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 

1, 2021.

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.
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 GarciaGaona, 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 CanalesYanez, No. 132902C (Md. Cir. Ct. Montgomery Cnty.); State v. Edgar Garcia-Gaona, 
2

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, seconddegree 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.).
3

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 accessorybefore-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-thefact 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 
4

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.”). 
5

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 
6

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 accessorybefore-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. 
7

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 
8

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-tokill 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 nonpremeditation but only the non-proof of premeditation. There 

is a big difference between the two.
9

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. 
10

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 accessorybefore-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-beforethe-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 
11

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. 
12

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 
13

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. 
14

App. 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 
15

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 seconddegree 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 
16

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.