Garcia v. State

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 Filed: August 11, 2022 13:10-04:00 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.”