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teven D. Silverman, Esq., Attorney at Silverman, Thompson, Slutkin, White., is an attorney for Jacob Bircher. (Maximilian Franz/ The Daily Record)

Court will hear Maryland’s bid to revive murder conviction

Maryland’s top court has agreed to hear the state’s request that it reinstate the first-degree murder and attempted murder convictions — and life sentence — of a man who remains charged with killing one and wounding another in a 2012 shooting outside an Eldersburg tavern.

The Court of Appeals will review a lower court’s ruling that a Carroll County judge erred by instructing the jury on the legal concept of transferred intent at Jacob Bircher’s trial. The intermediate Court of Special Appeals said transferred intent – which applies when a person intends to kill someone but kills someone else in the attempt – was not supported by the evidence at trial, which included testimony that Bircher was just firing wildly at a crowd.

The Court of Appeals will hear arguments in the state’s appeal during its 2015-2016 session, which begins in September. A decision is expected by Aug. 31, 2016, in the case, State of Maryland v. Jacob Bircher, No. 33 Sept. Term 2015,

In the state’s petition for high-court review, Maryland Attorney General Brian E. Frosh argued that sufficient evidence was introduced at trial to enable a jury to conclude that Bircher intended but failed to kill Gary Hale during the wild shooting at the Cheers Lounge-Harvest Inn on July 13, 2012.

Witness testimony

Frosh cited witness testimony at trial that Bircher got his gun after Hale, who was wounded in the shooting, said Bircher was “about to get his ass beat.” David Garrett, who was standing next to Hale, was killed in the shooting, Frosh argued.

“From this evidence, the jury could have determined that Bircher intended to shoot Hale, but shot and killed David Garrett instead,” added Frosh, who was joined in the successful petition by Assistant Attorney General Carrie J. Williams.

Bircher’s attorneys challenged the petition, stating in their reply that prosecutors never argued transferred intent at trial.

Prosecutors put forth a case that “there was no originally intended victim,” argued Steven D. Silverman and Erin Murphy, of Silverman, Thompson, Slutkin & White LLC in Baltimore. “[T]he state never suggested a fight between Gary Hale and respondent [Bircher] precipitated the attack that might support a transferred intent theory.”

At trial, Bircher testified he feared for his life when he fired into a crowd of people outside the Cheers Lodge.

Testimony established that Bircher had been annoying other patrons inside the bar and taking their drinks. When several people became upset with him, Bircher said, he decided to leave the bar.

However, when he got to his car, he realized that he did not have his credit card and decided to go back and get it.

His gun was in the car, and he took it with him.

A crowd of about 10 people had gathered outside the bar, and Bircher said he was afraid he would “get seriously beaten to death, maybe even die” when he shot and killed Garrett and wounded Hale.

Bircher said his intent was simply to scare the crowd away so he could retrieve his credit card, and witnesses testified that he seemed to be firing aimlessly.

The state argued at trial that pointing a gun and firing 13 shots into a crowd demonstrated a willful intent to kill, while attorneys for Bircher said he lacked the specific intent to kill anyone, much less Garrett in particular.

Jury deliberations

The legal issue that prompted the Court of Special Appeals’ reversal came during jury deliberations, when the jury asked for instructions from the court regarding the nature of intent — specifically, whether it must be an intent to kill one person in particular.

When the state requested that the court provide the jury with supplemental instruction on the concept of transferred intent, defense attorneys objected on the grounds that it had not been an issue in the case.

The trial court overruled the objection. The Court of Special Appeals agreed with the defense, noting the state had raised no testimony or other evidence on transferred intent at trial.

Because the jury had asked for guidance and came to its conclusion so soon after receiving the improper supplemental instruction, that instruction clearly had an impact on the decision, the Court of Special Appeals added in its reported Feb. 2 opinion.

The Court of Special Appeals did uphold Bircher’s convictions for assault, holding that the instructional error did not impact the jury’s decision to convict on those charges, and remanded the case to the Carroll County Circuit Court for a new trial on the murder and attempted murder charges.

The state then sought review by the Court of Appeals.

Daily Record reporter Lauren Kirkwood contributed to this article.