Maryland’s top court will consider whether a criminal suspect’s substantial alteration of their hairstyle after the crime could constitute destruction of evidence and indicate to a jury a consciousness of guilt.
The Court of Appeals agreed this week to hear convicted first-degree murderer Robert Rainey’s argument that his dreadlocks were not evidence of the slaying and thus their removal in favor of a short hairdo cannot be considered destruction of evidence.
That argument failed in the Court of Special Appeals, which last year upheld the trial judge’s jury instruction that a change in hairstyle could be destruction of evidence from which the jurors could infer Rainey’s consciousness of guilt.
The intermediate court ruled that a distinctive physical feature – such as hairstyle – can be evidence that ties a suspect to a crime through eyewitness testimony. Cutting that hair, therefore, would be destroying evidence and show a consciousness of guilt, the intermediate court said.
In Rainey’s successful request for high-court review, his attorney wrote that she could find no other court that has upheld a jury instruction tying a suspect’s change in appearance to destruction of evidence.
“Imagining how other changes in appearance could be characterized as destroying evidence reveals the problems with categorizing a suspect’s hair as evidence,” Assistant Maryland Public Defender Katherine P. Rasin wrote.
“If one loses weight, is the loss of body mass destruction of evidence?” Rasin added. “If one gains weight, has he destroyed his thinner self? The intermediate appellate court provides no guidance as to the limits of its holding.”
In response, Assistant Maryland Attorney General Menelik Coates urged the high court in vain not to review the Court of Special Appeals decision, saying it correctly held that a post-crime haircut could be intended to thwart an eyewitness’s in-court identification of the defendant.
“If Rainey had not cut his distinctive hairstyle, the jury could have used Rainey’s hairstyle as physical evidence in this case,” Coates wrote.
“Depending on the circumstances, the prosecutor could have also asked that Rainey display his hair for the jury, and have it noted for the record,” Coates added. “Thus, Rainey’s hair was potential physical evidence of his identification under the factual circumstances of this case, and the destruction of evidence instruction was factually accurate.”
The Court of Appeals is scheduled to hear Rainey’s appeal in April. The high court is expected to render its decision by Aug. 31 in the case, Robert Rainey v. State of Maryland, No. 54, September Term 2021.
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.
The Court of Special Appeals upheld the conviction in a reported 3-0 decision Sept. 28.
“(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,” Judge Kevin F. Arthur wrote for the court.
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.
Rainey then sought review by the Court of Appeals.
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