December 3, 2015.
Circuit Court for Carroll County, Maryland. Case No.
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.
BY Steven D. Silverman (Erin C. Murphy, Silverman, Thompson,
Slutkin & White of Baltimore, MD) on brief FOR RESPONDENT.
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.
Md. 461] Battaglia, J.
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."
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
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
[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).
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.
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" ).
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
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
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. 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.
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" ).
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
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.
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
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
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
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
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.
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.
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
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.
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, 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
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).
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.
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.
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.
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
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