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Price v. State

Superior Court of Delaware

May 31, 2019

PHILLIP PRICE Defendant Below, Appellant
v.
STATE OF DELAWARE, Appellee.

          Date Submitted: February 8, 2019

         Upon Consideration of Appellant's Appeal from the Court of Common Pleas AFFIRMED.

          Meryem Y. Dede, Esquire, Assistant Public Defender, Wilmington, Delaware, Attorney for Appellant.

          Stephen McCloskey, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for Appellee.

          OPINION

          Calvin L. Scott, Jr., Judge

         This is an appeal from the decision of the Court of Common Pleas. A jury convicted Appellant Phillip Price ("Price") in November 2018 of Shoplifting Under $1, 500. Price, through counsel, now seeks for the Court to reverse his conviction on the ground that he was not afforded an opportunity to request a "no-inference" jury instruction and suffered harm as a result.[1] For the following reasons, the decision of the Court of Common Pleas is AFFIRMED.

         Facts

         On March 26, 2018, Mr. Taylan Malloy was working at a Walmart located in New Castle County, Delaware in his capacity as a Loss Prevention Officer.[2] Mr. Malloy testified that on that date, while surveilling the sales floor, he observed a customer with an air mattress in his cart.[3] This drew his attention because the air mattress is considered to be "high-valued merchandise."[4] During his testimony, Mr. Malloy identified Price as the customer that he observed with the air mattress.[5]

         Mr. Malloy first observed Price with the air mattress in his cart in the Garden Center at Walmart.[6] According to Mr. Malloy s testimony, Price then left his cart with the air mattress in the Garden Center and returned back into the store.[7] At that time, Mr. Malloy requested that another employee monitor the shopping cart while Mr. Malloy checked other surveillance footage to verify whether the air mattress had been pulled off of the shelf or if it had been previously paid for (e.g., layaway).[8]After determining that the item had not previously been paid for, Mr. Malloy returned to watch the live surveillance footage of the store and observed Price at a register paying for certain items.[9] The air mattress was not among the items paid for.[10]

         Once Price concluded at the register, Mr. Malloy testified that Price then returned to the Garden Center for his cart with the air mattress still in it, and proceeded to leave the store, heading toward the parking lot.[11] It was at this time that Mr. Malloy approached Price and asked whether he had paid for the air mattress, to which Price admitted he had not.[12] Mr. Malloy testified that he then asked Price to come into the store, but Price refused.[13] Instead, according to Mr. Malloy, "[Price] was telling me to wait right there, he has something for me" before Price proceeded into his vehicle and left the premises.[14]

         Officer Haines of the Middletown Police Department also testified at trial.[15] Officer Haines was working on March 26, 2018 when he was dispatched to the Walmart for a reported shoplifting incident.[16] Officer Haines testified that he was provided with the license plate of the vehicle the person who attempted the shoplifting was seen getting into.[17] With that information, Officer Haines discovered that Price had been cited driving in that vehicle in the past and, after observing the Walmart surveillance footage, identified Price as the attempted shoplifter.[18]

         The Court of Common Pleas Decision

         As a result of the shoplifting incident, Price was charged with one count of Shoplifting Under $1, 500 and a jury trial was held on November 21, 2018. After the State rested, defense counsel informed the Court that Price would be exercising his Fifth Amendment right not to testify and the following colloquy ensued:

THE COURT: Mr. Price, your attorney has indicated to me that you do not wish to testify; is that correct?
MR. PRICE: Yes, Your Honor.
THE COURT: Okay. That's fine. I just want to make sure you understand that you know that you have a constitutional right not to testify and you're wishing to exercise that right. That's certainly your prerogative. Nobody can call you as a witness to testify, and the jury will be instructed that your decision to not testify cannot be used against you in any way. All right. Do you have any questions about that? MR. PRICE: No.[19]

         The Court then conferred with counsel who agreed to do closing arguments after a recess for lunch. Once trial resumed, the Court charged the jury and counsel presented closing arguments. Price was subsequently found guilty and was immediately sentenced to ninety (90) days at Level 5 suspended for six months of Level 1 probation and a $100 fine. Price timely filed a notice of appeal with this Court on December 5, 2018.

         Parties' Assertions

         Price argues that he was not afforded an opportunity to request a no-inference instruction due to the fact that the jury instructions "were not shared or even discussed with counsel prior to their reading."[20] Price contends that a no-inference instruction speaks to a defendant's state of mind and intent in deciding not to testify. Thus, given that his intent and state of mind was a key issue in both the State and Defense's closing arguments, Price argues that the failure to provide him with an opportunity to request such an instruction before the jury instructions were read constitutes reversible error and seeks for the Court to reverse his conviction.

         The State concedes that the proposed jury instructions were not provided to or discussed with counsel prior to being read to the jury, but argues that Price had "ample opportunity" to request a no-inference instruction because jury instructions were read before counsel gave closing arguments.[21] Thus, unless plain error exists requiring review in the interests of justice, the State contends that Price has waived this claim on appeal because he did not raise an objection to the jury instructions prior to the conclusion of trial.[22]

         Standard ...


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