IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PHILLIP PRICE

Defendant Below,

Appellant
No. 1804000925

V.

STATE OF DELAWARE,

ee

Appellee.

Date Submitted: February 8, 2019
Date Decided: May 31, 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 Appellec.

SCOTT, J.
OPINION
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.! 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.* 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

4 During his testimony, Mr.

mattress is considered to be “high-valued merchandise.
Malloy identified Price as the customer that he observed with the air mattress.°

Mr. 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

 

' Appellant’s Op. Br. at 5 (Jan. 9, 2019) (D.I. 10) [hereinafter “Appellant’s Op. Br.”].
2 State v. Price, ID 1804000925, at 35:15 (Del. C.P. Nov. 21, 2018) (TRANSCRIPT)
[hereinafter, “Trial Tr.”’].

3 Id. 36:5-36:20.

4 Td.

> Id. 38:8-38:19.

© Trial Tr. 38:4-38:7.
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.'°

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.'' 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]

 

7 Id. 38:23-39:2, 45:17-46:2.

8 Td. 39:2-39:13, 40:9-40:15.

° Td. 41:18-41:22.

10 Td. 41:22-41:23, 45:3-45:7.

'l Trial Tr. 45:3-45:15, 46:3-46:10.
"2 Td. 46:15-46:23.

'3 Td. 47:2-47:4.
was telling me to wait right there, he has something for me” before Price proceeded
into his vehicle and left the premises."

Officer 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 shoplifter.'*

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

 

14 Id. A7:4-47:9.

'S Trial Tr. 70:9.
16 Td. 70:16-71:2.
17 Td. 734-7310.
'8 Td. 73:11-74:23.
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.'?

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.””® 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.

 

'9 Id. T7-A2-78:3.
20 Appellant’s Op. Br. at 5, 9.
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.”! 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.”*

Standard of Review

Price did not make any objections to the instructions given to the jury by the
Court of Common Pleas. Generally, an appellate court will decline to review any
issue not raised and fairly presented to the trial court for decision.“* Accordingly,
the failure to object at trial constitutes a waiver of a defendant’s right to raise the
issue on appeal unless the error is plain.** Under that standard of appellate review,
the error complained of must be so clearly prejudicial to substantial rights as to
jeopardize the fairness and integrity of the trial process.” The doctrine of plain error

is limited to material defects which are apparent on the face of the record, which are

 

21 State’s Resp. at 5-6 (Jan. 29, 2019) (D.I. 11) [hereinafter “State’s Resp.” ].

22 Td. at 6.

23 Stevenson v. State, 1999 WL 464524, at *2 (Del. Super. Ct. Apr. 27, 1999).

24 Chance v. State, 685 A.2d 351, 354 (Del. 1996).

25 Jd. (citing Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986), cert. denied,
479 U.S. 869 (1986)).

6
basic, serious, and fundamental in their character, and which clearly deprive an
accused of a substantial right, or which clearly show manifest injustice.”° “Such a
determination must be so clear that the trial judge and prosecutor were derelict in
countenancing it, even absent the Defendant's timely assistance in detecting it.”?’
Discussion

Price first argues that the trial court “departed from its own rules regarding
jury instructions” and “failed to follow any of the jury instruction safeguards
characteristic of a criminal trial” because he was not given a reasonable opportunity
to review the instructions before they were read to the jury.”* For this reason, Price
argues that the Court should review de novo the trial court’s failure to swa sponte
give a no-inference instruction as though defense had requested such an instruction

and was denied.*? However, on appeal, this Court will consider only claims that

were presented first to the trial court for review.°? Having made no objections to the

 

*6 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

27 Stevenson, 1999 WL 464524, at *2 (internal quotation marks omitted) (quoting
United States v. Wright-Barker, 784 F.2d 161, 171 (3d Cir. 1986)).

°8 Def.’s Reply at 1.

2° Def.’s Op. Br. at 6, 9 (“[T]he appropriate scope of review is therefore de novo.”).
See Ayers v. State, 844 A.2d 304, 309 (Del. 2004) (“The standard of review for a
denial of a requested jury instruction is de novo.”); Chrysler Corp. v. Chaplake
Holdings, Ltd., 822 A.2d 1024, 1034 (Del. 2003) (“We review de novo the trial
court's decision to issue a challenged jury instruction.”).

30 Del. Sup. Ct. R. 8; see Casey v. State, 2000 WL 33179628, *2 (Del. Super. Ct.
Dec. 27, 2000) (“When reviewing an appeal from the Court of Common Pleas, this
Court assumes the same appeal posture as that of the Supreme Court.”).

7
jury instructions at trial, Price raises this issue for the first time on appeal. Therefore,
those claims are waived and may now be reviewed on appeal only for plain error."!

Price alleges that he was harmed by the omission of a no-inference jury
instruction because a no-adverse inference instruction speaks to a defendant’s state
of mind and intent in deciding not to testify and “state of mind was a key issue” in
both the State and Defense’s closing arguments at trial.*? As a result, 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 Court of Common Pleas conviction.

As an initial matter, the Court notes that a no-inference jury instruction is
grounded on the Fifth Amendment privilege against sel f-incrimination.*> The Fifth
Amendment has been understood to require a criminal judge to give a no-inference

instruction upon a defendant’s request.** But, neither the United States Supreme

 

31 Harris v. State, 968 A.2d 32, 35 (Del. 2009); see State v. McCoy, 2012 WL
1415698, at *3 (Del. Super. Ct. Feb. 21, 2012) (“Appeals from the Court of Common
Pleas are reviewed on the record provided, and shall not be tried de novo.”) (citing
10 Del. C. § 1326); see Super. Ct. Civ. R. 72.

° Def.’s Reply at 4.

33 Miller v. State, 750 A.2d 530 (Del. 2000).

34 Carter v. Kentucky, 450 U.S. 288, 300 (1981) (“[T]he failure to limit the jurors’
speculation on the meaning of that silence, when the defendant makes a timely
request that a prophylactic instruction be given, exacts an impermissible toll on the
full and free exercise of the privilege.”).

8
Court nor the Delaware Supreme Court has ever held that a trial court must give a
no-inference instruction where one is not requested.

“Although the trial judge has the responsibility to instruct the jury; it is the
parties’ responsibility to bring to the trial judge’s attention the instructions they
consider appropriate and the reasons why.”*° At no point did Price request a no-
inference instruction, nor did he object to the charge immediately after the jury
retired.°° As such, the Court was not required include a no-inference instruction and
Price cannot now assign the omission as error.*”

In reviewing for plain error, this Court will only reverse if the error is “so

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of

the trial process.”** The Court finds that Price has failed to demonstrate as much. A

 

35 Beebe Med. Ctr., Inc. v. Bailey, 913 A.2d 543, 556 (Del. 2006); see also Hutt v.
State, 49 A.3d 1193 (Del. 2012) (“This Court has declined previously to find plain
error for failure to issue instructions sua sponte, on the sole basis that defense
counsel had the responsibility to request them and did not do so.”).

36 A review of the record reveals that defense had notice of the upcoming charge to
the jury and that defense had sufficient opportunity to object to the omission of a
specific charge. See Trial Tr. 78:7-78:15; id. 83:1-91:8 (“Ladies and gentlemen, I’m
going to read you some instructions now that the evidence in the case has closed. . .
. All right. Is the State ready to proceed with closing argument?”); id. 101:16-103:4.
37 See Puryear v. State, 755 A.2d 390 (Del. 2000) (finding that the record clearly
indicates the defendant was afforded an opportunity to correct the omission of a no-
adverse instruction but declined to do so, therefore the opportunity for a
supplemental instruction that would have cured any deficiency in the court’s original
instruction was deemed waived); Jsaacs v. State, 1997 WL 127958, at *2 (Del.
Super. Ct. Feb. 11, 1997) (“Appellant never objected to any omissions to the charge
immediately after the jury retired.”) aff'd, Isaacs v. State, 702 A.2d 926 (Del. 1997).
38 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

9
review of the jury instructions as a whole reveals no legal error. The jury instructions
were a correct statement of the law and did not infringe on Price’s constitutional
rights. The trial judge’s instructions enabled the jury to make a well informed
decision.
Conclusion

For the foregoing reasons, Defendant’s conviction for Shoplifting Under
$1,500 from the Court of Common Pleas is AFFIRMED.

IT IS SO ORDERED.

eo
Judge Calvin L. Scott, Jr.

10
