frequently visited Roger’s house. Ms. Kuria also testified at trial, providing a rendition of events substantially similar to those related during her second police interview. Her trial testimony differed from her second interview in the following respects: at trial, she stated that she left Roger’s house at around 9:00 p.m., not 9:30 p.m.; she identified Rony Galicia as the large Hispanic man she had seen at Roger’s house the day of the murders; she testified that one of the phrases she overheard was “East Village Avenue,” not “Montgomery Village Avenue”; and Ms. Kuria explained that she changed her version of events between the two police interviews because she did not believe Roger was guilty during the first interview, but struggled with her conscience, and “wanted to do the right thing for once in [her] life.” Defense counsel thoroughly cross-examined Ms. Kuria, attempting to uncover a threat or deal between Ms. Kuria and the police or prosecutors that would have caused Ms. Kuria to change her description of events to a more prosecution-friendly version.

Ms. Kuria denied that any such understanding existed, but admitted that the State’s Attorney arranged for her to stay at a hotel, then paid a security deposit and first month’s rent at an apartment because she had been living out of her car at the time of the second interview. However, Ms. Kuria testified that the initial discussions concerning these accommodations took place after the second interview. Toward the end of cross-examination, Ms. Kuria confirmed that she contacted the police after the police spoke to her mother. 7 Detective Springer testified about his interviews with Ms. Kuria, and verified that he spoke with Ms. Kuria’s mother on October 10, 2017. Defense counsel declined to cross- examine Detective Springer.

The State produced evidence showing that the motive for these murders stemmed from an incident in December 2016, during which Shadi stole marijuana from appellant’s then-pregnant wife and ran over her foot with his car while fleeing. In the immediate aftermath of the incident, both at the scene and at the hospital, appellant attempted to call Shadi five times. Appellant gave the police a detailed description of the driver, but did not provide Shadi’s name. However, after police arrested appellant for the murders in June, he claimed that he had not witnessed the December incident and knew very little about what had happened.

While she was in the hospital the day of the December 2016 incident, appellant’s wife told police she did not want the robbery to be investigated. Eugene Illarionov, a friend of Shadi’s, testified that Shadi told him about the incident, admitting that he stole marijuana, and “he might have run over the drug dealer’s wife’s foot.” The State also produced evidence that, on June 10, 2017, appellant searched Google on his phone for “I kill for my family rap songs.” A recording was played during trial of a June 7 police interview of Hanan Saif, who dated Shadi from January 2017 until his murder. In the recording, Ms. Saif stated that Shadi was scared there would be retribution for the December 2016 incident. She also said that, the day Shadi died, he had texted Ms. Saif saying he was going to meet with Roger Garcia.

We shall provide additional facts as necessary. 8 STANDARD OF REVIEW We review the trial court’s determination as to the existence of a Brady violation de novo, Ware v. State, 348 Md. 19, 48 (1997), and the decision whether to grant a new trial for abuse of discretion, Brewer v. State, 220 Md. App. 89, 111 (2014) (citing Argyrou v. State, 349 Md. 587, 600 (1998)). See also United States v. Wilson, 624 F.3d 640 , 660 n.24 (4th Cir. 2010) (“[M]otions for a new trial based on an alleged Brady violation are reviewed for abuse of