When can a haircut amount to destruction or concealment of evidence?

By Brad McCullough

When can a haircut amount to destruction or concealment of evidence? That question was before the Court of Special Appeals in Rainey v. State, No. 3094, Sept. Term 2018 (Sept. 28, 2021). The defendant was charged with murder. At the time of the slaying, he sported long dreadlocks, but when he was arrested, his hair was close-cropped. As the appellate court noted, the Court of Appeals has said “that a jury may infer consciousness of guilt if a defendant alters his appearance after the commission of a crime.” But Maryland does not have a pattern jury instruction that covers that issue. At trial, the prosecution did not propose a customized jury instruction, but instead asked the circuit court to give the pattern jury instruction that covers destruction or concealment of evidence. The court gave that instruction and the jury returned a guilty verdict. Did the trial court err in giving that instruction? Does cutting hair destroy evidence?  

In an opinion authored by Judge Arthur—and joined by fellow panelists, Chief Judge Fader and Judge Gould (since elevated to the Court of Appeals)—the Court found the evidence sufficient to support an inference that Rainey’s drastic haircut showed a consciousness of guilt. Thus, the trial court did not abuse its discretion in giving the pattern instruction dealing with destruction or concealment of evidence. The Court alternatively held that any error in giving that pattern instruction was harmless beyond a reasonable doubt, as the evidence supported a customized change-of-appearance instruction. The Court also addressed the trial court’s admission of a witness’s prior recorded statement. That issue is not discussed here.

The facts of the case are straight forward. In a Baltimore alley, 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 four 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.

Six days later, the police showed the witness a photo array, and she selected a man wearing shoulder-length dreadlocks. A month later, she saw the shooter on the street, but now wearing a very short haircut. She called the police. The man was arrested. Both the mug shots taken after his arrest, and an image from a body-worn camera taken when he was arrested, showed him with hair cut closely to his skull. At trial, the witness identified herself in a surveillance video and also identified the defendant as the person with dreadlocks in the video.

The State asked the court to give the pattern jury instruction on concealment or destruction of evidence. That instruction said that concealment or destruction of evidence alone is not enough to establish guilt, but it may be viewed as evidence of guilt. The instruction also 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.”

In reviewing the circuit court’s decision to give that instruction, the Court of Special Appeals distinguished between jury instructions on matters of law and jury instructions that touch on the facts and factual inferences. The decision to give the latter rests within the discretion of the trial judge, but the judge may give the instruction only if there is “some evidence” that would support the requested instruction. The “instruction concerning the destruction or concealment of evidence relates to the inferences that the jury may draw from the evidence,” so the judge had discretion to give the instruction, if there was some evidence to support it.

The Court then explained that a consciousness-of-guilt instruction derives from a “flight” instruction, which rests on the idea that fleeing from a crime may show consciousness of guilt. That principle has been applied to a wide variety of behavior, including feeling from a crime scene, assuming a false name, shaving off a beard, and resisting arrest. In short, the conduct must suggest that the defendant is conscious of guilt and must be an attempt to evade responsibility for a crime. A flight instruction may be given only if the evidence reasonably permits the following four inferences to be drawn: 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. The Court explained that those four factors have been adapted for use in cases asking “whether a jury may infer consciousness of guilt from conduct other than flight.”

Rainey argued that a trial court must articulate whether the evidence supports the required inferences. According to Rainey, the trial court’s failure to make those express findings made “meaningful appellate review” impossible. The Court of Special Appeals disagreed, noting that trial judges are presumed to know the law and properly apply it, and that trial judges are generally not required to spell out every step of their analysis. Moreover, whether evidence is sufficient to permit the necessary inferences is a legal question that an appellate court reviews de novo, without any deference to the trial court’s analysis or decision. Thus, the trial court did not err in failing to explain his analysis of those four “inferences on the record before giving a consciousness-of-guilt instruction.”

What instruction, however, should have been given? The Court pointed to the Court of Appeals’ recognition “that a jury may infer consciousness of guilt if a defendant alters his appearance after the commission of a crime,” but noted that Maryland has not adopted a pattern jury instruction dealing with that situation. The Court mused whether Maryland’s strong preference for the use of pattern instructions led the prosecution to rely on the pattern destruction or concealment of evidence instruction instead of proposing a customized instruction. Rainey argued that the court erred in giving that pattern instruction, because “his dreadlocks were not evidence.” He insisted that defendants do not destroy evidence if they change their appearance.        

The State disagreed, noting “that in some circumstances a defendant’s physical attributes may be evidence at trial,” citing “cases in which defendants have been compelled to display a physical trait to the jury or a witness,” and observing “that because a jury may compare the appearance of a person on surveillance footage with the appearance of the person sitting at the trial table…the defendant’s physical appearance in the courtroom is evidence as well.”

The Court sided with the State, pointing to a comment to the pattern jury instruction citing a prior decision from the Court. In that earlier case, the defendant was accused of rape and he “shaved his pubic hair, arguably to prevent the State from taking a sample.” The “Court held that the trial court did not err in admitting that evidence to establish his consciousness of guilt.” Thus, the drafters of the pattern instruction apparently thought “cutting one’s hair to avoid detection or identification” could constitute destruction of evidence. Consequently, where a defendant cuts most of his hair, discarding a distinctive haircut, “the court would not err or abuse its discretion in giving the destruction-of-evidence instruction, provided that there was ‘some evidence’ to support the required inferences.”

That evidence existed in Rainey’s case, and supported an inference that Rainey changed his appearance to avoid identification as the shooter. An eyewitness saw a man with long dreadlocks kill someone in broad daylight on a public street. Rainey had long dreadlocks and used to spend every day on that street. He disappeared for a month after the shooting “and returned with a dramatically different appearance. This is not a case in which the required inferences depended on ‘the change of appearance alone.’”

The Court agreed with Rainey that not all changes of appearance could constitute concealment or destruction of evidence. “If, for example, a defendant grows his hair, dyes his hair, grows a beard, or gets a tattoo,” those actions do not destroy something in the way cutting hair, shaving facial hair, or removing a tattoo would. The Court did not have to decide whether defendants conceal or destroy evidence each time they materially alter their appearance. “It will suffice to say that it is preferable, in all cases in which a defendant has allegedly changed his appearance in order to avoid identification, to employ a custom instruction that focuses on the change of appearance as potential evidence of consciousness of guilt.” That type of instruction would be more helpful to a jury than the pattern destruction or concealment instruction.

The Court concluded by saying that any harm in giving the pattern instruction was harmless. Clearly, a change-of-appearance instruction was warranted. And the case was presented to the jury in a way that made “destruction of evidence” synonymous with “change of appearance.” Thus, the pattern instruction operated the same way that a change-of-appearance instruction would have worked. “Rainey was not harmed by the trial court’s error, if any.”

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