Takeaway
In short, this case preserves Maryland's strict common-law rule that an accessory before the fact cannot be convicted of a higher degree of murder than the principal, while holding that a properly framed murder indictment still permits prosecution for accessoryship to second-degree murder.
Gerald Joseph Godbout, Jr. was killed in 1972. The alleged actual killers, Harry Edward Brockman and David Victor Maness, each pleaded guilty to murder in the second degree under plea agreements. James Edward Ward was later indicted as an accessory before the fact, charged with aiding, counseling, and procuring Brockman and Maness to commit a willful, deliberate, and premeditated murder.
Ward had previously been convicted on several counts arising from the killing, but post-conviction proceedings eliminated the time-barred conspiracy counts and left the accessory count for a new trial. The Circuit Court for Prince George’s County dismissed that remaining count as defective. It reasoned that the indictment charged Ward only as an accessory to premeditated first-degree murder, while the principals had been convicted only of second-degree murder. The State appealed, and the Court of Appeals granted certiorari before a decision by the intermediate appellate court.
Issue #1
Whether Maryland law recognizes an accessory before the fact to murder in the second degree.
Holding
Yes. A person may be an accessory before the fact to murder in the second degree.
Reasoning
Maryland retained the common-law distinction among principals, accessories before the fact, and accessories after the fact. An accessory before the fact is one who aids, counsels, commands, or encourages the felony but is not actually or constructively present when it is committed. Although common-law murder was not divided into degrees, neither the common law nor Maryland law logically forecloses accessory liability for second-degree murder.
Second-degree murder can rest on malice without a specific intent to kill. For example, a person who intends to inflict grievous bodily harm, rather than death, may commit second-degree murder if the victim dies from the intended injury. A person who, while absent from the scene, shares that intent and counsels or encourages the attack may therefore be an accessory before the fact to second-degree murder.
Maryland's then-existing sentencing statute also expressly referred to a person convicted of second-degree murder 'or as accessory thereto.' That enactment supported the conclusion that Maryland recognized accessory liability for second-degree murder, even though the statute did not distinguish accessories before the fact from accessories after the fact.
Issue #2
Whether the indictment's allegation of a willful, deliberate, and premeditated murder permitted Ward to be tried as an accessory before the fact to second-degree murder.
Holding
Yes. The indictment was sufficient to permit a trial for accessoryship before the fact to second-degree murder.
Reasoning
Maryland's statutory short-form homicide indictment applied both to murder and to being an accessory to murder. The statute dividing murder into degrees did not require the State to alter the traditional charging forms.
Under a valid statutory-form murder indictment, an accused may be convicted of first-degree murder, second-degree murder, or manslaughter, depending on the proof. Thus, language alleging premeditated murder does not restrict the prosecution solely to first-degree murder.
The same principle applied to Ward's accessory count. Because the charge adequately alleged accessoryship to the homicide, it allowed the State to attempt to prove that Ward was an accessory before the fact to murder in the second degree.
Issue #3
Whether Ward could be convicted as an accessory before the fact to first-degree murder when the actual perpetrators had been validly convicted only of second-degree murder.
Holding
No. Under Maryland's retained common-law accessory doctrine, an accessory before the fact may not be convicted of a higher degree of murder than the principal.
Reasoning
At common law, accessoryship before the fact was not an independent substantive offense. The accessory's liability was derivative: the offense was the murder committed by the principal, and the accessory was punished as a participant in that offense. Maryland had not changed that rule by statute or judicial decision.
The common-law maxim was that an accessory follows the nature of the principal's offense. Unlike a principal in the second degree, who could sometimes be convicted of a greater or lesser offense than the actual perpetrator, an accessory before the fact could not be convicted of a higher crime than the principal.
Although Maryland treats murder as one common-law offense divided into degrees chiefly for punishment, the rule must be applied in light of the modern degree structure. First-degree murder carried substantially greater punishment than second-degree murder. Permitting Ward to be convicted of first-degree murder while Brockman and Maness stood convicted of second-degree murder would make Ward more culpable, and potentially more severely punished, than the persons who committed the killing.
Issue #4
Whether the prosecutor's statement at the dismissal hearing that the State intended to try Ward for first-degree murder barred a later prosecution for second-degree murder as an accessory.
Holding
No. The statement was not a nolle prosequi or an abandonment of the second-degree theory.
Reasoning
The prosecutor's assertion reflected the State's mistaken legal position that Ward could be tried as an accessory to first-degree murder despite the principals' second-degree convictions. It was made during argument over the legal sufficiency of the indictment, not as a formal dismissal of any degree of homicide.
Maryland procedure provided defined mechanisms for entering a nolle prosequi, including as to a particular degree of an offense. Nothing in the prosecutor's argument satisfied those procedures or showed an unequivocal abandonment of prosecution for second-degree murder.
Ward was not misled by the statement, and the trial court did not dismiss the indictment in reliance on the State's asserted trial strategy. In the unusual circumstances created by Maryland's technical common-law accessory rules, fairness did not require treating the statement as a permanent relinquishment of the viable second-degree theory.
Issue #5
Whether the repeal and reenactment of Maryland's murder-penalty statutes left no available punishment for an accessory before the fact to second-degree murder.
Holding
No. Ward remained subject to the former second-degree murder penalty, and accessoryship before the fact was punishable as participation in the principal offense.
Reasoning
The 1978 statutory revision omitted the former express reference to an accessory to second-degree murder. That omission did not create an unpunishable offense because, under Maryland common law, accessoryship before the fact was not a separate substantive crime; an accessory was liable to the same punishment as the principal for the murder itself.
Moreover, the 1978 Act applied only to offenses committed on or after July 1, 1978. Godbout's murder occurred in 1972, so the former statute remained applicable. If convicted as an accessory before the fact to second-degree murder, Ward could receive the then-authorized sentence of up to thirty years' imprisonment.
Issue #6
Whether the Court could decide Ward's double-jeopardy claim on his cross-appeal.
Holding
No. The cross-appeal was dismissed because the trial court had not ruled on the double-jeopardy motion.
Reasoning
Ward separately argued below that a new trial would violate the Fifth Amendment's Double Jeopardy Clause, but the circuit court expressly did not decide that motion. Its dismissal of the indictment rested on the asserted defect in the charging document, not on double jeopardy.
Although denial of a double-jeopardy motion may be immediately appealable, there was no ruling to review here. The Court declined to exercise its discretion to decide an issue not resolved by the trial court and granted the State's motion to dismiss the cross-appeal.