MD high court considers: Can cutting dreadlocks be destruction of evidence?

Attorneys for a convicted first-degree murderer and the state battled before Maryland’s top court Wednesday over whether a suspect’s substantial alteration of hairstyle after the crime could constitute destruction of evidence and indicate to a jury a consciousness of guilt.

Defense attorney Katherine P. Rasin told the Court of Appeals that hairstyle is not “evidence” and therefore Robert Rainey’s removal of his dreadlocks in favor of a short hairdo cannot be deemed destruction of evidence. But Assistant Maryland Attorney General Menelik Coates said one’s hairstyle is a physical characteristic that can be used as evidence, particularly when cited by an eyewitness at trial, as occurred in Rainey’s case.

Rasin was appealing a lower court decision that upheld the trial judge’s jury instruction that Rainey’s change in hairstyle could be destruction of evidence from which the jurors could infer consciousness of guilt.

The Court of Special Appeals held last year 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 a decision Rasin called unique in the United States.

“No appellate court prior to this case has held that it was proper to instruct the jury that a presumed-innocent defendant destroyed evidence when he changed his appearance not in response to being charged or arrested, not in response to being asked to appear in a lineup, not as he was running from police, not in spite of a court order forbidding him from changing his appearance or despite a warrant to obtain a hair sample,” said Rasin, an assistant Maryland public defender.

“Mr. Rainey’s hair was not evidence,” Rasin added. “When a witness describes someone to the police, every aspect of that person’s appearance does not, in that moment, become evidence. If any evidence is created by that scenario, it is the statement of identification itself.”

But Judge Jonathan Biran interjected that a killer fearful of having been seen by a witness, caught on someone’s cellphone camera or captured by video surveillance might feel compelled to change a physical attribute that would link him or her to the slaying.

“Does the fact that this crime occurred in broad daylight, in Baltimore City, can that support an inference that, whoever the killer was, they could reasonably be concerned that they could be apprehended by a witness or by video footage?” Biran asked.

Rasin responded that a prosecutor may permissibly argue at trial that the defendant changed his or her appearance. However, a judge goes too far by instructing the jury that the change could indicate evidence has been destroyed, an instruction that strongly implies the defendant is guilty of the crime charged, Rasin said.

“Of course, Mr. Rainey’s appearance is going to be important,” Rasin said.

“It is perfectly reasonable for the prosecutor to argue, ‘Yes, his hair looks different but it’s the same guy and I think he did that because he was trying to evade detection,’ ” Rasin added. “I think that’s a reasonable, fair way for the state to admit and argue this evidence to the jury. But there is no reason why the judge should put their thumb on the scale when it comes to something like a hair change, which is just as likely to be innocent as it is to be consciousness of guilt.”

But Coates, arguing for the state, said hairstyle is an “identifying physical characteristic” that someone “may have a motivation to change if they believe they could be detected, arrested and prosecuted” unless evidence of the hairstyle is destroyed.

“The destruction here is not destruction in what you might think of as the classic sense – you know, the police are at the door and someone is flushing money down the toilet – but it’s the removal of this identifying physical characteristic,” Coates said.

The Court of Appeals 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.