Roger Johann Garcia v. State of Maryland, No. 62, September Term, 2021. Opinion by
Eaves, J.
CRIMINAL LAW — ACCESSORYSHIP
The Court of Appeals held that it is legally possible for a defendant to be convicted as an
accessory before the fact to second-degree murder because a defendant can provide aid on
the spur of the moment, thoughtlessly, or rashly, and therefore without premeditation.
CRIMINAL LAW — ACCESSORYSHIP
The Court of Appeals held that an accessory before the fact to second-degree murder is
different and distinct from a conspiracy to commit second-degree murder because an
accessory does not necessarily premeditate like a conspirator does.
CRIMINAL LAW — ACCESSORYSHIP
The Court of Appeals held that Sheppard liability provides that an accessory to the
principal offense is culpable for any incidental offenses committed by another in
furtherance of the principal offense regardless of the accessory’s intent or knowledge of
the incidental offense by the accessory.
Circuit Court for Montgomery County
Case No. 132901C
Argued: May 9, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 62
September Term, 2021
ROGER JOHANN GARCIA
v.
STATE OF MARYLAND
Watts,
Hotten,
Booth,
Biran,
Eaves,
Raker, Irma S.
(Senior Judge, Specially Assigned)
Getty, Joseph M.
(Senior Judge, Specially Assigned)
JJ.
Opinion by Eaves, J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-08-11 10:42-04:00 Filed: August 11, 2022
Suzanne C. Johnson, Clerk
In this case, we consider whether a valid legal foundation exists to convict a
defendant of second-degree intent to kill murder, as an accessory before the fact. The Court
of Special Appeals held that it is conceivable for an accessory before the fact to aid, on
impulse and without premeditation, another in the commission of a homicide with the
intent to kill. State v. Garcia, 253 Md. App. 50 (2021), cert granted, 477 Md. 382 (2022).
That reasoning is consistent with the principal distinction between premeditation and the
intent to kill. Therefore, we hold in accordance with Sheppard v. State, 312 Md. 118
(1988), abrogated on other grounds by State v. Hawkins, 326 Md. 270 (1992) a defendant
may be liable as an accessory before the fact to second-degree murder. Accordingly, we
affirm the judgment of the Court of Special Appeals.
BACKGROUND
On the night of June 5, 2017, one day prior to their high school graduation, Shadi
Najjar and Artem Ziberov were gunned down while waiting to sell one of Najjar’s extra
graduation tickets. The event that led to the shooting, however, took place months prior.
In December 2016, a man named Jose Ovilson Canales-Yanez arranged to sell
marijuana to Najjar. Although Canales-Yanez initially spoke with Najjar about the
purchase, Canales-Yanez’s then pregnant wife, Kara Yanez, was present to complete the
sale. The sale, however, did not go smoothly. At some point, Kara Yanez alleged Najjar
took the marijuana from her without paying, and as Najjar fled, he assaulted her. Despite
the alleged assault, neither Canales-Yanez nor Kara Yanez reported the crime to the police.
Instead, Canales-Yanez recruited his friends, Edgar Garcia and Rony Galicia (collectively
“Co-Defendants”), to exact his own revenge.1 Edgar Garcia later enlisted his half-sibling,
Petitioner, Roger Garcia,2 to help the Co-Defendants in carrying out the revenge plan.
Specifically, Garcia’s role was to help the others inconspicuously communicate with Najjar
because he and Najjar went to the same high school and were about the same age.
Several months after Garcia’s recruitment, on May 31, 2017, Garcia became friends
with Najjar on Snapchat, a social media app where users can share pictures, communicate
via text, and see their friends’ locations. A few days after Garcia and Najjar became friends
on Snapchat, Najjar posted a picture to the app advertising an extra graduation ticket he
had for sale. Later that evening, while in the presence of the Co-Defendants, Garcia told
them about Najjar’s Snapchat post. Sensing an opportunity for revenge, Garcia responded
to the Snapchat post, and following an exchange via the app’s texting function, Najjar
1
Canales-Yanez, Edgar Garcia, and Rony Galicia were all tried and convicted for
the murders of Najjar and Ziberov.
Following a bench trial, Canales-Yanez was convicted of two counts of first-degree
murder, conspiracy to commit murder, and other related offenses. Those convictions were
affirmed on appeal in Canales-Yanez v. State, 472 Md. 132 (2021).
After a jury trial, Edgar Garcia was convicted of conspiracy to commit murder, two
counts of first-degree murder, and other related offenses. Those convictions were affirmed
on appeal in Garcia-Gaona v. State, Nos. 3350 & No. 3358 2021 WL 130513 (Md. Ct.
Spec. App. Jan. 14, 2021), cert. denied, 474 Md. 725 (2021).
A jury convicted Galicia of two counts of first-degree premeditated murder, two
counts of first-degree felony murder, conspiracy to commit murder, and other related
offenses. Those convictions were affirmed on appeal in State v. Galicia, __ Md. __ (2022).
Roger Garcia originally went to trial with Galicia, but a mistrial was granted for
Roger Garcia only as his attorney became ill mid-trial and could not continue.
2
Unless otherwise stated, Garcia herein refers to Petitioner, Roger Garcia, and not
Edgar Garcia.
2
agreed to meet with Garcia later that night to sell the extra graduation ticket.3 Ultimately,
during the arranged meet-up, Najjar and Ziberov, a passenger in the vehicle, were shot and
killed while waiting in their car for Garcia.
After an investigation by law enforcement, the State charged Garcia in an indictment
with eight offenses, including murder, conspiracy to commit murder, armed robbery, and
use of a firearm in a felony or violent crime. At trial, after the close of evidence, the trial
court instructed the jury on first-degree premeditated murder, second-degree intent to kill
murder, second-degree grievous bodily harm murder, and accomplice liability. The jury
found Garcia guilty of two counts of second-degree murder, as well as the two
corresponding firearm-use counts. The jury acquitted Garcia on all other charges.
Garcia appealed his conviction to the Court of Special Appeals. In his appeal,
Garcia contended that an accessory before the fact to second-degree intent to kill murder
necessarily deliberates and premediates the murder and therefore cannot be guilty of
second-degree murder. In a reported opinion, the Court of Special Appeals rejected this
theory and affirmed the judgment of the trial court. Garcia v. State, 253 Md. App. 50
(2021).
3
Although it was Garcia’s Snapchat account that responded to the advertisement, it
was disputed at trial as to whether it was Garcia or the Co-Defendants who drafted and sent
the response.
3
Garcia petitioned this Court for a writ of certiorari, which we granted on February
9, 2022. 477 Md. 382 (2022). Garcia presented the following questions (which we have
rephrased slightly)4 for our review:
1. Is it legally impossible to be convicted of second-degree intent to kill
murder as an accessory before the fact?
2. If a jury considered a legally impossible theory of liability must the
conviction be vacated?
For the reasons outlined below, we answer the first question in the negative, and
therefore, we need not address the second.
DISCUSSION
Garcia argues that an accessory before the fact to second-degree murder acts with
intent and foreknowledge of the future murder when the accessory provides aid. Garcia
opines that this intent and foreknowledge is the same as the sort of reflection needed to
prove premeditation. Therefore, according to Garcia, the accessory’s inherent
premeditation should elevate a crime of accessory before the fact to second-degree intent
to kill murder to first-degree premeditated murder. Additionally, Garcia contends that the
law of accomplice liability does not permit an accessory to be guilty as an accessory to the
incidental offense.
4
Garcia’s questions presented as written in his writ for certiorari are as follows:
I. Is it legally possible to be an accessory before the fact to non-premeditated intent
to kill murder?
II. Must a conviction be vacated if the jury considered a legally impossible theory
of liability?
4
In opposition, however, the State argues that aid and premeditation are not the same
or even substantially similar. The State bases its argument on the fact that an accessory’s
state of mind is assessed at the time they themselves act, and accessory’s state of mind is
independent from the state of mind of the other actors. The State further contends that an
accessory before the fact, pursuant to accomplice liability, is culpable for the incidental
crimes committed, by others, in furtherance of the planned crime.5
These arguments raise two questions as a matter of law. First, does the accessory’s
aid in the future crime equate to premeditation? Second, does accomplice liability allow
for an accessory before the fact to second-degree murder? To answer these questions, we
first look to the law and how it defines murder and accomplice liability, and then we apply
those definitions to the case before us. Accordingly, as legal questions, we apply the de
novo standard of review. Shannon v. State, 468 Md. 322, 335 (2020).
A. Murder Defined
Common law murder is the unlawful “killing of one human being by another with
the requisite malevolent state of mind and without justification, excuse, or mitigation.”
Ross v. State, 308 Md. 337, 340 (1987). Although murder is still a common law crime in
Maryland, the General Assembly has, by statute, separated it into degrees, with the express
purpose of mitigating punishment. See 1809 Md. Law, ch. CXXXVIII; Davis v. State, 39
5
The State also argues that Garcia can be, pursuant to accomplice liability, an
accessory before the fact to second-degree intent to kill murder based on the semantic
fallacy of the false affirmative. Due to our holding herein, and for the reasons stated below,
we do not need to address this argument.
5
Md. 355, 375 (1874) (holding that “[t]he express object of the statute in dividing the crime
into degrees, was the mitigation of the punishment in cases of the second degree”);
Weighorst v. State, 7 Md. 442, 451 (1855) (noting that “[t]he act of the Assembly does not
create a new offence in distinguishing between murder of the first and second degrees. The
design was to discriminate in awarding the punishment”).
Since 1809, the murder statutes have remained relatively true to their original
drafting and enactment.6 Maryland Code (“Md. Code”) (1957, 2021 Repl. Vol., 2021
Supp.), Criminal Law Article (“CR”) §§ 2-201, 2-204, maintain the first- and second-
degree distinction first codified in 1809. Accordingly, first-degree murder is:
(a) A murder is in the first degree if it is:
(1) a deliberate, premeditated, and willful killing;
(2) committed by lying in wait;
(3) committed by poison; or
(4) committed in perpetration of or an attempt to perpetrate [an enumerated
felony].
CR § 2-201.
6
In 1992, the General Assembly Legislative Policy Committee established the
Article 27 Revisions Committee (“Article 27 Committee”). The Article 27 Committee’s
purpose was to “revise, restate, and recodify the law of the State [of Maryland] relating to
criminal law.” Johnson v. State, 467 Md. 362, 382 (2020). However, the General
Assembly, after reviewing the suggestions provided to it by the Article 27 Committee,
opted not to make any substantive changes to first-degree or second-degree murder. Legis.
Servs., Fiscal and Policy Note, House Bill 11, (2002 Session). And since the General
Assembly’s 2002 recodification of Article 27 into the Criminal Law Article, there have
only been stylistic changes to the first-degree and second-degree murder statutes.
6
CR 2-204 defines second-degree murder as “[m]urder that is not in the first-degree under
[CR] § 2-201.” CR § 2-204(a).
In essence, CR § 2-201(a)(1)–(4) describe the various mens rea (states of mind)
“and circumstantial modalities that will qualify murder as murder in the first degree, [they]
do not represent separate crimes but only establish alternative ways of finding the requisite
aggravation.” Jeffries v. State, 113 Md. App. 322, 335 (1997) (citing Wood v. State, 191
Md. 658, 666-67 (1948)).
Unlike first-degree murder, second-degree is broader. However, this Court has
“defined it more precisely as embracing four kinds of murder.” Mitchell v. State, 363 Md.
130, 147 (2001). The four kinds of murder are killings accompanied by any one of the
following states of mind: (1) killing another with the intent to kill—“bring[ing] about the
death of another,” State v. Earp, 319 Md. 156, 163 (1990)—without premeditation; (2)
killing another person with the intent to inflict serious bodily harm that death would be the
likely result; (3) depraved-heart murder; and (4) felony murders, where the killing is done
during the commission of certain felonies. See Mitchell v. State, 363 Md. 130, 147 (2001).
One issue here, as articulated by Garcia, is related to the first variety of second-
degree murder—the killing of another with the intent to kill. We note that the difference
between this variety of second-degree murder and first-degree murder is the former’s lack
of the element of premeditation. Id. at 148. The reason for the distinction is because “the
absence of premeditation does not prevent there being present [the intent to kill].” Abney
v. State, 244 Md. 444, 448 (1996). Instead, one must prove the element of premeditation
by showing that the “design to kill must have preceded the killing by an appreciable length
7
of time, that is, time enough to deliberate.” Tichnell v. State, 287 Md. 695, 717 (1980).
This Court has interpreted an appreciable length of time as “any amount of time sufficient
to convince the trier of fact that the purpose to kill was not the immediate offspring of
rashness and impetuous temper but was the product of a mind fully conscious of its own
design.” Willey v. State, 328 Md. 126, 133 (1992) (citations and quotation marks omitted).
Garcia contends, nevertheless, that a defendant always premeditates a murder if the
defendant acts as an accessory to that murder even if it is of the second-degree intent to kill
variety. According to Garcia, an accessory by very definition, cannot possess the intent to
kill without premeditation. Thus, to better respond to Garcia’s argument, we now turn to
how the law defines accomplice liability.
B. Accomplice Liability
Maryland, for a long time, adhered to the common law doctrine of accessoryship
that distinguishes an accessory before the fact from a principal in the second degree. The
Court in State v. Ward, described the common law distinction as follows:
A principal in the second degree is one who is guilty of felony by reason of
having aided, counseled, commanded or encouraged the commission thereof
in his presence, either actual or constructive. An accessory before the fact is
one who is guilty of felony by reason of having aided, counseled,
commanded or encouraged the commission thereof, without having been
present either actually or constructively at the moment of perpetration.
284 Md. 189, 197 (1978) overruled in part on other grounds by Lewis v. State, 285 Md.
705 (1979)).
The common law “presence” distinction was important for several reasons. First, it
could help the defendant in preparing a defense. 4 William Blackstone, Commentaries on
8
the Laws of England * 40 (1769). Second, it allowed judges to avoid imposing the death
penalty in some felony cases. Rollin M. Perkins, Criminal Law * 669 (2nd ed. 1969).
Third, it required that an accessory could not be tried until after the principal had been
convicted. 4 Blackstone at * 40. Fourth, it made it so a defendant could not be acquitted
as a principal and then later indicted as an accessory before the fact because the “acquittal
of the guilt of one may be an acquittal of the other also.” Id.
This common law distinction and the reasoning behind it, however, was not without
criticism. In State v. Williamson, the defendant presented this Court with the question of
whether to “abandon the ancient common law distinction between principals and
accessories before the fact.” 282 Md. 100, 111 (1978) (Levine, J., concurring). In his
concurrence, Judge Irving A. Levine criticized Maryland for “being the only jurisdiction
in the United States (and perhaps the only common law jurisdiction in the world) that has
retained the common law doctrine of accessoryship in virtually the same form as it existed
at the time of William Blackstone . . . .” Id.
Judge Levine opined that because an accessory before the fact and a principal are
“equally culpable and therefore subject to the same punishment[] . . . the classification of
parties as principals and accessories had little, if any, substantive significance.” Id. at 112
(internal citation omitted). Further, Judge Levine expressed that the distinction created
“highly technical procedural rules” that shielded accessories from punishment
“notwithstanding overwhelming evidence of their criminal assistance.” Id. (citation
omitted). The majority, however, did not adopt Judge Levine’s view expressed in his
concurrence. Instead, the majority held that the abrogation of the common law distinction
9
was not relevant to its holding, and thus declined to address the issue. Id. at 110 (majority
opinion).
This Court revisited the common law distinction issue in State v. Sowell, but it did
little to resolve the matter. 353 Md. 713 (1999). In Sowell, Judge Dale R. Cathell writing
for the majority discussed Judge Levine’s criticism of the common law distinction between
accessories and principals in Williamson and gave his reasoning great weight. Id. at 719.
Further, Judge Cathell noted that recent judicial decisions had slightly eroded the common
law distinction. Id. at 725. However, what had been eroded were the “technical procedural
rules” of the common law distinction. Id. (quoting Lewis v. State, 285 Md. 705, 716 (1979))
(holding that an accessory before the fact can be convicted before the principal).
Despite the erosion of the “technical procedural rules,” the public policy reasons
behind the distinction had been untouched and unchanged since 1906. Id. at 724. Thus,
the Court reasoned that although it had the power to completely abrogate the common law
distinction, because the public policy had been largely untouched throughout the law’s
history, a complete abrogation of such a long-standing common law principal is a task
“generally better left to the legislative body of [Maryland]” and not the Judiciary. Id. at
726 (citing State v. Wiegmann, 350 Md. 585, 607 (1998)).
In 2000, the Maryland General Assembly followed the Court’s guidance in Sowell
and revised the accessory before the fact statute. The Commission to Revise Article 27
10
chaired by Judge Joseph F. Murphy7 recommended House Bill 167 that passed the General
Assembly and “abolished the common law distinction between an accessory before the fact
and a principal . . . .” 2000 Md. Laws, ch. 339. In other words, the Legislature, heeding
the prophetic words of Judge Levine, replaced the common law distinction with “an all-
encompassing doctrine which would treat all those who knowingly procure, command,
counsel, encourage, aid or abet a felon in the commission of a crime as principals regardless
of whether the aider or abettor was actually or constructively present at the scene of the
crime.” Williamson, 282 Md. at 114 (Levine, J., concurring).
The Legislature did not, however, disturb the factual definitions of an accessory
before the fact and second-degree principal. Instead, “the words accessory before the fact
and principal have retained their judicially determined meanings.” Maryland Code “Md.
Code”), Criminal Procedure Article (“CP”) § 4-204(a). Thus, the factual distinctions
remain relevant for purposes of describing the two kinds of accomplices. Nevertheless,
common to both types of accomplices is that there still must be a showing that the
accomplice possessed some form of criminal intent, or mens rea.
An accessory’s mens rea is “unique” to them, i.e., an “aider and abettor or an
accessory before the fact may be more blameworthy than the principal in the first degree
or equally blameworthy or less blameworthy.” Harvey v. State, 111 Md. App. 401, 408
7
At the time Judge Murphy was simultaneously the Chair of the Article 27 (crimes
and punishment) Revisions Committee and the Chief Judge of the Court of Special
Appeals.
11
(1996). But although an accessory’s intent is “independent” from a principal’s, an
accessory (or the former) may nevertheless be guilty of a principal’s actions. Id. This is
illustrated by this Court’s holding in Sheppard, 312 Md. 118 (1988).
In Sheppard, the defendant and two other men, one of whom was armed, robbed a
convenience store in Anne Arundel County. 312 Md. at 120. As the three men fled to their
getaway car, operated by a fourth man, the armed man shot at a deliveryman who had
pursued them out of the store. Id. Eventually, the police spotted their getaway car, and
pulled over the four men. Id. During the stop, the police officers ordered the driver to turn
off the car’s ignition. Id. The driver ignored the police officer’s command, and instead
accelerated the car. Id. The sudden acceleration caused the police to shoot the vehicles
rear tires out. Id. at 120-21. The now unstable car collided with a parked car down the
road, and the crash rendered the getaway car immobile. Id. at 121.
The defendant attempted to climb from the car crash, however, he was apprehended
by the police. Id. Meanwhile, the three other men were able to escape the crash and began
fleeing the scene. Id. The police chased the three men, and during the chase one of the
three men fired several shots at the police officers. Id.
Ultimately, at trial, the jury convicted the defendant of, in addition to other offenses,
three counts of assault with intent to murder—based on the shots fired by his co-defendant
at the deliveryman and the police officers. Id. The defendant argued, on appeal, that he
did not aid or abet his co-defendants in the commission of the assaults with the intent to
murder. Id. This Court held to the contrary. Id. at 123.
12
The Sheppard Court explained that an accessory before the fact can be found guilty
of an incidental criminal offense if the State proves that the defendant participated in the
“principal offense either as a principal in the first degree (perpetrator), a principal in the
second degree (aider and abettor) or as an accessory before the fact (inciter).” Id. at 123.
In addition, “the State must establish that the charged offense was done in furtherance of
the commission of the principal offense or the escape therefrom.” Id. In other words, the
defendant’s guilt in the assaults with intent to murder “rests on the fact he aided and
abetted” the armed robbery. Id.
Now, with murder and accomplice liability defined, we examine these concepts
together by applying them to the facts of Garcia’s case.
C. An accomplice to a second-degree intent to kill murder need not premediate.
In State v. Ward, this Court held a defendant can be an accessory before the fact to
second-degree murder pursuant to common law accessoryship. 284 Md. 189 (1978). In
Ward, the jury found the defendant guilty of being an accessory before the fact of second-
degree murder.8 Id. at 193 n.6 (1978). On petition for post-conviction review, the court
ordered a new trial. Id. Prior to the new trial, however, the circuit court dismissed the
case, agreeing with the defendant that it is impossible to be an accessory before the fact to
8
The State charged the defendant with: (1) conspiracy to commit murder (Ward);
(2) conspiracy to commit murder (Godbout); (3) being an accessory before the fact of
second-degree murder; (4) murder; and (5) attempted murder. Ward, 284 Md. at 193 n.6.
Ultimately, the jury convicted the defendant of counts one, two, and three, while the
State nolle prosequi counts four and five. Id. On a petition for post-conviction review, the
court dismissed counts one and two as being barred by the statute of limitations and ordered
a new trial on count three. Id.
13
second-degree murder. Id. at 193–94. The State appealed the circuit court’s dismissal and
asked this Court to determine whether common law accessoryship permitted a defendant
to “be an accessory before the fact of murder in the second degree[.]” Id. at 194.
The Court reasoned that if the defendant’s intent was to commit “grievous bodily
harm, and death occurred in consequence of the attack” then the “homicide would be with
malice aforethought but not willful, deliberate and premeditated.” Id. (citing Gladden v.
State, 273 Md. 383, 387 (1974)). Although this Court used second-degree intent to do
serious bodily injury murder as an example, we held that a defendant “may be an accessory
before the fact to murder in the second degree,” and there is a “rational basis” for doing so.
Id. at 199; see Bowers v. State, 320 Md. 416, 430 (1990) (broadly stating that a jury could
convict a defendant as an accessory before the fact to second-degree murder). And,
therefore, the circuit court’s dismissal of count three was improper. Ward, 284 Md. at 201.
Applying the “rational basis” found in Ward, Garcia’s aid was not premeditated.
Here, it is uncontested that Garcia befriended Najjar on Snapchat and that Garcia alerted
the Co-Defendants to Najjar’s advertisement on Snapchat. Garcia’s act of becoming
Najjar’s friend on Snapchat and alerting the Co-Defendants are considered aid. First, a
reasonable inference is that Garcia befriended Najjar on Snapchat in order to provide the
Co-Defendants with an inconspicuous way to communicate with Najjar and access his
whereabouts. Second, another reasonable inference is that Garcia alerted the Co-
Defendants to the Snapchat advertisement to give them a chance to meet, face-to-face, with
Najjar. But because premeditation is not an element of second-degree murder crime, the
presence or absence of any alleged premeditation is irrelevant.
14
Moreover, both acts of aid could have been done without premeditation or a meeting
of the minds as to an anticipated or planned murder. In addition, we agree with the Court
of Special Appeals that it is plausible for an accessory before the fact to second-degree
murder to have acted “on impulse without ‘sufficient time to consider the decision whether
or not to kill and weigh the reasons for or against such a choice,’ aid[ed] another in the
commission of a homicide with the intent to kill and in the absence of mitigating
circumstances.” Garcia, 253 Md. App. at 64 (quoting Lipinski v. State, 333 Md. 582, 589
(1994)).
Garcia also contends that this Court’s decision in Mitchell v. State provides that it
is impossible to commit a non-premeditated intent-to-kill murder as an accessory before
the fact—however, Mitchell reaches a different conclusion. 363 Md. 130, 150 (2001).
In Mitchell, this Court faced the question of whether conspiracy to commit second-
degree murder is legally possible. Id. at 133 (emphasis added). The Court, adopting the
approach taken by California and Michigan, determined that the meeting of the minds
necessary to create a conspiracy was the same as the sufficient thought (reflection) needed
to satisfy the element of premeditation. Id. at 149. Thus, the Court held that the prior
planning exhibited by the actor to a conspiracy is equal to premeditation, and therefore
conspiracy to commit second-degree murder is legally impossible. Id.
An accessory before the fact, unlike a conspirator, does not always act with a
“prearranged concert of action.” Coleman v. State, 209 Md. 379, 384 (1956). In
Apostoledes v. State, this Court addressed whether a defendant acquitted on a charge of
conspiracy to commit murder precluded a new trial predicated on the theory that the
15
defendant was a principal in the second-degree to the same murder. 323 Md. 456 (1991).
The Court held that although one actor may “intentionally aid, counsel, or encourage
another in the commission of a crime,” they could have done so without an agreement
(conspiracy). Id. at 462. Therefore, the Court held that a new trial, based the defendant
being a principal in the second-degree to the same murder, was not barred. Id.
Here, trial counsel presented the jury in Garcia’s case with an abundance of evidence
over the course of the trial. And at the close of evidence, the jury considered whether
Garcia’s own personal actions coupled with those of the other actors rose to the level of a
conspiracy to murder Najjar. Ultimately, the jury found that Garcia’s aid did not rise to
the level of conspiracy and acquitted Garcia of that charge. In sum, the jury inherently
found that Garcia’s aid was not equivalent to premeditation and found him guilty of
second-degree murder.
D. Accomplice liability permits an accessory before the fact to second-degree murder.
Garcia argues that the type of accomplice liability established in Sheppard v. State
does not allow for an accessory before the fact to be found guilty as an accessory before
the fact to the subsequent offense. 312 Md. 118 (1988). However, the State argues that
this contention misapplies Sheppard. We agree with the State.
This Court in Sheppard defined an accomplice as one who “as a result of [their]
status as a party to an offense, is criminally responsible for a crime committed by another.”
Id. at 122. This Court further held that not only is the accessory criminally responsible for
the “planned, or principal offense” but also the “incidental” offenses. Id. Thus, the
16
definition is of an accomplice is one who, as a result of their status as a party to an offense,
is criminally responsible for planned and incidental crimes committed by another. Id.
We cannot say if Sheppard liability was the basis upon which the jury found Garcia
guilty of second-degree murder, but it is nevertheless not for this Court or any court to
examine because imbued in the history of the Court is the principle that jury deliberations
are secret.
The secrecy of jury deliberations began with Lord Mansfield’s holding in Vaise v.
Delaval, which created the doctrine limiting the impeachment of jury verdicts. 99 Eng.
Rep. 944 (K. B. 1785). The Mansfield Rule has since been altered by various courts. Early
changes came at the state level in Write v. Illinois & Mississippi Tel. Co., 20 Iowa 195
(1866). Next, at the federal level, the Supreme Court decided Mattox v. United States, 146
U.S. 140 (1892)—eventually codified into the Federal Rules of Evidence as Rule 606(b).
As time went, on the Mansfield Rule and its adaptations slowly permeated American
jurisprudence, eventually developing into other doctrines with the overarching goal to
protect the details of the jury deliberation process from the public’s prying eye. See Stokes
v. State, 379 Md. 618, 638 (2004).
Thus, the “secrecy of [jury] deliberations is the cornerstone of the” modern-day
American judicial system, and, generally, nobody, including the trial judge, “has a ‘right
to know’ how a jury, or any individual juror, has deliberated or how a decision was reached
by a jury or juror.” United States v. Thomas, 116 F.3d 606, 618 (2nd Cir. 1997).
17
Instead, to keep jury deliberation process shielded, we only consider the legal
theories presented to the jury prior to their deliberation and determine if said legal theories
can be properly considered.
At Garcia’s trial, the trial court judge instructed the jury on accomplice liability as
follows: 9
So, the final instruction I’m going to give you is an instruction which is called
accomplice liability and this comes up in the context of throughout these
instructions, you’ve heard the term primary actor or accomplice and many of
these instructions are written in, in the contemplation that a person charged
actually commits the offense. So, accomplice liability comes in the criminal
law to deal with a situation like this. You’ve probably heard of the situation
where let’s say a robbery occurs. Someone goes into a store; another person
sits in the car. The robbery occurs, they get in the car and they drive away
and that was the plan. The person who sits in the car is equally as guilty as
the person that goes inside the bank or the store. That’s called accomplice
liability. So, that’s the sort of general concept of what we’re talking about
when we speak about accomplice liability and that’s what this instruction
relates to in this case.
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Although the trial court gave a modified jury instruction, it is consistent with
Maryland Pattern Jury Instruction 6:00 that provides, in relevant part, the following:
The defendant may be guilty of (crime) as an accomplice, even though the
defendant did not personally commit the act that constitutes that crime.
***
The defendant may also be found guilty as an accomplice of (a) crime(s) that
[he] [she] did not assist in or even intend to commit.
***
It is not necessary that a defendant knew his accomplice was going to commit
an additional crime. Furthermore, the defendant need not have participated
in any fashion in the additional crime.
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So, the defendant may be found guilty of first-degree murder, second-degree
murder, use of a firearm during the commission of a felony or armed robbery
as an accomplice, even though the defendant did not personally commit the
acts that constitute each one of those crimes. In order to convict the
defendant of any of the above enumerated charges as an accomplice, the State
must prove that one or more of those charges occurred and that the defendant,
with the intent to make the crime happen, knowingly aided, counseled,
commanded or encouraged the commission of the crime, or communicated
to a participant in the crime that he was ready, willing and able to lend
support if needed.
A person need not be physically present at the time and place of the
commission of the crime in order to act as an accomplice. The mere presence
of the defendant at the time and place of the commission of a crime is not
enough to prove that the defendant is an accomplice. If the presence at the
scene of the crime is proven, that fact may, may be considered, along with
all the surrounding circumstances in determining whether the defendant
intended to aid a participant and communicated that willingness to a
participant.
The defendant may also be found guilty as an accomplice of a crime that he
did not assist in or even intend to commit. In this case, in order to convict
the defendant of an additional crime, the State must prove beyond a
reasonable doubt: First, that the defendant, that the defendant committed the
intended crime either as a primary actor or as an accomplice; two, that
addition, that an additional crime was committed by an accomplice; and,
third, that the additional crime was committed by an accomplice in
furtherance of, or during the escape from the underlying intended crime.
This instruction can apply to any and all the crimes charged in this case. For
example, if the intended crime was murder, and during the commission of
the murder an armed robbery occurred, the defendant can be found guilty of
the armed robbery as well. If the intended crime was armed robbery, and
during the commission of the armed robbery the murder occurred, the
defendant could be found guilty of the murder as well. It is not necessary
that the defendant knew his accomplice was going to commit the additional
crime; further, the defendant need not have participated in any fashion in the
additional crime. In order for the State to establish accomplice liability for
the additional crime, the State must prove that the defendant actually
committed the planned offense or the defendant aided and abetted in that
offense, and that the additional crime, criminal offense, not within the
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original plan, was done in either furtherance of the commission of a planned
offense or escape therefrom.
During closing arguments, the attorney for the State reiterated these jury
instructions, by telling the jury that if they found Garcia connected with Najjar on Snapchat
to “scare him with some guns, and then the murders happened in furtherance of the scaring
with some guns, [Garcia] is guilty of murder. . . .” In other words, Garcia could have, when
he connected with Najjar, only intended to aid in the commission of a first-degree assault;
however, if in furtherance of the first-degree assault the murders were committed, then
Garcia would be guilty of the murders as an accomplice because he aided in the
commission of the first-degree assault.
Given that the hypothetical was a proper application of Sheppard liability and the
jury instruction accurately stated the law of accomplice liability, the jury properly
considered the legally cognizable theory that Garcia could be convicted as an accessory
before the fact to first or second-degree murder. And therefore, the jury could have found
Garcia guilty of second-degree murder as an accessory before the fact.
CONCLUSION
In Ward, we held that, pursuant to common law accessoryship, there lies a “rational
basis” for a defendant to be guilty as an accessory before the fact to second-degree murder.
Since our holding in Ward, however, the Legislature abrogated common law accessoryship
by enacting Maryland Criminal Procedure § 4-204. Although, the abrogation allows for
an accessory to be “charged, tried, and convicted” as a principal, the two still maintain their
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own distinct definitions. Thus, the “rational basis” in Ward is still applicable to statutory
accessoryship.
In fact, the Court of Special Appeals even relied on this “rational basis” when it
held that it is conceivable for Garcia, acting as an accessory before the fact, to have, on
impulse and without premeditation, aided his co-defendants in the commission of a
homicide with the intent to kill. We agree with the Court of Special Appeals. Based on
our holdings in Mitchell and Apostoledes, an accessory before the fact does not necessarily
premeditate.
Likewise, Garcia’s conviction is grounded on our holding in Sheppard, where we
held that an accessory, by nature, is guilty of planned and incidental crimes committed by
another. 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.
In summation we hold the following:
1. An accessory’s aid can be provided on the spur of the moment,
thoughtlessly, or rashly, and thus without premeditation;
2. An accessory before the fact to second-degree murder is different and
distinct from conspiracy to commit second-degree murder; and
3. Sheppard liability provides a legally cognizable basis upon which an
accessory before the fact to an initial crime can be convicted as an accessory
before the fact to an incidental crime.
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We therefore find no reason to disturb the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
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