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Court of Appeals reinstates murder conviction for Eldersburg tavern shooting

Jacob Bircher.

Jacob Bircher.

Maryland’s top court Tuesday reinstated a murder conviction after finding a supplemental jury instruction on transferred intent was not an abuse of the trial court’s discretion.

Jacob Bircher received a life sentence in 2014 after being convicted of first-degree murder and attempted murder for a shooting outside an Eldersburg tavern. The Court of Special Appeals vacated the convictions last year, finding the doctrine of transferred intent was improperly applied by jurors, who received a supplemental instruction after asking the judge for assistance.

But in a 4-3 decision, the Court of Appeals found the instruction was generated by the evidence, which showed Bircher was drinking beer at the Cheers Lounge-Harvest Inn on July 13, 2012 when he went to his car then returned with a gun because he feared for his life.

Bircher saw Gary Hale, who had made a threatening remark earlier, approaching him and fired 13 shots, wounding Hale and killing David Garrett, who was nearby.

“The evidence, thus, reflected that Bircher could have heard Mr. Hale and his threats and been afraid,” Judge Lynne A. Battaglia wrote for the majority. “The evidence also suggested that when Bircher returned to the 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.”

Carroll County State’s Attorney Brian DeLeonardo, who argued the appeal, said Tuesday the circuit court jury reached the right decision and the trial judge was within his discretion to issue the instruction.

“Appellate courts have always said it’s really up to the trial judge… after all, the judge sat through the entire trial,” DeLeonardo said.

Steven D. Silverman, Bircher’s appellate lawyer, did not return a call seeking comment Tuesday. Silverman is with Silverman, Thompson, Slutkin & White LLC in Baltimore.

‘Can you clarify?’

Prosecutors claimed Bircher “was trying to kill everyone in the area” because he opened fire into a crowd of people. During deliberations, jurors asked in a note for clarification about intent.

“We are confused on the term ‘intent,’” they wrote. “Does it mean to kill a person or the specific person? Can you please clarify? Thank you.”

The court told jurors “intent is present when 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.”

The instruction did not prejudice Bircher, Battaglia wrote, because his defense was that he did not intend to shoot anyone, not that he intended to shoot one person but struck another.

“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,” Battaglia wrote.

Chief Judge Mary Ellen Barbera, in a dissenting opinion, wrote she disagreed with the majority’s conclusion that the supplemental instruction did not prejudice Birder because it was given after the defense presented its theory of the case.

“Here… Bircher made prejudicial concessions that he might not have made had he had the benefit of knowing in advance about the supplemental jury instruction and did not pursue available defenses because he was unaware that the supplemental jury instruction on transferred intent would be given,” she wrote.

Barbara was joined in her dissent by Judges Shirley M. Watts and Sally D. Adkins.

Battaglia was joined in the majority by Judges Robert N. McDonald and Clayton Greene Jr. Retired Judge Glenn T. Harrell Jr., sitting by special assignment, joined in the judgment only.

The case is State of Maryland v. Jacob Bircher, No. 33, September Term 2015.