The Supreme Court of Maryland[1] held that a change in appearance, including cutting one’s hair, between the commission of a crime and the time of arrest, might indicate a defendant’s desire to destroy or conceal evidence.  Rainey v. State, 480 Md. 230, 267, 280 A.3d 697, 718 (2022).  This post-crime conduct may support a jury instruction on destruction or concealment of evidence if there is at least some evidence to support all four requisite inferences.  Id.  The court further held that trial courts need not expressly articulate each of the requisite inferences on the record.  Id.

     On May 2, 2017, officers from the Baltimore City Police Department found Dartania Tibbs (“Tibbs”) shot dead in an alley.  Surveillance video and an eyewitness account from Daphne Creighton (“Ms. Creighton”) revealed that before the shooting, Tibbs was seen and heard arguing over money with petitioner Robert Rainey (“Rainey”).  Ms. Creighton informed the police that Rainey had been involved in the local drug trade for the past year and a half, and that Rainey had dreadlocks at the time of the murder.  Rainey was arrested a few weeks after the murder, when Ms. Creighton informed the police that she saw him with a short haircut near her home.

     At Rainey’s trial in the Circuit Court for Baltimore City, Ms. Creighton testified that after hearing several gunshots, she saw Tibbs lying in an alley and Rainey with his arm raised.  Immediately after, she observed Rainey glance around the street and then flee the scene.  The State requested a jury instruction on destruction or concealment of evidence, reasoning that Rainey’s change in appearance after the murder was indicative of a consciousness of guilt.  The court read the requested instruction over defense counsel’s objection.  The jury found Rainey guilty of first-degree murder, and the court sentenced him to life in prison.  Rainey appealed to the Appellate Court of Maryland, which upheld the conviction and the jury instruction.  Rainey then filed a petition for certiorari, which the Supreme Court of Maryland granted.

     Ultimately, three issues came before the court: (1) can a defendant’s change in appearance after the commission of a crime support a destruction or concealment of evidence jury instruction; (2) is the circuit court required to expressly consider Thompson v. State’s four-inference test before giving a consciousness of guilt instruction; and (3) did the circuit court err in reading an unmodified consciousness of guilt instruction?  Rainey, 480 Md. at 241-42, 280 A.3d at 703.

     The Supreme Court of Maryland began its analysis with an explanation of consciousness of guilt.  Rainey, 480 Md. at 256, 280 A.3d at 711.  A defendant’s post-crime conduct, including the destruction or concealment of evidence, “may be admissible as circumstantial evidence of consciousness of guilt” if a court finds that such conduct makes the defendant’s guilt more probable.  Id. (citing Alberty v. U.S., 162 U.S. 499, 511 (1896)).

     Maryland courts consider the four-part Thompson test, initially utilized in the context of flight from a crime scene, when determining the applicability of a consciousness of guilt instruction to a particular case.  Rainey, 480 Md. at 257, 280 A.3d at 712.  The test requires that: (1) “the behavior of the defendant suggests flight”; (2) “the flight suggests a consciousness of guilt”; (3) “the consciousness of guilt relates to the crime charged”; and (4) “the consciousness of guilt suggests actual guilt.”  Id. (quoting Thompson v. State, 393 Md. 291, 312, 901 A.2d 208, 220 (2006)).  Courts must find “some evidence” to support each inference.  Rainey, 480 Md. at 258, 280 A.3d at 712 (quoting Dishman v. State, 352 Md. 279, 292, 721 A.2d 699, 705 (1998)).  The test is applicable to a wide range of post-crime conduct, including changes in appearance.  Rainey, 480 Md.at 258, 280 A.3d at 712-13.

     In a case of first impression, the court considered whether cutting one’s hair is admissible as evidence of consciousness of guilt.  Rainey, 480 Md.at 260, 280 A.3d at 714.  The court adapted the Thompson inferences to this case to require that the State prove the following to support the requested instruction: (1) the cutting of Rainey’s dreadlocks indicates “a desire to conceal or destroy evidence”; (2) this desire “suggests a consciousness of guilt”; (3) “the consciousness of guilt relates” to Tibbs’ murder; and (4) “the consciousness of guilt for murder . . . suggests actual guilt” of murder.  Id. at 260, 280 A.3d at 713-14.

     The court found that Ms. Creighton’s testimony and the surveillance footage did “double duty” as evidence to support the first and second inferences.  Rainey, 480 Md.at 262, 280 A.3d at 715.  The State’s evidence established that Rainey regularly visited the neighborhood with dreadlocks before the murder, but after, he cut off his dreadlocks and ceased visiting regularly.  Id. at 261, 280 A.3d at 714-15.  The evidence further established that Rainey hastily departed the scene after checking for potential witnesses.  Id. at 262, 280 A.3d at 715.  From this, the jury could infer that Rainey cut his dreadlocks to a close crop as a means of destroying or concealing “an identifying characteristic,” which thus “tended to establish” his consciousness of guilt for Tibbs’ murder.  Id. at 261, 280 A.3d at 714.  The establishment of the first two inferences tended to establish the latter two inferences that Rainey’s consciousness of guilt for Tibbs’ murder suggests actual guilt.  Id.  Thus, the court held that because the evidence supported all four Thompson inferences, the circuit court did not err by providing a destruction or concealment of evidence instruction.  Id. at 267, 280 A.3d at 718.

     The court next addressed Rainey’s argument that the circuit court erred by not expressly stating the Thompson inferences on the record.  Rainey, 480 Md. at 267, 280 A.3d at 718.  The court explained that it is presumed that circuit courts know and accurately apply the law, thus it is expected that courts scrutinize the Thompson inferences before giving a consciousness of guilt instruction.  Id. at 267-68, 280 A.3d at 718.  Furthermore, “meaningful appellate review” of circuit court decisions is ensured because jury instructions are reviewed de novo by Maryland appellate courts.  Id. at 267, 280 A.3d at 718.  Therefore, the Supreme Court of Maryland held that trial courts need not expressly articulate their rationale for giving a consciousness of guilt instruction on the record.  Id.

     Finally, the court examined whether the circuit court’s formulation of the jury instruction was a harmless error.  Rainey, 480 Md. at 268, 280 A.3d at 719.  A harmless error is one that does not impact the verdict and will leave the judgment intact.  Id. at 268-69, 280 A.3d at 719.  Although a tailored instruction that specifically referenced Rainey’s change of appearance would have been preferable, “any potential prejudice” was harmless.  Id. at 269, 280 A.3d at 719.  The court reasoned that in closing argument, the State stressed Rainey cutting his hair and linked that to consciousness of guilt, not to the destruction or concealment of evidence.  Id. at 269-70, 280 A.3d at 719.  Furthermore, the jury did not express confusion and understood that destruction or concealment of evidence referred to Rainey cutting his dreadlocks.  Id. at 270, 280 A.3d at 720.

     The Supreme Court of Maryland held that cutting one’s hair after the commission of a crime may support a destruction or concealment of evidence jury instruction.  The party requesting a destruction or concealment of evidence instruction can conceivably present any post-crime conduct that even slightly suggests a consciousness of guilt.  The court’s decision opens the door for a wide range of innocent conduct to be considered as evidence of consciousness of guilt because there are various non-criminal reasons people may cut their hair or otherwise change their appearance.  Judges and practitioners should be wary of such a consequence, and thus should strive to reduce the potential for prejudice by modifying the pattern instruction to the particular facts of a given case.

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Kaitlyn Lyons is a third-year J.D. Candidate at the University of Baltimore School of Law and Resource Editor for Law Forum. Currently, she is working as a law clerk for the Innocence Project Clinic and the Stephenson Law Firm. Last semester, she practiced as a Rule 19 Student Attorney as part of the Veterans Advocacy Clinic. Kaitlyn received her B.A. in Government and Politics with a minor in History from the University of Maryland in 2021. Kaitlyn is set to graduate in May 2024 and hopes to pursue a career in family law and estate planning.

[1] At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland and the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022.