Binnie v. State

Decision Date01 September 1990
Docket NumberNo. 49,49
Citation583 A.2d 1037,321 Md. 572
PartiesLeslie Allen BINNIE v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Jose Felipe Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ ROBERT L. KARWACKI, * Judge of the Court of Special Appeals, Specially Assigned, and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

Judgment was entered in the Circuit Court for Washington County against Leslie Allen Binnie upon his conviction by a jury of the misdemeanor of theft of property having a value of less than $300. Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 342(a) and (f)(2). In fact, the value of the property was eleven dollars. The Court of Special Appeals affirmed the judgment in an unreported opinion. We granted Binnie's petition for a writ of certiorari and denied the State's conditional cross-petition.

Binnie does not now challenge the proof of either the corpus delicti of the offense or his criminal agency. He seeks, however, a reversal of the judgment by reason of the trial judge's refusal to instruct the jury as he requested.

The way the State said the incident happened was adduced through the testimony of James Tosadori, a security officer employed by J.C. Penney Co., Inc., at its store in Hagerstown, Maryland. "Security windows" (two-way mirrors) were located in strategic areas high up along the walls inside the store, enabling a clandestine observation of the sales floor. According to Tosadori, he was behind one of the windows, looking down on the "men's area" when he saw Binnie at a rack on which hats were displayed. Binnie took a black hat from the rack and hid it inside his jacket "under his left arm pit, put his hand in his pocket, stood there for a while," then walked through the store, "stopping along the way to browse at stuff but nothing really like he was going to buy, just stopping to look." Tosadori observed Binnie's movements by means of the mirrors and ultimately by direct contact on the sales floor. Tosadori tailed Binnie through the store to the outside. Binnie did not speak to anyone before he took the hat or to anyone after he placed the hat under his jacket. He did not converse at any time with a person in the store, employee, or customer--"[h]e walked straight out." Although there was a cash register near the hat rack, and cash registers along the route Binnie followed in leaving the store, Binnie made no effort to contact the employees who manned them.

After Binnie left the store, Tosadori stopped him. Tosadori recounted what then ensued.

I explained to him that I was Officer Tosadori. I was with J.C. Penney's security. I introduced Officer Mayer as the security manager. I said, "We have a problem. We're missing a hat." I asked ... he looked at my i.d. I handed him my i.d. and he looked at it and handed it back to me. I asked him if he would help me find it and he agreed. I said, "Okay let's start looking here." And I reached inside his jacket and from under his underarm I pulled out the black hat.

* * * * * *

We said, "Didn't you leave the store without paying for this?" And he said, "Yes." I said, "Well let's go upstairs to our operations manager's office and we have to fill out forms we're going to bar you from the store." He said okay.

We went upstairs and filled out the forms that we fill out on shoplifters. He admitting to the theft and he said was dumb by doing it but he had done it anyway.

The form was an acknowledgement that a person "has stolen something from our store," that "they know what they stole and they know it was wrong." Binnie "refused to sign it thinking that he would be giving up his rights."

Tosadori identified the hat from a photograph and the photograph was admitted in evidence without objection. A price tag containing J.C. Penney's name was prominently attached to the hat. Tosadori pointed out that the tag was "about three inches long and you have your plastic thing" attaching it to the hat. The plastic "gismo" was "about two inches so it's going to hang down so the customer can find the price tag." Tosadori avowed that the hat was never on the floor beneath the rack and that he did not see Binnie "lean down and pick up anything off the floor" near the hat rack. The officer iterated that when apprehended, Binnie admitted he stole the hat and did not indicate in any way that he believed it to be lost or abandoned property. The only explanation Binnie gave for stealing the hat was that "it was dumb, he just wanted the hat and didn't feel like paying for it."

Binnie's version as to how he came into possession of the hat may in no wise be reconciled with that of Tosadori. Binnie testified that he was in the store to buy some jackets and shirts. He met a friend and chatted with him. Something unusual occurred; he found a hat. His good fortune came about in this manner:

While I was talking to my friend we were looking through a round rack similar to the one that was already testified, the round rack with the glass plate on top. I believe there was a sale sign sitting on top of it. That particular rack had clothes on it that were for sale and I believe one half had shirts on it and the other half had some jackets on it also for sale.

He found the hat underneath the rack while he was "leafing through."

I spread the shirts far enough apart that I was leafing through them like one would on a straight rack and I looked down and right at the base of the leg where it comes down in where the wheels were there was a hat laying on the ground.

The hat was dirty.

It looked like it might have been stepped on once or twice.... [I]t was crushed a little bit, the top of it. Usually when they're new they're you know nice and formed and nice and flat. And the top of it was crushed in.

Binnie said:

I made a comment to my friend that was standing there about I found a hat. I straightened the dent out and brushed the dirt off and I folded it around a little bit and I tried it on. And I said, "Well even it fits." And I looked for a price tag and there was no price tag visible at that time.

He admitted that he was familiar with Penney's price tags, and he looked for a tag on the hat but did not see any.

I looked over the hat and there was no price tag on it. So I was sort of interested you know in why exactly the hat was underneath there. And at the time I was standing about fifteen feet from the sales clerk [manning a cash register] so I turned around and asked her.

He made no effort to conceal the hat. He walked over to the sales clerk and "asked her if this was a J.C. Penney hat."

She said she did not know. I then asked her if ... if they sold such hats. She said she did not know but the hat rack was on the other side of the men's department in the corner I was free to go look.

So Binnie went over to the rack to look "for similar hats or anything identifiable that would slightly relate to the hat [he] had found on the floor to the hats on the rack." Binnie claimed that there were "no hats on the rack that even come close to ... like the one [he] had in his hand. They all had price tags on their hats." So Binnie went back over to the salesperson, "a tall lady," he had just talked to.

At that time I says, "There was no hats ... there was no price tag on the hat." I explained to her exactly that I had found it on the floor, there was no price tags on it. I went over and looked at the rack. There was no hats like it on the rack and at that point she said, "Well I guess it's yours" very jokingly and she laughed.

At that point, Binnie said nothing further; "[he] walked out of the store." Binnie's friend had already left Binnie's presence. Binnie was carrying the hat "somewhat folded and just bent up a little bit ... just ... had a good grip on it." "[M]ost definitely," it was visible in his hand. When he was about 15 feet from the exit door of the store, he folded the cap up and stuck it in his pocket. When he reached the sidewalk outside the store, he was stopped by two men who proved to be Tosadori and Mayer, the security manager. They "grabbed" him and "spun [him] around."

And there wasn't very much communication other than they did identify themselves and there was hardly any conversation. I believe it was Mr. Tosadori was on my left. They spun me around. He had one ... one hand here and the other hand he reached in at my coat and said, "What's this?" And at which time I think the older gentleman said, "You can come on with us."

Binnie did not resist or try to run; he "was completely cooperative as much as possible." He was taken to the office.

Once we were inside the office they accused me of stealing the hat. I tried to explain exactly what happened. And the older gentleman was some ... some very much badgering in my opinion that he kept on cutting me off.

Binnie did not admit stealing the hat and refused to sign the form acknowledging that he stole it. He claimed that he did not see the price tag on the cap until he was in the office. He explained to the jury:

"The tag apparently was inside of the lip [the sweatband of the cap]." I don't know if anybody has ever worn a baseball cap or had a chance to take a look at one of their son's or whatever. But they have a sweatband like on the inside. Now this particular tag was apparently on the inside of the hat and the tag was on the inside of the lip and therefore it was not visible when you would pick the hat up and look at it. The tag was not visible whatsoever.

He claimed that the lip or sweatband was wider than the price tag. Binnie avowed that if he had seen the price tag, he would have turned the cap over to the sales...

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  • Brooks v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...to give that instruction is error, unless the point has been fairly covered by the instructions actually given. Binnie v. State, 321 Md. 572, 581-83, 583 A.2d 1037 (1991). In Evans v. State, 28 Md.App. 640, 679-80, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976), we noted that ......
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