109 A.3d 153
Md. Ct. Spec. App.2015Background
- On July 13, 2012, Jacob Bircher fired multiple shots into a crowd outside the Cheers Lounge; David Garrett was killed and Gary Hale wounded. Bircher admitted he was the shooter and testified he intended only to scare people while drunk.
- The State argued Bircher intended to kill (or at least acted with deliberate, premeditated intent) by firing into the crowd; defense argued he lacked specific intent to kill Garrett and was aiming generally to scare people.
- During deliberations the jury asked whether “intent” requires aiming at a specific person. The State then requested, and the court gave, a supplemental instruction on the doctrine of transferred intent after closing arguments.
- Defense objected that transferred intent had not been part of the trial theory and that the late instruction injected a new theory of culpability. The jury quickly reached verdicts convicting Bircher of first-degree murder (Garrett), attempted first-degree murder (Hale), several assaults, and weapons offenses.
- The Court of Special Appeals held the supplemental transferred-intent instruction was improper because transferred intent requires an originally intended, identifiable victim (which the State had not tried to prove), reversed convictions for murder and attempted murder, affirmed other convictions, and remanded.
Issues
| Issue | State's Argument | Bircher's Argument | Held |
|---|---|---|---|
| Whether a supplemental instruction on transferred intent during deliberations was proper | Jury was confused about "intent"; transferred intent clarifies that intending to kill "people in the crowd" can support murder | Transferred intent was a new theory introduced after closings; it did not fit the State's case and prejudiced the defense | Court: Instruction was improper and injected a new, inapplicable theory; reversed murder and attempted murder convictions |
| Whether the court erred by refusing a voluntary-surrender instruction | Flight instruction was sufficient; surrender is admissible mainly to rebut flight evidence | Requested instruction that voluntary surrender may be considered evidence of innocence was necessary | Court: No error; flight instruction adequately covered surrender, so no abuse of discretion |
| Whether evidence was insufficient because Bircher was intoxicated and could not form specific intent | (State) Not directly argued on appeal at trial; sufficiency challenge waived | Intoxication undermined ability to form specific intent required for murder/attempted murder | Court: Claim unpreserved (no particularized Rule 4-324 motion on intoxication), so not addressed on the merits |
| Scope of reversal—which convictions affected by the instructional error | State argued only homicide counts implicated by instruction | Bircher argued all specific-intent offenses were tainted | Court: Instruction targeted homicide counts; reversed murder and attempted murder only; other convictions affirmed |
Key Cases Cited
- Cruz v. State, 407 Md. 202 (2009) (supplemental instructions cannot inject a new theory of culpability after closing)
- State v. Baby, 404 Md. 220 (2008) (trial court must clarify jury confusion on central issues)
- Lovell v. State, 347 Md. 623 (1997) (court must clear jury difficulties with concrete accuracy)
- Gladden v. State, 273 Md. 383 (1974) (Maryland recognizes transferred intent where defendant intended a specific victim but another is killed)
- Pettigrew v. State, 175 Md. App. 296 (2007) (transferred intent applies when force is directed at an intended victim but kills an unintended victim)
- Pierce v. State, 62 Md. App. 453 (1985) (flight instruction may adequately permit defense to argue voluntary surrender rebuts inference of guilt)