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Changing hairdos can be destruction of evidence, Maryland appeals court says

Criminal suspects might be trying to “destroy or conceal evidence” when they substantially alter their hairstyle after the crime was committed, Maryland’s second-highest court said in ruling a judge properly told a jury it could conclude a murder defendant’s decision to cut his dreadlocks after the slaying was to avoid detection and could indicate his consciousness of guilt.

In its reported decision, the Court of Special Appeals this week rejected convicted first-degree murderer Robert Rainey’ s argument through counsel that his dreadlocks were not “evidence” and thus their removal in favor of a short hairdo could not be considered destruction of concealment.

The appellate court, in its 3-0 ruling, cited cases in which defendants were validly compelled to display physical traits in the courtroom, such as a tattooed arm.

“We agree that a defendant’s physical appearance is, in some sense, ‘evidence’ that the factfinder (jury) can consider at trial,” Judge Kevin F. Arthur wrote for the Court of Special Appeals.

“It follows then that when defendants do something to remove, erase, eliminate, or obliterate some aspect of their physical appearance, they can properly be said to have destroyed or concealed evidence,” Arthur added. “For example, when a defendant attempts to avoid identification by cutting his hair, shaving his head, moustache, or beard, or having a tattoo removed, it is fair to say that he may have destroyed evidence.”

Rainey’s appellate attorney, Assistant Maryland Public Defender Katherine P. Rasin, did not immediately return a message Thursday seeking comment on the decision and potential plans to seek review by the Court of Appeals.

The Maryland attorney general’s office declined to comment on the decision.

The prosecution’s case against Rainey included a witness regarding Dartania Tibbs’ shooting death in a Baltimore alley on May 2, 2017. Daphne Creighton testified at trial that she heard four shots and then saw a man in dreadlocks – which were “hanging loose” and “going back and forth”— standing over the victim on North Glover Street, according to the Court of Special Appeals’ opinion.

During the police investigation, Creighton picked a man with shoulder-length dreadlocks out of a photo array investigators showed her on May 8, 2017. Creighton later called police on June 6, 2017, when she saw the man – now with short hair – walking on a nearby street.

Responding officers arrested Rainey.

Prior to jury deliberations, the prosecution asked the presiding Baltimore City Circuit Court judge to instruct the jurors that destruction or concealment of evidence can be viewed as consciousness of guilt.

The requested instruction was based on the prosecution’s contention during trial that Rainey had cut off his dreadlocks after killing Tibbs to alter his appearance in case anybody had seen the slaying.

The judge granted the prosecution’s requested instruction over the defense’s objection.

The jury found Rainey guilty of first-degree murder, use of a handgun in a violent crime and illegal possession of a gun by a convicted felon. He was sentenced to life in prison.

Rainey then sought review by the Court of Special Appeals, arguing in vain that the jury was improperly instructed that a change in physical appearance could be a destruction or concealment of evidence indicative of the defendant’s consciousness of guilt.

“(I)n a case such as this, where the defendant cut off almost all of his hair and got rid of his distinctive hairstyle, 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,” Arthur wrote in upholding Rainey’s conviction.

This evidence included Rainey’s abrupt disappearance for a month after the killing before returning with “his hair cropped closely to the skull instead of shoulder-length dreadlocks,” Arthur added.

“In our judgment, these facts would permit the jury to infer, (1) from Rainey’s change in appearance, a desire to conceal evidence; (2) from a desire to conceal evidence, a consciousness of guilt; (3) from a consciousness of guilt, a consciousness of guilt of the murder of Dartania Tibbs; and (4) from a consciousness of guilt of the murder of Dartania Tibbs, actual guilt of murder,” Arthur wrote. “The court, therefore, had the discretion to give … the instruction concerning concealment or destruction of evidence.”

Arthur was joined in the opinion by Chief Judge Matthew J. Fader and Judge Steven B. Gould, who participated in the decision’s adoption before Gov. Larry Hogan named him to the Court of Appeals on Sept. 3.

The Court of Special Appeals rendered its decision in Robert Rainey v. State of Maryland, No. 3094, September Term 2018.