Appeal or retry? That's the decision Carroll County prosecutors must make after the state's second-highest court overturned a murder conviction for a man found guilty of opening fire in a crowded parking lot at an Eldersburg tavern, killing one man and injuring another.
A three-judge panel of the Court of Special Appeals on Monday reversed 26-year-old Jacob Bircher's convictions on first-degree murder and attempted first-degree murder stemming from the July 2012 incident.
The court found that Carroll County Circuit Court Judge J. Barry Hughes erroneously instructed the jury on a legal concept called "transferred intent." The appellate court said the instruction introduced a theory of intent that didn't fit the state's theory of the crime.
Carroll County State's Attorney Brian DeLeonardo said his office is analyzing the appellate court's opinion and "exploring [its] next step."
"We will either be asking the Court of Appeals of Maryland to review this opinion reversing these murder-related convictions, or we will immediately move to retry Mr. Bircher for those criminal charges affected by [Monday's] decision," DeLeonardo said in a prepared statement.
Prosecutors have until March 19 to appeal. A review by the Court of Appeals on the Special Appeals decision is not automatic. The appellant must request that the state's highest court hear the case.
Bircher, who is originally from Washington state but had been living with his girlfriend in Westminster at the time of the incident, was convicted of fired 13 gunshots into a crowd of people standing outside the Harvest Inn on July 13, 2012, killing David J. Garrett, 36, of Sykesville and injuring Gary Hale Jr., 26, also of Sykesville.
Bircher was found guilty in September 2013 and, in January 2014, was sentenced to life in prison with the possibility of parole.
The appellate court's ruling doesn't affect Bircher's convictions for assault, handgun offenses and reckless endangerment. He'll remain in prison pending further proceedings that could include a new trial on the charges that resulted in a life sentence.
While deliberating at trial in September 2013, jurors asked the judge for a supplemental instruction regarding the definition of the term "intent." The jury asked, "Does it mean to kill a person or the specific person?"
After the jury sent another note saying members were unable to continue deliberations without the clarification, Hughes instructed the jury that "intent is present if a person attempted to kill one person and as a result of that act accidentally or mistakenly killed another person."
The Court of Special Appeals held that Maryland law requires "a specific victim at the outset" for transferred intent to come into play.
Prosecutors never argued at trial that Bircher had an intended victim when he opened fire.
Under the state's theory of the case at trial, Bircher's guilt came because he is said to have fired 13 times into a crowd and the "natural and probable consequences" of that act was killing someone.
Bircher made additional arguments on appeal ,which the court did not find persuasive, including that the trial court should have instructed the jury that Bircher's turning himself in to police the morning after the incident could be considered evidence of innocence.
Bircher also unsuccessfully argued that the evidence was insufficient to convict him of first-degree murder, attempted first-degree murder and first-degree assault because those crimes require a specific intent to kill. The court held that Bircher did not move for judgment of acquittal based on insufficient evidence at trial and therefore waived the issue.
The Associated Press contributed to this report.
Reach staff writer Heather Cobun at 410-857-7898 or email firstname.lastname@example.org.