Bircher v. State

NAZARIAN, J. Jacob Bircher appeals his conviction by a jury in the Circuit Court for Carroll County of first-degree murder, attempted first-degree murder, and related offenses. He raises three points of error on appeal: first, that a supplemental jury instruction improperly introduced the concept of transferred intent into the case; second, that the trial court erred in declining to instruct the jury about voluntary surrender; and third, that the evidence was insufficient to convict him of any specific intent crimes because he was intoxicated. We agree that the court erred in giving the jury a supplemental transferred intent instruction after closing arguments, and we reverse his convictions for first-degree murder and attempted first-degree murder. We affirm in all other respects, and remand for further proceedings.

I. BACKGROUND On July 13, 2012, a shooting outside the Cheers Lounge in Eldersburg left David Garrett dead and Gary Hale with a gunshot wound in his arm. Often in a case like this, a defendant chooses not to testify, leaving us to construct a story based on the tapestry woven by witness testimony. In this case, however, Mr. Bircher did testify and did not dispute that he was the shooter, so we tell the story from his perspective first. ³⁷⁹ 1. Trial testimony Mr. Bircher grew up in Washington State, but moved to Maryland in spring of 2012 to be with his girlfriend, Lily Kerouac.

He had the impression that the area he was moving to with her was “not a good area,” and their apartment was run-down — he described it at trial as “like a jail.” Although he had no experience with handguns, he decided to buy one for protection. (Other than his car getting keyed on a few occasions, though, Mr. Bircher never experienced any threats or danger while living in the neighborhood.) After they struggled to find work in Maryland, Ms. Kerouac told her parents that she and Mr. Bircher were contemplating a return to Washington, a situation that left him frustrated after moving all the way here. Because Ms. Kerouac attended school and ultimately did find work, Mr. Bircher often found himself alone in their apartment, where he experienced mounting loneliness and financial anxieties, and he began drinking. On the day of the shooting, Mr. Bircher “got bored” and started watching videos about taking his gun apart.

He also began drinking, and had consumed about six drinks at home by late that afternoon. He and Ms. Kerouac had an argument when she came home from work, so he left — making a fateful decision to take the gun with him — and drove around town, as he often did after the two fought, in order to “cool off.” He stopped at Cheers, and over the next several hours had several more drinks, spending much of his time outside the front of the bar where people were hanging out and smoking. He admitted that he was drunk and annoying the other customers. Mr. Bircher met Kristen Remmers and her friend Melinda Thurston inside the bar, and the group began sharing drinks and talking.

Mr. Bircher left the bar again for a cigarette, and Mr. Hale came outside with Ms. Remmers. He remarked to her about Mr. Bircher (who had only met Ms. Remmers that night, but with whom she admitted she had been flirting) that “your little boyfriend is about to get his ass beat.” Mr. ³⁸⁰ Bircher, ostensibly fearing for his safety, went to his car; after realizing he left his credit card in the bar, though, he decided to go reclaim it and took the gun with him. He testified at trial that as he headed back to the bar, the group that included Ms. Remmers and Mr. Hale came toward him, and he was scared that he “was going to get seriously beaten to death, maybe even die.” He explained what happened next: I just reacted really fast and just like a split second decision and I pulled the gun out and I just started firing in between people. There is [sic] lots of different groups of people and I just aimed the gun in like an open area to the right of the main group.

And tried to stay away from people that were over here and I just fired the gun as fast as I could to try to make as much noise as possible. Tried to scare everybody away from me so that I could just get away and go back to my car. (Emphasis added.) He reiterated that his intention was “[j]ust to scare everybody away.” After the shooting, Mr. Bircher became hysterical; he returned to Ms. Kerouac’s parents’ house and decided to remain there to “sober up,” and turned himself in to police the next day. The State called a total of twenty-five witnesses in its casein-chief.

Mr. Hale testified that he warned Ms. Remmers (within earshot of Mr. Bircher) to stay away from Mr. Bircher, and heard the two of them yelling. He could tell Mr. Bircher was drunk, and he lingered outside of Cheers drinking and trying to get cigarettes from other patrons. Mr. Hale gave his impression of the shooting in a prior recorded statement, speculating that “something must have happened” that caused Mr. Bircher to react as he did, but he saw nothing that would have caused the shooting. He could not tell if Mr. Bircher was aiming at anyone in particular, but he did not think so given that the shots came in rapid succession.

Ms. Remmers testified about meeting Mr. Bircher that night, sharing drinks, and flirting with him. She saw Mr. Bircher taking people’s drinks inside the bar and watched people become upset with him. As she left the bar later that ³⁸¹ evening, she heard popping sounds, and saw Mr. Garrett get struck in the head. She said at trial she thought Mr. Bircher was “F’d up on something” because of his slurred speech and the unusual appearance of his eyes.

Other witnesses corroborated Mr. Bircher’s annoying behavior at the bar and his drunkenness (and indeed incomprehensibility), both of which seemed to foreshadow a confrontation outside with a group (the group into which Mr. Bircher ultimately fired) of about ten people. At least one witness testified that Mr. Bircher “was shooting aimlessly,” and that although she could not tell if Mr. Bircher was directing the gun at anyone, she felt that the gunfire simply hit whoever happened to be there. Another witness echoed this sentiment, saying he was not sure “what or who the suspect was pointing the gun at,” and yet another characterized Mr. Bircher as “kind of shooting wildly.” 1 The defense offered testimony about Mr. Bircher’s predisposition to depression and alcohol abuse and his family history of mental illness. Mr. Bircher’s expert opined that he suffered from six different mental disorders and that his illness was consistent with a belief that he was in real danger under the circumstances, and that he effectively acted in self-defense.

The State presented its own expert in rebuttal, who added a diagnosis of anti-social personality to the mix and opined that Mr. Bircher was able to make intelligent decisions, weigh the pros and cons before acting, and appreciate the consequences of his actions. 2. Closing arguments Mr. Bircher conceded that he was the gunman, but he and the State disagreed about what he meant to accomplish as he pulled the trigger. During closing arguments, the parties continued to spar over the question of intent. Making the case for first-degree murder, the prosecutor argued that the ³⁸² act of pointing a gun and firing thirteen shots into a crowd demonstrated a willful intent to kill: First Degree Murder.

The elements of that charge are 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. Deliberate, the Defendant was conscious of the intent to kill. Premeditated, that the Defendant thought about the killing.

That he had enough time to consider the decision whether or not to kill. And that the Defendant had enough time to weigh the reasons for and against the choice to kill ... David Garrett [who] is the victim for that charge. And the evidence, the evidence in regards to the willful aspect of First Degree Murder.

Well, quite simply the Defendant could have left the [gun] in his car. But he did not. Instead he walks from the bar to the far end of the parking lot, went to his car and we know he sat in his car for a moment and retrieved that Glock 23. That Glock 23 had the sight zeroed for accuracy.

The Defendant said he took the Glock 23 because it gave him confidence and he concealed that Glock 23 in his [waistband] and/or his pocket prior to the killing. He did not walk up to the crowd so that they could see his gun. He had it concealed. And when he pulled that gun out there was no hesitation in him pulling the trigger.

He pointed at the people outside the bar. Evidence of premeditation. That Glock was fully loaded with ammunition----There was nothing obstructing his line of fire. He had a clear and open shot.

He did not hide behind a car or anything like that. He stood right out there in the open. He walked right up near the front door, where as you heard most people hang out. He immediately fired.

There was no hesitation. He knew what he wanted to do. Evidence of the deliberate aspect of First Degree Murder. Well, the projectiles were recovered from the sand bucket ³⁸³ and the frame of the door.

And we know from testimony that that is the area where most of the people were standing. You have projectiles recovered from Mr. Hale and Mr. Garrett, the victims. Intent. Now, the jury instruction indicates that the Defendant’s intent may be shown by the surrounding circumstances.

As you have heard no one can get into the Defendant’s mind on the day that this happened. So, what we look at, is we look at the surrounding circumstances. We look at the Defendant’s acts, the Defendant’s statements and the surrounding circumstances around this crime. In regards to the Defendant’s acts, he aimed and fired that 10 caliber Glock 23 at the crowd of people.

He fired the entire magazine. His intention was clear. And that was to kill. (Emphasis added.) The defense, not surprisingly, painted an altogether different picture.

Counsel for Mr. Bircher argued that he lacked generally the intent to shoot anyone, and lacked the specific intent to shoot Mr. Garrett: Mr. David Garrett is truly, truly an innocent victim. Mr. Hale, we will talk about. Mr. Garrett did nothing except walk out the door. And when the State tells you that this was premeditated, deliberate with the specific intent to kill David Garrett, you do something for a reason.

There was no reason that Mr. Bircher had to shoot at Mr. Garrett and he did not intend to shoot at Mr. Garrett and he did not intend to kill Mr. Garrett. And the evidence of the injuries to Mr. Garrett, on the right hand side, are consistent with him having walked out the side of the door and basically gotten caught in the volley. (Emphasis added.) The defense returned later to the suggestion that if Mr. Bircher did not intend specifically to kill Mr. Garrett, he could not be guilty of first-degree murder: First Degree, it is out of the picture. David Garrett walks out the door, as I said.

There is no intent to kill David ³⁸⁴ Garrett because David Garrett is a non-entity to Mr. Birch-er. He is the wrong [guy] in the wrong place. And things happen too quickly for Mr. Bircher to be in anyway held accountable — I should not say held accountable — to have had the time and intent to kill Mr. Garrett. (Emphasis added.) He followed up again with this idea at the end of his remarks, asking, “Did he have no reason to have animosity to shoot David Garrett?

If so, he could not have intended premeditated and deliberated to kill him.” According to the State on appeal, “[t]he above statement is an incorrect statement of law.” The State claims that it was not required to prove the identity of the defendant’s victim, and it took that position on rebuttal in closing: And it was a good question [defense counsel] brought up. Who is the Defendant trying to kill outside of Cheers? 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.

And that is why the Defendant is guilty of First Degree Murder, Attempted First Degree Murder and all related charges. (Emphasis added.) 3. The jury note and supplemental instruction The parties’ conflicting beliefs about what constitutes first-degree murder as a legal matter led to confusion on the jury’s part. It submitted a note during deliberations: “We are confused on the term ‘intent.’ Does it mean to kill a person or the specific person?

Can you please clarify. Thank you.” (Emphasis in original.) The State, conceding that it had not initially requested an instruction on transferred intent, nevertheless asked that the court instruct the jury on transferred intent. Counsel for Mr. Bircher objected, arguing that transferred intent had not been an issue in the case, and to instruct the jury about it at that point would introduce a new theory of liability. Specifically, ³⁸⁵ counsel explained that the defense focused in closing on Mr. Bircher’s “lack of animosity” toward Mr. Garrett, and that the defense strategy “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.” He clarified later that until the State’s rebuttal, the defense was “operating ... on the theory that there was an intent to kill David Garrett and an attempted [sic] to kill Gary Hale, but not this shooting up and killing anybody who happened to be in the territory kind of a theory.” The court decided to give a supplemental instruction on transferred intent and gave defense counsel the chance to supplement his closing argument.

After he requested the evening to prepare supplemental remarks (the colloquy with the court took place around 4:00 in the afternoon), the court asked the jury whether it preferred to deliberate without an answer or break for the night. The jury sent a note back: “We are unable to proceed without Supplemental Instructions. We have reached agreement on all counts but one. Thank you.

(We could reach agreement in just a few minutes with the Supplemental Instructions.)” (Emphasis added.) The court instructed the jury the next morning: 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 unintended 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. ³⁸⁶ Counsel for Mr. Bircher then offered additional argument after objecting to the supplemental instruction altogether. Counsel claimed that Mr. Bircher had been irreparably prejudiced by the instruction, and no argument could cure it. 4. The verdict The jury found Mr. Bircher guilty of first-degree murder of David Garrett, attempted first-degree murder and first- and second-degree assault of Gary Hale, use of a handgun in the commission of a crime of violence and carrying a handgun with the intent to injure (as to both Mr. Hale and Mr. Garrett), first- and second-degree assault of Gary Hale, transportation of a handgun in a vehicle, and reckless endangerment.

II

DISCUSSION The parties frame the main issue on appeal here 2 3 — the supplemental instruction about transferred intent — in terms of whether a supplemental jury instruction was appropriate, i.e., whether the instruction improperly injected a “new theory of culpability” for the first time. That’s not quite the right question. The doctrine of transferred intent wasn’t new in that it required a change in strategy on the part of the defense — it never applied in the first place and never fit the State’s theory of the case. When the trial court gave the supplemental instruction on transferred intent, it didn’t clarify matters for the jury, but created a new source of confusion.

That said, Mr. Bircher’s other challenges withstand scrutiny. A. The Trial Court Improperly Gave A Supplemental Instruction On Transferred Intent. Mr. Bircher contends that the trial court improperly allowed the supplemental instruction, because it introduced a “ ‘new ³⁸⁷ theory of culpability,’ ” (quoting Cruz v. State, 407 Md. 202, 222 , 963 A.2d 1184 (2009)), that Mr. Bircher’s counsel had not had a chance to address during closing argument. He argues that the theory of transferred intent played no part in the trial until after the jury note came in: “[I]t is clear from the record that the State never attempted to set forth a theory based on transferred intent at any point in trial.” The State responds that introducing the doctrine of transferred intent did not undercut Mr. Bircher’s ability to defend himself.

According to the State, the jury “had conflicting information regarding the requisite intent for first-degree murder,” so a supplemental instruction was necessary: Mr. Bircher’s own counsel told the jury it must find that he intended to kill David Garrett if he was to be convicted of first-degree murder, and the State argued at trial that Mr. Bircher could be convicted of first-degree murder if the jury found he intended to kill “all of the people outside Cheers, regardless of their identity, and the confusion required clarification.” A trial court may issue supplemental instructions under Maryland Rule 4-325(a): The 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. In its discretion the court may also give opening and interim instructions. (Emphasis added.) Subpart (c) of the Rule circumscribes the court’s authority: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally.

The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. We review the trial court’s decisions regarding jury instructions for abuse of discretion. Crispino v. State, 417 ³⁸⁸ Md. 31, 41, 7 A.3d 1092 (2010); Brogden v. State, 384 Md. 631, 640-41 , 866 A.2d 129 (2005). The Court of Appeals explained in State v. Baby, 404 Md. 220 , 946 A.2d 463 (2008), that a supplemental instruction must clear up any potential confusion: In Lovell [v. State, 347 Md. 623 , 702 A.2d 261 (1997) ], we held 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.

We concluded that the trial court abused its discretion in a capital case when it refused to provide further guidance on the term “youthful age” when youthful age was a statutory mitigating circumstance. Id. at 660 [ 702 A.2d 261 ]. In reaching our holding, we cited Bollenbach v. United States, 326 U.S. 607, 612-13 [ 66 S.Ct. 402 , 90 L.Ed. 350 ] (1946), in which Justice Frankfurter, writing for the Court, stated that when “a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy,” as well as to Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir.1975), for the proposition that when “a jury makes a specific difficulty known ... and when the difficulty involved is an issue ... central to the case ... helpful response is mandatory.” Lovell, 347 Md. at 658-59 [ 702 A.2d 261 ]. Baby, 404 Md. at 263 , 946 A.2d 463 (emphasis added).

We see the problem differently than the parties do. The jury’s question actually struck on a point of confusion that, oddly enough, no one had actually identified: whether someone who fires into a crowd of people, not aiming at anyone in particular, can be found to have formed a specific intent to kill that would permit a jury to find him guilty of first-degree murder. 3 Although that question was not really argued below ³⁸⁹ (and is not before us now), that is the question that the trial court should have sought to clear up with a supplemental instruction. The parties, looking at the supplemental instruction that the trial judge actually gave, frame the argument around Cruz , in which, to be sure, the Court of Appeals analyzed the rule that the trial court cannot instruct a jury on a “new theory of culpability ... after closing arguments [were] completed.” 407 Md. at 222 , 963 A.2d 1184 . But a quick look at Cruz demonstrates that this case falls nowhere within the rule.

Mr. Cruz was charged with first-degree assault, and a victim testified that Mr. Cruz approached him swinging a baseball bat; he