STATE OF MARYLAND v. JACOB BIRCHER
Court of Appeals, Battaglia (Plurality), Feb. 23, 2016,
Jury Instruction – Supplemental Instruction – Where supplemental instruction introduced new prosecution theory, upheld where defendant was allowed supplemental closing argument and no prejudice occurred.

(Dissent – Watts, Barbera and Adkins Join – Supplemental jury instruction has a “special potential for prejudice” and did so in this case)

Initial jury instructions require only proper statement of a legal issue generated by the evidence (where the instruction is not cumulative/duplicative).

A trial judge faced with a jury question, however, is put in a more sensitive predicament.

On the one hand, failure to address a jury’s question can result in reversal when that question is central to the case.

On the other hand, even a proper statement of the law can result in reversal when it either doesn’t fully account for the context of the jury’s question or answers the question in such a way as to comment on the evidence and thereby “invade the province of the jury.”

Additionally, it is “unfair” to give a supplemental instruction when it prevented the defendant from arguing his or her defense to the jury or was substantially misled in formulating and presenting arguments.” Factors considered in determining prejudice include: “when the change in the instructions is substantial, when the judge’s instructions repudiate counsel’s argument, or when the judge’s instructions impair the effectiveness of the attorney’s argument.”

In this case, the “new” theory introduced was “transferred intent.” Because the defense’s argument was that there was no initial intent to harm, it was consistent with defense against transferred intent. Therefore, especially given the opportunity for supplemental closing argument by defense counsel, there was no prejudice.