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State v. Bircher

Court of Appeals of Maryland

February 23, 2016


         Argued December 3, 2015.

Page 293

          Circuit Court for Carroll County, Maryland. Case No. K-2012-42982.

         ARGUED BY Brian L. DeLeonardo, Special Assistant Attorney General (Carrie J. Williams, Assistant Attorney General, Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief FOR PETITIONER.

         ARGUED BY Steven D. Silverman (Erin C. Murphy, Silverman, Thompson, Slutkin & White of Baltimore, MD) on brief FOR RESPONDENT.

         Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T., (Retired, Specially Assigned), JJ. Opinion by Battaglia, J. Harrell, J., joins in judgment only. Barbera, C.J., Adkins and Watts, JJ., dissent.


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          [446 Md. 461] Battaglia, J.

         The State, after the Court of Special Appeals reversed the conviction of Jacob Bircher, Respondent, asks us to explore the realm of supplemental jury instructions in its Petition for Certiorari, which we granted, in which the following question was posed:

Did the Court of Special Appeals err in finding an abuse of discretion in the trial court's decision to provide a supplemental instruction on the doctrine of transferred intent where the evidence was sufficient to invoke the doctrine, the instruction was prompted by a request for clarification from the jury, the instruction did not transform Bircher's defense into a concession, and the trial court ameliorated any potential prejudice by allowing defense counsel to supplement his closing argument?

State v. Bircher, 442 Md. 743, 114 A.3d 710 (2015). The trial judge in this case had given a supplemental jury instruction on transferred intent after the jury, during deliberations, asked, " We are confused on the term 'intent.' Does it mean to kill a person or the specific person. Can you please clarify? Thank you." [1]

          [446 Md. 462] We have stated that, " Trial judges walk a fine line when answering questions posed by jurors during the course of their deliberations. Any answer given must accurately state the law and be responsive to jurors' questions without invading the province of the jury to decide the case." Appraicio v. State, 431 Md. 42, 44, 63 A.3d 599, 600 (2013). We have also acknowledged that:

" The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict." Maryland Rule 4-325(a) states that " [t]he 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." Upon a party's request, the court shall " instruct the jury as to the applicable law and the extent to which the instructions are binding." Supplemental instructions can include an instruction given

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in response to a jury question. When the jury asks such a question, " courts must respond with a clarifying instruction when presented with a question involving an issue central to the case." Trial courts must avoid giving answers that are " ambiguous, misleading, or confusing."

[446 Md. 463] Id. at 51, 63 A.3d at 604 (internal citations omitted). " [W]hether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal, absent a clear abuse of discretion." Sidbury v. State, 414 Md. 180, 186, 994 A.2d 948, 951 (2010).

         Our jurisprudence references various considerations to guide a judge with respect to giving jury instructions. We have opined that the jury instruction initially must be a correct statement of the law and be applicable under the facts of the case. In Brogden v. State, 384 Md. 631, 866 A.2d 129 (2005), for example, Brogden was charged with carrying or transporting a handgun, among other crimes to which he presented no defense at the close of the State's case. The jury sent a note during its deliberations asking whether it was a crime to have a handgun and if the State had the burden of proving that the defendant did not have a license to carry the gun. Over Brogden's objection, the trial judge gave a supplemental instruction, which in part stated that, " 'It's the burden of the Defendant to prove the existence of the license, if one exists, not the State.'" Id. at 639, 866 A.2d at 133.

         We reversed, reasoning that the supplemental instruction " did not state the 'applicable law' as to the issues relating to the handgun charge then properly before the jury for deliberation. At the point the supplemental instruction was given, the entire burden of proving the commission of that particular crime rested with the State." Id. at 644, 866 A.2d at 136. Thus, to instruct the jury that Brogden had the burden of proving the existence of a license, when he did not raise that affirmative defense, " was to impose a burden on petitioner that he never had." Id.; see also Clark Bros. Co. v. United Rys. & Elec. Co. of Baltimore City, 137 Md. 159, 165, 111 A. 829, 832 (1920) (An instruction given by the court in response to the jury's request " was limited to the question propounded by the jury, stated the law correctly on this point, and in no way magnified the importance of that question or detracted from the importance of other questions involved in the case. It was clearly within the province of the trial court to instruct the jury as to the law, and we find no error in either the form or substance of the instruction objected to." ); Higginbotham [446 Md. 464] v. State, 104 Md.App. 145, 157, 655 A.2d 1282, 1287 (1995), overruled on other grounds by State v. Allen, 387 Md. 389, 400, 875 A.2d 724, 730 (2005) ( a supplemental instruction cannot be given where it is not supported by the evidence and " once the court chose to give supplemental instructions, it was required to state the law correctly" ).

          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. For example, in Battle v. State, 287 Md. 675, 685, 414 A.2d 1266, 1271 (1980), Battle was charged with first degree rape and assault with intent to rape, among other violations. After a period of deliberation, the jury sent a question to the judge, which read, " When a possible consensual sexual relationship becomes non-consensual for some reason, during the course of the action--can the act then be considered rape?" Id. at 678, 414 A.2d at 1268. The judge replied, " I will answer your question by saying, 'Yes, that it is possible for a situation to start

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out as consensual and then become a non-consensual one in the course of the event.'" Id. We determined that, " the combination of the ambiguous question, ambiguously clarified by the trial judge, and the answer create sufficient confusion in this case to warrant reversal and a remand for a new trial." Id. at 685, 414 A.2d at 1271; see also Midgett v. State, 216 Md. 26, 41, 139 A.2d 209, 217 (1958), quoting Wintrobe v. Hart, 178 Md. 289, 296, 13 A.2d 365, 368 (1940) (" [I]nstructions which are ambiguous, misleading or confusing to jurors can never be classed as noninjurious." )

         We reiterated this notion in State v. Baby, 404 Md. 220, 262, 946 A.2d 463, 488 (2008). Baby had been charged with first degree rape and the trial judge had originally instructed the jurors that, " Rape is unlawful vaginal intercourse with a female by force or threat of force and without her consent," and also supplied the jury with descriptions of " vaginal intercourse," " force," and " consent," which were taken from the pattern jury instructions.[2] The deliberating jury asked questions [446 Md. 465] involving whether first degree rape could occur if the victim had originally consented to intercourse but later changed her mind.

         Faced with the trial court's refusal to give a supplemental instruction, we reversed Baby's conviction, stating that the trial judge failed to " address either of the jury's questions as the definition makes no reference to the issue of post-penetration withdrawal of consent which was central to the jury's questions." Id. at 263-64, 946 A.2d at 489. We concluded 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." Id. at 263, 946 A.2d at 488 citing Lovell v. State, 347 Md. 623, 657-60, 702 A.2d 261, 278-79 (1997) (holding that a trial court has a duty to instruct " in response to a jury's question concerning a matter that the jury is required to consider." ); see also Perez v. State, 201 Md.App. 276, 284, 29 A.3d 656, 661 (2011) (" the court was required to provide a supplemental instruction to resolve the jury's confusion" where " the issue . . . was central to the jury's decision in this case, and its definition was not fairly covered by any of the other jury instructions" ).

          A trial judge, moreover, should avoid answering questions in a way that improperly comments on the evidence and invades the province of the jury to decide the case. Appraicio, [446 Md. 466] 431 Md. at 53, 63 A.3d at 605. Appraicio was charged with assault and, during deliberations, the jury sent a note asking, " Can we consider the fact that there was no police report in evidence or no police testimony or to what extent can we consider the lack of above." Id. at 48, 63 A.3d at 603. The trial judge

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responded that the jury was to decide the case " based on what is in evidence" and " [i]n considering the evidence which is soley the province of the jury, consider it in light of your own commonsense and your experiences." Id. at 50, 63 A.3d at 603.

         Before us, Appraicio argued that the trial judge should have instructed the jury " that a reasonable doubt can arise from the evidence or the lack thereof." Id. at 52, 63 A.3d at 605. We determined that the trial court " was right to be cautious concerning its response to the jury's question because too much commentary on the evidence can cross the line into being inappropriate." Id. at 53, 63 A.3d at 605. We reasoned that when the jury's question seeks guidance on how to find the facts, the judge's response must not " invade the province of the jury." Id.; see also Gore v. State, 309 Md. 203, 214, 522 A.2d 1338, 1343 (1987) (" The sufficiency in fact of the evidence was in the hands of the jury when the trial judge below instructed the jury that there was sufficient evidence as a matter of law to convict Gore. As such, we believe the instruction was an indirect comment on the general weight of the evidence as to each count and outside the permissible scope of comment." ).

         We also have determined that a trial judge's supplemental instruction must not be prejudicial to the accused via " the juxtaposition of the supplemental instruction vis a vis defense closing arguments." Cruz v. State, 407 Md. 202, 212, 963 A.2d 1184, 1190 (2009). Cruz had been charged with second degree assault on Hayder Meza and Oscar Martinez, but there was conflicting testimony regarding whether Cruz had actually hit Mr. Meza or if Mr. Meza had been injured when he fell. The trial court, recognizing that second degree assault had various flavors, inquired of the State as to its theory to which the [446 Md. 467] State responded was battery, whereupon the judge gave the following instruction:

Now, in this case the defendant is charged with the crime of second degree assault on Heder Meza Herrera and, or Oscar Martinez. Assault is causing offensive physical contact to another person.
In order to convict the defendant of assault the State must prove: one, that the defendant caused offensive physical contact with, and, or physical harm to Heder Meza Herrera and, or Oscar Martinez. Two, that the contact was the result of an intentional or reckless act of the defendant and was not accidental. And, three, that the contact was not consented to by Heder Meza Herrera and/or Oscar Martinez.

Id. at 207, 963 A.2d at 1187. During his closing argument, Cruz's counsel conceded that Cruz " went after" Meza but argued Cruz did not strike him with the bat.

         During deliberations, however, the jury asked, " [I]s Y falling on a sidewalk & hitting head while being chased by a bat by X, an assault by X on Y?", which precipitated a supplemental instruction, over Cruz's counsel's objection, that discussed the elements of attempted battery. Id. at 207-08, 963 A.2d at 1187-88. Cruz contended before us that the trial court erred in instructing the jury on a new theory of culpability after closing arguments were completed. We agreed and reversed Cruz's conviction, concluding that, " The court's supplemental attempted battery instruction, though generated by the evidence, was not appropriate under Md. Rule 4-325 because it was given after closing arguments and thereby deprived Cruz of an adequate opportunity to defend against the new theory of culpability." Id. at 222, 963 A.2d at 1196. We reasoned that defense counsel " tailored her argument to address the battery theory of assault

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the State elected to pursue" and that, " In stating that Cruz 'went after' the victim, defense counsel essentially conceded the defendant's intent to make contact and walked into an attempted battery verdict." Id. at 221, 963 A.2d at 1195.

          [446 Md. 468] We stated that " Baby and Brogden address whether a supplemental instruction is appropriate in light of the evidence and issues presented at trial" and recognized that our prior decisions had not confronted the issue of " whether the juxtaposition of the supplemental instruction vis a vis defense closing arguments was prejudicial" . Id. at 212, 963 A.2d at 1190. We relied upon cases from the federal circuits and our sister states to support our determination.

         In United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988), one of the cases cited in Cruz, the United States Court of Appeals for the Ninth Circuit considered whether a district court's supplemental instruction to the jury on aiding and abetting was prejudicial. Gaskin was charged with possessing and manufacturing methamphetamine, but claimed that his brother-in-law was using his property to make methamphetamine and he had merely " kept his eyes closed when he shouldn't have" . Id. at 456. Although the Government requested an instruction on aiding and abetting, the trial judge did not give one. Id. During deliberations, however, the jury sent a note to the court asking " What level of involvement constitutes manufacturing?" :

Is it possible to have a clarification of the word " manufacturing" ? Would we be correct [to assume] under the law that a person allowing or providing a physical space for a product to be produced, and/or being aware of what the product is and/or having agreed to accept a payment of any nature constitute being a party to the manufacturing? What level of involvement constitutes manufacturing?

Id. In response, the trial judge then instructed the jury on aiding and abetting. Gaskin objected to the instruction and requested leave to reopen closing argument to argue the facts regarding the aiding and abetting charge, but the judge denied his request. Id. at 456-57.

         The United States Court of Appeals for the Ninth Circuit reversed and concluded that, " instructing the jury that it could convict Gaskin as an aider or abettor without allowing additional argument to address this theory require[d] reversal" . [446 Md. 469] Id. at 460. The court determined that, under Rule 30,[3] it was error to give the instruction after informing counsel that no such instruction would be given and that, " [f]ailure to comply with Rule 30 is reversible error, however, 'only if counsel's closing argument was prejudicially affected thereby.'" Id. at 458. The court stated that, " a district court's failure to comply with Rule 30 prejudices a party if the party was unfairly prevented from arguing his or her defense to the jury or was substantially misled in formulating and presenting arguments." Id. The court further opined that, " the district judge's decision to give the aiding and abetting instruction during jury

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deliberations, after initially stating at the Rule 30 hearing that he would not, unfairly prevented Gaskin's counsel from arguing against an aiding and abetting theory to the jury." Id. at 460. The court reasoned Gaskin suffered prejudice because his counsel was not given an opportunity to address whether Gaskin could have been convicted as an aider or abettor. Id.; see also United States v. Hannah, 97 F.3d 1267 (9th Cir. 1996) (defendant was not prejudiced by supplemental instruction on aiding and abetting in response to a question from the jury when the court properly permitted supplemental closing arguments on that theory).

         In United States v. Horton, 921 F.2d 540, 541 (4th Cir. 1990), the district court judge had instructed the jury on aiding and abetting in response to an inquiry. Horton was indicted for murder along with two others, but Horton was the only one tried. Id. at 542. At trial, Horton objected to the submission of an aiding and abetting instruction, and the Government [446 Md. 470] agreed to withdraw it. The trial judge, however, instructed regarding aiding and abetting after the jury asked, " If you were not the one to plan the murder, can you be convicted of first-degree murder?" and " If you are not the only one to premeditate the murder, can you be convicted of first-degree murder?" Id. at 543. Ultimately, after the trial judge gave a supplemental instruction to the jury, the judge permitted additional closing argument. Id.

         On appeal, Horton argued that " the aiding and abetting instruction should not have been given because the Government's theory of the case had always been that Horton was the principal." Id. at 544. Horton viewed the Government's tactical decision to try the case in this manner as preventing it " from requesting an aiding and abetting instruction, even if there was sufficient evidence to support it." Id., relying on United States v. Williams, 604 F.2d 277 (4th Cir. 1979).

         The United States Court of Appeals for the Fourth Circuit, while acknowledging that the Government was not entitled to an aiding and abetting instruction, recognized that the judge was not precluded from giving the instruction as long as evidentiary support existed. Id. The court also reasoned that " where a new theory is presented to the jury in a supplemental instruction after closing argument, the court generally should give counsel time for additional argument. Adequate additional argument can cure any prejudice experienced as a result of supplemental instructions." Id. at 547 (internal citations omitted). The court stated that, " Though three minutes would have been utterly inadequate to develop an additional argument made necessary under a supplemental instruction, we are unable to discern either from defendant's actual supplemental argument or from his brief what new line of argument to the jury he really wished to pursue." Id. Thus, there was no prejudice where Horton's " arguments would have been the same, whether one or both theories had been charged." Id. at 548.

         State cases also relied upon in Cruz included People v. Millsap, 189 Ill.2d 155, 724 N.E.2d 942, 244 Ill.Dec. 54 (Ill. 2000). [446 Md. 471] In Millsap the Supreme Court of Illinois held that a supplemental instruction on liability for aiding and abetting was inappropriate when it had introduced an entirely new theory of the case. Millsap was charged with robbery and home invasion. The State did not pursue an accomplice liability theory, nor did it request that the jury be instructed on accomplice liability. Id. at 945. The jury sent the judge a note during deliberations asking, " '[i]s the accomplice just as guilty [as] the offender who causes an injury in a

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home invasion?'" Id. Over objection, the trial court gave the instruction on accomplice liability without affording any reargument reasoning that the evidence supported it. Id. The jury found Millsap guilty of both robbery and home invasion. Millsap appealed, arguing the court ...

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