State v. Galicia

State of Maryland v. Rony Galicia No. 5, September Term 2021 Criminal Procedure – Constitutional Law – Confrontation Clause. In a joint trial of several defendants charged with murder, the trial court admitted evidence of an out-of- court statement of a non-testifying defendant solely against that defendant. The witness who described that statement testified that the defendant-declarant had said that “they” had shot the victims. The admission of that out-of-court confession of the non-testifying defendant including the generic plural “they” did not violate the rights of a co-defendant under the Confrontation Clause when the co-defendant’s position at trial was that there were multiple shooters but that he was not one of them.

Criminal Procedure – Cross-Examination. A trial court has broad discretion to limit cross-examination when the probative value of the evidence sought to be elicited is outweighed by the potential for confusing the issues or misleading the jury, even if the evidence is arguably admissible under a hearsay exception. Evidence – Hearsay – Exception for Statement Against Declarant’s Interest. Under Maryland Rule 5-804(b)(3), the burden for establishing the admissibility of a hearsay statement against the declarant’s interest is the same whether the statement is introduced by the State or by a criminal defendant.

Evidence – Expert Testimony – Adjustment of Location Tracking Function of a Mobile Device. Under Maryland Rule 5-701 et seq., a witness need not be qualified as an expert to testify that a user of a mobile phone or similar device can adjust the function that tracks and collects location data. When a court considers whether testimony is beyond the knowledge of the average person, the critical 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 of the average person. Circuit Court for Montgomery County Case No. 132904C Argued: September 13, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 5 September Term, 2021 STATE OF MARYLAND v. RONY GALICIA *Getty, C.J., *McDonald Watts Hotten Booth Biran Raker, Irma S.

(Senior Judge, Specially Assigned), JJ. Opinion by McDonald, J. Watts and Raker, JJ., dissent. Filed: June 27, 2022 *Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Md. Constitution, Art. Pursuant to Maryland Uniform Electronic Legal Materials Act IV, §3A, they also participated in the decision and (§§ 10-1601 et seq. of the State Government Article) this document is authentic. adoption of this opinion. 2022-06-27 14:59-04:00 Suzanne C. Johnson, Clerk In June 2017, on the eve of their high school graduation, two teenagers were ambushed and shot multiple times while they sat in a parked car in a cul-de-sac in Montgomery County.

Four men, including Respondent Rony Galicia, were charged and ultimately convicted of the murders in three separate trials. The Court of Special Appeals reversed Mr. Galicia’s conviction on the basis of two evidentiary issues that arose during his trial. We reach a different conclusion on both of those issues. The first issue is whether the trial court abused its discretion when it declined to allow Mr. Galicia to cross-examine one of the State’s witnesses about out-of-court statements allegedly made by one of his co-defendants.

We hold that the State’s direct examination of that witness did not prejudice Mr. Galicia such that it triggered a right to elicit otherwise inadmissible evidence on cross-examination. We also hold that, even if the particular statement Mr. Galicia sought to introduce – in which one of his co-defendants allegedly told the co-defendant’s girlfriend that his younger brother, also a co-defendant, had “shot them guys, too” – could fit within a hearsay exception for a statement against the declarant’s penal interest, the trial court did not abuse its discretion in limiting the proposed cross-examination. The second issue arises from a prosecution witness’ trial testimony about the tracking of Mr. Galicia’s location on the evening of the murders through data generated by cell phones and other electronic devices. That issue is whether a witness must be qualified as an expert to testify that a user of a smartphone may turn off the location tracking feature of an application on the phone.

We hold that a user’s ability to adjust the location tracking feature of a smartphone is within the understanding of the average lay person and that a witness whose testimony referred to that ability did not have to be qualified as an expert. I Background A. The Murders Late on the evening of June 5, 2017, two high school seniors who were scheduled to graduate the next day from their school in Germantown were murdered while they sat in a car parked in a cul-de-sac in Montgomery Village. One of the teenagers, Shadi Najjar, had an extra ticket to the graduation ceremony, hoped to sell it, and had made an arrangement over Snapchat1 to meet the supposed purchaser at that location. His friend, Artem Ziberov, waited with him.

Mr. Najjar was shot three times in the head at close range and once in the thigh. Mr. Ziberov was shot at least 10 times in the neck, chest, back, and arms. Ballistic and forensic evidence established that multiple guns were used in the attack. B. The Charges and the Trial of Mr. Galicia Four individuals were arrested and charged with the murders: Jose Ovilson Canales-Yanez, Edgar Garcia-Gaona, his younger half-brother Roger Garcia, and Mr. Galicia.2 All four were convicted in the Circuit Court for Montgomery County of various 1 Snapchat is a social media platform that provides free messaging and photo and video sharing for its users. 2 At the trial of this case, and in some of the related appellate filings, the defendants were frequently identified by first names or nicknames – i.e., Mr. Canales-Yanez was referred to as “Ovilson” or “O”; Mr. Garcia-Gaona as “Edgar”; Mr. Garcia as “Roger” or “Johann”; and Mr. Galicia as “Rony” or “Ru.” 2 charges related to the murders as a result of three separate trials.

This appeal arises out of a trial of Mr. Galicia, Mr. Garcia-Gaona, and (for a time) Mr. Garcia.3 This appeal involves two discrete evidentiary issues that arose during the State’s case with respect to Mr. Galicia. Mr. Galicia has not disputed that the State’s evidence presented at trial, if believed by the jury, was sufficient to support his convictions. There is no need to review that evidence in detail to address the issues before us. To provide some context for the two specific issues before us, we describe briefly the theory of the State’s case and of Mr. Galicia’s defense. 1.

The Prosecution’s Theory of the Case In its opening statement and closing arguments, the prosecution laid out its theory of the case: On December 14, 2016, Mr. Canales-Yanez’s pregnant wife had arranged to 3 Mr. Canales-Yanez opted for a bench trial, while the other three defendants elected trial by jury. At his bench trial, Mr. Canales-Yanez was convicted of two counts of first-degree murder, one count of conspiracy to commit murder, four firearms offenses, and armed robbery. Those convictions were affirmed on appeal. Canales-Yanez v. State, 244 Md. App. 285 (2020), aff’d, 472 Md. 132 (2021).

At the jury trial, Mr. Garcia-Gaona was convicted of conspiracy to murder Mr. Najjar, two counts of first-degree murder, two counts of use of a firearm in the commission of a felony, and armed robbery of Mr. Najjar – the same charges on which Mr. Galicia was found guilty at that trial. Mr. Garcia-Gaona’s convictions were affirmed on appeal. Garcia-Gaona v. State, 2021 WL 130513 (Md. Ct. Spec. App. Jan. 14, 2021), cert. denied, 474 Md. 725 (2021).

Mr. Garcia initially went to trial with his older brother and Mr. Galicia, but a mistrial was declared as to him after his attorney fell ill mid-trial and was unable to continue. Mr. Garcia was later convicted of two counts of second-degree murder and two firearms charges in a separate trial. The Court of Special Appeals affirmed those convictions. Garcia v. State, 253 Md. App. 50 (2021).

This Court granted a writ of certiorari to review an issue in that case unrelated to Mr. Galicia’s appeal here. The Court has heard argument in Mr. Garcia’s appeal, which remains pending. 3 sell marijuana to Mr. Najjar. At the agreed-upon time for the transaction, Mr. Najjar drove up to her, reached through the car window, grabbed the bag of marijuana from her hand, and drove off without paying. In the process, he ran over her foot.

As a result, she was hospitalized; her unborn child apparently was unharmed. Later that day, Mr. Canales- Yanez repeatedly attempted to reach Mr. Najjar by phone, without success. According to the prosecution, Mr. Canales-Yanez decided to take revenge on Mr. Najjar for the injury to his wife. He enlisted his friends, Mr. Garcia-Gaona and Mr. Galicia, in that effort.

Their opportunity arose in June 2017 when Mr. Najjar advertised over Snapchat that he had an extra ticket to his high school graduation the next day that he would be willing to sell. According to the prosecution, the conspirators obtained the assistance of Mr. Garcia-Gaona’s brother, Mr. Garcia, who had recently graduated from the same school as Mr. Najjar. Mr. Garcia communicated with Mr. Najjar over Snapchat on June 5, 2017, and arranged to meet at a cul-de-sac in Montgomery Village to purchase the graduation ticket. Mr. Ziberov accompanied Mr. Najjar that evening.

Mr. Najjar sent a message to Mr. Garcia via Snapchat that he had arrived at the agreed-upon location. At approximately 10:30 p.m. that evening, according to the prosecution, the conspirators arrived and shot Mr. Najjar and Mr. Ziberov with three, or possibly four, different guns as the two teenagers waited in the car for the rendezvous. Mr. Garcia-Gaona destroyed Mr. Najjar’s cell phone in an apparent effort to eliminate evidence of the victim’s Snapchat communications with his brother. 4 The State called 43 witnesses and introduced more than 500 exhibits. In addition to the evidence that is the subject of this appeal, the State presented, among other things, the testimony of Victoria Kuria, Mr. Garcia’s then-girlfriend, who said that she had observed Mr. Galicia and the other defendants in the Garcia family trailer on the night of the murders; ballistics and forensic evidence linking the defendants in different ways to the crime (including DNA evidence that linked Mr. Galicia to shell casings at the scene of the shooting); recorded jail calls between Mr. Garcia-Gaona and Mr. Galicia, a police interview of Mr. Galicia while he was in custody on other charges; and historical cell site analysis concerning locations of the defendants’ cell phones. 2.

Mr. Galicia’s Theory of the Case In the defense’s opening statement and closing argument, Mr. Galicia’s attorney told the jury that, although she agreed with the State that Mr. Canales-Yanez, Mr. Garcia- Gaona, and Mr. Garcia had participated in the murders, Mr. Galicia was not part of the conspiracy. The defense questioned the credibility of Ms. Kuria; questioned the accuracy of forensic evidence that connected Mr. Galicia to the crime; and presented records related to Mr. Galicia’s Xbox to support an inference that Mr. Galicia had spent that evening in his room watching a movie on that device. Four character witnesses testified on his behalf. Mr. Galicia elected not to testify in his own defense. 3.

The Verdict On November 19, 2018, the jury returned a verdict finding Mr. Galicia guilty of two counts of first-degree premeditated murder, two counts of first-degree felony murder, conspiracy to commit murder, two counts of use of a firearm in the commission of a felony, 5 and armed robbery. On January 22, 2019, the Circuit Court sentenced Mr. Galicia to consecutive terms of life imprisonment without the possibility of parole on the two first- degree murder convictions, a concurrent life term on the conspiracy count, and consecutive terms totaling 60 years’ incarceration on the firearms and robbery counts. 4. Mr. Galicia’s Appeal Mr. Galicia filed a timely appeal. In an unreported opinion, the Court of Special Appeals reversed his convictions and ordered a new trial.

Galicia v. State, 2021 WL 130513 (Md. Ct. Spec. App. Jan. 14, 2021).4 The intermediate appellate court held that: (1) the trial court improperly restricted Mr. Galicia’s counsel from questioning a prosecution witness about out-of-court statements allegedly made by his co-defendant, Mr. Garcia-Gaona, that were impliedly exculpatory as to Mr. Galicia and that should have been admitted under an exception to the hearsay rule for statements against penal interest; and (2) the trial court erred when it allowed a lay witness to testify that a cell phone user such as Mr. Galicia has the ability to turn off location tracking associated with the user’s Google accounts – testimony that offered a potential explanation for a gap in the location tracking data associated with Mr. Galicia’s Google accounts that included the date of the murders. The State filed a petition for a writ of certiorari, which we granted to review the two grounds on which the intermediate appellate court reversed Mr. Galicia’s convictions. 4 As noted earlier, that opinion also affirmed the convictions of Mr. Garcia-Gaona resulting from the same trial. See footnote 3 above. 6 II Hearsay and the Scope of Cross-Examination The first issue before us arises from the trial judge’s refusal to allow Mr. Galicia’s attorney to cross-examine a prosecution witness about out-of-court statements that his co- defendant Mr. Garcia-Gaona allegedly made to her.

Counsel sought to pursue that line of questioning after the State had elicited that witness’ testimony about other out-of-court statements by Mr. Garcia-Gaona and had introduced those statements solely against Mr. Garcia-Gaona. Before we describe the trial proceedings and analyze the issue, it is useful to review briefly the general principles governing the admissibility of hearsay and the two pertinent exceptions to the hearsay rule, as well as principles governing the scope of cross- examination by defense counsel in a criminal case. Finally, we summarize the standards that an appellate court applies in reviewing a trial court’s rulings on such issues. A. Relevant Legal Principles 1.

The Hearsay Rule and its Exceptions Hearsay generally Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial …, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-801(c). While a “statement” for purposes of this definition is generally an oral or written assertion, it may also consist of nonverbal conduct, if intended by the 7 declarant as an assertion. Maryland Rule 5-801(a). The “declarant” is the person who made the out-of-court statement, but who is not testifying about the statement at trial.

As a general rule, hearsay is not admissible in evidence at trial. Maryland Rule 5- 802. As the Supreme Court has explained, the theory underlying this general rule is “that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener.

And the ways in which these dangers are minimized for in-court statements – the oath, the witness’ awareness of the gravity of the proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine – are generally absent for things said out of court.” Williamson v. United States, 512 U.S. 594, 598 (1994). The general principle that hearsay is inadmissible, however, is subject to many exceptions that are compiled in several rules. See Maryland Rules 5-802.1 through 5-804. Two related, but quite distinct, exceptions are pertinent to this appeal: (1) an exception for out-of-court statements by a party-opponent; and (2) an exception for out-of-court statements that are “against the penal interest” of the declarant.

Statement by Party-Opponent A commonly invoked exception to the hearsay rule pertains to a “statement by a party-opponent.” That exception encompasses an out-of-court statement that was made by 8 an opposing party and that is offered in evidence against that party. Maryland Rule 5- 803(a).5 Such a statement is admissible even if the declarant – i.e., the party-opponent – is available to testify. In addition, there is no requirement that the statement be adverse to the interests of the declarant. There is occasionally confusion on that score, as this exception was often referred to at common law as an exception for “admissions” by a party- opponent.

See Joseph F. Murphy, Jr., et al., Maryland Evidence Handbook (5th ed. 2020) §805 (“Admissions”). Of course, it is often the case that such a statement will be favorable to the party who seeks to introduce it and therefore adverse to the party-opponent who made the statement – that is why the proponent seeks to introduce it in the first place. But it is not a necessary element of this exception. In a criminal prosecution, it is common for the prosecution to introduce, on the basis of this exception, prior out-of-court statements of a defendant – the prosecution’s party- 5 The rule provides, in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (a) Statement by party-opponent.

A statement that is offered against a party and is: (1) The party’s own statement, in either an individual or representative capacity; …. Maryland Rule 5-803(a)(1). Other subsections of the rule concern how statements made by others may be attributed to a party-opponent for purposes of the rule. Maryland Rule 5-803(a)(2)-(5).

This rule is based on a similarly-worded provision in the Federal Rules of Evidence, except that the federal rule defines an out-of-court statement by a party-opponent as non-hearsay rather than hearsay that is admissible under an exception. See Federal Rule of Evidence 801(d)(2). 9 opponent. For example, the prosecution may introduce prior statements of a defendant made to the police, to friends, or to strangers. In fact, it is so common for the State to introduce prior statements of a defendant, and this exception is so well understood, that frequently no objection is made that requires explicit invocation of the exception.

Generally, such an out-of-court statement is relevant because it connects the defendant in some way to the crimes charged in the case. But, as indicated above, the statement need not be against the defendant’s interest on its face, so long as it is the defendant who allegedly made it. See Lynn McLain, Maryland Evidence: State and Federal (Aug. 2021 update), §801(4):1. Such statements are admissible by the State against the defendant who made the out-of-court statement, subject to the bounds of relevance,6 and other factors that affect a court’s discretion whether to admit evidence.7 The admission of an out-of-court statement of a defendant in a criminal case becomes more complicated in a multi-defendant trial.

The hearsay statement of one defendant does not qualify as a statement by a party-opponent as to other defendants and therefore is not admissible by, or against, a co-defendant on the basis of that exception. See Payne v. State, 440 Md. 680, 707-10 (2014). Moreover, if a defendant’s out-of-court statement inculpates a co-defendant, the admission of the statement may raise an issue 6 See Maryland Rule 5-402 (relevant evidence generally admissible). 7 See Maryland Rule 5-403 (relevant evidence may be excluded on grounds of prejudice, confusion, or waste of time). 10 under the Confrontation Clauses of the federal and State constitutions,8 as a limiting instruction that tells the jury to compartmentalize the statement as to one defendant may not always be effective. See Bruton v. United States, 391 U.S. 123 (1968) (introduction of confession of non-testifying defendant that also implicates co-defendant violates confrontation right of co-defendant).

However, the Confrontation Clauses are not implicated by the admission of the out-of-court statement against the defendant who allegedly made it, as that defendant cannot complain of an inability to cross-examine the declarant. McLain, Maryland Evidence, §801(4):1(c). To deal with potential issues under the Confrontation Clauses, a trial court typically requires the testimony or document containing the out-of-court statement to be redacted to remove a specific reference to a co- defendant9 and instructs the jury to consider that statement solely as to the defendant who allegedly made it.10 8 United States Constitution, Sixth Amendment; Maryland Declaration of Rights, Article 21. This Court has recently held that Article 21 and the Sixth Amendment Confrontation Clause are not completely coextensive.

See Leidig v. State, 475 Md. 181 (2021). However, Leidig addressed the question of whether an out-of-court statement was “testimonial,” a distinction first outlined by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). That distinction is not relevant to the issue currently before the Court. 9 See Richardson v. Marsh, 481 U.S. 200 (1987). A redaction must be effective and not point directly to the non-confessing co-defendant.

See Gray v. Maryland, 523 U.S. 185 (1998). 10 The pattern jury instructions developed by a committee of the Maryland State Bar Association (“MSBA”) include an example of such an instruction. See MSBA, Maryland Criminal Pattern Jury Instructions (2d ed. 2012), MPJI-Cr 3:09 (“Evidence Applicable to Only One Defendant – Jury to Limit Consideration”). 11 Statement Against Penal Interest A separate exception to the general principle that hearsay is inadmissible applies to an out-of-court statement that would potentially expose the declarant to criminal prosecution. Maryland Rule 5-804(b)(3). In the words of the rule, this exception applies to a statement “which … at the time of its making … so tended to subject the declarant to … criminal liability … that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true ….

A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id.11 The rationale for the exception is that there are circumstantial guarantees of sincerity and accuracy when one makes a statement adverse to one’s own interests. State v. Standifur, 310 Md. 3, 11 (1987); McLain, Maryland Evidence, §804(3):1(a). As a shorthand, this is often referred to as the exception for a “statement against penal interest.” See, e.g., Gray v. State, 368 Md. 529 (2002). This exception is narrower than the exception for a statement by a party-opponent in several respects.

First, a statement against penal interest is admissible only if the declarant is unavailable as a witness – a condition that does not apply to the exception for 11 This rule is substantially similar to Federal Rule of Evidence 804(b)(3). Like the federal rule, it also encompasses other types of statements against the interest of the declarant – e.g., statements that are against the speaker’s “pecuniary or proprietary interest,” that would subject the speaker to civil liability, or that would render invalid a claim by the speaker against another. Maryland Rule 5-804(b)(3). Only the portion of the rule concerning statements against penal interest pertains to this case. 12 an out-of-court statement by a party-opponent.

Second, the content of the statement must fit the description of the rule – i.e., it must be so adverse to the declarant’s interest that a reasonable person would not have made it unless it was true. That condition does not apply to the exception for a statement by a party-opponent. Finally, in a criminal case, there must be “corroborating circumstances” that indicate that the out-of-court statement is trustworthy; there is no corroboration requirement for a statement by a party-opponent. If it happens that the out-of-court statement in question was made by an adverse party in the case, this exception is subsumed within the broader exception outlined above for statements by a party-opponent.

See McLain, Maryland Evidence, §804(3):1(a). Thus, in a criminal case, the prosecution is unlikely to rely on this exception in introducing an out-of-court statement by a defendant, as the statement would also be readily admissible against that defendant under the broader exception. Summary As noted above, these two exceptions to the general hearsay rule are quite distinct, but they are often confused. See Aetna Casualty & Surety Co. v. Kuhl, 296 Md. 446 , 456 n.2 (1983) (noting the “all too common error of failing to distinguish between” the two hearsay exceptions in a case where both exceptions were invoked).

An out-of-court statement is admissible as a statement by a party-opponent if it is introduced (1) by a party adverse to declarant (2) against the declarant and if (3) it otherwise satisfies the threshold general rules concerning admission of evidence. An out-of-court statement is admissible as a statement against penal interest if (1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant’s penal 13 interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. 2. Scope of Cross-Examination and the Confrontation Clauses As noted above, the Confrontation Clauses guarantee a defendant in a criminal case the right to cross-examine a witness who provides evidence against the defendant. Pointer v. Texas, 380 U.S. 400, 404 (1965).

Accordingly, a trial court must allow defense counsel a “threshold level of inquiry” in questioning the State’s witnesses. Peterson v. State, 444 Md. 105, 121-22 (2015). Once that threshold is met, the trial court has considerable discretion to limit the scope of cross-examination to prevent, among other things, “prejudice, confusion of the issues, and inquiry that is repetitive or only marginally relevant.” Manchame-Guerra v. State, 457 Md. 300, 309 (2018) (quotation marks and citation omitted). For example, under Maryland Rule 5-611(b)(1), “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” See also Maryland Rule 5-616 (impeachment and rehabilitation of witnesses). “Within that limit a defendant should be free to cross-examine in order to elucidate, modify, explain, contradict, or rebut testimony given in chief.” Smallwood v. State, 320 Md. 300, 307 (1990). 3.

Standards of Appellate Review With respect to the admission or exclusion of evidence, an appellate court applies the abuse of discretion standard to a trial court’s assessment whether evidence is relevant to an issue in the particular case, or whether its probative value is substantially outweighed 14 by the danger of unfair prejudice, confusion, or waste of time. See, e.g., Dejarnette v. State, 478 Md. 148, 175 (2022); Merzbacher v. State, 346 Md. 391 404-05 (1997). The standard of review of a trial court’s application of the hearsay rules to out-of- court statements can be more nuanced. Whether a particular out-of-court statement qualifies for admission under a hearsay exception is ultimately a question of law that is reviewed without deference to the trial court.

Wise v. State, 471 Md. 431, 442 (2020). However, the outcome may hinge on certain fact findings by the trial court – e.g., whether a statement is reliable12 – for which the appellate court applies a more deferential standard of review. Id.; see also Gordon v. State, 431 Md. 527, 538 (2013); Hailes v. State, 442 Md. 488, 499 (2015). A similar dichotomy applies to review of a trial judge’s exercise of authority over the scope of cross-examination for abuse of discretion.

This Court has explained: In controlling the course of examination of a witness, a trial court may make a variety of judgment calls under Maryland Rule 5-611 as to whether particular questions are repetitive, probative, harassing, confusing, or the like. The trial court may also restrict cross-examination based on its understanding of the legal rules that may limit particular questions or areas of inquiry. Given that the trial court has its finger on the pulse of the trial while an appellate court does not, decisions of the first type should be reviewed for abuse of discretion. Decisions based on a legal determination should be reviewed under a less deferential standard.

Finally, when an appellant alleges a violation of the Confrontation Clause, an appellate court must consider whether the cumulative result of those decisions, some of which are judgment calls and some of which are legal decisions, denied the appellant the opportunity to reach the “threshold level of inquiry” required by the Confrontation Clause. 12 See, e.g., State v. Matusky, 343 Md. 467, 486 (1996) (“The trial court’s assessment of the declaration’s reliability is a fact-intensive determination which we shall not ordinarily reverse unless it is clearly erroneous.”). 15 Peterson v. State, 444 Md. 105, 124 (2015). B. The Testimony, the Objection, and the Appeal At the time of the murders, Luz DaSilva, a 27-year old working single mother, lived with Mr. Garcia-Gaona and their five-month-old daughter in a townhome in Gaithersburg. On the day after the murders, Mr. Garcia-Gaona confessed his involvement in the crime to her. Although initially fearful to report what he had said, she called the police about 10 days later after seeing the grieving father of one of the victims in a television news report. 1.

Ms. DaSilva’s Trial Testimony and Mr. Galicia’s Objections Ms. DaSilva was called as a witness by the State on the Friday of the first week of testimony at the trial. She testified about various topics, a number of which implicated one or more of the defendants in the murders. In addition to describing certain observations of, and statements made to her by, Mr. Garcia-Gaona, she identified the co-defendants in photos and videos, testified as to the close personal relationship that Mr. Garcia-Gaona had with both Mr. Canales-Yanez (“like brothers”) and Mr. Galicia (“pretty close”), testified that, after the night of the murders, Mr. Canales-Yanez had received permission from Mr. Garcia-Gaona to leave a case of bullets at their townhome behind a television because they were “hot,” and authenticated Mr. Galicia’s voice on a call she had with him. The issue before us in this appeal arises from a brief but important slice of Ms. DaSilva’s testimony.

That testimony concerned what Mr. Garcia-Gaona told her about his own participation in the murders while they watched the television news report the day after the crime. The State offered that testimony under the hearsay exception for a statement by a party-opponent, and the trial court admitted it only against Mr. Garcia- 16 Gaona. However, it became the subject of an objection by Mr. Galicia’s lawyers that extended over several bench conferences,13 including well after Ms. DaSilva had completed her testimony. Direct Examination of Ms. DaSilva – Part 1 Ms. DaSilva, who had known Mr. Garcia-Gaona since they were both teenagers, testified that she had reconnected with him during 2016.

She moved in with him in his family’s trailer in a trailer park in Germantown. The two of them later moved out and into a townhome in Gaithersburg, where they lived at the time of the murders. Ms. DaSilva testified that, around midnight on the evening of the murders, she was at their residence waiting for Mr. Garcia-Gaona to come home. In an exchange of text messages, he told her that Mr. Canales-Yanez was driving him home; shortly thereafter, she saw him arrive in a car typically driven by Mr. Canales-Yanez.

She was about to testify regarding a conversation the next day about the murders that she had with Mr. Garcia- Gaona when Mr. Galicia’s counsel objected and a bench conference ensued. Bench Conference #1 Mr. Galicia’s counsel asked the court to give a limiting instruction to the jury that the testimony should be considered only against Mr. Garcia-Gaona. The State agreed that the court should give such an instruction. The judge was ready to give the jury a limiting 13 Mr. Galicia was represented by two attorneys.

Both made arguments in support of this objection at the bench conferences in the trial court, although the laboring oar was his lead counsel. 17 instruction14 but, at the request of Mr. Garcia-Gaona’s counsel, agreed to wait until Ms. DaSilva gave the anticipated testimony. The prosecutor advised the court that she had instructed Ms. DaSilva not to mention anything that Mr. Garcia-Gaona told her about the participation of his co-defendants in the murder. At that point, Mr. Galicia’s counsel announced her intention to cross-examine Ms. DaSilva about what Mr. Garcia-Gaona “did say and what he didn’t say.” She suggested that Ms. DaSilva would say that Mr. Garcia-Gaona, while implicating both Mr. Garcia and Mr. Canales-Yanez, had not told her that Mr. Galicia was involved in the murders during their conversation. Counsel characterized the predicted cross-examination as “exculpatory information.” Counsel and the court all appeared to agree that the State could elicit testimony from Ms. DaSilva concerning Mr. Garcia-Gaona’s out-of-court statements to her under the hearsay exception for statements by a party-opponent, but that the exception did not apply to the proposed cross-examination by Mr. Galicia’s counsel.

Mr. Galicia’s counsel instead argued that the out-of-court statement that she hoped to elicit – or perhaps more precisely, the out-of-court statements allegedly inculpating other co-defendants and the lack of an out-of-court statement concerning her client – would be admissible as a matter of “completeness of [Mr. Garcia-Gaona’s] statements,” as well as under the hearsay exception 14 In preliminary instructions to the jury prior to opening statements, the court had forewarned the jury that some evidence might be admitted to one or more, but not all, defendants and that it would provide a limiting instruction in that circumstance. 18 for a statement against penal interest or a residual hearsay exception.15 The trial court appeared to be skeptical of that argument. It stated that Ms. DaSilva should not discuss the participation of the co-defendants during the State’s direct examination and that the request of Mr. Galicia’s counsel would be re-considered before cross-examination began.16 Direct Examination of Ms. DaSilva – Part 2 When the State’s direct examination of Ms. DaSilva resumed, she testified that, during her conversation with Mr. Garcia-Gaona the day after the murders, she had asked him what had happened. In response, according to Ms. DaSilva, he had confessed to his participation in the murders, which were receiving prominent coverage on the television news. She testified: Q: And what did he say about what he himself did?

A: What he himself did? That he basically was, was in the situation with the shooting. He basically - - Q: How did he describe it? A: That it was like a seven-second movie.

Q: Did he, those words, did he actually say, it was like a seven-second movie? A: Yes. Q: And what else did he say about what happened? 15 See Maryland Rule 5-803(24). Mr. Galicia has not relied on the residual hearsay exception on appeal. 16 Mr. Galicia’s counsel also used the occasion to renew a motion to sever his trial from that of his co-defendants, but the trial judge pointed out that trying Mr. Galicia separately would not provide better grounds for admitting an out-of-court statement – or the absence of a statement – by Mr. Garcia-Gaona. 19 A: That that day he took the cellphone from the boys, smashed it, and then after they just started shooting them.

Q: And did, how was he - - how did he appear to you at the time he was telling you these things? A: Nothing surprising, just, you know, like a bit nervous, jittery. Q: What was going on on the television? A: The news.

Q: And what was on the news? A: The case about the two boys that got murdered on June 5th. Q: Is that how it came up? A: Yes.

Ms. DaSilva went on to testify that Mr. Garcia-Gaona told her that the murders were set up through Snapchat, that she was surprised, and that she had not called the police as a result of that conversation because she was “scared.” She then testified on other matters related to the case, which were not based on the statements that Mr. Garcia-Gaona had made to her the day after the murders. During that testimony, Mr. Galicia’s counsel made an objection, which resulted in a bench conference. Bench Conference #2 After the court and counsel finished discussing a separate issue that had initially resulted in the bench conference, Mr. Galicia’s counsel returned to the topic of her desired cross-examination of Ms. DaSilva. She seized on Ms. DaSilva’s use of the word “they” when recounting Mr. Garcia-Gaona’s description of the shooting.

Mr. Galicia’s counsel 20 asserted that Mr. Galicia was prejudiced by Ms. DaSilva’s use of that pronoun.17 Mr. Galicia’s counsel reiterated her desire to cross-examine Ms. DaSilva about that statement in the hope that Ms. DaSilva would say that Mr. Garcia-Gaona had not mentioned Mr. Galicia as one of the shooters. The trial court deferred ruling on that request until it was counsel’s turn to cross-examine the witness. Direct Examination of Ms. DaSilva – Part 3 The direct examination of Ms. DaSilva on matters other than Mr. Garcia-Gaona’s statements to her continued, and the prosecution soon indicated that it was ready to conclude the direct examination. After a recess for lunch, the trial court again took up the cross-examination issue out of the jury’s presence.

Bench Conference #318 The trial court reprised Ms. DaSilva’s testimony concerning Mr. Garcia-Gaona’s statement to her about the circumstances of the shooting and her use of the word “they” in recounting what he had said about the shooting. The court noted that the jury had already heard other evidence that there were multiple shooters and that Ms. DaSilva’s use of the 17 Mr. Galicia’s counsel, who herself had told the jury in opening statement that there were multiple shooters involved in the murders, did not explain how the generic pronoun “they” specifically implicated her client. 18 This discussion among the court and counsel – and the later ones on this topic – took place while the jury was out of the courtroom and therefore likely did not occur at the bench. We use the label “bench conference” as a shorthand to indicate that each took place outside the presence of the jury. 21 word “they” had not specifically implicated any co-defendant.19 The court reiterated its intention to give a limiting instruction that would direct the jury to consider that testimony only as to Mr. Garcia-Gaona – the maker of the out-of-court statement. Mr. Galicia’s counsel argued that her client had been prejudiced by the testimony.

She proposed that the court sever either her client or Mr. Garcia from the trial. In counsel’s view, that would eliminate any prejudice if counsel were to ask Ms. DaSilva to whom she believed Mr. Garcia-Gaona was referring when she testified that he had said “they just started shooting.” Mr. Galicia’s counsel then presented the court with a “transcript” of an audio recording of a 90-minute conversation between Ms. DaSilva and a police detective in a police car shortly after midnight on June 17, 2017. That conversation took place shortly after Ms. DaSilva had called the police to tell them of Mr. Garcia-Gaona’s involvement in the murders.20 Mr. Galicia’s counsel stated that she wished to “introduce the complete statement from that witness” – presumably referring to statements that Ms. DaSilva 19 The court noted that, if Mr. Galicia’s counsel were allowed to ask Ms. DaSilva whether Mr. Garcia-Gaona had implicated Mr. Galicia, the jury would expect Mr. Garcia’s attorney to do the same and, assuming that Ms. DaSilva would testify as Mr. Galicia’s counsel had represented, Ms. DaSilva would say that Mr. Garcia-Gaona had directly inculpated his younger brother, a co-defendant in the case. Thus, the court foresaw a Bruton-type issue arising if it permitted Mr. Galicia’s attorney to elicit hearsay statements of Mr. Garcia-Gaona aside from his confession of his own involvement. 20 The document was marked as a defense exhibit and made part of the record.

The audio recording itself was not introduced or otherwise made part of the record. No one testified that the document was a fair and accurate verbatim rendering of the content of the audio recording or identified its source. However, the parties have apparently accepted it as accurate and have referred to it as a “transcript.” And so will we. 22 attributed to Mr. Garcia-Gaona in her conversation with the detective (as opposed to the entire 91-page transcript of Ms. DaSilva’s conversation with the detective, which wandered over many topics). Mr. Galicia’s counsel also said that she wanted to introduce “all of the statements”21 that Mr. Garcia-Gaona made to Ms. DaSilva about who was involved in the murders under the “rule of completeness.”22 She argued that such action was necessary to “cure the prejudice” and referred to the “curative admission doctrine.”23 Mr. Galicia’s counsel moved the admission of the transcript for the purpose of preserving the issue for appeal.

The trial court allowed the transcript to be marked, but not 21 Counsel did not identify at that time the precise universe of statements to which she was referring. As we shall see, at a later bench conference concerning this objection, she specified 10 items on which she wished to cross-examine Ms. DaSilva concerning the co-defendants; however, only a couple of those items pertained to statements of Mr. Garcia-Gaona. 22 The common law doctrine of “verbal completeness” provides that, when one party introduces a portion of a statement into evidence, the opposing party may introduce “the remainder of what was said on the same subject at the same time.” Otto v. State, 459 Md. 423, 449 (2018) (citations and internal quotation marks omitted). However, “evidence that is otherwise inadmissible as hearsay [does not] become admissible solely because it is derived from a single writing or conversation.” Id. at 451 (citation and internal quotation marks omitted). Cf.

Maryland Rule 5-106 (rule of completeness with respect to writings and recorded statements). Mr. Galicia has not relied on the doctrine of verbal completeness in his brief or argument in this Court. 23 The curative admission doctrine “in rare instances allows otherwise irrelevant and incompetent evidence to repair the damage caused by previously admitted highly prejudicial incompetent inadmissible evidence.” Conyers v. State, 345 Md. 525, 546 (1997) (citation and internal quotation marks omitted). Mr. Galicia’s brief in this Court alludes to the curative admission doctrine in a footnote as an alternative basis for affirming the decision of the Court of Special Appeals – although the intermediate appellate court itself concluded that the curative admission doctrine did not apply to this case because Mr. Garcia-Gaona’s out-of-court statement to Ms. DaSilva was properly admitted during direct examination under an exception to the hearsay rule. 2021 WL 130513 at ¹⁹ n.12. 23 admitted. The court once again reiterated that it would give a limiting instruction, which it did after the jury returned to the courtroom.24 Limiting Instruction The court gave the following instruction: [T]his is another occasion that I mentioned to you at the beginning of the trial where there are certain times during the trial where certain evidence is being offered as against certain defendants and not against all defendants.

So that, that admonition applies to the testimony that you heard from Luz [DaSilva] regarding any conversation she may or may not have had with Edgar [Garcia-Gaona] following June 5th of 2017. Any of that testimony is offered only against Edgar [Garcia-Gaona] and against no other defendant and should not be considered by you in any way against any other defendant. Each of these defendant[s are] entitled to have the case decided separately on the evidence that applies to that defendant only. So the testimony was offered against Edgar [Garcia-Gaona] and not against the others.

At the end of the trial, the court reminded the jury of the limiting instruction and reiterated that it was to consider the evidence only as to the defendant against whom it was admitted. After the court gave the limiting instruction, the prosecution completed its direct examination with a few questions that do not pertain here. Mr. Galicia’s counsel then proceeded to cross-examine Ms. DaSilva. 24 Mr. Garcia-Gaona’s counsel took a somewhat contrary position that Ms. DaSilva should be permitted to use the word “they” in testifying about his client’s out-of-court statement – presumably to facilitate the argument that he later made in closing argument that his client was referring to third parties other than himself as the shooters. Counsel did not cite any legal authority for that position and the jury did not accept the argument, as it convicted Mr. Garcia-Gaona on all counts. 24 Cross-Examination of Ms. DaSilva During cross-examination by Mr. Galicia’s counsel, Ms. DaSilva confirmed that Mr. Garcia-Gaona had confessed his own involvement, and she again recounted her motivation for calling the police.

Mr. Galicia’s counsel elicited from her the names of other friends and family of Mr. Garcia-Gaona, one of whom Ms. DaSilva agreed was a “closer” friend of Mr. Garcia-Gaona than Mr. Galicia was. Counsel did not directly question her about her use of the pronoun “they” in her testimony regarding Mr. Garcia- Gaona’s confession to her that “they” had “just started shooting.” Counsel for Mr. Garcia-Gaona also cross-examined Ms. DaSilva about various sources of acrimony between her and Mr. Garcia-Gaona prior to her decision to call the police. Counsel did not question her about Mr. Garcia-Gaona’s confession to her.25 Redirect Examination of Ms. DaSilva In its redirect examination of Ms. DaSilva, the State briefly re-visited her previously stated reason for calling the police, suggested that Mr. Garcia-Gaona was responsible for the other issues in their relationship, and noted that Mr. Garcia-Gaona was no longer close to some of the friends mentioned in cross-examination. At that point Ms. DaSilva was excused from the stand and the State called several other witnesses before the court recessed for the weekend. 25 Counsel for Mr. Garcia cross-examined Ms. DaSilva only briefly to establish that his client had not been part of a trip that Mr. Garcia-Gaona, Mr. Caneles-Yanez, and Mr. Galicia took to Ocean City shortly before the murders. 25 Bench Conference #4 The trial resumed the following Monday.

At the outset, before the jury returned to the courtroom, the court declared a mistrial in the case against Mr. Garcia because his attorney had a medical emergency and was unable to continue. Mr. Galicia’s counsel again moved for his trial to be severed from Mr. Garcia-Gaona’s trial. Counsel also renewed the request to cross-examine Ms. DaSilva about whom she believed Mr. Garcia-Gaona was referring to when she said he had told her that “they just started shooting.” Counsel again cited the “curative admission doctrine” and referred the court to two appellate decisions. The court once again denied the motion to sever the trials but reserved judgment on the cross-examination request.

Eight more prosecution witnesses testified that day, after which the court dismissed the jury until Wednesday.26 After the jury was dismissed, the court and counsel discussed some pending evidentiary issues, including the further examination of Ms. DaSilva proposed by Mr. Galicia’s counsel. Bench Conference #5 During the colloquy between the court and counsel, Mr. Galicia’s attorney directed the court to specific excerpts in the transcript of the conversation between Ms. DaSilva and the police detective in which there were references to Mr. Canales-Yanez, his wife, and Mr. Garcia. The State pointed out that some of the references concerned not statements of 26 The court did not sit on Tuesday, which was an election day. 26 Mr. Garcia-Gaona to Ms. DaSilva, but things Ms. DaSilva had learned from others.27 The trial judge noted that nothing in those excerpts appeared to be “exonerating evidence” with respect to Mr. Galicia, but said he would review the transcript and return to the issue when the trial resumed on Wednesday. Bench Conference #6 The following Wednesday, the jury heard testimony from three more prosecution witnesses.

After the jury was dismissed for the day, the discussion concerning the possibility of recalling Ms. DaSilva to the stand and the transcript of her conversation with the detective resumed. The trial judge indicated that he had reviewed the transcript with the understanding that the defense was seeking to admit specific excerpts from it. Mr. Galicia’s counsel clarified that she was not seeking to admit the document itself and explained that she was “seeking to introduce the live testimony, the complete testimony from Luz DaSilva that includes what [Mr. Garcia-Gaona] told her regarding with whom he committed the crime, which is a self-statement against penal interest.” A lengthy colloquy followed concerning the source of the misunderstanding. Mr. Galicia’s counsel stated that the transcript amounted to a “proffer” of Mr. Garcia-Gaona’s “complete statement” to Ms. DaSilva.

The court responded that the document was “nowhere near a transcript of what [Mr. Garcia-Gaona] said,” but rather a “rambling” account of information that Ms. DaSilva may have learned from various sources, including 27 Mr. Galicia’s counsel pointed to 10 specific excerpts of the document by page and line. Only a couple of those excerpts clearly concerned statements by Mr. Garcia- Gaona to Ms. DaSilva. Some of the excerpts concerned statements by Mr. Canales- Yanez’s wife or observations made by Ms. DaSilva herself. 27 Mr. Garcia-Gaona.28 Defense counsel pointed to a specific excerpt as an occasion on which Ms. DaSilva had stated whom Mr. Garcia-Gaona had identified as the shooters, but the court noted that it appeared in context to involve Ms. DaSilva identifying people depicted in a photograph. During the bench conference, the Assistant State’s Attorney proffered that, based on her pretrial interviews of Ms. DaSilva, Ms. DaSilva would say that it was difficult to obtain information from Mr. Garcia-Gaona and that Ms. DaSilva herself did not know who “they” were.

The trial court then recounted his own review of the transcript by page and line and noted that Ms. DaSilva attributed statements to Mr. Garcia-Gaona in very few instances, that Mr. Garcia-Gaona only clearly identified his younger brother as a participant in the shooting, and that nothing in the transcript indicated whether Mr. Garcia-Gaona had said that Mr. Galicia or Mr. Canales-Yanez were – or were not – involved. The trial court pointed to one portion of the transcript in which Ms. DaSilva said that she had been surprised when Mr. Garcia-Gaona had said that his younger brother, Mr. Garcia, had been one of the shooters. In that excerpt, Ms. DaSilva was reported as telling 28 The Court of Special Appeals noted the trial court’s description of the conversation between Ms. DaSilva and the detective as “rambling” and characterized it as an improper adverse comment on the credibility of Ms. DaSilva. 2021 WL 130513 at ³⁰. In the context of the conversation depicted in that document, that adjective is not so much an evaluation of Ms. DaSilva’s credibility as a description of the nature of the conversation.

If the 91-page document is an accurate account, the conversation did indeed wander from topic to topic, occasionally interrupted by another detective who was attending to Ms. DaSilva’s infant daughter. And the rambling nature of the conversation does not seem unusual for two people sitting in a car in the middle of the night or for a detective attempting to establish rapport in an initial interview with a young woman who had just contacted police with important information about a double murder and who expressed concern about her own safety. 28 the detective that “[Mr. Garcia-Gaona] was surprised that his little brother took out a gun and just shot them guys, too” and “that his brother, [Roger Garcia], took out the gun too and shot the guys as well.”29 The court offered to recall Ms. DaSilva and ask her, outside the presence of the jury, if Mr. Garcia-Gaona ever told her that Mr. Galicia was not involved in the murders. If she said yes, the court would allow her to testify to that effect before the jury. If she said no, “that’s it.” Mr. Galicia’s counsel objected to the form of the proposed question, and never took the court up on the offer to recall Ms. DaSilva to clarify the matter.

Bench Conference #7 The trial court addressed the issue for the final time the next morning before the jury returned to the courtroom – by then, nearly a week after Ms. DaSilva had completed her testimony. The court summarized Ms. DaSilva’s testimony, the prior bench conferences, and the limiting instruction it had given. The trial judge stated that he had reviewed the cases cited by Mr. Galicia’s counsel and that those cases did not support allowing counsel for Mr. Galicia to recall Ms. DaSilva to ask her “questions about what [Mr. Garcia-Gaona] didn’t say about [Mr. Galicia].” Closing Argument One week later, after the presentation of additional evidence by the State, the evidence introduced by Mr. Galicia, and a brief rebuttal case by the State, the parties made 29 That excerpt, which had not been specified by Mr. Galicia’s attorney as part of her proffer, was located in the transcript at some remove from the part of the transcript where Ms. DaSilva related Mr. Garcia-Gaona’s confession of his own involvement. 29 closing arguments. In its closing and rebuttal arguments summarizing the evidence in the case, and more specifically in describing Mr. Garcia-Gaona’s statements to Ms. DaSilva and the evidence against Mr. Galicia, the State did not mention Ms. DaSilva’s use of the word “they” in her testimony about Mr. Garcia-Gaona’s confession to her.

In her own closing argument, Mr. Galicia’s attorney reiterated her opening statement that there were three shooters involved in the murder (and that Mr. Galicia was not one of them), characterized Ms. DaSilva as a “hero” who “exonerate[d]” Mr. Galicia, and argued that another witness who linked Mr. Galicia to the planning of the murders was not credible. 2. The Appeal In reversing the convictions of Mr. Galicia, the Court of Special Appeals focused on two aspects of Ms. DaSilva’s testimony about Mr. Garcia-Gaona’s out-of-court confession to her: (1) Ms. DaSilva’s use of the plural pronoun “they” when testifying that he had told her that “they just started shooting” and (2) the trial court’s ruling that Mr. Galicia’s counsel could not elicit, on cross-examination of Ms. DaSilva, a separate out-of- court statement of Mr. Garcia-Gaona that identified his younger brother as one of the shooters. 2021 WL 130513 at ²⁹-32. In the intermediate appellate court’s view, Mr. Galicia’s rights under the Confrontation Clauses were violated by the trial court’s decision not to allow Mr. Galicia’s counsel to elicit other out-of-court statements by Mr. Garcia-Gaona from Ms. DaSilva after she used the plural “they” in describing Mr. Garcia-Gaona’s admission to her during her direct examination. The court reasoned that, because the State presented other evidence 30 placing Mr. Galicia with the other three alleged shooters on the night of the murders, the undefined use of “they” implied that Mr. Galicia was included.

The court concluded that, although the jury had been instructed that the statement was to be considered only against Mr. Garcia-Gaona, Ms. DaSilva’s use of “they” triggered Mr. Galicia’s right to recall Ms. DaSilva “to probe the meaning of ‘they’” and whether Ms. DaSilva understood Mr. Garcia- Gaona’s statement to include Mr. Galicia among the shooters. The intermediate appellate court also held that the alleged out-of-court statement by Mr. Garcia-Gaona to Ms. DaSilva that Mr. Garcia had “shot them guys, too,” which was described in the transcript of her police car conversation with the detective, was admissible under the exception for a statement against the penal interest of the declarant. The court determined that this statement was adverse to Mr. Garcia-Gaona’s own penal interest, that Mr. Garcia-Gaona was unavailable as a witness, and that the necessary corroborating circumstances required for admission under Maryland Rule 5-804(b)(3) existed. The intermediate appellate court further reasoned that exclusion of that statement, coupled with the admission of Mr. Garcia-Gaona’s confession that “they just started shooting” was not harmless beyond a reasonable doubt.

The court stated that “when the defendant is the proponent of a statement against penal interest and it is central to his or her defense, the [trial] court should not impose ‘insurmountable evidentiary hurdles’ to its admission.” 2021 WL 130513 at ³¹. C. Analysis Mr. Galicia’s counsel cross-examined Ms. DaSilva at some length. The issue is whether the trial court abused its discretion when it limited the scope of that cross- 31 examination in one respect, based on the court’s assessment of the admissibility of the hearsay evidence that Mr. Galicia’s counsel hoped to elicit from Ms. DaSilva. 1. “They” As outlined earlier, during the testimony of Ms. DaSilva, the State introduced Mr. Garcia-Gaona’s confession to her on June 6, 2017, that he had been involved in the murders of the two high school students the day before. As the State indicated at that time, that out- of-court statement was admissible against Mr. Garcia-Gaona under the exception for a statement by a party-opponent.

Initially, Mr. Galicia took the position that the statement was admissible only against Mr. Garcia-Gaona and that the court should give the jury a limiting instruction to that effect. The State immediately agreed that a limiting instruction would be appropriate, and the court ultimately gave that instruction, telling the jury to consider that evidence only as to Mr. Garcia-Gaona. No one has alleged any error in the admission of that evidence under the exception for a statement by a party-opponent or in the limiting instruction that was given. When Ms. DaSilva used the generic plural pronoun “they” in recounting Mr. Garcia- Gaona’s description of the shooting, Mr. Galicia’s counsel asserted that her client had been prejudiced by the use of that pronoun and asked for a severance, or leeway to introduce other hearsay statements of Mr. Garcia-Gaona, or both.

Mr. Galicia’s counsel asserted that Ms. DaSilva’s testimony had placed “that idea in [the jury’s] head that ‘they’ included Rony Galicia” and thereby prejudiced her client. The use of the pronoun “they” became the linchpin for subsequent discussions in which Mr. Galicia’s attorneys sought to introduce hearsay to “cure” the alleged prejudice. The relief sought and the rationale for it 32 morphed over the course of multiple bench conferences, during which the claim of prejudice was never explained with any greater precision. Indeed, the basis for the claim of prejudice was unclear at best.

Ms. DaSilva’s use of the pronoun “they” to describe the shooters was perfectly consistent with Mr. Galicia’s own theory of the case, which his attorney had described in some detail in her opening statement – that there were multiple shooters, including Mr. Garcia-Gaona, but not including Mr. Galicia. Nothing in the out-of-court statement elicited by the State against Mr. Garcia-Gaona contradicted that theory,30 and nothing in the bench conferences that followed ever clarified what