Appeal from the Circuit Court for Carroll County. J. Barry Hughes, JUDGE.
ARGUED BY Steven D. Silverman and Erin C. Murphy (Silveman, Thompson, Slutkin & White on the brief) all of Baltimore, MD FOR APPELLANT.
ARGUED BY Carrie J. Williams (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD FOR APPELLEE.
PANEL Zarnoch, Wright, Nazarian, JJ.
[221 Md.App. 378] 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.
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.
[221 Md.App. 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. [221 Md.App. 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 case-in-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 [221 Md.App. 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." 
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 [221 Md.App. 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.
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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.
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Evidence of the deliberate aspect of First Degree Murder. Well, the projectiles were recovered from the sand bucket [221 Md.App. 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.
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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 ...