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Lum v. State

Supreme Court of Delaware

June 20, 2017

DATWAN LUM, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: April 12, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1408022157A 1408022157B

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          KAREN L. VALIHURA, JUSTICE

         This 20th day of June 2017, upon consideration of the appellant's brief under Supreme Court Rule 26(c), his trial counsel's motion to withdraw, and the State's response and supplemental response, it appears to the Court that:

         (1) Following his arrest on August 28, 2014, the appellant, Datwan Lum, was indicted on December 22, 2014 on charges of Possession of a Firearm by a Person Prohibited ("PFBPP"), Carrying a Concealed Deadly Weapon ("CCDW"), and Resisting Arrest.[1] A Superior Court jury convicted Lum of Resisting Arrest on July 8, 2015. A different jury convicted Lum of PFBPP and CCDW on August 2 and 3, 2016. On August 26, 2016, the Superior Court sentenced Lum to a total of eight years of Level V incarceration suspended after six years for decreasing levels of supervision.[2] This is Lum's direct appeal.

         (2) On appeal, Lum's trial counsel has filed a no-merit brief and a motion to withdraw under Supreme Court Rule 26(c). Trial counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Trial counsel provided Lum with a copy of the motion to withdraw and the no-merit brief in draft form and advised him that he could submit written points for the Court's consideration. Lum's written points are included in the brief filed with the Court. The State has filed a response and a supplemental response to Lum's points and has moved to affirm the Superior Court's judgment.

         (3) When reviewing a motion to withdraw and brief under Rule 26(c), the Court must be satisfied that the appellant's counsel has made a conscientious examination of the record and the law for arguable claims.[3] Also, the Court must conduct its own review of the record and determine whether "the appeal is indeed so frivolous that it may be decided without an adversary presentation."[4] In this case, having conducted "a full examination of all the proceedings" we are satisfied that Lum could not raise a meritorious claim on direct appeal.

         (4) The record reflects that the Superior Court agreed to defer trial on the PFBPP charge pending the outcome of trial on the CCDW and Resisting Arrest charges. On July 8, 2015, the jury found Lum guilty of Resisting Arrest but was unable to reach a unanimous verdict on the CCDW charge.

         (5) Lum was retried on the CCDW charge on May 10, 2016. Before trial, Lum's trial counsel filed a motion in limine seeking to exclude proffered testimony from a State's witness about the difficulty in collecting latent fingerprints from a firearm. The Superior Court denied the motion in limine after determining that the proffered testimony was relevant and probative and that the probative value outweighed any danger of unfair prejudice.[5]

         (6) During its deliberations, the jury sent two notes to the trial judge.[6] In the first note, the jury stated that it was unable to reach a unanimous verdict on the CCDW charge because one of the jurors had "claimed the right to perform jury nullification in regards to the law in question." The trial judge responded to the note by reminding the jurors that they were obligated to follow the law as instructed by the court and not the law as they believed it should be.[7] In the second note, the jury stated that the same juror wanted to know what would happen if a verdict was not reached by the end of the day. The trial judge responded to the second note by giving the jury a supplemental instruction, known as an Allen charge, [8] which encouraged the jury to reach a verdict.[9]

         (7) The jury found Lum guilty of CCDW. Following the jury verdict, the trial judge informed the jurors of the PFBPP charge and that they would be asked to consider whether Lum was guilty of that charge based on the same evidence they considered when determining whether Lum was guilty of CCDW. After listening to counsel's arguments and the court's instructions, the jury deliberated and found Lum guilty of PFBPP.

         (8) After trial, Lum's trial counsel filed a motion for new trial. On June 29, 2016, the Superior Court granted a new trial and vacated the CCDW and PFBPP convictions on the basis that the Allen charge was coercive under the circumstances in Lum's case.[10] In August 2016, the Superior Court held a third trial on the CCDW and PFBPP charges. On August 2, the jury found Lum guilty of CCDW; on August 3, the jury found Lum guilty of PFBPP.

         (9) On appeal, Lum has raised three claims for the Court's consideration.[11]First, Lum contends that the that the charges against him should have been dismissed because of pre-indictment delay. Because Lum's claim was not raised in the Superior Court, our review of the claim on appeal is limited to plain error.[12] Under the plain error standard of review, "the error complained of must be so clearly ...


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