Submitted: February 8, 2019
Consideration of Appellant's Appeal from the Court of
Common Pleas AFFIRMED.
Y. Dede, Esquire, Assistant Public Defender, Wilmington,
Delaware, Attorney for Appellant.
Stephen McCloskey, Esquire, Deputy Attorney General,
Wilmington, Delaware, Attorney for Appellee.
L. Scott, Jr., Judge
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. For the following reasons, the decision of
the Court of Common Pleas is AFFIRMED.
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. Mr. Malloy testified that on that date,
while surveilling the sales floor, he observed a customer
with an air mattress in his cart. This drew his attention
because the air mattress is considered to be
"high-valued merchandise." During his testimony, Mr.
Malloy identified Price as the customer that he observed with
the air mattress.
Malloy first observed Price with the air mattress in his cart
in the Garden Center at Walmart. 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. 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).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. The air mattress
was not among the items paid for.
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. 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. Mr. Malloy testified that he then asked
Price to come into the store, but Price
refused. 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.
Haines of the Middletown Police Department also testified at
trial. Officer Haines was working on March 26,
2018 when he was dispatched to the Walmart for a reported
shoplifting incident. Officer Haines testified that he was
provided with the license plate of the vehicle the person who
attempted the shoplifting was seen getting
into. 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
Court of Common Pleas Decision
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
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.
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.
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." 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.
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. 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.