Lupfer v. State

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? ²²² 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.” ²²³ 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 ²²⁴ 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 ²²⁵ 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 ²²⁶ 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 or physically to deal with going to turn myself in instantly.” Appellant’s plan was to “[t]ry to get some sleep and prepare to go talk to the police.” Appellant and Ms. Hamilton rode with a truck driver back to Maryland, and while waiting for a ride at a truck stop in Maryland, the police arrived and arrested appellant. At the conclusion of all the evidence, counsel for appellant moved for judgment of acquittal, arguing that there was insufficient evidence of premeditation to support the charge of first-degree murder. The court denied appellant’s motion. On April 7, 2008, the jury began deliberations.

Later that day, the jury returned a verdict, finding appellant not guilty of first degree murder, but finding him guilty of second degree ²²⁷ murder, first degree assault, and use of a handgun in the commission of a felony. This timely appeal followed. DISCUSSION I. Appellant contends that “the trial court erred in allowing the State to introduce evidence that, when questioned after being arrested, Mr. Lupfer remained silent and asked to speak with an attorney.” He asserts that this was error for two reasons. First, he argues that, although his testimony that he intended to speak with the police may have permitted the admission of this evidence “as a matter of constitutional law,” the Maryland appellate courts “have uniformly held,” pursuant to “Maryland state-law principles,” that a defendant’s silence “after arrest, may never be introduced against the accused.” Second, appellant asserts that, even if his testimony that he intended to give the police a statement opened the door to admit evidence of his failure to give a statement, it “was limited solely to the fact that [he] did not give a statement to the police.” He contends that “there is no justification for allowing the State to introduce the fact that [he] invoked the assistance of counsel when questioned.... ” The State contends that “the trial court properly exercised its discretion in allowing the State’s use of Lupfer’s post- Miranda silence,” arguing that the evidence was “in fair response” to appellant’s “testimony that he fully intended to cooperate with police, turn himself in, and explain his side of the story regarding his claim that the shooting was an accident.” With respect to appellant’s claim that the court erred in admitting evidence that he asked to speak to an attorney, the State argues that this contention is not preserved for appellate review.

Even if preserved, however, the State argues that the evidence was properly admitted “to fairly respond and rebut his claim that he had every intention of fully cooperating with the police.” ²²⁸ A. Proceedings Below Appellant testified that, immediately after the shooting, he fled to New Jersey. He first testified, however, that he returned to Maryland the next day to “go talk to the police.” Before he was able to contact the police voluntarily, they arrested him at the truck stop. After appellant’s direct examination, the prosecutor approached the bench and proffered as follows: 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 he has now opened the door to that cross-examination. Before I go there, I just wanted to bring that matter to the bench. Defense counsel disagreed with the argument that appellant was subject to cross-examination regarding his post-arrest silence, stating as follows: 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, Oh, shit, this is more serious than I thought.... I better talk to my attorney. The court ruled that the prosecutor could “bring that out,” stating: “I think the door has been opened.” On cross-examination, the prosecutor questioned appellant about why he wanted to come back to Maryland and the following occurred: [APPELLANT]: I told [Ms. Hamilton] it didn’t happen like I’m sure everybody is saying it happened. ²²⁹ [PROSECUTOR]: That’s all you told her? [APPELLANT]: Yes. [PROSECUTOR]: Why? [APPELLANT]: Why would I — I don’t know why. I can’t — I don’t know why. [PROSECUTOR]: Well, you say that when you were up there — • [APPELLANT]: Yes. [PROSECUTOR]: — thinking about coming back to Cecil County, that you were coming back to Cecil County because you wanted to turn yourself in. [APPELLANT]: Yes. [PROSECUTOR]: You wanted to talk to the police, right? [APPELLANT]: I wanted to get the situation straightened out. [PROSECUTOR]: You wanted to try to clear yourself, right? [APPELLANT]: 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 that there is only one person that is going to say what needs to be said, and that was me. The prosecutor then questioned appellant regarding what occurred after he was arrested. As set forth in more detail, infra, appellant testified that, “[b]efore they slid the charges charging me with first degree murder,” the police “did not give me a chance to say anything. And when I seen the charges, I asked for a lawyer.” The State then called Sergeant David Sexton as a rebuttal witness.

The prosecutor asked Sergeant Sexton about his efforts to question appellant following his arrest, and Sergeant Sexton testified: “I read him his advice of rights and he elected not to answer any questions. He said he would have to talk to a lawyer because those charges were very serious and he wanted to speak to a lawyer.” ²³⁰ B. Standard of Review Generally, we “review a trial court’s ruling on the admissibility of evidence under the abuse of discretion standard.” Prince George’s County v. Longtin, 190 Md.App. 97, 133 , 988 A.2d 20 , cert. granted, 414 Md. 330 , 995 A.2d 296 (2010). When the admission of evidence involves a possible violation of a constitutional right, however, “this Court conducts its own independent constitutional analysis.” State v. Davis, 415 Md. 22, 29 , 997 A.2d 780 (2010). Accord Arthur v. State, 193 Md.App. 446, 460-61 , 997 A.2d 899 (2010) (“[W]e determine de novo whether there was a constitutional violation ‘by reviewing the law and applying it to the facts of the case.’ ”) (quoting State v. Collins, 367 Md. 700, 707 , 790 A.2d 660 (2002)).

C. Post-Arrest, Post-Miranda Silence The Fifth Amendment to the United States Constitution guarantees a person accused of a crime the right to remain silent. See U.S. Const, amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself....”). The Fifth Amendment is applicable to the States pursuant to the Fourteenth Amendment.

Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965). The admissibility in a criminal trial of a defendant’s silence has been the subject of numerous cases. The analysis is different depending on the time when the silence occurred, and the State’s purpose in eliciting the evidence. See Grier v. State, 351 Md. 241, 252-60 , 718 A.2d 211 (1998) (discussing analysis for admission of evidence regarding pre-arrest silence; post-arrest, pre-Miranda silence; and post-arrest, post-Miranda silence).

This case involves the admissibility of appellant’s post-arrest, post-Miranda silence. ²³¹ As appellant notes, the Court of Appeals in Grier, 351 Md. at 258 , 718 A.2d 211 , stated that post-arrest, post -Miranda silenee “is inadmissible for any purpose.” In making that statement, however, the Court cited to United States Supreme Court cases that held that post-arrest silence was inadmissible as substantive evidence of guilt or to impeach an affirmative defense at trial. See Miranda, 384 U.S. at 468 n. 37, 86 S.Ct. 1602 (“[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”); Doyle v. Ohio, 426 U.S. 610, 619 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976) (silence after receipt of Miranda warnings is inadmissible to impeach an affirmative defense raised at trial). See also Griffin, 380 U.S. at 615, 85 S.Ct. 1229 (where defendant does not testify at trial, the Fifth Amendment precludes the government from using a defendant’s post-arrest silence as substantive evidence of consciousness of guilt).

As explained below, the Court of Appeals did not hold that post-Miranda silence was inadmissible in the situation where it is offered for a purpose other than as substantive evidence of guilt or to impeach an affirmative defense. Rather, the Court in Grier left that question open. We will address that issue in this case. We begin our analysis with Doyle , wherein the Supreme Court addressed whether it was permissible for the State to impeach a defendant’s affirmative defense at trial with his post -Miranda silence.

In that case, the prosecutor cross-examined two defendants, who had remained silent after being advised of their Miranda rights, regarding why they had not told the police, as they testified at trial, that someone framed them. Doyle, 426 U.S. at 611, 613 , 96 S.Ct. 2240 . In holding this was error, the Court characterized silence after Miranda warnings as “insolubly ambiguous because of what the State is required to advise the person arrested.” Id. at 617, 96 S.Ct. 2240 . It explained that, “while it is true that the Miranda warnings contain no express assurance that silence will carry ²³² no penalty, such assurance is implicit to any person who receives the warnings,” and “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. at 618, 96 S.Ct. 2240 . 6 The Supreme Court recognized, however, that the State is not prohibited from commenting on a defendant’s post-Mz- randa silence in all cases.

There are circumstances where a claim raised by the defense may justify reference to the defendant’s post-Miranda silence. In Doyle , the Court recognized an exception to the general rule of inadmissibility of post-arrest, post-Miranda silence: It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf.

United States v. Fairchild, 505 F.2d 1378, 1383 (C.A.5 1975). Id. at 620 n. 11, 96 S.Ct. 2240 . This exception has been explained as follows: [I]f a defendant provided alibi testimony during trial, and further testified on direct examination that he told the police the same alibi during custodial interrogation, when, in fact, the defendant had exercised his right to remain silent during custodial interrogation, then such evidence of post-arrest, post-Miranda silence is likely admissible for the State’s limited purpose to respond to the defendant’s testimony. ²³³ Andrew Y. Jezic, Frank Molony, William E. Nolan & Hon. Patrick L. Woodward, Maryland Law on Confessions § 19.5, at 759 (2009-2010 ed.).

The Supreme Court subsequently addressed another situation where reference to a defendant’s post-arrest silence was permissible as “a fair response to a claim made by defendant or his counsel.” United States v. Robinson, 485 U.S. 25, 32 , 108 S.Ct. 864 , 99 L.Ed.2d 23 (1988). In Robinson , defense counsel stated in closing argument that “the Government had unfairly denied respondent the opportunity to explain his actions.” Id. at 27 , 108 S.Ct. 864 . The prosecutor advised the jury during his closing argument that Robinson, who did not testify at trial, “ ‘could have taken the stand and explained it to you....’” Id. at 26 , 108 S.Ct. 864 . The Supreme Court held that the prosecutor’s comment did not violate Robinson’s Fifth Amendment right against compulsory self-incrimination.

Id. at 31-32 , 108 S.Ct. 864 . The Court noted that “the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case.” Id. at 32 , 108 S.Ct. 864 . The Court explained why the prosecutor’s comments did not violate Robinson’s privilege against self-incrimination: “[The] central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.... ” To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin to the effect that the Fifth Amendment “forbids ... comment by the prosecution on the accused’s silence,” must be taken in the light of the facts of that case.

It is one thing to hold, as we did in [Griffin], that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would forbid the prosecutor from fairly responding to an ²³⁴ argument of the defendant by adverting to that silence. There may be some “cost” to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one. Id. at 33-34, 108 S.Ct. 864 (citations omitted). In People v. Austin, 23 Cal.App.4th 1596 , 28 Cal.Rptr.2d 885 (1994), overruled on other grounds by People v. Palmer, 24 Cal.4th 856 , 103 Cal.Rptr.2d 13 , 15 P.3d 234 (2001), the Court of Appeal of California considered the “fair response” doctrine.

In that case, defense counsel’s questions to the officer who arrested Austin attempted to create an inference that Austin had not been permitted the opportunity to explain a damaging admission. Id. at 1610, 28 Cal.Rptr.2d 885 . On redirect examination, the prosecutor asked the officer if, after advising Austin of his Miranda rights, he gave Austin the opportunity to make a full statement. Id. at 1610-11 , 28 Cal.Rptr.2d 885 .

The officer replied that he had given Austin that opportunity, but Austin declined to make a statement. Id. at 1611 , 28 Cal.Rptr.2d 885 . The California court noted that the Supreme Court cases Griffin and Doyle stood “for the principle it is fundamentally unfair for the state to afford defendants the right to remain silent and then use that silence against them.” Id. at 1611-12, 28 Cal.Rptr.2d 885 . The court noted, however, that “the defendant’s right to remain silent is a shield.

It cannot be used as a sword to cut off the prosecution’s ‘fair response’ to the evidence or argument of the defendant.” Id. at 1612 , 28 Cal.Rptr.2d 885 (citing Robinson, 485 U.S. at 32 , 108 S.Ct. 864 ). Finding no error with the prosecutor’s questions regarding Austin’s post-Miranda silence, the court stated: Austin sought to create the impression in the jurors’ minds [that] the police had treated him unfairly by not giving him the opportunity to explain his damaging statement to Deputy Hartman and to use the fact he had invoked his right to remain silent to prevent the prosecutor from countering this ²³⁵ impression. The Fifth Amendment protects defendant’s right to remain silent. It does not protect his effort to exploit his silence by requiring the government also remain silent.

Here, the prosecutor’s purpose on redirect examination of Deputy Hartman was to correct the impression created on cross-examination Austin had not been afforded an opportunity to explain the apparently damaging statement he made to Hartman. There was no attempt to suggest defendant’s invocation of his right to remain silent was substantive evidence of guilt nor to impeach a defense by bringing out Austin’s postarrest silence. The rationale of Griffin and Doyle is inapplicable. Id. at 1612-13, 28 Cal.Rptr.2d 885 .

Another scenario in which courts have held that a prosecutor properly may question a criminal defendant about post- Miranda silence, a situation relevant to what occurred in this case, is where the defendant’s silence is introduced for the limited purpose of rebutting an impression created by the defendant that he cooperated fully with the police. For example, in Fairchild, 505 F.2d at 1381 , a case cited with approval by the Supreme Court in Doyle , the United States Court of Appeals for the Fifth Circuit noted that post-Miranda silence is “excluded for the purpose of protecting certain rights of the defendant. It is not excluded so that the defendant may freely and falsely create the impression that he has cooperated with the police when, in fact, he has not.” Id. at 1383. In Fairchild, defense counsel established that Fairchild had voluntarily provided handwriting samples, and he attempted to create the impression that Fairchild had cooperated with the police when he asked: “ ‘During the period of time that this investigation has been going on, to your knowledge has Mr. Fairchild cooperated fully with the FBI and U.S. Attorney’s office in responding with anything that you all wanted?’ ” Id.

The court stated: “Assuming the law would have excluded from evidence Fairchild’s silence had he not broached the subject of cooperation, once he did broach it the bar was lowered and he discarded the shield which the law had created ²³⁶ to protect him.” Id. Noting that a criminal defendant may waive his constitutional rights by his conduct, the court held that evidence of his post-Miranda silence “was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities.” 7 Id. Other courts similarly have held that evidence of a defendant’s post-Miranda silence is admissible to rebut an impression created by the defense that he or she cooperated with the police. For example, in United States v. O’Keefe, 461 F.3d 1338, 1349 (11th Cir.2006), cert. denied, 549 U.S. 1232 , 127 S.Ct. 1308 , 167 L.Ed.2d 120 (2007), the United States Court of Appeals for the Eleventh Circuit held that “evidence of, and argument referring to, O’Keefe’s post-Miranda silence was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities.” The court stated: “ When a defendant attempts to convince a jury that he was of a cooperative spirit, Doyle does not tie the hands of prosecutors who attempt to rebut this presentation by pointing to a lack of cooperation.’ ” Id. at 1348 (quoting United States v. Reveles, 190 F.3d 678, 685 (5th Cir.1999)).

The United States Court of Appeals for the Seventh Circuit has also recognized this exception to the general rule that post-Miranda silence is inadmissible. In United States v. Shue, 766 F.2d 1122, 1129 (7th Cir.1985), the court stated that, where a defendant creates an impression of general cooperation with the police after arrest, a court may allow the prosecutor to elicit evidence of the defendant’s post-arrest silence to rebut the impression of full cooperation. The court stated: “A defendant should not be permitted to twist his Miranda protection to shield lies or false impressions from ²³⁷ government attack.” Id. 8 Accord Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir.) (“reference to post-arrest silence is permissible for rebuttal purposes when a defendant implies that he cooperated with the police”) (citations omitted), cert. denied, 519 U.S. 1016 , 117 S.Ct. 527 , 136 L.Ed.2d 414 (1996). See also State v. McIntosh, 358 S.C. 432 , 595 S.E.2d 484, 491 (2004) (agreeing with principle that a defendant may open the door to evidence of post -Miranda silence by creating the impression that he cooperated with the police, but finding no assertion of cooperation in that case); State v. Cockrell, 306 Wis.2d 52 , 741 N.W.2d 267, 274 (App.) (recognizing that evidence that Cockrell cooperated with the police permitted the State to elicit that Cockrell declined to answer questions after his arrest), review denied, 306 Wis.2d 46 , 744 N.W.2d 295 (2007).

Here, appellant testified that, although he fled to New Jersey after the shooting, he returned to Maryland to turn himself in to the police. On cross-examination, before being questioned regarding his actions after arrest, appellant testified that he wanted to talk to the police “to get the situation straightened out,” stating that he “knew that there was only one person that is going to say what needs to be said, and that was me.” This testimony created the impression that appellant was cooperating fully with the police. Pursuant to the above authorities, it was not fundamentally unfair for the State to rebut this impression of cooperation and elicit evidence that appellant subsequently declined to talk with the police. Appellant does not appear to disagree with this conclusion;