Barber v. State

Thompson, J., delivered the opinion of the Court. Ellis Harley Barber, appellant, was convicted of grand larceny by the Circuit Court for Prince George’s County. He contends on appeal that the State failed to establish that the value of the stolen goods exceeded $100.00; therefore, his motion for acquittal should have been granted. We agree.

We shall also discuss the validity of a search and seizure and the admissibility of certain evidence for the guidance of the trial court on retrial. I Value The record shows that the only goods stolen were a box of pills and a diamond ring. The State offered no evidence concerning the value of the pills. As to the diamond ring, during direct examination, the State’s Attorney asked the owner, “Can you state for the benefit of the Court and the jury what the fair market value of this ring is? ” A. “I would say approximately a hundred and fifty dollars.” On cross-examination the owner testified she did not know the fair market value, and that the ring was a gift.

Although the law is well established that an owner is presumed to know the market value of his possessions and is ⁶⁵⁷ permitted to give his opinion thereon, when the record shows that he does not in fact know the market value, his opinion, even though perhaps in some cases admissible, is not alone sufficient to establish value. This is especially true where the value of the stolen goods barely exceeds $100, the amount which must be proven to support a charge of grand larceny. Md. Code, Art. 27, § 340. The Court of Appeals reviewed this question carefully in Cofflin v. State, 230 Md. 139, 142 , 186 A. 2d 216 (1962) and stated: “It is well settled in this State that an owner of personal property in common use may express an opinion as to its value without qualification as an expert.

Bresnan v. Weaver, 151 Md. 375, 378 ; Bailey v. Ford, 151 Md. 664, 667 ; Casualty Ins. Co. v. Messenger, 181 Md. 295, 302 ; Jackson v. Linthicum, 192 Md. 272, 276 . Cf. State Roads Com. of Md. v. Novosel, 203 Md. 619, 624 .

The case of Mutual Fire Ins. Co. v. Owen, 148 Md. 257 , 267 is not here in point. The testimony of the owner’s wife was admitted on the theory that she had taken an inventory of the goods, in her husband’s store, at cost, based on actual records and in a few instances on wholesale catalogue prices. The rule applies in criminal as well as civil cases.

Jewell v. State, 216 Md. 110, 112 ; Shipley v. State, 220 Md. 463, 466 ; Benton v. State, 228 Md. 309, 311 . The rule is almost universally recognized. See Underhill, Criminal Evidence (5th ed.) § 603 P. 1474 ; Wigmore, Evidence (3rd ed.) § 716; 2 Wharton, Criminal Evidence (12th ed.) § 550. The cases are collected in an exhaustive note 37 A.L.R.2d 967 .

Wigmore, in an often quoted passage, seems to take the position that an owner is qualified per se, and that any lack of knowledge goes only to the weight of the evidence. But many courts have held that ownership establishes a rebuttable presumption of knowledge. See Sykes v. Wood, 91 So. 320 (Ala.), and cases collected in 37 A.L.R.2d. supra, p. 984 et seq. It has been held that the rule does not rest on ⁶⁵⁸ the fact that the owner has title, but rather on the fact that ordinarily an owner knows the property intimately and is familiar with its value.

Menici v. Orton Crane & Shovel Co., 189 N.E. 839 (Mass.). See also Shea v. Hudson, 165 Mass. 43 , cited in both the Bresnan and Bailey cases, supra, in 151 Md., and in the Messenger case as well. Thus, an owner who has purchased the property in question or similar property would normally have some knowledge of its market price and present condition. In Rubin v. Town of Arlington, 99 N.E. 2d. 30 (Mass.) it was held that the qualification of an owner presented a preliminary question of fact for the trial judge, and this is the rule in other States.

Thus, if it is demonstrated that the owner possesses no knowledge whatever of the market price and condition of the article in question, his testimony may be inadmissible. In Shipley v. State, supra, we noted that it was held in Narango v. State, 87 Tex. Crim. 493 , 222 S. W. 564 , that a bailee may likewise testify to value without qualification, but we found it unnecessary to pass on the point in that case.” The Wigmore view referred to by the Court of Appeals in Cofflin seems to have been modified in later editions. 3 Wigmore on Evidence § 716 (Chadbourn rev. 1970) states as follows: “Knowledge of value standard; what tests are proper? (continued): Personal-property value.

Here the general test, that any one familiar with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests.1 “The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy.2 ⁶⁵⁹ “However, where it appears (either expressly or by reasonable inference) that the owner in fact lacks knowledge of the particular value at issue, his opinion may be ruled inadmissible.3 “The general rule that any owner may evaluate his own property does not apply to one who merely holds legal title and has not enjoyed the usual incidents of personal ownership.4 ” In § 716, note 2, a number of cases are cited which hold that even though such evidence may at times be admissible, it is insufficient alone to sustain a finding of value. Other notes in the quote cite case authority for the point discussed. In Shipley v. State, 220 Md. 463, 467 , 154 A. 2d 708 (1959), the Court pointed out a further refinement of the rule pertaining to proof of value in a grand larceny case as follows: “In such a case as this, where a portion of the stolen goods was before the trier of facts, together with a detailed list of the other clothing stolen, and the goods stolen were ordinary articles of clothing, the court or jury weighing the evidence could value the goods without the aid of expert testimony. 20 Am. Jur., Evidence § 894 (1939); State v. Peach, 70 Vt. 283 , 40 A. 732 ; 3 Underhill, Criminal Evidence § 720 (5th Ed., 1957).

Cf. 32 C.J.S., Evidence § 545 at 280 (1942). We think the lower court could reasonably infer from the clothing before it and from the description of the other articles stolen, and from the fact that the average value of each article need be only $1.45 for the total to exceed $100, that goods of a value in excess of $100 actually were stolen.” This refinement is, of course, no help to us in deciding the instant case because it is apparent that a jury cannot adequately determine the value of a diamond ring or a bottle of medicine simply by looking at them. We, therefore hold that the testimony of the owner was not sufficient in and of itself to establish that the goods taken were worth ⁶⁶⁰ more than $100.00. We have held an owner’s statement of value insufficient to support a conviction for grand larceny when it was shown he did not know the market value.

Mason v. State, 9 Md. App. 61 , 262 A. 2d 576 (1970), cert. denied, 258 Md. 729 ; Gazaille v. State, 2 Md. App. 462, 235 A. 2d 306 (1967). Compare Jones v. State, 6 Md. App. 344 , 251 A. 2d 46 (1969). II Seizures Detective David Van Dyke of the Prince George’s County Police testified that on April 19, 1973, he received a telephone call from an informant stating that the appellant, Pinkey Barber, and George Vermillion had just broken into an apartment on 85th Avenue in New Carrollton; that they were in a gray ’56 Chevrolet; and that they were still in the area. Detective Van Dyke relayed the information he had received to Detective Mark Nelson who immediately went with Detective McLamb to the area in question.

As they approached the area, they observed a gray and green 1956 Chevrolet coming in their direction in thé opposite lane of traffic. They also saw that the car was occupied by two white males. Inasmuch as traffic precluded the two detectives from following the car, they called uniformed Officers Cherba and Nugent who were in a police car nearby and asked them to make a traffic stop of the vehicle. In response to this call, Officer Cherba and Officer Nugent stopped the vehicle in question which was being operated by the appellant, Ellis Harley Barber.

Barber produced his driver’s license and registration card. In less than a minute, Detectives Nelson and McLamb arrived at the scene. Detective Nelson then approached the car and asked Mr. Vermillion to step out; he also asked if he was in fact George Vermillion. Vermillion replied “Yes.” Detective Nelson then looked into the vehicle which was a convertible with the top down.

He saw a plastic bag containing what he thought to be marijuana. He stated that he had seen marijuana numerous times before and recognized it on sight. He added that he had had formal training in the Police Academy and had been involved in numerous “narcotics” cases. The officers then ⁶⁶¹ proceeded to search the car and found a master key, a diamond ring, a pill container with prescription pills in it, five gloves, a meat cleaver and two two-way radios.

They also found an Indiana driver’s license, a birth certificate and a chemical company identification card which were all counterfeit. All of the items except the meat cleaver and a table radio (which were found in the trunk) were found in the interior of the car. Officer Cherba testified that they stopped the vehicle only because of the request of the detectives and that Mr. Barber was violating no traffic laws at the time. The trial judge denied the motion to suppress the diamond ring, the pills, the key, the two