Suspect’s Haircut = Destruction or Concealment of Evidence Leading to “Missing Evidence” Jury Instruction

In re Rainey v. State, __ Md. __, 2022 WL 3269789, at *1 (Md. Aug. 11, 2022), the Court affirmed a jury instruction on destruction or concealment of evidence “based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.”

The victim was shot and killed.  An eyewitness described the shooter as having shoulder-length dreadlocks. The Court explained: “Approximately a month later, the witness recognized Petitioner [the alleged shooter] on the street, but with a very short, close-cropped haircut. The witness called 911, and BCPD arrested Petitioner and charged him with first-degree murder, use of a handgun in a crime of violence, and possession of a firearm after a disqualifying conviction.”

At trial, “the State requested a destruction or concealment of evidence jury instruction based on evidence that Petitioner had cut his dreadlocks between the time of the murder and the time of his arrest.”

The State argued that “drastically altering one’s physical appearance in close proximity to the commission of a crime is an attempt to avoid detection.”  Over objection from defense counsel, the circuit court gave the pattern jury instruction for destruction or concealment of evidence.

In part, the the charge was:  “You have heard that the Defendant destroyed or concealed evidence in this case. Concealment or destruction of evidence is not enough, it is not enough by itself to establish guilt, but may be considered as evidence of guilt. Concealment or destruction of evidence may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide whether the Defendant destroyed or concealed evidence in this case. If you find that the Defendant destroyed or concealed evidence in this case, then you must decide whether that conduct shows a consciousness of guilt.”  The jury returned a verdict of guilty, and this appeal followed.[1]

In affirming, the Court of Appeals wrote:

We hold that a change in appearance between the time of the crime and the arrest may support a destruction or concealment of evidence jury instruction when there is some evidence to support all four consciousness of guilt inferences connecting the change in appearance to actual guilt. We also hold that there was some evidence to support all four consciousness of guilt inferences in the case at bar, and the circuit court was not required to articulate these inferences on the record.

The reasoning was that post-crime behavior, including destruction or concealing evidence, “is admissible as evidence of consciousness of guilt….”  It analogized the post-crime actions to flight from a crime scene or adopting a false name, as admissible evidence.  “[A]n innocent man is free to change his appearance at any time, but a decision to change it … may be considered as some evidence of guilt.”

The Rainey Court did not cite its recent decision in State v. Sample, 468 Md. 560 (2020).  There, Messrs. Sample and Mayo robbed a store.  Mayo was shot dead by the owner.  Sample escasped, later “unfriended” his deceased accomplice, and was subsequently arrested.  The Court held that defendant Sample’s post-crime action was admissible against him.  The act of “unfriending” in this circumstance was relevant to guilt.  That decision may have obvious application in civil cases.  Assume, for example, a sexual harassment lawsuit where the alleged harasser “unfriends” the victim after notice of the claim.

The Rainey Court cited Cost v. State, 417 Md. 360, 370 (2010), where the Court described the spoliation doctrine in civil cases and compared it to the “missing evidence” instruction in criminal cases.

As a preliminary matter, we find that Cost’s proposed instruction is most accurately labeled as a “missing evidence” instruction. While the Court of Special Appeals, as well as Cost, characterized Cost’s claim as “spoliation,” we consider this moniker misleading. As we describe below, “spoliation” is often used in civil cases, where parties withhold or destroy evidence strategically. The term “spoliation,” moreover, is often associated with egregious or bad faith actions, and not for cases involving negligent destruction or loss. Yet here, in the criminal context, “spoliation” is an imprecise term. Instead, Cost’s claim is more accurately titled as “ missing evidence,” which can include situations where the State intentionally or negligently destroyed—or merely failed to produce—relevant evidence.

Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury instruction for the “spoliation of evidence” where a party has destroyed or failed to produce evidence….

If Cost had somehow destroyed the missing evidence here, the court would have likely instructed the jury that they may infer from this action that the evidence would have been favorable to the State. For the judicial system to function fairly, one party in a case cannot be permitted to gain an unfair advantage through the destruction of evidence. The application of the “missing evidence” inference against the State in this case, as promulgated through a jury instruction, will help ensure that the interests of justice are protected.

Cost, 417 Md. at 369–70, 381 (emphasis added).  It is more challenging to envision a civil litigation analog to Rainey.  Identity is rarely an issue in civil cases.  However, there could be cases where the doctrine applies.  For example, in a civil case for damages due to sexual assault, a civil defendant’s efforts to change appearance could be relevant.

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[1] For a discussion of the intermediate appellate opinion, please see When is a Haircut Spoliation?  For a discussion of oral argument in the Court of Appeals, please see When is a Haircut Spoliation? – Recent Oral Argument in Court of Appeals.