Garcia v. State

Roger Garcia v. State of Maryland, No. 2355, September Term, 2019. Opinion by Zic, J.
FIRST-DEGREE PREMEDITATED MURDER — SECOND-DEGREE INTENT-TO-KILL
MURDER — ACCESSORIES BEFORE THE FACT — DELIBERATION AND
PREMEDITATION
Second-degree intent-to-kill murder based on accessory-before-the-fact accomplice liability is a legally
viable theory of murder. An accessory before the fact who personally harbors the intent to kill can aid
in the perpetration of a killing without the awareness and reflection necessary to justify a finding of
deliberation and premeditation as is required for first-degree premeditated murder. Such an accomplice
could be guilty of second-degree murder of the intent-to-kill variety.
Circuit Court for Montgomery County
Case No. 132901C
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2355
September Term, 2019
ROGER GARCIA
v.
STATE OF MARYLAND
Berger,
Gould,*
Zic,
JJ.
Opinion by Zic, J.
Filed: November 3, 2021
* Judge Steven B. Gould, now serving on the Court of
Appeals, participated in the hearing and conference of
this case while an active member of the Court of Special
Appeals; he participated in the adoption of an unreported
version of this opinion as a specially assigned member of
this Court. The unreported opinion was filed on October
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
1, 2021.
2021-11-03 10:16-04:00 On October 26, 2021, this Court approved this opinion for
reporting. Judge Gould played no part in this Court’s
consideration or approval of the opinion for reporting.
Suzanne C. Johnson, Clerk
In this criminal appeal, Roger Garcia, appellant, challenges the viability of a
theory of murder: second-degree intent-to-kill murder based on accessory-before-the-fact
accomplice liability. Following a jury trial, Mr. Garcia was convicted in the Circuit
Court for Montgomery County of two counts of second-degree murder and two
corresponding use of a firearm counts. He was sentenced to a total of 100 years of
incarceration. Mr. Garcia then filed this appeal.
QUESTION PRESENTED
Mr. Garcia presents the following question for our consideration, which we have
slightly rephrased1:
Is second-degree intent-to-kill murder based on accessory-before-the-fact
accomplice liability a legally viable theory of murder?
For the reasons that follow, we answer that question in the affirmative and affirm the
judgments of the circuit court.
BACKGROUND2
Mr. Garcia, along with three other individuals,3 were each charged in the murder
of Shadi Najjar and Artem Ziberov. More specifically, Mr. Garcia was charged by
1
In his brief, Mr. Garcia phrases the issue as follows: “Whether Appellant’s
convictions of second degree murder and use of a firearm in the commission of a crime of
violence must be vacated because they may have been based on a legally impossible
theory of murder.”
2
We provide only a brief summary of the facts as a more detailed overview is not
necessary to the resolution of the issue presented.
3
The three other individuals are Jose Ovilson Canales-Yanez, Edgar Garcia-
Gaona, and Rony Galicia. They were each convicted of murder in separate trials and are
serving consecutive life without parole sentences. See State v. Jose Ovilson Canales-
Yanez, No. 132902C (Md. Cir. Ct. Montgomery Cnty.); State v. Edgar Garcia-Gaona,
indictment with two counts of first-degree murder (Counts 1 and 2), conspiracy to
commit murder (Count 3), four counts of use of a firearm in the commission of a felony
or crime of violence (Counts 4-7), and armed robbery (Count 8). On December 4, 2019,
a jury trial commenced in the Circuit Court for Montgomery County.
After the close of evidence, the circuit court instructed the jury on, among other
offenses, first-degree premeditated murder, second-degree intent-to-kill murder, second-
degree grievous bodily harm murder, and accomplice liability. When providing the jury
instruction on accomplice liability, the court specifically noted that Mr. Garcia could be
found guilty of first-degree murder, second-degree murder, and use of a firearm as an
accomplice.
The State entered a nolle prosequi on Count 7 of the indictment on December 11,
2019. Subsequently, the jury rendered its verdict. Mr. Garcia was acquitted of both
counts of first-degree premeditated murder and first-degree felony murder, conspiracy to
commit murder, armed robbery, and the corresponding use of a firearm count. He was
convicted of two counts of second-degree murder and the corresponding firearm counts.
The verdict sheet did not specify the type of second-degree murder on which he was
convicted.
On January 10, 2020, Mr. Garcia was sentenced to 30 years of incarceration for
each murder count and 20 years for each corresponding firearm count, each to be served
consecutively. This appeal followed.
No. 132903C (Md. Cir. Ct. Montgomery Cnty.); State v. Rony Alexander Galicia, No.
132904C (Md. Cir. Ct. Montgomery Cnty.).
2
DISCUSSION
Mr. Garcia argues that his murder sentences are illegal under Rule 4-345(a), which
is discussed below, because the underlying convictions may have been based on a legally
impossible theory of murder—second-degree intent-to-kill murder based on accessory-
before-the-fact accomplice liability. More specifically, he argues that an accessory
before the fact who personally harbors an intent to kill and provides aid before the killing
is necessarily guilty of deliberation and premeditation and thus cannot be convicted of
“second degree unpremeditated intent to kill murder.” Rather, an “accessory before the
fact to an intent to kill murder . . . is guilty of first degree premeditated murder.”
Consequently, Mr. Garcia claims that his murder convictions and the resulting sentences
must be vacated because the jury was asked to consider this legally impossible theory of
murder, even though the jury was also presented with legally viable theories. He
similarly argues that the corresponding firearm convictions and the resulting sentences
must be vacated as they are predicated on the invalid murder convictions. Mr. Garcia
urges this Court to remand the case to the circuit court for a new trial “with instructions
that second degree unpremeditated intent to kill murder based on accessory-before-the-
fact accomplice liability is not a viable legal theory of murder and cannot be presented to
or considered by the jury.”
Conversely, the State argues that Mr. Garcia “has failed to show that his
convictions and sentence rest on a legally impossible theory of the type . . . that the Court
of Appeals held could be remedied without a contemporaneous objection at trial under
Maryland Rule 4-345(a).” The State claims that Mr. Garcia’s argument on appeal “is, at
3
best, an unpreserved and meritless claim of legally inconsistent verdicts.” While we
disagree with the State’s characterization of Mr. Garcia’s contention as a claim of verdict
inconsistency, we do not believe that Mr. Garcia’s convictions are based on a legally
impossible theory of murder. We hold that second-degree murder of the intent-to-kill
variety based on accessory-before-the-fact accomplice liability is a legally viable theory.
I. STANDARD OF REVIEW
This appeal presents a question of law. As such, we apply a de novo standard of
review. Shannon v. State, 468 Md. 322, 335 (2020); see also Schisler v. State, 394 Md.
519, 535 (2006) (explaining that when the question presented on appeal “involves an
interpretation and application of Maryland constitutional, statutory[,] or case law,” the
case is reviewed de novo).
II. PRESERVATION
As a threshold matter, we first turn to Mr. Garcia’s assertion that even though the
illegality of his sentences and underlying convictions for second-degree murder was not
raised at trial, this Court can properly consider it for the first time on appeal pursuant to
Rule 4-345(a). Under that Rule, “[t]he court may correct an illegal sentence at any time,”
even if no objection was made in the circuit court. Md. Rule 4-345(a); see Bailey v.
State, 464 Md. 685, 696 (2019). An “illegal sentence” is defined as one “in which the
illegality inheres in the sentence itself.” Chaney v. State, 397 Md. 460, 466 (2007); see
Colvin v. State, 450 Md. 718, 728 (2016) (“[W]e reaffirm the rule that only claims
sounding in substantive law, not procedural law, may be raised through a Rule 4-345(a)
motion.”).
4
Maryland courts have stressed that the scope of Rule 4-345(a) is narrow and
generally limited to circumstances where “there either has been no conviction warranting
any sentence for the particular offense or the sentence is not a permitted one for the
conviction upon which it was imposed.” Rainey v. State, 236 Md. App. 368, 381 (2018)
(quoting Colvin, 450 Md. at 725). Additionally, an “illegal sentence” may arise when
“the illegality of a sentence stems from the illegality of the conviction itself.” Johnson v.
State, 427 Md. 356, 378, 380 (2012) (holding that the imposition of a sentence for a
crime with which the defendant was not charged is the type of sentence illegality that is
cognizable under Rule 4-345(a)). Importantly, this type of illegality has been “limited to
situations in which the illegality of the conviction exists because the trial court lacked the
‘power or authority’ to convict.” Rainey, 236 Md. App. at 380-81 (quoting Johnson, 427
Md. at 371) (explaining that the Court’s holding in Johnson that the defendant’s sentence
was illegal was based on the circuit court’s lack of power or authority to impose a
conviction for an uncharged offense).
Mr. Garcia claims that his sentences are illegal under Rule 4-345(a) “because they
[may be] based on convictions of a legally impossible theory of murder.” As support, he
cites to Fisher v. State, 367 Md. 218 (2001), for the proposition that “a sentence is illegal
if it is based on a conviction of a legally impossible crime or theory of a crime.” In that
case, three defendants were convicted of second-degree murder, more specifically felony
murder as expressly indicated on the jury verdict sheets, child abuse, and conspiracy to
commit child abuse. Id. at 226. They argued that Maryland law does not recognize the
offense of second-degree felony murder predicated on the felony of child abuse. Id. at
5
225, 237. Although not raised in the trial court, the Court decided to reach the merits of
the defendants’ argument. Id. at 237-40. As one reason for that decision, the Court
explained that their murder sentences would be illegal under Rule 4-345(a) if it was
determined, as alleged by the defendants, that second-degree felony murder premised on
the felony of child abuse was not a cognizable offense. Id. at 239-40. More specifically,
it stated “that a sentence imposed under an entirely inapplicable statute ‘is an illegal
sentence which may be challenged at any time.’” Id. (quoting Moosavi v. State, 355 Md.
651, 662 (1999)). The Court then explained:
[I]f the felony murder doctrine has no application to a
homicide resulting from child abuse, then the thirty year
sentences for murder in the second degree imposed on the
petitioners would be similarly illegal, because, by the special
jury verdict, the findings of guilty of murder were based
solely on felony murder.
Fisher, 367 Md. at 240.
Unlike the murder convictions at issue in Fisher, which were indisputably based
on the purported non-cognizable offense as indicated on the special verdict forms, Mr.
Garcia’s second-degree murder convictions were not necessarily based on the allegedly
illegal theory of murder—second-degree intent-to-kill murder premised on accessory-
before-the-fact accomplice liability. Mr. Garcia recognizes this in his brief when stating
that “the jury . . . could have convicted [him] based on [the challenged murder] theory.”
(emphasis added). The guilty verdict could have rested on, for example, a finding that
Mr. Garcia committed second-degree intent-to-kill murder as a principal, rather than an
accessory, which is a legally valid offense. Nonetheless, we do not decide whether Mr.
6
Garcia has alleged an “illegal sentence” within the scope of Rule 4-345(a). Instead, we
elect to address the merits of his challenge based on the discretion afforded to this Court
under Rule 8-131(a) to consider unpreserved issues.
III. VIABILITY OF THE CHALLENGED MURDER THEORY
In Maryland, murder is “a common law crime that . . . has been divided into two
degrees” by statute. Mitchell v. State, 363 Md. 130, 146 (2001); see Md. Code Ann.,
Crim. Law §§ 2-201, 2-204. First-degree murder encompasses, in pertinent part, “a
deliberate, premeditated, and willful killing.” Crim. Law § 2-201. Second-degree
murder includes killings that are not in the first degree. Crim. Law § 2-204. Maryland
courts have further defined second-degree murder as embracing four types of murder: (1)
killing a person with the intent to kill; (2) killing a person with the intent to inflict such
grievous bodily harm that death would likely result; (3) felony murder; and (4) depraved
heart murder. Alston v. State, 414 Md. 92, 109 n.5 (2010).
To prove first-degree premeditated murder, the State must establish “that the
defendant possess[ed] the intent to kill (willful), that the defendant ha[d] conscious
knowledge of that intent (deliberate), and that there [was] time enough for the defendant
to deliberate, i.e., time enough to have thought about that intent (premeditate).” Morris v.
State, 192 Md. App. 1, 31 (2010) (alterations in original) (quoting Willey v. State, 328
Md. 126, 133 (1992)). Regarding the elements of deliberation and premeditation, the
Court has explained that “[f]or murder ‘to be “deliberate” there must be a full and
conscious knowledge of the purpose to kill; and to be “premeditated” the design to kill
must have preceded the killing by an appreciable length of time.’” Mitchell, 363 Md. at
7
148 (quoting Tichnell v. State, 287 Md. 695, 717 (1980)). An “‘[a]ppreciable length of
time’ simply means ‘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.”’” Mitchell, 363 Md. at
148 (quoting Willey, 328 Md. at 133). Put simply, “[i]f the killing results from a choice
made as the result of thought, however short the struggle between the intention and the
act, it is sufficient to characterize the crime as deliberate and premeditated murder.”
Tichnell, 287 Md. at 718; see also Lipinski v. State, 333 Md. 582, 589 (1994) (stating that
there is premeditation if “the defendant had sufficient time to consider the decision
whether or not to kill and weigh the reasons for or against such a choice” (quoting Willey,
328 Md. at 138)).
First-degree intent-to-kill murder differs from intent-to-kill murder in the second
degree in that the former requires proof of premeditation and deliberation. Mitchell, 363
Md. at 148. Conversely, second-degree murder, which “is the killing of another person
without legal justification, excuse, or mitigation, and with either the intent to kill or the
intent to inflict grievous bodily harm,” does not require premeditation or deliberation.
Banks v. State, 92 Md. App. 422, 439 (1992). Importantly, Judge Moylan recently
explained:
It is tempting to call second-degree murder of [the intent-to-
kill variety] “unpremeditated murder,” but that would not be
literally correct. Non-premeditation is not an affirmative
element of the second-degree crime. What is involved in
proving the lesser-degree of murder is not proof of non-
premeditation but only the non-proof of premeditation. There
is a big difference between the two.
8
Pitts v. State, 250 Md. App. 496, 501 n.1 (2021); see also Williams v. State, 100 Md.
App. 468, 477 (1994) (noting that “[s]econd-degree murder is frequently described as
unpremeditated murder” but that “[i]t does not . . . require proof of nonpremeditation”—
“it is simply an available alternative when there is non-proof of premeditation”).
Criminal actors are divided into four categories: (1) principals in the first degree;
(2) principals in the second degree; (3) accessories before the fact; and (4) accessories
after the fact. State v. Williams, 397 Md. 172, 193 (2007), abrogated on other grounds
by Price v. State, 405 Md. 10 (2008). A second-degree principal “is one who is guilty of
[a] felony by reason of having aided, counseled, commanded or encouraged the
commission thereof in his presence, either actual or constructive.” Williams, 397 Md. at
193 (alteration in original) (quoting State v. Sowell, 353 Md. 713, 718 (1999)). An
accessory before the fact “is one who is guilty of [a] 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.” Williams, 397
Md. at 193 (alteration in original) (quoting Sowell, 353 Md. at 718-19). Notably, the
Maryland Legislature “has abrogated ‘the distinction between an accessory before the
fact and a principal.’” Owens v. State, 161 Md. App. 91, 104 (2005) (quoting Md. Code
Ann., Crim. Proc. § 4-204).
For specific intent crimes, the State must establish that the accessory before the
fact, in addition to aiding the commission of the crime, acted with the requisite intent and
that the crime occurred. See Harvey v. State, 111 Md. App. 401, 408-09 (1996); Oates v.
9
State, 97 Md. App. 180, 188-89 (1993). The mental state of an accessory is judged at the
time the aid is provided. See Oates, 97 Md. App. at 188-89 (“[B]ecause a killing in a
heat of passion is manslaughter and not murder, an accomplice who aids while in such a
state is guilty only of manslaughter even though the killer is himself guilty of murder.”
(emphasis added) (quoting Wayne R. LaFave & Austin W. Scott, Criminal Law § 6.7, at
581 (2d ed. 1986))). An accessory’s level of guilt is not dependent on the mental state of
any other participant in the offense. See Harvey, 111 Md. App. at 408 (“The mens rea of
each participant is independent of that of all other participants. It is the unique mens rea
of each defendant that controls the level of guilt of that defendant.”).
Based on our review, we have not come across any reported opinions in Maryland
addressing the viability of second-degree intent-to-kill murder based on accessory-
before-the-fact accomplice liability. We have, however, found at least one opinion
involving a conviction seemingly based on this challenged murder theory. See Lewis v.
State, 285 Md. 705, 707 (1979) (defendant convicted of second-degree murder of his
child as an accessory before the fact based on evidence that he contracted another to
commit the murder). Importantly, there was no issue raised by the parties or the court
about the viability of this theory of murder.
We hold that second-degree intent-to-kill murder premised on accessory-before-
the-fact accomplice liability is a cognizable offense. Mr. Garcia’s argument to the
contrary—that “[a] conviction of second degree unpremeditated intent to kill murder as
an accessory-before-the-fact accomplice is legally impossible”—rests, in our view, on
two necessary premises: (1) an accessory before the fact who aids in the perpetration of a
10
killing with the intent to kill necessarily acts with deliberation and premeditation and (2)
second-degree intent-to-kill murder is an unpremeditated killing. In explaining our
holding, we start, and end, our analysis with the first contention. As detailed below, we
disagree with Mr. Garcia—we believe an accessory before the fact who personally
harbors the intent to kill can aid in the commission of a killing without the awareness and
reflection required to justify a finding of deliberation and premeditation.
Maryland courts have indicated that it is possible for an accessory before the fact
to aid in a killing while harboring the intent to kill and to do so in a manner that does not
constitute premeditation or deliberation. For example, in Bowers v. State, 320 Md. 416(1990), an ineffective assistance of counsel case brought by a defendant convicted of
first-degree premeditated murder, the Court made the following comment regarding the
defense counsel’s failure to admit certain evidence:
[I]t follows naturally that the jury might well have concluded
that [the defendant] had not possessed the requisite mens rea
for premeditated murder. The jury, therefore, might well
have found him to be an accessory to second degree murder,
or perhaps guilty of second degree murder. At the very least,
the jury might well have harbored reasonable doubt as to the
premeditated murder charge.
Id. at 418, 430 (emphasis added) (citation omitted). While the Court did not specify the
type of second-degree murder referenced in its commentary quoted above, it is
reasonable to conclude that the Court was referring to, at the very least, the intent-to-kill
variety given that the defendant was “on trial only for first degree premeditated murder.”
Id. at 430.
11
We also find instructive a hypothetical provided by this Court in Oates v. State, 97
Md. App. 180 (1993), which we furnished as support for the principle that participants in
a single criminal homicide do not necessarily share the same mens rea: “P commits a
battery upon D; D, in the heat of passion aroused by this, procures E to kill P, which E
forthwith does. E (if not affected by the provocation received by D) is guilty of murder;
but D is accessory before the fact only to manslaughter.” Id. at 187-89 (emphasis added)
(quoting Glanville Williams, Criminal Law 390-91 (1961)). Although the accessory in
the example was deemed guilty of voluntary manslaughter, voluntary manslaughter is a
specific intent crime and, similar to second-degree murder, requires the defendant to have
acted with the intent to kill or the intent to inflict grievous bodily harm. Brown v. State,
90 Md. App. 220, 229, 232-33 (1992). Indeed, voluntary manslaughter has been defined
as “a killing that would otherwise be second degree murder, but for the presence of a
mitigating circumstance.” Banks, 92 Md. App. at 439. We read the hypothetical
favorably referenced by this Court in Oates as suggesting that an accessory before the
fact who harbors the intent to kill does not necessarily act with deliberation and
premeditation.
Lastly, we turn to Eiland v. State, 92 Md. App. 56 (1992), rev’d on other grounds
sub nom. Tyler v. State, 330 Md. 261 (1993), where Judge Moylan, in discussing the
mental state element of accomplice liability, explained:
Thus, the triggerman may have premeditated the killing (first
degree); one aider and abettor may have formed the intent to
kill only at the last moment or, indeed, have intended only
grievous bodily harm (second degree); while a second aider
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and abettor, a cuckolded spouse perhaps, may have been
acting in hot-blooded response to provocation (manslaughter).
Eiland, 92 Md. App. at 78-79 (emphasis added). This language casts further doubt on
Mr. Garcia’s assertion that “[a]n accessory before the fact to an intent to kill murder has
. . . deliberated and premeditated the murder.”
Guided by the above caselaw, we conclude that an accessory before the fact to
second-degree intent-to-kill murder is cognizable. It is plausible that an accessory before
the fact who, acting on impulse without “sufficient time to consider the decision whether
or not to kill and weigh the reasons for or against such a choice,” aids another in the
commission of a homicide with the intent to kill and in the absence of mitigating
circumstances. Lipinski, 333 Md. at 589 (quoting Willey, 328 Md. at 138)); see Banks, 92
Md. App. at 439 (explaining that, in the context of voluntary manslaughter, “[a]
mitigating circumstance may be ‘a sudden heat of passion caused by adequate
provocation, before there has been a reasonable opportunity for the passion to cool,’ or ‘a
subjectively honest but objectively unreasonable belief [by the killer] that he was in
deadly peril’” (alteration in original) (citation omitted) (first quoting Cox v. State, 311
Md. 326, 331 (1988); and then quoting State v. Faulkner, 301 Md. 482, 506 (1984))). In
such circumstances, the accessory’s actions would likely not support a finding of
deliberation or premeditation, though they would probably satisfy the requirements of
second-degree intent-to-kill murder. See Mitchell, 363 Md. at 149 (stating “that a murder
committed solely on impulse—the ‘immediate offspring of rashness and impetuous
temper’—is not one committed with deliberation and premeditation”); Banks, 92 Md.
13App. at 439 (explaining that second-degree murder, which “is the killing of another
person without legal justification, excuse, or mitigation, and with either the intent to kill
or the intent to inflict grievous bodily harm,” does not require premeditation or
deliberation).
Mr. Garcia contends that the proposition that “an accessory before the fact to
intent to kill murder has premeditated intent to kill, and consequently, cannot commit
unpremeditated intent to kill murder” is supported by State v. Ward, 284 Md. 189 (1978),
overruled on other grounds by Lewis v. State, 285 Md. 705 (1979). According to Mr.
Garcia, in that case, “[t]he [C]ourt found that although ‘accessoryship presupposes
premeditation,’ it is theoretically possible to premeditate an intent-to-injure homicide or
‘stimulate’ another to exact vengeance in a heat-of-passion manslaughter.” (quoting
Ward, 284 Md. at 198). While the Court in Ward held that there may be an accessory
before the fact to second-degree murder of the grievous bodily harm variety, see 284 Md.
at 197-200, Mr. Garcia is incorrect in claiming that the Court “found that . . .
‘accessoryship presupposes premeditation.’” The Court reached no such conclusion.
Prior to announcing its holding, the Court briefly summarized the differing views of
commentators regarding the viability of accessories before the fact to murder in the
second degree. See id. at 197-98. The phrase quoted by Mr. Garcia appeared in the
Court’s explanation of one commentator’s view endorsing such a theory of liability:
It has been doubted whether there can be an accessory before
the fact to manslaughter, since accessoryship presupposes
premeditation, and premeditation is incompatible with
manslaughter. But . . . an instigator may, in hot blood,
stimulate a person incensed with another to execute a deed of
14
vengeance on such other, when the offense of the perpetrator
would be only manslaughter; and we may also hold that an
instigator may be guilty of murder in instigating another to
commit manslaughter by the rash use of dangerous
instrumentalities. A fortiori there may be an accessory before
the fact to murder in the second degree.
Id. at 198 (quoting 1 Francis Wharton, Criminal Law § 272, at 361-62 (12th ed. 1932)).
In explaining its holding, the Court provided no indication that it disapproved of second-
degree intent-to-kill murder based on accessory-before-the-fact liability. See Ward, 284
Md. at 197-200.
Mr. Garcia also cites to the Court’s decision in Mitchell v. State, 363 Md. 130(2001), as supporting authority. There, the Court determined that “where the charge is
made and the evidence shows that the defendant conspired to kill another person
unlawfully and with malice aforethought, the conspiracy is necessarily one to commit
murder in the first degree.” Id. at 149. Mr. Garcia argues that “[t]here is no difference
between the ‘result of thought’ of a conspirator and an accessory before the fact.”
(quoting Mitchell, 363 Md. at 148). Mr. Garcia’s reliance on Mitchell is misplaced. In
holding that conspiracy to commit second-degree intent-to-kill murder is a nonexistent
offense, the Court focused on the unlawful agreement element of a criminal conspiracy.
See 363 Md. at 149. It reasoned “that the kind of awareness and reflection necessary to
achieve the unity of purpose and design for a conspiracy is essentially the same as that
required for deliberation and premeditation” and that “the agreement itself, for purposes
of the conspiracy, would supply the necessary deliberation and premeditation.” Id. at
15
149. There is no such required showing for an accessory before the fact to second-degree
intent-to-kill murder.
For the foregoing reasons, we affirm the judgments of the circuit court.
JUDGMENTS OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED; COSTS TO BE PAID BY
APPELLANT.
16