Lupfer v. State Of Md..

• Decision Date: 03 September 2010
• Docket Number: No. 1046, Sept. Term, 2008.,1046, Sept. Term, 2008.
• Citation: 194 Md.App. 216,4 A.3d 32
• Parties: Raymond Charles LUPFER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

194 Md.App. 216

4 A.3d 32

Raymond Charles LUPFER

v.STATE of Maryland.

No. 1046, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Sept. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Marc A. DeSimone, Jr. (Elizabeth L. Julian, Acting Public Defender, on the brief) Baltimore, MD, for appellant.

Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., WRIGHT and GRAEFF, JJ.

GRAEFF, J.

A jury sitting in the Circuit Court for Cecil County convicted appellant, Raymond Charles Lupfer, of second degree murder, first degree assault, and use of a handgun in the commission of a felony. The court imposed a sentence of 30 years for the conviction of second degree murder and ten years consecutive for the conviction of use of a handgun in the commission of a felony. ¹

Appellant presents two issues for our review, which we have reworded as follows:

1. Did the trial court err in allowing the State to elicit evidence of appellant's post-arrest, post- Miranda ^{[ 2 ]} silence and his request to speak to an attorney in order to rebut the impression created by the defense that appellant actively cooperated with the police?

2. Did the trial court abuse its discretion in responding to appellant's claim that several State witnesses violated the court's sequestration order?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 16, 2007, appellant shot Jeremy Elijah Yarbray. Mr. Yarbray collapsed and died in the parking area outside the residence at 159 Mahogany Drive in Cecil County, Maryland. When the police discovered Mr. Yarbray's body, a bag of cocaine was found in his hand. There was no dispute that appellant shot the victim, but the testimony differed regarding the events leading up to the shooting.

The residence at 159 Mahogany Drive was rented by Kate Archibald. She lived there with her daughter, her friend, Mary Jenna Webb, Ms. Webb's boyfriend, Jesse Kennedy, and Ms. Webb's two sons.

Mr. Kennedy testified that, on the evening of June 16, 2007, Derek Patton, appellant, and Matthew Jackson came to the residence. Appellant, who Mr. Kennedy had met a week or two earlier, wanted to buy cocaine. Mr. Kennedy made a call in an attempt to purchase drugs. ³ A short time later, Mr. Yarbray arrived at the residence and spoke with appellant about a bag of drugs.

Mr. Kennedy testified that appellant and Mr. Yarbray began to argue, and a “scuffle” ensued. Appellant produced a handgun from his waistband, and he hit Mr. Yarbray two or three times in the face with the gun. Mr. Kennedy told appellant to let Mr. Yarbray go, and Mr. Yarbray eventually crawled out the front door and stumbled down the steps. Appellant opened the door and fired four or five shots at Mr. Yarbray. After the shooting, Mr. Kennedy went to the front door and saw “blood all over [the] porch” and sidewalk, and Mr. Yarbray was in the road “lying face down not moving.”

Derek Patton testified that, on the day of the shooting, he drove appellant and Mr. Jackson to Ms. Webb's residence. Mr. Kennedy made a phone call, and approximately 15 minutes later, the victim arrived at the residence. Appellant, who had been in the bathroom, exited the bathroom and stated to Mr. Yarbray: “[D]o you remember me[?]” Appellant then punched Mr. Yarbray in the face, and a fight ensued. Mr. Patton “broke up the fight” because both the victim and appellant “were going for” a gun on the floor. The victim then moved toward the door to leave the residence. Mr. Patton heard a shot and saw the victim fall, but he did not see who shot the victim. After the shooting, Mr. Patton ran from the residence.

Matthew Jackson testified that, on the evening of the shooting, he went with appellant and Mr. Patton to Mr. Kennedy's residence to purchase some cocaine. At the residence, Mr. Kennedy “called somebody.” When Mr. Yarbray arrived a few minutes later, appellant was in the bathroom. He came out of the bathroom “with a gun in his hand,” and he pointed it at Mr. Yarbray. Appellant stated: “Do you remember me?” Mr. Yarbray “pushed his hands up in the air,” and Mr. Jackson then ran out the back door. He “heard a couple of shots,” but he kept running.

Several witnesses outside the residence testified to their observations. Gene Salisbury, a neighbor, testified that he saw “a guy fly out from about five doors up from me,” and he “heard two rounds of a heavy-caliber gun go off.” ⁴ Another neighbor, age 14, testified that he saw appellant come out of the house “shooting the guy.”

Robert Lloyd testified that he was driving to Charlestown with Mr. Yarbray, and Mr. Yarbray asked him to “stop by” the Mahogany Drive residence. Mr. Lloyd remained in the car. He observed Mr. Yarbray exit the house and fall down. He then saw a man exit the house and shoot Mr. Yarbray, but he did not see his face. Mr. Lloyd drove away, and he did not report the shooting. He subsequently advised the police, however, that based on a photograph that appeared in a newspaper, he thought that appellant was the shooter.

John Hardiman testified that, on June 18, 2007, two days after the shooting, while taking his dog for a walk, he discovered a handgun under his truck. He called 911 and advised the police. Mr. Hardiman identified the gun in the State's custody as the same gun he discovered under his truck.

Troy McDonough, a Corporal assigned to the Homicide Unit with the Maryland State Police, responded to Mr. Hardiman's residence and took custody of the gun. He observed “dried blood on the trigger guard....” Forensic analysis showed that appellant's DNA matched the DNA profile obtained from the hand grip and trigger guard of the gun.

Joshua Jackson, a commercial driver, testified that, the day after the shooting, he encountered appellant at a gas station in New Jersey along his route. Appellant stated that he was waiting for his wife, and he asked to use Mr. Jackson's cell phone. Appellant advised that “he was getting away from a situation that he had hurt somebody.” When Ms. Hamilton arrived, Mr. Jackson gave them a ride to a truck stop in Maryland, where they waited in Mr. Jackson's truck for their ride to pick them up. Mr. Jackson fell asleep; he woke up when several police officers ordered Mr. Jackson, appellant, and Ms. Hamilton out of the truck.

Mary Ripple, a medical doctor with the Office of the Chief Medical Examiner, testified as an expert in forensic pathology. Based on the autopsy that she performed, she determined that Mr. Yarbray's death was a homicide, and he died from “multiple gunshot wounds, and blunt force injury....” Mr. Yarbray suffered one or two gunshot wounds to his upper body and two to his left thigh. ⁵ Dr. Ripple concluded that, based on the absence of “stippling” around the gunshot wounds, the gun was not fired from “close-range.” Dr. Ripple located a bullet during the autopsy, which was provided to law enforcement.

Mike Nickol, an employee with the Forensic Science Division of the Maryland State Police, testified as an expert in firearms and tool marks examination. He concluded that the bullet recovered from the victim's right arm was fired from the handgun the police recovered. He further concluded that the shell casing recovered from behind the residence was fired from the same gun.

After the State rested, appellant moved for judgment of acquittal on the charge of first-degree murder, arguing that there was no evidence that the shooting was premeditated or committed with the specific intent to kill. The court denied appellant's motion.

Appellant then presented his case. Pamela Hamilton testified that she was romantically involved with appellant. The morning after the shooting, appellant called Ms. Hamilton and asked her to pick him up in New Jersey, stating that he wanted to turn himself in to the police. On her way to New Jersey, Ms. Hamilton experienced car problems, but she eventually arrived at the truck stop where appellant was waiting. Appellant advised her that he “didn't do anything wrong,” and “it did not happen the way people think that it happened.” They rode with a truck driver back to Maryland. While waiting for a ride at a truck stop in North East, the police arrived; they arrested appellant and took Ms. Hamilton into custody.

Appellant testified that, on the night of the shooting, he came out of the bathroom at Mr. Kennedy's residence and saw Mr. Patton fighting with Mr. Yarbray. He saw a handgun in the middle of the floor, and he tried to pick it up so the other men would not use it in the fight. Appellant and Mr. Yarbray grabbed the gun at the same time, and the gun accidently discharged three times. Appellant testified that he did not intend to pull the trigger. After Mr. Yarbray let go of the gun, appellant fired one bullet at the ground. Mr. Yarbray fell on the ground outside the house, and appellant walked out and “looked because [he] was just in shock.” Appellant then ran from the house and threw the gun in the woods.

After he fled from the crime scene, a co-worker drove appellant to a truck stop in New Jersey. The co-worker gave appellant some work clothes because there was blood on his clothing. Appellant remained at the truck stop through the night, and the next morning, he called Ms. Hamilton. Appellant asked Ms. Hamilton to bring him back to Maryland “[b]ecause [he] had time to think about what was going on and [he] needed to come to Maryland.” Appellant testified that he intended to turn himself in and “get the situation straightened out.”

Ms. Hamilton arrived at the truck stop in New Jersey in the afternoon. Appellant told her that “it didn't happen like I'm sure everybody is saying it happened.” He testified that they were going to drive back to Maryland, where he intended to go to Ms. Hamilton's mother's house “[b]ecause [he] had been up for almost two days and [he] wasn't prepared mentally...