Rainey v. State

• Decision Date: 11 August 2022
• Docket Number: 54-2021
• Parties: ROBERT RAINEY v. STATE OF MARYLAND
• Court: Court of Appeals of Maryland

ROBERT RAINEY v. STATE OF MARYLAND

No. 54-2021

Court of Appeals of Maryland

August 11, 2022

Argued: June 1, 2022

Circuit Court for Baltimore City Case No. 117186008

Watts, Hotten, Booth, Biran, Eaves, McDonald, Robert N., (Senior Judge, Specially Assigned) Getty, Joseph M., (Senior Judge, Specially Assigned) JJ.

OPINION

Hotten, J.

In a matter of first impression, we are asked to determine whether it was reversible error for a circuit court to give a destruction or concealment of evidence jury instruction based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.

On May 2, 2017, members of the Baltimore City Police Department ("BCPD") responded to a shooting in the 800 block of North Glover Street in Baltimore City. An officer found Mr. Dartania Tibbs deceased in an alley. A nearby witness identified the shooter as Mr. Robert Rainey ("Petitioner"). At the time of the shooting, Petitioner wore shoulder-length dreadlocks. Approximately a month later, the witness recognized Petitioner 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.

During a jury trial before the Circuit Court for Baltimore City, 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. Over objection from defense counsel, the circuit court gave the pattern jury instruction for destruction or concealment of evidence. The jury found Petitioner guilty of first-degree murder and related gun offenses. The circuit court sentenced Petitioner to life in prison for first-degree murder and twenty years for the other offenses to run concurrently with the first-degree murder sentence, the first five years without the possibly of parole.

Petitioner appealed the convictions to the Court of Special Appeals, which affirmed. The intermediate appellate court found sufficient evidence to generate the destruction or concealment of evidence jury instruction, but acknowledged it would have been preferable to have customized the jury instruction to specifically describe the cutting of hair between the time of the crime and the arrest. According to the court, any error relative to the destruction or concealment of evidence jury instruction was harmless because the jury knew the instruction referred to Petitioner's cutting of hair and did not improperly affect the decision of the jury beyond a reasonable doubt.

We granted certiorari on January 11, 2022, Rainey v. State, 477 Md. 149, 266 A.3d 990 (2022), to address the following questions:^[1]

1. As a matter of first impression, can a suspect's change in appearance (in this case, a change in hairstyle) at some point between the time of the crime and the time of his arrest[,] support a [destruction or concealment of evidence] jury instruction?

2. Under the four-inference test adopted in Thompson v. State, 393 Md. 291[, 901 A.2d 208] (2006), [consciousness of guilt] jury instructions may not be given unless evidence supports all four of the necessary inferences. As a matter of first impression, is [the circuit court] required to consider the four inferences on the record before giving a [consciousness of guilt] jury instruction, here a [destruction or concealment of evidence] instruction?

3. Even if the [circuit] court is not required to state its reasoning regarding the four inferences on the record, (a) was it improper to give the instruction in this case where the evidence did not support the four inferences because [P]etitioner had not been charged or arrested at the time of his haircut and there was no evidence that he was aware that he was the subject of an investigation, and (b) is reversal required where there is no indication in the record that the [circuit] court considered the four Thompson inferences?

4. Did the intermediate appellate court err in holding that although "it is preferable, in all cases in which a defendant has allegedly changed his appearance in order to avoid identification, to employ a custom instruction that focuses on the change of appearance as potential evidence of consciousness of guilt," the giving of the [destruction or concealment of evidence] instruction was harmless in this case because a different modified instruction that does not include the language, "You have heard evidence that the defendant destroyed evidence" could have been given but was not?

5. Was giving the [destruction or concealment of evidence] jury instruction harmless error where the pattern instruction was not modified, the prosecutor relied on the instruction in closing argument, the jury asked multiple questions during deliberations regarding changes in [P]etitioner's appearance, and significant evidence pointed to the guilt of another party?

(Internal quotations omitted).

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. Finally, we agree with the Court of Special Appeals that it would have been preferable for the circuit court to have tailored the pattern destruction or concealment of evidence jury instruction to reflect the facts of this case, but any error relative to the instruction in the case at bar was harmless. Accordingly, we answer the first and last question in the affirmative, the second, third, and fourth question in the negative, and shall affirm the judgment of the Court of Special Appeals.

Facts and Procedural Background

Underlying Incident

At 5:31 p.m. on May 2, 2017, law enforcement responded to a shooting in the 800 block of North Glover Street in Baltimore City. BCPD Officer Kent Sowers found Mr. Dartania Tibbs deceased in an alley. Mr. Tibbs was struck by six bullets from close range. At approximately 5:00 p.m., Citiwatch and nearby surveillance video footage captured Petitioner excitedly gesticulating at Mr. Tibbs when Mr. Tibbs refused to hand over 70 dollars to Petitioner. Citiwatch and surveillance footage depicted a woman and young child within view of the scene of the murder. Law enforcement identified the woman as Daphne Creighton.

Ms Creighton had lived in the neighborhood for several years. She was familiar with the illicit drug trade occurring within the neighborhood and Petitioner's specific involvement in the local drug trade for the past twelve to eighteen months. Ms. Creighton was outside on her steps with her grandson and dog, when she saw and heard Mr. Tibbs and Petitioner arguing over money.

Ms. Creighton gave a statement to law enforcement later that evening:

Officer: Ma'am describe the first person. I know you said something about some dreads. Describe the guy with the dreads.

Ms. Creighton: He was tall, slim, and usually he's around here all the time. . . . Well, he usually has these two outfits he wears all the time. . . . It's usually a break^[2] t-shirt and some dusty blue jeans and some black shoes. . . . Then he got another outfit that he wears, which is a white t-shirt with . . . blue shorts. And that's what I remember today was the shorts, but I wasn't sure about the t-shirt.^[3]

Six days later, law enforcement presented Ms. Creighton with a photo array of men wearing shoulder-length dreadlocks. Ms. Creighton selected a picture of Petitioner and wrote in a box labeled "STATEMENT" beneath the picture: "This Gentleman looks closely to me like the shooter I saw[.]"^[4] BCPD officers asked Ms. Creighton to call the police if she saw Petitioner again on the street. On June 6, 2017, Ms. Creighton saw Petitioner near her home, but with a short haircut. She called 911, and BCPD officers arrested Petitioner.

Circuit Court Proceedings

The case proceeded to a six-day jury trial in the Circuit Court for Baltimore City. The State called twelve witnesses including members of law enforcement, a crime lab technician, a forensic analyst, and a medical examiner. Ms. Creighton was the only witness who provided a first-hand account of the events in her testimony.

Ms. Creighton testified that she was sitting on her front steps when she overheard Petitioner and Mr. Tibbs arguing about money. According to Ms. Creighton, Petitioner wore dreadlocks that were "hanging loose and going back and forth." According to Ms. Creighton, Petitioner wore "a white t-shirt, shorts, and a pair of gray New Balance shoes[.]" This description matched nearby surveillance video footage.

Ms. Creighton stated that Petitioner had stood on the nearby corner selling drugs "all the time[]" for about twelve to eighteen months before the shooting. Ms. Creighton witnessed Petitioner engaged in an argument with Mr. Tibbs, but saw Petitioner walk away after Mr. Tibbs refused to give him money. Ms. Creighton remained outside on her steps with her grandson, and a short time later heard several loud "booms[.]" Ms. Creighton saw Petitioner "with his arm raised and the other man lying in the alley." Immediately following the shooting, Ms. Creighton saw Petitioner look up and down the street and run off. Ms. Creighton stepped into the street and saw Mr. Tibbs lying in the alley.

Approximately a month later, on June 6, 2017, Ms. Creighton saw Petitioner and following the instructions from law...