A prosecutor urged Maryland’s high court Thursday to 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.
Carroll County State’s Attorney Brian DeLeonardo told the Court of Appeals that a trial judge properly instructed jurors that Jacob Bircher could be found guilty of first-degree murder if they conclude he intended to kill one person but killed somebody else in the attempt.
The intermediate Court of Special Appeals threw out the convictions in February, saying the legal concept of “transferred intent” was improperly applied in Bircher’s case because trial testimony indicated he was firing wildly at a crowd but not trying to kill anyone.
But DeLeonardo told the high court the prosecution had put on a strong case that Bircher was being murderous, not merely reckless.
“The state’s overwhelming argument was that he wanted to kill everyone,” DeLeonardo said, noting Bircher had fired 13 times. “If you shoot that many rounds into a group you clearly have the intent to kill everyone.”
Thus, DeLeonardo added, the judge’s instruction on “transferred intent” – though given after the defense rested its case — was appropriate because it was “a subset” of the prosecution’s first-degree murder argument.
According to that argument, Bircher intended but failed to kill Gary Hale during the wild shooting at the Cheers Lounge-Harvest Inn on July 13, 2012, after Hale said Bircher was “about to get his [rear-end] beat.”
David Garrett, who was standing next to Hale, was killed in the shooting. Hale was wounded.
‘Cut off at the knees’
Countering DeLeonardo, Bircher’s appellate counsel said the judge’s belated “transferred intent” instruction had denied the accused a fair trial.
Defense attorneys at trial conceded Bircher fired wildly but said he never specifically intended to kill Garrett, the crime for which Bircher was indicted, Steven D. Silverman told the high court.
Trial counsel’s argument was designed to defeat the crime charged — the first-degree murder of Garrett — but instead “served up transferred intent” as a viable theory for the prosecution, Silverman said, adding trial counsel “was cut off at the knees” by the unexpected jury instruction.
If it had known of the coming instruction, counsel could have pressed an alternative theory for Bircher’s actions, such as self-defense based on Hale’s threat, said Silverman, of Silverman, Thompson, Slutkin & White LLC in Baltimore.
Several high-court judges appeared to be as divided as the attorneys during the nearly one-hour argument session.
Chief Judge Mary Ellen Barbera, for example, noted the trial judge’s instruction was perhaps unfair because the prosecution’s theory of Bircher’s guilt “was not one of transferred intent.”
But Judge Glenn T. Harrell Jr., in apparent support of the prosecution, focused on the violence Bircher wrought: 13 shots fired, including seven which struck and killed Garrett and one that hit Hale.
Harrell, a retired judge, was specially assigned to hear the case.
Bircher’s trial included testimony that he had left the bar when other customers became upset with him after he took their drinks.
However, Bircher soon returned — with a gun — after realizing he had left his credit card.
Bircher testified he got scared because about 10 people had gathered outside the bar, so he fired his weapon to scare them away.
The legal issue that prompted the Court of Special Appeals’ reversal came during jury deliberations, when jurors asked for instructions from the court regarding the nature of intent — specifically, whether it must be 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 because 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 that the state had presented at trial no testimony or evidence on transferred intent.
The Court of Special Appeals did uphold Bircher’s convictions for assault, saying the instructional error did not affect the jury’s decision to convict on those charges, and remanded the case to 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.
The high court is expected to render its decision by Aug. 31 in the case, State of Maryland v. Jacob Bircher, No. 33 September Term 2915.
Daily Record reporter Lauren Kirkwood contributed to this article.