Before Thomas, P.j., Coleman, And Hinkebein, JJ.
The opinion of the court was delivered by: Hinkebein, J., For The Court:
DATE OF JUDGMENT: 09/19/97
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: JEANNENE T. PACIFIC
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTION OF FELONY SHOPLIFTING WITH A SENTENCE OF FIVE YEARS WITH THREE YEARS SUSPENDED AND A $1000 FINE
¶1. JoAnn Leflore (Leflore) was convicted in the Circuit Court of Jones County of felony shoplifting. Leflore was sentenced to serve a term of five years, with three years suspended, in the custody of the Mississippi Department of Corrections. The sentence was to be served consecutive to prison time incurred as the result of Leflore's revoked probation from a prior offense in Forrest County. She was also ordered to pay a $1000 fine. Aggrieved by her conviction, she appeals to this Court based on the following assignment of error:
I. THE PROSECUTOR COMMITTED REVERSIBLE ERROR IN HIS OPENING STATEMENT WHEN HE COMMENTED THAT DEFENSE COUNSEL WOULD PROBABLY CALL HIS CLIENT TO TESTIFY, IN VIOLATION OF THE FIFTH AMENDMENT.
¶2. Holding this assignment of error to be without merit, we affirm the judgment of the circuit court.
¶3. On March 5, 1997, Leflore entered the K-Mart on Highway 15 in Laurel. While pushing her shopping cart through the aisles, she came under the observation of James Nix (Nix) , the store's loss control manager. Nix testified at trial that he witnessed Leflore pick up a large cardboard box containing a plastic toy chest shaped like a football. While Nix watched, Leflore split the tape on top of the box and removed the toy chest and placed it on the floor. She then put the empty cardboard box into her shopping cart. For approximately thirty- five minutes, Nix observed Leflore making her way through K-Mart, placing items into the cart. While Leflore usually had her back toward Nix, he testified that at one point he saw Leflore place five cartons of cigarettes into the empty cardboard box. Nix stated that he then saw Leflore fumbling with something and when she turned around, the cardboard box had been resealed with scotch tape. Leflore then made her way to the front of the store and went to one of the registers. The K- Mart employee at the register scanned the box, and Leflore paid $32.09, which was the list price of the toy chest plus sales tax. She then wheeled the shopping cart containing the box out the front door and into the parking lot. Nix testified that he followed her out of the store and identified himself and showed her his K-Mart identification card. When she refused his request to come back into the store, he told her she was under arrest for shoplifting.
¶4. At this point, Nix escorted Leflore back into the store and in the company of a female K-Mart employee took her into his office. They were joined by another female employee armed with a hand-held price scanner. Inside the cardboard box they found fifty-seven cartons of cigarettes, articles of clothing, and a six volt battery and battery charger. After the items were scanned, they were shown to have a total value of $1040.17. A police officer was called to the store and Leflore was formally arrested. On June 27, 1998, a Jones County grand jury indicted Leflore for the crime of felony shoplifting pursuant to Miss. Code Ann. § 97-23-93 (Rev. 1994), and the case went to trial on September 18, 1997.
¶5. This appeal focuses on a comment made by the prosecutor during the State's opening statement. After he outlined to the jury what witnesses he planned to call, the prosecutor remarked, "[t]his is going to be what I think is a short case. I think Mr. Buckley probably will only call his client to the stand." Leflore's attorney requested a sidebar and objected to the prosecutor's comment that Leflore would likely testify on her own behalf. On instruction from the trial Judge, the prosecutor explained to the jury that he did not actually know if Leflore would testify and further, she was not required to testify and no inference should be drawn if she did not take the stand. In reiterating the prosecutor's comments, the trial Judge directly told the jury that if Leflore did not testify, that fact could not be considered in their ...