Lupfer v. State , 109

CourtCourt of Appeals of Maryland
Citation420 Md. 111,21 A.3d 1080
Docket NumberNo. 109,Sept. Term,2010.,109
PartiesRaymond Charles LUPFERv.STATE of Maryland.
Decision Date20 June 2011

420 Md. 111
21 A.3d 1080

Raymond Charles LUPFER
STATE of Maryland.

No. 109

Sept. Term


Court of Appeals of Maryland.

June 20, 2011.

[21 A.3d 1081]

Marc A. DeSimone, Jr., Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

[21 A.3d 1082]

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.HARRELL, J.

[420 Md. 114] David Simon, in his journalistic work, “Homicide: A Year on the Killing Streets,” translates into “street-cred” 1 rhetoric the now-well-known Miranda2 rights/protections:

You have the absolute right to remain silent.” ....

Criminals always have the right to remain silent. At least once in your ... life, you spent an hour in front of a television set, listening to this book-‘em-Danno routine. You think Joe Friday was lying to you? You think Kojak was making this ... up? No way, bunk, we're talking sacred freedoms here, notably your Fifth ... Amendment protection against self-incrimination, and hey, it was good enough for Ollie North, so who are you to go incriminating yourself at the first opportunity? Get it straight: A police detective, a man who gets paid government money to put you in prison, is explaining your absolute right to shut up before you say something stupid.

Anything you say or write may be used against you in a court of law.

Yo, bunky, wake ... up. You're now being told that talking to a police detective in an interrogation room can only hurt you. If it could help you, they would probably be pretty quick to say that, wouldn't they? They'd stand up and say you have the right not to worry because what you say or write in this ... cubicle is gonna be used to your benefit in a court of law. No, your best bet is to shut up. Shut up now.

[420 Md. 115] You have the right to talk to a lawyer at any time—before any questioning, before answering any questions, or during any questions.

Talk about helpful. Now the man who wants to arrest you for violating the peace and dignity of the state is saying you can talk to a trained professional, an attorney who has read the relevant portions of the Maryland Annotated Code.... Take whatever help you can get.

Simon notes that, notwithstanding this popular understanding, many suspects, even after advisement, inculpate themselves willingly while being interrogated. We consider in this case a defendant that followed Simon's and Miranda's advice—he remained silent. Yet the State used that silence against him at trial, and now asks us to decide whether his post-arrest, post- Miranda silence was admissible properly against him.

Raymond Charles Lupfer (“Lupfer” or “Petitioner”) challenges a judgment of the Court of Special Appeals that reasoned in its opinion that the prosecution was entitled, under the circumstances here and the “fair response doctrine,” as established in United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), to elicit testimony regarding the fact that Lupfer remained silent after he was arrested and advised of his Miranda rights. We hold, for reasons to be explained more

[21 A.3d 1083]

fully infra, that, because Lupfer did not “open the door” sufficiently with his statements at trial regarding his pre-arrest actions and intentions, the State was not entitled to elicit testimony regarding his post-arrest, post- Miranda silence.


The State's evidence at trial was sufficient, if believed, to establish that, on 16 June 2007, Lupfer shot and killed Jeremy Yarbray (“Yarbray”) outside of a residence at 159 Mahogany Drive in Cecil County, Maryland. The details of how the fatal shooting occurred were disputed sharply at Lupfer's trial in the Circuit Court for Cecil County.

[420 Md. 116] Yarbray was invited to the residence—owned by an acquaintance of Lupfer—to sell narcotics to Lupfer's companions. Lupfer testified that, upon coming out of a bathroom, he observed Yarbray in the living room engaged in a confrontation with Derek Patton, another of Lupfer's acquaintances. Lupfer testified further that he saw a handgun laying in the middle of the floor near the confrontation and, sensing a “threatening situation,” reached down to pick up the gun, at which time Yarbray reached simultaneously for and grabbed the gun. Allegedly, during the course of a brief struggle between Lupfer and Yarbray, the gun discharged three times. Lupfer's defense at trial was that the gun discharged accidentally in the course of the struggle, and that Lupfer had no intent to kill or inflict deadly harm upon Yarbray.

The State's witnesses attested to renditions of the events leading up to the fatal shooting different than Lupfer's version. Patton and Joshua Jackson (Patton's cousin) testified that, when Yarbray entered the townhouse, Lupfer asked Yarbray, “Do you remember me?” A struggle ensued between the two. Jesse Kennedy, yet another acquaintance of Lupfer, testified that Lupfer struck Yarbray in the face with a handgun and, after Yarbray “crawl[ed] out [the] front door” and “stumbled down the steps, ... [Lupfer] went over to the door and opened the door and began to fire shots.” Jackson testified that, after Lupfer asked Yarbray, “Do you remember me?” he saw Yarbray “push[ ] his hands up in the air,” and that, after Jackson ran out the back door of the residence, he heard approximately three gunshots. Kyle Slayman, a neighbor, testified that he saw “a guy running and ... [saw] gunshots shooting him and he fell to the ground,” and that he saw Lupfer “coming from the house” while “shooting the guy.”

A few days after the shooting, a resident of a nearby trailer park found a handgun laying near his pickup truck and called 911. Ballistics testing showed that the gun recovered from the trailer park fired at least one of the bullets recovered from Yarbray's body. Forensic analysis revealed Lupfer's DNA on the trigger guard and handgrip of the gun.

[420 Md. 117] Lupfer testified that, following the shooting, he ran out the back of the residence, threw the gun in the nearby woods, and encountered a former co-worker who agreed to give him a ride in his truck to New Jersey, where Lupfer claimed to have another friend with whom he could stay. After reaching New Jersey, Lupfer claimed he called his girlfriend, Pam Hamilton, in Maryland, to come pick him up, “[b]ecause I had time to think about what was going on and I needed to come back to Maryland.” Lupfer stated that, on his return to Maryland, he intended to go to Hamilton's house “[b]ecause I had been up for almost two days and I wasn't prepared mentally or physically to deal with going to turn myself in instantly,” and, therefore, he was going to “[t]ry to get some sleep and prepare to go talk to the police.” Upon Hamilton's arrival in New Jersey, a

[21 A.3d 1084]

truck driver agreed to drive Lupfer and Hamilton to a truck stop in Cecil County. Ultimately, the police arrested Lupfer later that night, as he was resting in the cab of the truck driver's truck, now back in Cecil County.

After the conclusion of Lupfer's direct testimony, the following bench conference ensued:

[PROSECUTOR]: Your Honor, may we approach briefly, please?

[COURT]: Come on up.

[PROSECUTOR]: Your Honor, among other things that this defendant has said in the course of his testimony is that he intended to speak to police. In fact, after he was arrested he was questioned and he elected not to say anything to police. Ordinarily I could not comment upon that, but it appears to me that when a defendant such as Mr. Lupfer gives testimony that he intended to speak to police, even as he was in New Jersey according to his testimony, deliberating about the issue of turning himself in, I believe that has now opened the door to that cross-examination. Before I go there, I just wanted to bring that matter to the bench.

[COURT]: Uh-huh.

[420 Md. 118] [DEFENSE COUNSEL]: I don't think that he is. And the reason is because Mr. Lupfer originally did not think that there was going to be a serious charge such as murder brought against him. And when the police arrested him and told him that, he said, [o]h, shit, this is more serious than I thought.

[COURT]: Okay.

[DEFENSE COUNSEL]: I better talk to my attorney.

[COURT]: Okay. Well, you can bring that out but I think the door has been opened. I think you're right, [prosecutor].

Thereafter, the prosecutor cross-examined Lupfer in the following fashion regarding his return to Cecil County from New Jersey:

[PROSECUTOR]: [Y]ou were coming back to Cecil County because you wanted to turn yourself in.

[LUPFER]: Yes.

[PROSECUTOR]: You wanted to talk to the police, right?

[LUPFER]: I wanted to get the situation straightened out.

[PROSECUTOR]: You wanted to try to clear yourself, right?

[LUPFER]: I wanted to get the situation—I'm not sure of my intentions, but running was not my intention. It was just going to get worse and I knew there is only one person that is going to say what needs to be said, and that was me.

* * *

[PROSECUTOR]: Mr. Lupfer, after the police arrested you, they took you back to the police station, right?

[LUPFER]: Yes, sir.

[PROSECUTOR]: And they asked you if you wanted to talk about what had happened, correct?

[LUPFER]: No, they did not.

[DEFENSE COUNSEL]: Objection. I objected, Your Honor.

[420 Md. 119] [COURT]: The objection and the reason therefore is on the record. Go ahead.

[PROSECUTOR]: They asked you if you wanted to talk about what happened; is that correct, Mr. Lupfer?

[LUPFER]: No, sir. It's not correct. Would you like me to tell you what took place when I got there?

[PROSECUTOR]: Well, I'm sure they took your fingerprints and took your photographs. I mean, we know that so I'm not interested in that.

[LUPFER]: Yes, sir.

[PROSECUTOR]: But I'm just wanting to know whether they offered you the opportunity to tell your side of the story.

[21 A.3d...

To continue reading

Request your trial
25 cases
  • Leidig v. State, 19, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • 5 de agosto de 2021
    ...constitutional provision are only persuasive authority with respect to the similar Maryland provision.See also, e.g. , Lupfer v. State , 420 Md. 111, 130, 21 A.3d 1080 (2011) ("Not inconsistent then with the phrase, ‘in pari materia ,’ we have interpreted Maryland's privilege against self-i......
  • Harris v. State, 9, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • 12 de abril de 2018 error to allow Detective Gaskins to testify that Mr. Harris had requested counsel during a custodial interview. See Lupfer v. State , 420 Md. 111, 119–20, 21 A.3d 1080 (2011). In light of the fact that we are reversing the convictions in this case for other reasons, we need not decide wh......
  • Derr v. State, 6
    • United States
    • Court of Appeals of Maryland
    • 22 de agosto de 2013
    ...whether, under the applicable Maryland authorities, that tax violates the State's equal protection guarantee.” In Lupfer v. State, 420 Md. 111, 129–130, 21 A.3d 1080, 1091 (2011), concerning the right against self-incrimination, Judge Harrell for the Court stated (citations and footnote omi......
  • Derr v. State, 6
    • United States
    • Court of Special Appeals of Maryland
    • 22 de agosto de 2013
    ...whether, under the applicable Maryland authorities, that tax violates the State's equal protection guarantee." In Lupfer v. State, 420 Md. 111, 129-130, 21 A.3d 1080, 1091 (2011), concerning the right against self-incrimination, Judge Harrell for the Court stated (citations and footnote omi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT