Date: 03-08-2016

Case Style: State of Maryland v. Jacob Bircher

Case Number: K-2012-42982

Judge: Lynne A. Battaglia

Court: Maryland Court of Appeals

Plaintiff's Attorney: Steven D. Silverman, Erin C. Murphy

Defendant's Attorney: Brian DeLeonardo

Description: The State, after the Court of Special Appeals reversed the conviction of Jacob
Bircher, Respondent, asks us to explore the realm of supplemental jury instructions in its
Petition for Certiorari, which we granted, in which the following question was posed:
Did the Court of Special Appeals err in finding an abuse of discretion in the trial court’s decision to provide a supplemental instruction on the doctrine of transferred intent where the evidence was sufficient to invoke the doctrine, the instruction was prompted by a request for clarification from the jury, the instruction did not transform Bircher’s defense into a concession, and the trial court ameliorated any potential prejudice by allowing defense counsel to supplement his closing argument?
State v. Bircher, 442 Md. 743, 114 A.3d 710 (2015). The trial judge in this case had
given a supplemental jury instruction on transferred intent after the jury, during
deliberations, asked, “We are confused on the term ‘intent.’ Does it mean to kill a person
or the specific person. Can you please clarify? Thank you.”1
We have stated that, “Trial judges walk a fine line when answering questions
posed by jurors during the course of their deliberations. Any answer given must 1 An eighteen count indictment returned in the Circuit Court for Carroll County on July 13, 2012, charged Bircher with first degree murder, second degree murder, manslaughter, two counts of use of a firearm in the commission of a crime of violence, two counts of carrying a handgun concealed on a person or openly with intent to injure, attempted first degree murder, attempted second degree murder, second degree assault, first degree assault, two counts of carrying a dangerous weapon with intent to injure, carrying a dangerous weapon concealed, three counts of reckless endangerment and transporting a handgun in a vehicle. Bircher was convicted of first degree murder, two counts of use of a firearm in the commission of a crime of violence, two counts of carrying a handgun concealed on a person or openly with intent to injure, attempted first degree murder, second degree assault, first degree assault, two counts of reckless endangerment and transporting a handgun in a vehicle. Bircher’s convictions for first degree murder as well as attempted first degree murder are the only charges before us. The conviction for first degree murder related to the death of David Garrett while the attempted first degree murder charge related to the shooting of Gary Hale.
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accurately state the law and be responsive to jurors' questions without invading the
province of the jury to decide the case.” Appraicio v. State, 431 Md. 42, 44, 63 A.3d 599,
600 (2013). We have also acknowledged that:
“The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict.” Maryland Rule 4–325(a) states that “[t]he court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate.” Upon a party's request, the court shall “instruct the jury as to the applicable law and the extent to which the instructions are binding.” Supplemental instructions can include an instruction given in response to a jury question. When the jury asks such a question, “courts must respond with a clarifying instruction when presented with a question involving an issue central to the case.” Trial courts must avoid giving answers that are “ambiguous, misleading, or confusing.”
Id. at 51, 63 A.3d at 604 (internal citations omitted). “[W]hether to give supplemental
instructions is within the sound discretion of the trial judge and will not be disturbed on
appeal, absent a clear abuse of discretion.” Sidbury v. State, 414 Md. 180, 186, 994 A.2d
948, 951 (2010).
Our jurisprudence references various considerations to guide a judge with respect
to giving jury instructions. We have opined that the jury instruction initially must be a
correct statement of the law and be applicable under the facts of the case. In Brogden v.
State, 384 Md. 631, 866 A.2d 129 (2005), for example, Brogden was charged with
carrying or transporting a handgun, among other crimes to which he presented no defense
at the close of the State’s case. The jury sent a note during its deliberations asking
whether it was a crime to have a handgun and if the State had the burden of proving that
the defendant did not have a license to carry the gun. Over Brogden’s objection, the trial
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judge gave a supplemental instruction, which in part stated that, “‘It's the burden of the
Defendant to prove the existence of the license, if one exists, not the State.’” Id. at 639,
866 A.2d at 133.
We reversed, reasoning that the supplemental instruction “did not state the
‘applicable law’ as to the issues relating to the handgun charge then properly before the
jury for deliberation. At the point the supplemental instruction was given, the entire
burden of proving the commission of that particular crime rested with the State.” Id. at
644, 866 A.2d at 136. Thus, to instruct the jury that Brogden had the burden of proving
the existence of a license, when he did not raise that affirmative defense, “was to impose
a burden on petitioner that he never had.” Id.; see also Clark Bros. Co. v. United Rys. &
Elec. Co. of Baltimore City, 137 Md. 159, 165, 111 A. 829, 832 (1920) (An instruction
given by the court in response to the jury's request “was limited to the question
propounded by the jury, stated the law correctly on this point, and in no way magnified
the importance of that question or detracted from the importance of other questions
involved in the case. It was clearly within the province of the trial court to instruct the
jury as to the law, and we find no error in either the form or substance of the instruction
objected to.”); Higginbotham v. State, 104 Md. App. 145, 157, 655 A.2d 1282, 1287
(1995), overruled on other grounds by State v. Allen, 387 Md. 389, 400, 875 A.2d 724,
730 (2005) (a supplemental instruction cannot be given where it is not supported by the
evidence and “once the court chose to give supplemental instructions, it was required to
state the law correctly”).
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A trial judge also must respond to a question from a deliberating jury in a way that
clarifies its confusion, such that the judge’s response is not ambiguous or misleading. For
example, in Battle v. State, 287 Md. 675, 685, 414 A.2d 1266, 1271 (1980), Battle was
charged with first degree rape and assault with intent to rape, among other violations.
After a period of deliberation, the jury sent a question to the judge, which read, “When a
possible consensual sexual relationship becomes non-consensual for some reason, during
the course of the action—can the act then be considered rape?” Id. at 678, 414 A.2d at
1268. The judge replied, “I will answer your question by saying, ‘Yes, that it is possible
for a situation to start out as consensual and then become a non-consensual one in the
course of the event.’” Id. We determined that, “the combination of the ambiguous
question, ambiguously clarified by the trial judge, and the answer create sufficient
confusion in this case to warrant reversal and a remand for a new trial.” Id. at 685, 414
A.2d at 1271; see also Midgett v. State, 216 Md. 26, 41, 139 A.2d 209, 217 (1958),
quoting Wintrobe v. Hart, 178 Md. 289, 296, 13 A.2d 365, 368 (1940) (“[I]nstructions
which are ambiguous, misleading or confusing to jurors can never be classed as non
injurious.”)
We reiterated this notion in State v. Baby, 404 Md. 220, 262, 946 A.2d 463, 488
(2008). Baby had been charged with first degree rape and the trial judge had originally
instructed the jurors that, “Rape is unlawful vaginal intercourse with a female by force or
threat of force and without her consent,” and also supplied the jury with descriptions of
“vaginal intercourse,” “force,” and “consent,” which were taken from the pattern jury
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instructions.2 The deliberating jury asked questions involving whether first degree rape
could occur if the victim had originally consented to intercourse but later changed her
mind.
Faced with the trial court’s refusal to give a supplemental instruction, we reversed
Baby’s conviction, stating that the trial judge failed to “address either of the jury's
questions as the definition makes no reference to the issue of post-penetration withdrawal
of consent which was central to the jury's questions.” Id. at 263-64, 946 A.2d at 489. We
concluded that, “a trial court must respond to a question from a deliberating jury in a way
that clarifies the confusion evidenced by the query when the question involves an issue
central to the case.” Id. at 263, 946 A.2d at 488 citing Lovell v. State, 347 Md. 623, 657–
60, 702 A.2d 261, 278-79 (1997) (holding that a trial court has a duty to instruct “in
response to a jury’s question concerning a matter that the jury is required to consider.”);
see also Perez v. State, 201 Md. App. 276, 284, 29 A.3d 656, 661 (2011) (“the court was
2 The judge in Baby stated: Vaginal intercourse means the penetration of the penis into the vagina. The slightest penetration is sufficient. An emission of semen is not required. The amount of force necessary depends upon the circumstances. No particular amount of force is required, but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or threat of force or that the victim was prevented from resisting by force or threat of force. She must have resisted to the extent of her ability at the time unless her resistance or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, consent means actually agreeing to the act of intercourse rather than merely submitting as a result of force or threat of force. State v. Baby, 404 Md. 220, 262-63, 946 A.2d 463, 488 (2008), quoting Maryland Criminal Pattern Jury Instruction, Section 4:29.
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required to provide a supplemental instruction to resolve the jury's confusion” where “the
issue . . . was central to the jury's decision in this case, and its definition was not fairly
covered by any of the other jury instructions”).
A trial judge, moreover, should avoid answering questions in a way that
improperly comments on the evidence and invades the province of the jury to decide the
case. Appraicio, 431 Md. at 53, 63 A.3d at 605. Appraicio was charged with assault and,
during deliberations, the jury sent a note asking, “Can we consider the fact that there was
no police report in evidence or no police testimony or to what extent can we consider the
lack of above.” Id. at 48, 63 A.3d at 603. The trial judge responded that the jury was to
decide the case “based on what is in evidence” and “[i]n considering the evidence which
is soley the province of the jury, consider it in light of your own commonsense and your
experiences.” Id. at 50, 63 A.3d at 603.
Before us, Appraicio argued that the trial judge should have instructed the jury
“that a reasonable doubt can arise from the evidence or the lack thereof.” Id. at 52, 63
A.3d at 605. We determined that the trial court “was right to be cautious concerning its
response to the jury's question because too much commentary on the evidence can cross
the line into being inappropriate.” Id. at 53, 63 A.3d at 605. We reasoned that when the
jury's question seeks guidance on how to find the facts, the judge’s response must not
“invade the province of the jury.” Id.; see also Gore v. State, 309 Md. 203, 214, 522 A.2d
1338, 1343 (1987) (“The sufficiency in fact of the evidence was in the hands of the jury
when the trial judge below instructed the jury that there was sufficient evidence as a
matter of law to convict Gore. As such, we believe the instruction was an indirect
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comment on the general weight of the evidence as to each count and outside the
permissible scope of comment.”).
We also have determined that a trial judge’s supplemental instruction must not be
prejudicial to the accused via “the juxtaposition of the supplemental instruction vis a vis
defense closing arguments.” Cruz v. State, 407 Md. 202, 212, 963 A.2d 1184, 1190
(2009). Cruz had been charged with second degree assault on Hayder Meza and Oscar
Martinez, but there was conflicting testimony regarding whether Cruz had actually hit
Mr. Meza or if Mr. Meza had been injured when he fell. The trial court, recognizing that
second degree assault had various flavors, inquired of the State as to its theory to which
the State responded was battery, whereupon the judge gave the following instruction:
Now, in this case the defendant is charged with the crime of second degree assault on Heder Meza Herrera and, or Oscar Martinez. Assault is causing offensive physical contact to another person. In order to convict the defendant of assault the State must prove: one, that the defendant caused offensive physical contact with, and, or physical harm to Heder Meza Herrera and, or Oscar Martinez. Two, that the contact was the result of an intentional or reckless act of the defendant and was not accidental. And, three, that the contact was not consented to by Heder Meza Herrera and/or Oscar Martinez.
Id. at 207, 963 A.2d at 1187. During his closing argument, Cruz’s counsel conceded that
Cruz “went after” Meza but argued Cruz did not strike him with the bat.
During deliberations, however, the jury asked, “[I]s Y falling on a sidewalk &
hitting head while being chased by a bat by X, an assault by X on Y?”, which precipitated
a supplemental instruction, over Cruz’s counsel’s objection, that discussed the elements
of attempted battery. Id. at 207-08, 963 A.2d at 1187-88. Cruz contended before us that
the trial court erred in instructing the jury on a new theory of culpability after closing
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arguments were completed. We agreed and reversed Cruz’s conviction, concluding that,
“The court's supplemental attempted battery instruction, though generated by the
evidence, was not appropriate under Md. Rule 4–325 because it was given after closing
arguments and thereby deprived Cruz of an adequate opportunity to defend against the
new theory of culpability.” Id. at 222, 963 A.2d at 1196. We reasoned that defense
counsel “tailored her argument to address the battery theory of assault the State elected to
pursue” and that, “In stating that Cruz ‘went after’ the victim, defense counsel essentially
conceded the defendant's intent to make contact and walked into an attempted battery
verdict.” Id. at 221, 963 A.2d at 1195.
We stated that “Baby and Brogden address whether a supplemental instruction is
appropriate in light of the evidence and issues presented at trial” and recognized that our
prior decisions had not confronted the issue of “whether the juxtaposition of the
supplemental instruction vis a vis defense closing arguments was prejudicial”. Id. at 212,
963 A.2d at 1190. We relied upon cases from the federal circuits and our sister states to
support our determination.
In United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988), one of the cases
cited in Cruz, the United States Court of Appeals for the Ninth Circuit considered
whether a district court’s supplemental instruction to the jury on aiding and abetting was
prejudicial. Gaskin was charged with possessing and manufacturing methamphetamine,
but claimed that his brother-in-law was using his property to make methamphetamine and
he had merely “kept his eyes closed when he shouldn’t have”. Id. at 456. Although the
Government requested an instruction on aiding and abetting, the trial judge did not give
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one. Id. During deliberations, however, the jury sent a note to the court asking “What
level of involvement constitutes manufacturing?”:
Is it possible to have a clarification of the word “manufacturing”? Would we be correct [to assume] under the law that a person allowing or providing a physical space for a product to be produced, and/or being aware of what the product is and/or having agreed to accept a payment of any nature constitute being a party to the manufacturing? What level of involvement constitutes manufacturing?
Id. In response, the trial judge then instructed the jury on aiding and abetting. Gaskin
objected to the instruction and requested leave to reopen closing argument to argue the
facts regarding the aiding and abetting charge, but the judge denied his request. Id. at
456-57.
The United States Court of Appeals for the Ninth Circuit reversed and concluded
that, “instructing the jury that it could convict Gaskin as an aider or abettor without
allowing additional argument to address this theory require[d] reversal”. Id. at 460. The
court determined that, under Rule 30,3 it was error to give the instruction after informing
counsel that no such instruction would be given and that, “[f]ailure to comply with Rule
30 is reversible error, however, ‘only if counsel's closing argument was prejudicially
3 As Gaskins noted, Rule 30 of the Federal Rules of Criminal Procedure (“Rule 30”) then provided, in pertinent part: “At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.” United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988), quoting Rule 30.
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affected thereby.’” Id. at 458. The court stated that, “a district court's failure to comply
with Rule 30 prejudices a party if the party was unfairly prevented from arguing his or
her defense to the jury or was substantially misled in formulating and presenting
arguments.” Id. The court further opined that, “the district judge's decision to give the
aiding and abetting instruction during jury deliberations, after initially stating at the Rule
30 hearing that he would not, unfairly prevented Gaskin's counsel from arguing against an
aiding and abetting theory to the jury.” Id. at 460. The court reasoned Gaskin suffered
prejudice because his counsel was not given an opportunity to address whether Gaskin
could have been convicted as an aider or abettor. Id.; see also United States v. Hannah,
97 F.3d 1267 (9th Cir. 1996) (defendant was not prejudiced by supplemental instruction
on aiding and abetting in response to a question from the jury when the court properly
permitted supplemental closing arguments on that theory).
In United States v. Horton, 921 F.2d 540, 541 (4th Cir. 1990), the district court
judge had instructed the jury on aiding and abetting in response to an inquiry. Horton was
indicted for murder along with two others, but Horton was the only one tried. Id. at 542.
At trial, Horton objected to the submission of an aiding and abetting instruction, and the
Government agreed to withdraw it. The trial judge, however, instructed regarding aiding
and abetting after the jury asked, “If you were not the one to plan the murder, can you be
convicted of first-degree murder?” and “If you are not the only one to premeditate the
murder, can you be convicted of first-degree murder?” Id. at 543. Ultimately, after the
trial judge gave a supplemental instruction to the jury, the judge permitted additional
closing argument. Id.
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On appeal, Horton argued that “the aiding and abetting instruction should not have
been given because the Government's theory of the case had always been that Horton was
the principal.” Id. at 544. Horton viewed the Government's tactical decision to try the
case in this manner as preventing it “from requesting an aiding and abetting instruction,
even if there was sufficient evidence to support it.” Id., relying on United States v.
Williams, 604 F.2d 277 (4th Cir. 1979).
The United States Court of Appeals for the Fourth Circuit, while acknowledging
that the Government was not entitled to an aiding and abetting instruction, recognized
that the judge was not precluded from giving the instruction as long as evidentiary
support existed. Id. The court also reasoned that “where a new theory is presented to the
jury in a supplemental instruction after closing argument, the court generally should give
counsel time for additional argument. Adequate additional argument can cure any
prejudice experienced as a result of supplemental instructions.” Id. at 547 (internal
citations omitted). The court stated that, “Though three minutes would have been utterly
inadequate to develop an additional argument made necessary under a supplemental
instruction, we are unable to discern either from defendant's actual supplemental
argument or from his brief what new line of argument to the jury he really wished to
pursue.” Id. Thus, there was no prejudice where Horton’s “arguments would have been
the same, whether one or both theories had been charged.” Id. at 548.
State cases also relied upon in Cruz included People v. Millsap, 724 N.E.2d 942
(Ill. 2000). In Millsap the Supreme Court of Illinois held that a supplemental instruction
on liability for aiding and abetting was inappropriate when it had introduced an entirely
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new theory of the case. Millsap was charged with robbery and home invasion. The State
did not pursue an accomplice liability theory, nor did it request that the jury be instructed
on accomplice liability. Id. at 945. The jury sent the judge a note during deliberations
asking, “‘[i]s the accomplice just as guilty [as] the offender who causes an injury in a
home invasion?’” Id. Over objection, the trial court gave the instruction on accomplice
liability without affording any reargument reasoning that the evidence supported it. Id.
The jury found Millsap guilty of both robbery and home invasion. Millsap appealed,
arguing the court erred giving a supplemental instruction on aiding and abetting. Id.
The Supreme Court of Illinois reversed, relying on Gaskins, and stated that,
“Because the court in this case instructed the jury on accountability after the jury had
begun its deliberations, defendant's attorney was entirely deprived of an opportunity to
defend against that theory.” Id. at 947; see also State v. Ransom, 785 P.2d 469, 470
(Wash. App. 1990) (instructing the jury on accomplice liability in response to a question
from the jury was reversible error because “[a]ccomplice liability is a distinct theory of
criminal culpability” and “[t]he effect was to add a theory that the State had not elected
and that defense counsel had no chance to argue”).
In People v. Clark, 556 N.W.2d 820 (Mich. 1996), another case relied upon in
Cruz, Clark was charged with involuntary manslaughter after her child died from
dehydration. Before closing arguments, the parties agreed to an instruction regarding
gross negligence that required the jury to find that Clark failed to use ordinary care such
that “‘it must have been apparent that the result was likely to be serious injury’” in order
to convict. Id. at 822. After the State closed, Clark’s counsel asked the court to modify
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the instruction by substituting “cause death” for “cause serious injury.” Id. at 822. The
trial court agreed and defense counsel proceeded to argue in closing that Clark “was a
concerned parent doing her best in a difficult situation, and that it could not possibly have
been apparent to her that her actions would result in [the child's] death.” Id. at 823.
Before instructing the jury, however, the trial judge indicated that he had changed his
mind about the modification, because it would have imposed a higher burden on the State
than the law required. When the judge offered Clark an opportunity to reopen closing
argument, her counsel declined because reargument “would only accentuate issues that
should not be accentuated and create credibility problems with the jury.” Id.
The Supreme Court of Michigan vacated the conviction and ordered a new trial,
because Clark’s counsel “relied on and conformed his closing argument” to the requested
instruction. Id. at 827. The court determined that prejudice occurs “when the change in
the instructions is substantial, when the judge's instructions repudiate counsel's argument,
or when the judge's instructions impair the effectiveness of the attorney's argument.” Id.
at 828, quoting United States v. White, 27 F.3d 1531, 1538 (11th Cir. 1994). The court
reasoned that, “Defense counsel tailored his closing argument to be consistent with the
theory that the defendant could not possibly have known that withholding water from the
child would lead to his death” and concluded that, “Under the higher standard argued by
defense counsel, the defendant might have been acquitted.” Id. at 827. The court also
determined that reargument would not have cured the prejudice because it “would have
accentuated the issue and impaired defense counsel's credibility with the jury.” Id.
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The takeaways from Cruz and the cases upon which it relied are that a
supplemental instruction should not be given if the accused “was unfairly prevented from
arguing his or her defense to the jury or was substantially misled in formulating and
presenting arguments.” Gaskins, 849 F.2d at 458. Factors considered in determining
prejudice include: “when the change in the instructions is substantial, when the judge's
instructions repudiate counsel's argument, or when the judge's instructions impair the
effectiveness of the attorney's argument.” Clark, 556 N.W.2d at 828; see also United
States v. White, 27 F.3d 1531, 1538 (11th Cir. 1994).
The issue of transferred intent in the instant case arose after testimony was
adduced that Bircher shot Gary Hale and David Garrett; Mr. Hale was hit once in the arm
and survived, while Mr. Garret was struck eight times, in the head behind his right ear,
his right shoulder, the right side of his back, his right hip, his right lower leg and left
lower leg. There was no dispute that Bircher was the shooter. In closing, Bircher’s
counsel argued that Bircher did not intend to shoot Mr. Garrett; that Bircher acted in self
defense, and that Bircher did not intend to hit anyone:
Mr. David Garrett is truly, truly an innocent victim. Mr. Hale, we will talk about. * * * And if Mr. Bircher acted in legitimate complete self-defense, then he is not guilty entirely. If he acted under Mistake of Fact, a fact that he believed, that these folks were coming at him, with the intent to harm him, which if true would have justified it, then he is not guilty of everything. * * * That gun has taken on a life of its own. And I say that not to distance Mr. Bircher from the responsibility of pulling the trigger. That is his responsibility. But to let us remember that his intent to fire is not the same as saying his intent to have the shots go where they ended up. And understanding how that can happen without him intending it to happen in
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the hands of a drunk, scared, inexperienced shooter is important to understand because these crimes are Specific Intent Crimes for the most part. Which means you got to find that he intended to commit these crimes. That he intended to hit Gary Hale. That he intended to kill David Garrett.
In response, the State asserted that Bircher was trying to kill everyone in the area: “From
the State’s theory and the State’s belief and the evidence, he was trying to kill everybody
out there. You empty a clip into a crowd of people, you are trying to kill everybody in
that kill zone and that is exactly what the Defendant did.”
During jury deliberations, the court received a note stating that, “We are confused
on the term ‘intent.’ Does it mean to kill a person or the specific person. Can you please
clarify? Thank you.”4 The State asserted that giving an additional instruction on
transferred intent would be a proper response to the jury’s question:
4 The intent instruction and first degree murder instruction originally given to the jury recited: Intent is a state of mind and ordinarily cannot be proven directly because there is no way of looking into a person’s mind. Therefore, a Defendant’s intent may be shown by surrounding circumstances. In determining the Defendant's intent you may consider the Defendant’s acts and statements as well as the surrounding circumstances. Further, you may, but are not required to, infer that a person ordinarily intends the natural and probable consequences of his acts and/or omissions. * * * The Defendant is charged with the crime of Murder of David Garrett. This charge includes First Degree Murder and two types of Second Degree Murder. First Degree Murder is the intentional killing of another person with willfulness, deliberation and premeditation. In order to convict the Defendant of First Degree Murder the State must prove that the Defendant caused the death of David Garrett and that the killing was willful, deliberate and premeditated. Willful means that the Defendant actually intended to kill David Garrett. Deliberate means that the Defendant was conscience of the intent (continued . . . )
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[A]lthough there is only a specific charge in regards to David Garrett, that does not necessarily mean the State cannot argue the intent was to kill all individuals. So the State believes that the – in regards to the question, that refers to transfer intent, and although the State did not initially request a transferred intent Jury Instruction the State believes that the information was presented to the jury where it actually – encapsulates transferred intent.
Defense counsel conversely argued that giving a transferred intent instruction would
prejudice his previous argument that Bircher had no intent to shoot Mr. Garrett:
[M]y argument of – in part was – that there was no evidence in this case to support any reason as to why the Defendant would attempt to kill David Garrett. . . . And so that factor was argued to support the fact that the Defendant did not have an intent to kill. Did not have an intent to kill anybody and specifically did not have an intent to kill David Garrett. Had we known that that theory was going to be in the case we would not have put the emphasis on the lack of intent to kill David Garrett as a fact that was – the lack of motive or reason to kill David Garrett in the same way that we did.
The trial judge took a brief recess to review Cruz and determined that a
supplemental instruction on transferred intent was proper since it was fairly generated
from the evidence and not prejudicial to Bircher. The trial judge also recognized that,
“there is case law that supports the position of offering additional closing time” and that
“the Court is prepared to give that if the parties want it.” The State believed it had already
“put the argument forward that supports a transfer of intent” and declined to give
( . . . continued) to kill. Premeditated means that the Defendant thought about the killing and that there was enough time before the killing, that may only have been brief, for the Defendant to consider the decision whether or not kill and enough time to weigh the reasons for and against the choice. The premeditated intent to kill must be formed before the killing.
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additional closing arguments. Bircher’s counsel decided to give additional closing
arguments but asked for a day to prepare, which the judge allowed.
After recessing for a day, the court gave the jury an instruction on transferred
intent that stated:
Pending before the Court was Jury Instruction – Jury Exhibit No. 1, which is, “We are confused on the term intent. Does it mean to kill a person or the specific person. Can you please clarify. Thank you”. The Court is going to give you a Supplemental Instruction on this issue but you are not to consider it in a vacuum, you are to consider it with the rest of the Instructions including the Instruction that I previously gave you, concerning intent. And the Instruction is as follows, the Supplemental Instruction. Defendant is charged with murder, with the murder of David Garrett. One element of this offense is the requirement of intent. Based on the Doctrine of Transferred Intent, intent is present if a person attempted to kill one person and as a result of that act accidentally or mistakenly killed another person, such as a bystander or a third person. Under the Doctrine of Transferred Intent the intent is transferred from the intended victim to the unattended victim. If after a full and fair consideration of all of the facts and circumstances in evidence, if the State proves beyond a reasonable doubt that the Defendant attempted to kill another person and as a result of that act instead accidentally or mistakenly killed David Garrett the Defendant is deemed to have intended to kill David Garrett.
Bircher’s counsel then gave additional closing argument in which he stated that, “to the
same extent that [Bircher] did not intend to kill Mr. Garrett, he did not intend to kill
anybody. If the bullets ended up on Mr. Garrett they were unintended there and that is
further emphasis for the position that we have taken that his – he was not aiming to kill.”
The jury, nevertheless, thereafter convicted Bircher of the charges of first degree murder
of Mr. Garrett and attempted first degree murder of Mr. Hale.
We have defined the doctrine of transferred intent as:
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[I]f one intends injury to the person of another under circumstances in which such a mental element constitutes mens rea, and in the effort to accomplish this end he inflicts harm upon a person other than the one intended, he is guilty of the same kind of crime as if his aim had been more accurate. In such cases all the components of the crime are present. The psychical element which consists of a certain general mental pattern is not varied by the particular person who may be actually harmed.
Henry v. State, 419 Md. 588, 594, 19 A.3d 944, 947 (2011), quoting Gladden v. State,
273 Md. 383, 404, 330 A.2d 176, 188 (1974). In explaining the doctrine of transferred
intent we have found helpful Clark and Marshall, A Treatise on the Law of Crimes, §
10.06 (6th ed., 1958), which offered the following illustration of “transferred intent”:
Whenever an accountable man kills another intentionally, he is guilty of murder with express malice unless the killing is justifiable or excusable, or unless there are such circumstances of provocation as will reduce the homicide to manslaughter. This principle is applied when a man kills one person when he intended to kill another. For example, if a man shoots at one person with intent to kill him, and unintentionally kills another, or sets poison for one person and another drinks it and dies, it is murder with express malice of the person killed, though he is a friend.
Harrison v. State, 382 Md. 477, 499-500, 855 A.2d 1220, 1233 (2004), quoting Gladden,
273 Md. at 392, 330 A.2d at 181.
Bircher initially argues before us that the supplemental instruction on transferred
intent given in the instant case was not generated by the evidence. He also asserts that the
supplemental instruction introduced an entirely new theory of the case that was
prejudicial to him, because “[c]ounsel focused exclusively on disproving the specific
intent element of the murder charges, and the court’s supplemental instruction essentially
repudiated the heart of [his] argument.” Essentially, Bircher argues that his “lack of
specific intent to kill David Garrett was the lynchpin of his defense” and the
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supplemental instruction undermined this argument by introducing a new theory of the
case.
With respect to whether the evidence generated the transferred intent instruction,
the testimony adduced at trial reflected that Bircher, on the evening of the shooting, drove
around, after having imbibed and having had an argument with his girlfriend at her
parents’ home in Sykesville, Maryland. While driving, Bircher spotted Cheers Bar and
Lounge in Eldersburg, Carroll County. During the course of the evening, Bircher drank
beer and spoke to patrons, soliciting cigarettes from a number of persons inside and
outside the Bar including Kristen Remmers with whom he also sauntered toward his car
in the parking lot.
The testimony also reflected that Ms. Remmers had arrived at the Bar with Gary
Hale, who, when he saw Bircher and Ms. Remmers together, yelled out, “hey, you better
stay away from him,” because he did not recognize Bircher. Later on in the evening, Ms.
Remmers returned to Mr. Hale’s side, whereupon Mr. Hale said loud enough for Bircher
to hear, “Your little boyfriend is about to get his ass beat.” Bircher did attempt to leave,
but realized that he had left his debit card at the Bar. Afraid for his life, Bircher secured a
semiautomatic Glock 23 pistol from his car and began to return to the Bar at which time
he spotted Mr. Hale approaching him. Bircher fired a thirteen round magazine in a matter
of seconds, hitting Mr. Hale once in the arm and David Garrett eight times. Mr. Garrett
had been standing next to Mr. Hale when the shots were fired.
The evidence, thus, reflected that Bircher could have heard Mr. Hale and his
threats and been afraid. The evidence also suggested that when Bircher returned to the
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bar to get his debit card, he may have intended to protect himself by shooting Hale, while
the bullets killed David Garrett, the person standing next to Hale.
In determining that the evidence generated a transferred intent instruction, we
utilize an abuse of discretion standard, rather than a sufficiency analysis apparently
applied by the Court of Special Appeals when they concluded that transferred intent “had
no place at Mr. Bircher’s trial to begin with.” Bircher v. State, 221 Md. App. 376, 390,
109 A.3d 153, 162 (2015). Utilizing an abuse of discretion standard, on the other hand,
yields the conclusion that the evidence supports the transferred intent instruction given.
With respect to whether the supplemental instruction prejudiced Bircher,
moreover, we come to a different conclusion than that which we came to in Cruz. In the
present case, unlike in Cruz, Bircher’s counsel did not concede that Bircher intended to
shoot Mr. Hale but not Mr. Garrett, an argument that would have “walked into” the
transferred intent issue. To the contrary, Bircher’s counsel repeatedly emphasized that
Bircher did not intend to shoot anyone, did not intend to shoot Mr. Garrett specifically
and acted in self-defense. None of these arguments prejudiced Bircher with regard to the
giving of a transferred intent instruction because Bircher, according to his counsel, “Did
not have an intent to kill anybody.”
Like Horton, 921 F.2d at 547, guilt of either a direct intent to kill Mr. Garrett and
of transferred intent are “so similar that the arguments to be made against guilt are
essentially the same under both theories.” Essentially, under either theory, Bircher’s
argument was that he did not intend to shoot anyone, did not intend to shoot Mr. Garrett
specifically and that he acted in self-defense. Bircher’s counsel reiterated during his
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supplemental closing the same message: “If the bullets ended up on Mr. Garrett they
were unintended there and that is further emphasis for the position that we have taken
that his – he was not aiming to kill.”
In addition to the lack of any concession regarding transferred intent, Bircher’s
counsel was given adequate time to prepare additional closing remarks, unlike what
occurred in the reversal of convictions in Cruz, Gaskins, Millsap and Ransom. A day to
prepare and then give additional closing remarks exceed that which was given in those
cases.
Bircher, however though, relies on two cases from Texas for the proposition that
“under certain circumstances additional argument does not cure the resulting prejudice.”
In Moore v. State, 848 S.W.2d 920 (Tex. App. 1993), Moore was charged with delivering
cocaine; during closing arguments his counsel asserted that Moore should be acquitted
because he did not personally commit the crime and that the “charge”5 did not authorize
his conviction for the conduct of another. Id. at 921. After defense counsel’s argument,
the State requested the charge “be amended by adding a parties instruction” and the judge
gave an instruction on accomplice liability. Id.
5 Texas law references “charges” to be given rather than instructions. Tex. Crim. Proc. Code Ann. Art. 36.14 (“Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”)
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The Texas intermediate appellate court reversed Moore’s conviction stating that,
“Texas law provides, ‘After the argument begins no further charge shall be given to the
jury unless required by the improper argument of counsel or the request of the jury, or
unless the judge shall, in his discretion, permit the introduction of other testimony. . . .’”6
Id. at 921. Thus, the supplemental instruction was error where, “[t]here was no improper
defense argument, no request of the jury, and no additional testimony after evidence
closed.” Id. Because the error statutorily was not sufficient to mandate reversal,7 “unless
the error was calculated to injure the defendant's rights or it appears there was not a fair 6 Tex. Crim. Proc. Code Ann. Art. 36.16 provides: After the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto and in the same manner as is provided in Article 36.15, and thereupon the judge shall read his charge to the jury as finally written, together with any special charges given, and no further exception or objection shall be required of the defendant in order to preserve any objections or exceptions theretofore made. After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge, the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in Article 36.15. The failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review either in the trial court or in the appellate court. 7 Tex. Crim. Proc. Code Ann. Art. 36.19 provides: Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.
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trial,” the court then determined that there had not been a fair trial, because “[d]efense
counsel had the right to rely on the original charge”:
Defense counsel had the right to rely on the original charge, which lacked any instruction on parties, and he did so. He told the jury it could not convict appellant for the acts of another, but could only convict if it found appellant personally made an actual or constructive transfer. Counsel made a legitimate argument that was based entirely on the trial judge's written instructions, and it is one the jury may have found persuasive if it followed those instructions, as it was bound by oath to do. Based on the jury charge as it stood when defense counsel argued, the evidence was not overwhelming.
Id. at 922-23. Texas’s statutes clearly differ from our prevailing norm and Moore’s
counsel clearly argued the converse of the supplemental instruction.
In Murray v. State, 857 S.W.2d 806, 807 (Tex. App. 1993), the other case cited by
Bircher, Murray was charged with robbery and the charge submitted to the jury stated
that, “A person commits robbery if in the course of committing theft and with intent to
obtain or maintain control of the property, he intentionally or knowingly causes bodily
injury to another.” Murray had stolen goods from a department store, dropped the goods
when chased by security guards and then fought with a guard after being tackled in the
ensuing chase. Id.
Murray’s counsel argued in closing that the injury incurred was not “in the course
of committing theft” because Murray had dropped the stolen goods and fled before the
fight occurred. Id. After closing arguments, the trial judge gave a supplemental
instruction stating that, “‘In the course of committing theft’ means conduct that occurs in
an attempt to commit, during the commission, or in immediate flight after the attempt or
commission of theft.” Id. at 808.
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The Texas intermediate appellate court reversed and concluded that, “the court's
repudiation of the very argument it allowed caused the trial to lose its character as an
adversary proceeding, greatly jeopardizing Murray's ability to receive a fair trial.” Id. at
811. The court remarked that the case was similar to Moore which “also recognized that
this type of action is tantamount to denying counsel the opportunity to make closing
argument and denies the defendant a fair trial.”

Outcome: In conclusion, the judge did not abuse his discretion in giving the supplemental
instruction on transferred intent in the instant case because the evidence generated the instruction and the instruction did not prejudice Bircher.

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