Last fall, I wrote a post asking if a haircut could support a jury instruction regarding destruction or concealment of evidence. (October 25, 2021, “When can a haircut amount to destruction or concealment of evidence?”)

In Rainey v. State, 252 Md. App. 578 (2021), the defendant was charged with murder. At the time of the killing, he had long dreadlocks, but when he was arrested, his hair was close-cropped. The Court of Special Appeals held that the evidence at trial supported an inference that Rainey’s drastic haircut showed a consciousness of guilt. The intermediate appellate court also held that the trial court did not abuse its discretion in giving the pattern jury instruction dealing with destruction or concealment of evidence. The Court of Appeals granted certiorari and affirmed the intermediate appellate court. Rainey v. State, No. 54, Sept. Term, 2021.

Here are the facts. The victim was found lying dead in a Baltimore alley, with multiple gunshot wounds. A witness saw two men arguing, one of whom wore his hair in long dreadlocks. The man with dreadlocks walked away. A few moments later, the witness heard several booms and saw the man with the dreadlocks with his arm raised and the other man lying in the alley. The man lying in the alley died. The man with the dreadlocks ran off. Citiwatch and surveillance video also captured these events.

Six days later, the police showed the witness a photo array of men wearing shoulder-length dreadlocks. She selected a photo of Rainey, noting that the man in the photo looked like the shooter. A month later, she saw the shooter on the street, but he now had a very short haircut. She called the police and the man was arrested. The witness “had lived in the neighborhood for several years” and “was familiar with the illicit drug trade occurring within the neighborhood and [Rainey’s] specific involvement in the local drug trade for the past twelve to eighteen months.” Slip Op. at 4.

At trial, she identified Rainey as the person with dreadlocks in the video. She also testified that she was certain he was the shooter. Id. at 6. She further “testified that between the shooting and the arrest, [Rainey] cut his shoulder-length dreadlocks to a short, close-cropped hairstyle.” Id. (footnote omitted).

The State sought the pattern jury instruction on concealment or destruction of evidence, which said that concealment or destruction of evidence alone is not enough to establish guilt, but may be viewed as evidence of guilt. The instruction explained that there could be multiple factors that motivate concealment or destruction of evidence, some of which are consistent with innocence. Thus, the jurors were told that if they found that the defendant destroyed or concealed evidence, they “must decide whether that conduct shows a consciousness of guilt.” Id. at 8. After the jury returned a guilty verdict, and after the Court of Special Appeals affirmed the conviction, the case wound up in the Court of Appeals.

The Court’s analysis began by noting that evidence of a defendant’s post-crime conduct “may be admissible as circumstantial evidence of consciousness of guilt, but not when the conduct is too ambiguous or equivocal to indicate consciousness of guilt.” Id. at 19 (citation omitted). Many types of conduct qualify “as circumstantial evidence of consciousness of guilt, including the destruction or concealment of evidence,” with flight being “the archetypal example of post-crime conduct.” Id. at 19, 20 (citation omitted).

The Court discussed the test it had previously adopted “for assessing the probative value of evidence indicating consciousness of guilt,” which was “first adopted in context of flight.” Id. at 20, 21. That test requires that the following elements be met: 1) the defendant’s behavior suggests flight; 2) the flight suggests consciousness of guilt; 3) the consciousness is related to the charged crime or a closely related one; and 4) the consciousness of guilt suggests actual guilt. Id. at 21. At least some evidence must support each element. Id.  While the test was initially adopted for use in cases involving flight, the four “inferences are adaptable to different post-crime behaviors,” including changes in appearance. Id. at 22.

Similarly, “destruction or concealment of evidence provides an analogous example of post-crime behavior that may be admissible as circumstantial evidence of consciousness of guilt,” which “may be demonstrated by a wide spectrum of behaviors,” including refusal to submit to a blood test. Id. at 22, 23. The Court concluded that, like refusing a blood test, cutting shoulder-length dreadlocks permitted a juror to infer “a desire to conceal one’s identity from law enforcement.” Id.

The Court applied the four elements or inferences to the evidence presented at trial, rejecting Rainey’s argument that the evidence was insufficient to support the first two inferences. First, cutting his dreadlocks suggested a desire to conceal or destroy evidence. The witness’s trial testimony, “corroborated in part by surveillance video and forensic evidence,” permitted an “inference that cutting off dreadlocks suggested a desire to conceal evidence.” Id. at 25, 26.[1]

That same evidence also supported the second inference, i.e. “the desire to destroy or conceal evidence suggests consciousness of guilt.” Id. at 26 (citation omitted). The jury was permitted to infer that Rainey “knew the gun shots and resulting injuries to Mr. Tibbs would draw public attention and a police investigation leading to an arrest.” Id. at 27 (citations omitted). Moreover, the testimony that Rainey was seen “with his shoulder-length dreadlocks completely cut off after a several-week hiatus from the neighborhood following the murder of Mr. Tibbs provided more evidence for the jury to infer a consciousness of guilt from the desire to destroy or conceal evidence.” Id.

The Court further explained that the “evidentiary basis connecting post-crime conduct to consciousness of guilt may be established by several factors, including but not limited to being charged or being a suspect in an investigation.” Id. at 29 (emphasis in original). The Court thus rejected Rainey’s assertion that a “defendant be formally notified of his connection to the crime, either through statements of law enforcement, arrest, or imprisonment” for the consciousness of guilt element to be fulfilled. Id. at 28.

The Court, however, noted that evidence that a defendant “knew he was suspected by law enforcement of a crime strengthens the inference of consciousness of guilt, but it is not necessary to generate a jury instruction.” Id. at 29 (footnote omitted). The Court observed “that a defendant would know he is wanted by law enforcement after committing a crime in public view.” Specifically, Rainey’s “discharge of six bullets during the day, in the view of at least one resident, at least two surveillance cameras, and possibly nearby store patrons, would support an inference that [Rainey] knew he would be under suspicion from law enforcement.” Id. at 30 (emphasis added). Whether Rainey shot the victim, however, was the crucial factual issue in the case. Yet the Court essentially assumed that Rainey was indeed the shooter. The Court seemingly implied that an inference can be drawn that a defendant knows that he is suspected of a crime by assuming that he committed that crime.  

The Court also rejected Rainey’s “argument that the post-crime behavior must be contemporaneous with the crime,” noting that “the timing of post-crime behavior is a factor to be considered when inferring consciousness of guilt,” and concluding that “the five-week span between the time of the murder and [the witness] calling 911 in which the haircut occurred was not too attenuated to be considered ‘contemporaneous.’” Id. at 31. 

Rainey also argued that the trial judge was required to state on the record that the four inferences had been established, and that the failure to do that precluded meaningful appellate review. The Court rejected that argument, because trial courts are presumed to know the law and correctly apply it. Moreover, appellate courts “independently review whether there was sufficient evidence in the record to support the given jury instruction,” so the trial court’s reasoning does not affect appellate review. Id. at 33.

Finally, the Court concluded that any error in giving the pattern jury instruction was harmless.

While it would have been more precise for the circuit court to have tailored the consciousness of guilt instruction to specifically describe a change in appearance instead of a destruction or concealment of evidence, any error associated with the nomenclature of the given instruction was harmless beyond a reasonable doubt because the jury understood that the instruction referred to the act of cutting the dreadlocks.

Id.at 39-40.

The Court encouraged “the Maryland Criminal Pattern Jury Instruction Committee to draft a model jury instruction regarding this point.” Id. at 40.

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