State v. Bircher

446 Md. 458

132 A.3d 292

STATE of Maryland

v.Jacob BIRCHER.

No. 33, Sept. Term, 2015.

Court of Appeals of Maryland.

Feb. 23, 2016.

Reconsideration Denied March 24, 2016.

Brian L. DeLeonardo, Special Asst. Atty. Gen. (Carrie J. Williams, Asst. Atty. Gen., Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Steven D. Silverman (Erin C. Murphy, Silverman, Thompson, Slutkin & White, Baltimore, MD), on brief, for Respondent.

ARGUED BEFORE: BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, and GLENN T. HARRELL, JR., (Retired, Specially Assigned), JJ.

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

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 confusing."

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 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 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 non-injurious.")

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 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, 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 solely 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, ...