Rainey v. State

Robert Rainey v. State of Maryland, No. 54, September Term, 2021. Opinion by Hotten, J. CRIMINAL LAW – JURY INSTRUCTION – DESTRUCTION OR CONCEALMENT OF EVIDENCE A destruction or concealment of evidence jury instruction, like any consciousness of guilt jury instruction, requires the State to provide “some evidence” to support a chain of four inferences (“Thompson inferences”) connecting the destruction or concealment of evidence to actual guilt. In the case at bar, the State requested and, the circuit court gave, a destruction or concealment of evidence jury instruction based on the defendant cutting off shoulder-length dreadlocks between the time of the murder and the time of the arrest. The State produced eyewitness testimony and surveillance video that established the defendant wore dreadlocks at the time of the murder.

The eyewitness testified that the defendant was a constant presence in the area and that the defendant shot the victim multiple times following a dispute over money. The eyewitness saw the defendant five weeks later in the same area with close-cropped hair. The Court of Appeals held that the circuit court did not abuse its discretion by giving a destruction or concealment of evidence jury instruction based on the evidence that the defendant cut off his shoulder-length dreadlocks between the time of the arrest and the time of the murder. CRIMINAL LAW – JURY INSTRUCTION – THOMPSON INFERENCES The circuit court is presumed to know and correctly apply the law.

The circuit court is also not required “to spell out in words every thought and step of logic[]” when rendering a decision. Beales v. State, 329 Md. 263, 273 , 619 A.2d 105, 110 (1993). The Court of Appeals held that the circuit court was not required to articulate its reasoning for giving a destruction or concealment of evidence jury instruction on the record. Upon independent review, the Court concluded that there was no indication in the case at bar that the circuit court erred in finding some evidence to satisfy the four Thompson inferences necessary to give the destruction or concealment of evidence jury instruction.

CRIMINAL LAW – HARMLESS ERROR – JURY INSTRUCTION Assuming, arguendo, that the circuit court erred in giving a destruction or concealment of evidence jury instruction, the Court of Appeals held that the error was harmless beyond a reasonable doubt. The evidence presented at trial, as emphasized by the State, specifically concerned whether the defendant’s cutting off his dreadlocks suggested consciousness of guilt. While the circuit court in the case at bar could have tailored the destruction or concealment of evidence instruction to specifically reference the change in appearance, the jury understood that the instruction referred to the cutting of dreadlocks. The instruction appropriately cautioned the jury that they first must determine whether the defendant destroyed evidence, and only then, whether the act suggested consciousness of guilt.

Circuit Court for Baltimore City Case No. 117186008 Argued: June 1, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 54 September Term, 2021 __________________________________ ROBERT RAINEY v. STATE OF MARYLAND __________________________________ Watts, Hotten, Booth, Biran, Eaves, McDonald, Robert N., (Senior Judge, Specially Assigned) Getty, Joseph M., (Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: August 11, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-08-11 11:53-04:00 Suzanne C. Johnson, Clerk 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? 1 The order granting the petition for certiorari declined to adopt a sixth question presented by Petitioner pertaining to the admission of particular evidence. 2 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. 3 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 2 Ms. Creighton most likely meant a “black t-shirt” and a “break t-shirt” was probably a transcription error. 4 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. 3 When law enforcement first approached Ms. Creighton at the scene, Ms. Creighton stated that the suspect was wearing a “[b]lack t-shirt, blue jean shorts, long dreads.” Ms. Creighton testified that she inadvertently mixed up the t-shirt color because she was experiencing stress and apprehension about talking to law enforcement soon after the shooting.

Ms. Creighton was also upset because of her grandson’s proximity to a shooting. While Ms. Creighton feared retribution for speaking up, she shared her observations with law enforcement “[b]ecause somebody got to make a difference.” 4 Petitioner notes that Ms. Creighton gave this identification with 70% confidence. Ms. Creighton testified that she was “sure” about “the eyes, the nose, and the facial structure,” but was initially thrown off by the appearance of a goatee and Petitioner’s comparably lighter complexion in the photograph than from what she recalled from the street. When Ms. Creighton later saw (and heard) Petitioner outside of her house on June 6, 2017, she was a “hundred percent” sure it was the same person that shot Mr. Tibbs. 5 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 enforcement, she dialed 911 and the police arrested him. Ms. Creighton testified that between the shooting and the arrest, Petitioner cut his shoulder-length dreadlocks to a short, close-cropped hairstyle.5 Ms. Creighton identified Petitioner as the shooter in open court and stated that she was “100 percent sure” that Petitioner was the man who murdered Mr. Tibbs. 5 Ms. Creighton saw Petitioner on Memorial Day, but did not call the police because he left the area too quickly. 6 The State introduced into evidence several video exhibits that captured Petitioner and Mr. Tibbs before the murder. Ms. Creighton identified both men in a surveillance video played by the State.

The State also admitted video evidence that showed Petitioner using a red Toyota convertible on the day of the murder. Two days after the shooting, law enforcement stopped a person, not Petitioner, driving the same red Toyota convertible. The driver went down a nearby alley, which the police suspected was an attempt to hide the murder weapon. Law enforcement entered the alley and discovered the murder weapon placed in the wheel well of a parked truck.

Law enforcement also recovered Petitioner’s fingerprints on the red Toyota convertible. The State requested a pattern jury instruction on destruction or concealment of evidence based on the fact that Petitioner had dreadlocks at the time of the shooting, but cut his hair short at some point before his arrest and after fleeing the scene: We have a photo from March with shoulder-length dreadlocks and we have a photo from June with a clean shaven head. And the State’s argument is that drastically altering one’s physical appearance in close proximity to the commission of a crime is an attempt to avoid detection. [Maryland Pattern Jury Instruction (“MPJI”)] 3:26, is, “Concealment or destruction of evidence is consciousness of guilt,” and in my experience that’s typically associated with physical evidence. *** But I think drastically changing your physical appearance within a month of the crime, when we know that months prior to the crime you were a different look, is sufficient consciousness of guilt for the jury to decide whether or not that is a proven fact. That’s the basis for the request.

Defense counsel for Petitioner objected to the proposed instruction as unsupported by the evidence: 7 There is no testimony given at all that [Petitioner] destroyed evidence or concealed it. *** [T]here were no dates given when he cut his hair, there was no testimony about why he cut his hair . . . [s]o for us to decide for the jury that . . . in those videos and in those still photos that that is [Petitioner], when the only testimony given is from Daphne Creighton [] and no other proof that that’s [Petitioner], we are, by giving this instruction, deciding for the jury already that that is [Petitioner] with the dre[a]ds on that day. Then we’re taking it a step further and telling the jury that him cutting his hair is destroying evidence. If that’s the case when we cut our hair . . . we could be deemed to be doing it to destroy evidence, and . . . I think that it’s more than reaching.

I think it’s very prejudicial to [Petitioner] and just false. The circuit court gave the pattern destruction or concealment of evidence jury instruction over defense counsel’s objection: 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 circuit court delivered other jury instructions that spanned sixteen pages in the record and lasted approximately thirty minutes. In addition to jury instructions relating to the burden of proof, the role of the jury, and an explanation of the charges, the circuit court instructed the jury regarding the weight of witness testimony and flight.

The jury retired to deliberate at 12:46 p.m. on July 18. The circuit court released the jury for lunch at 12:53 p.m., and ordered the jury to reconvene at 2:00 p.m. The jury recessed at 4:33 p.m., and reconvened deliberations at 9:30 a.m. on July 19. The jury 8 reached a verdict by 10:50 a.m.

The jury deliberated no more than three and a half to four hours following a six-day trial. The jury sent several notes to the circuit court during deliberations, but only one concerned an issue relevant to the case at bar: “How much does R. Rainey, Defendant, weigh now? How much did R. Rainey weigh in June 2017? How tall is Mr. R. Rainey?” The circuit court responded, “You have all of the evidence.” The jury found Petitioner guilty of first-degree murder, using a handgun in a crime of violence, and possessing a firearm after a disqualifying conviction.

The circuit court sentenced Petitioner to life in prison for first-degree murder, twenty years for the handgun offense with the first five years without the possibility of parole, and five years on the possession offense without parole, both to run concurrently with the first-degree murder conviction. Petitioner timely appealed to the Court of Special Appeals. Opinion of the Court of Special Appeals After the parties filed their briefs, the intermediate appellate court requested further briefing on (1) whether the circuit court abused its discretion by failing to state on the record that it had determined the evidence supported each of the four inferences necessary for a consciousness of guilt instruction pursuant to Thompson v. State, 393 Md. 291 , 901 A.2d 208 (2006). The court also requested briefing on (2) whether a person’s physical appearance constituted evidence for purposes of a consciousness of guilt instruction, and (3) whether the given instruction, assuming it was error, was harmless.

The Court of Special Appeals affirmed the circuit court and concluded that the circuit court did not abuse 9 its discretion by giving a destruction or concealment of evidence jury instruction, and any error was harmless. Rainey v. State, 252 Md. App. 578 , 260 A.3d 711 (2021). While the circuit court did not expressly discuss the Thompson inferences or whether they were satisfied in the instant case, the Court of Special Appeals found that the circuit court’s silence did not equate with lack of consideration. Id. at 594, 260 A.3d at 720.

Circuit courts are presumed to know the law and apply it correctly, and the intermediate appellate court did not find any indication to the contrary. Id., 260 A.3d at 720. The Court of Special Appeals held that the circuit court did not err in failing to express its analysis of Thompson on the record. Id. at 595, 260 A.3d at 720.

The court also found that a defendant’s physical appearance may constitute “evidence” at trial. Id. at 598, 260 A.3d at 722. No Maryland case had directly considered whether a person’s hair constituted evidence, but the court was persuaded by the State’s citation of cases from Maryland and sister jurisdictions in which physical attributes were considered evidence. Id., 260 A.3d at 722.

Accepting the premise that hair constitutes evidence, the court reasoned “that when defendants do something to remove [hair] . . . they can properly be said to have destroyed or concealed evidence.” Id., 260 A.3d at 722 (citation omitted). After establishing that cutting hair may be synonymous with destruction or concealment of evidence, the court found “some evidence” to generate the Thompson inferences. Id., 260 A.3d at 722. State exhibits and testimony from Ms. Creighton demonstrated that Petitioner wore dreadlocks at the time of the shooting.

The court also noted that “[Petitioner] abruptly disappeared for a month after the shooting.” Id. at 599, 10 260 A.3d at 723. Approximately a month later, Petitioner returned with his hair “cropped closely to the skull instead of shoulder-length dreadlocks.” Id., 260 A.3d at 723. According to the court, this evidence satisfied the four Thompson inferences. Id., 260 A.3d at 723.

The court rejected Petitioner’s contention that the jury instruction presupposed guilt. Id. at 600, 260 A.3d at 724. The jury considered testimony and saw exhibits that demonstrated Petitioner had cut his hair, and the court noted the instruction informed the jury that they must “first decide whether the Defendant destroyed or concealed evidence in this case.” Id., 260 A.3d at 724. The court found that the instruction adequately cautioned the jury that destruction or concealment of evidence “is not enough . . . by itself to establish guilt . . . [as such evidence] may be motivated by a variety of factors, some of which are fully consistent with innocence.” Id., 260 A.3d at 724.

Finally, the court observed that the instruction did not suggest Petitioner was the assailant. Id. at 601, 260 A.3d at 724. The court concluded, arguendo, that any error regarding the instruction was harmless beyond a reasonable doubt. Id. at 602, 260 A.3d at 725.

The court reasoned that the destruction or concealment of evidence instruction was synonymous with change in appearance. While the circuit court could have given a customized change-in-appearance instruction, the jury “undoubtedly understood” that the destruction or concealment of evidence instruction conveyed the same meaning. Therefore, “[Petitioner] was not harmed by the [circuit] court’s error, if any.” Id. at 604, 260 A.3d at 726. 11 The Contentions of the Parties A. Petitioner Petitioner acknowledges the prerogative of the State to argue that changing one’s appearance evinces consciousness of guilt, but according to Petitioner, a destruction or concealment of evidence jury instruction was not appropriate in the case at bar because there was no evidence to generate such an instruction. Petitioner further contends that the destruction or concealment of evidence instruction was inapplicable to the instant case because it took an instruction typically given for physical evidence, such as an incriminating weapon or communication, and applied it to an aspect of a person’s appearance.

Petitioner argues that the State failed to satisfy any of the prerequisites to generate a consciousness of guilt jury instruction. First, Petitioner contends there was no evidence to support the first and second (of four) Thompson inferences: change in hairstyle suggested a desire to conceal evidence, and a desire to conceal evidence indicated a consciousness of guilt. According to Petitioner, two considerations inform whether a particular post-crime behavior suggests consciousness of guilt: (1) the defendant’s awareness of a criminal investigation, and (2) the amount of time that elapsed between the crime and post-crime behavior. Petitioner contends that there was no evidence that he was subject to a police investigation, and that approximately five weeks had elapsed between the crime and the change in his appearance.

According to Petitioner, the change in hairstyle “could be interpreted as self-inculpatory only by permitting the jury to speculate as to [P]etitioner’s motive for making the change.” Petitioner argues that the Court of Special Appeals erred 12 in relying on Ms. Creighton’s testimony as some evidence establishing destruction or concealment of evidence. According to Petitioner, Ms. Creighton never testified that Petitioner “disappeared[.]” At most, Petitioner contends, Ms. Creighton’s testimony demonstrates that a haircut may have occurred within five weeks of the murder. Second, Petitioner argues that, as a necessary condition for a destruction or concealment of evidence jury instruction, the defendant must “be aware that his hair is in fact evidence[.] . . .” Otherwise, according to Petitioner, the instruction decides for the jury that Petitioner was the person with dreadlocks that murdered Mr. Tibbs. According to Petitioner, hair did not meet the definition of evidence as provided in MPJI-CR 3:00.6 Petitioner contends that the evidence jury instruction, MPJI-CR 3:00, may have confused jurors in this case, when there was also a destruction or concealment of evidence instruction 6 MPJI-CR 3:00 provides in relevant part: In making your decision, you must consider the evidence in this case; that is (1) testimony from the witness stand; [and] (2) physical evidence or exhibits admitted into evidence; [and] (3) [stipulations; and] (4) [depositions; and] (5) [facts that I have judicially noticed.] In evaluating the evidence, you should consider it in light of your own experiences.

You may draw any reasonable conclusion from the evidence that you believe to be justified by common sense and your own experiences. 13 given that asked jurors to consider whether “evidence” was destroyed that did not fit into the definition provided in MPJI-CR 3:00. Petitioner also argues that the circuit court erred by not placing its Thompson inference analysis on the record, because there was no indication that the circuit court considered the required inferences and whether each was supported by the evidence. Petitioner contends that placing reasoning on the record safeguards against unwarranted instructions, takes the guesswork out of appellate review, and protects against unfair advantage to one of the parties. According to Petitioner, this Court has required the circuit court to articulate its reasoning on the record when determining whether to admit evidence of a defendant’s prior bad acts or crimes.

Petitioner argues that giving a destruction or concealment of evidence instruction was not harmless error and warrants reversal. Petitioner uses the factors outlined in Dionas v. State, 436 Md. 97 , 110‒13, 80 A.3d 1058 , 1066‒68 (2013), to argue that the error was not harmless: nature and effect of the error, jury’s behavior during deliberations, and length of deliberations. According to Petitioner, the nature of the error was that the instruction presupposed Petitioner’s guilt, which invaded the province of the jury. The weight given to binding jury instructions exacerbated the error.

According to Petitioner, the error also influenced the behavior of the jury. The jury asked about Petitioner’s appearance and returned a verdict three and a half to four hours after beginning deliberations. The State, according to Petitioner, relied on the erroneous instruction by emphasizing the haircut during closing argument. 14 Petitioner also argues that the circuit court presupposed guilt by identifying Petitioner as “the defendant” as opposed to “a defendant” in the destruction or concealment of evidence jury instruction. According to Petitioner, the definite article “the” implied that Petitioner was the person who murdered Mr. Tibbs, and the jury instruction should have referred to an abstract defendant.

Finally, Petitioner contends that it was error not to provide a tailored alteration of appearance instruction because the label, alteration of appearance, is more neutral, and therefore less prejudicial, compared to destruction or concealment of evidence. According to Petitioner, the Court of Special Appeals improperly applied the harmless error analysis by suggesting that the destruction or concealment of evidence instruction was substantively similar to an alteration of appearance instruction. Petitioner argues that the error was not harmless beyond a reasonable doubt and warrants reversal. B. The State The State counters that Ms. Creighton’s testimony, coupled with surveillance footage and forensic evidence, provided sufficient evidence to generate a “Concealment or Destruction of Evidence as Consciousness of Guilt[]” jury instruction.

Ms. Creighton knew Petitioner sold drugs in the neighborhood and witnessed Petitioner and Mr. Tibbs engaged in an argument minutes before the murder. According to the State, the combination of Ms. Creighton’s testimony, the surveillance video, and recovered forensic evidence established that Petitioner shot Mr. Tibbs six times in broad daylight before fleeing the scene and dramatically changing the appearance of his hair from shoulder- length dreadlocks to a close crop. The State contends that, from this evidence, the jury 15 could reasonably infer that when Petitioner changed his hairstyle, he knew he assaulted or murdered Mr. Tibbs in public, on a street block where he stood daily, and that had multiple security cameras. According to the State, these circumstances distinguished Petitioner’s conduct from otherwise innocent activity.

The State contends there is no requirement for law enforcement to notify Petitioner of his wanted status to generate a consciousness of guilt instruction. In addition, the State asserts that this Court should reject the argument that MPJI-CR 3:00 precludes hair from being considered evidence in this case. The definition of evidence in MPJI-CR 3:00 does not define evidence as contemplated by MPJI-CR 3:26. According to the State, confining the definition of all evidence to MPJI-CR 3:00 would make MPJI-CR 3:26 unavailable any time the defendant destroyed or concealed evidence before trial.

The State contends that Maryland common law already considers identifying physical characteristics as admissible evidence. The State argues that the circuit court did not need to express the Thompson inferences on the record because (1) it is presumed that the circuit court knows and applies the law correctly, and (2) sufficiency of evidence to generate a jury instruction presents a legal question which this Court reviews de novo. The State contends that any error in the destruction or concealment of evidence jury instruction was harmless because the jury understood, under the circumstances, that the instruction referred to a change in appearance. While a customized instruction would have been preferable because of its specificity, the State argues it would not have been substantively different from a destruction or concealment of evidence instruction. 16 The State also contends that the instruction did not presuppose guilt or usurp the role of the jury.

The instruction required the jury to first decide whether Petitioner destroyed or concealed evidence, and then whether such an act indicated consciousness of guilt. The State asserts that, under these circumstances, the jury understood that its first task was to determine whether Petitioner cut his hair, and only then, whether cutting his hair indicated consciousness of guilt. The State underscored this interpretation of the instructions in closing argument. According to the State, the first sentence of the instruction, “You have heard [evidence] that the Defendant [] destroyed or concealed evidence[,]” was not an error, but rather an isolated remark read to the jury among a long litany of instructions without objection.

The State did not repeat the remark. Apart from this particular remark, the circuit court repeatedly emphasized the proper role of the jury. The State also contends that Petitioner’s argument concerning the use of “the defendant[,]” instead of “a defendant,” in the instruction was unpreserved. Assuming, arguendo, that this Court reaches the issue, it was harmless because the jury would have understood that the instruction pertained to Petitioner regardless of the article used.

The State also disputes the relevance of the jury deliberations and notes. According to the State, the jury deliberated for three and a half to four hours following a six-day trial, which was “unremarkable.” There was no Allen charge or notes reflecting an impasse. The jury notes never asked for clarification of destruction or concealment of evidence or asked about Petitioner’s hair. Lastly, the State argues that any error associated with the 17 destruction or concealment of evidence jury instruction was harmless beyond a reasonable doubt when weighed against the totality of evidence.

DISCUSSION Standard of Review We review the decision of the circuit court to give a jury instruction for abuse of discretion. Thompson, 393 Md. at 311 , 901 A.2d at 220 . Pursuant to Md. Rule 4-325(c), a circuit court must give a requested jury instruction when “(1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.” Ware v. State, 348 Md. 19, 58 , 702 A.2d 699, 718 (1997); see also Cost v. State, 417 Md. 360, 369 , 10 A.3d 184, 189 (2010) (noting that when reviewing a jury instruction for abuse of discretion, the instructions “[m]ust be read together[.] . . .”). “A requested jury instruction is applicable if the evidence is sufficient to permit a jury to find its factual predicate.” Bazzle v. State, 426 Md. 541, 550 , 45 A.3d 166, 171 (2012). Sufficiency of evidence is a question of law for the circuit court, and on appellate review, this Court must independently determine whether the requesting party (i.e., the State in this case) “produced [the] minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.” Id., 45 A.3d at 171 (citation omitted).

The requesting party must only produce “some evidence” to support the requested instruction, 18 and this Court views the facts in the light most favorable to the requesting party. Dykes v. State, 319 Md. 206 , 216‒17, 571 A.2d 1251, 1257 (1990). Analysis Evidence of a defendant’s conduct following a crime may be admissible as circumstantial evidence of consciousness of guilt, but not when the conduct is too ambiguous or equivocal to indicate consciousness of guilt. See Alberty v. United States, 162 U.S. 499, 511 , 16 S. Ct. 864, 868 (1896) (quoting Proverbs 28:1) (“Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’”).

A wide range of post-crime conduct may be admissible as circumstantial evidence of consciousness of guilt, including the destruction or concealment of evidence. The objective of a consciousness of guilt jury instruction is to assist the jury to fulfill their role as factfinders by determining first, whether the post-crime behavior occurred, and second, whether the post-crime behavior was motivated by consciousness of guilt or other factors consistent with innocence. See Dickey v. State, 404 Md. 187, 197 , 946 A.2d 444, 450 (2008) (“The main purpose of jury instructions is to aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.”) (quotation marks and citation omitted). A. Change of appearance may support a destruction or concealment of evidence jury instruction.

Post-crime behavior, including destruction or concealment of evidence, is admissible as evidence of consciousness of guilt “because the particular behavior provides clues to the person’s state of mind . . . . [A]s Professor Wigmore suggested, the commission 19 of a crime can be expected to leave some mental traces on the criminal.” Thomas v. State, 372 Md. 342, 352 , 812 A.2d 1050, 1056 (2002) (Thomas I) (citation omitted). Any type of post-crime behavior “should be admissible to prove guilt if [this Court] can say that the fact that the accused behaved in a particular way renders more probable the fact of their guilt. As is the nature of circumstantial evidence, the probative value of ‘guilty behavior’ depends upon the degree of confidence with which certain inferences may be drawn.” Id., 812 A.2d at 1056 (citations and quotation marks omitted). Flight constitutes the archetypal