               IN THE SUPREME COURT OF THE STATE OF DELAWARE

DATWAN LUM,                                    §
                                               §       No. 462, 2016
          Defendant Below,                     §
          Appellant,                           §       Court Below—Superior Court of the
                                               §       State of Delaware
          v.                                   §
                                               §       Cr. ID No. 1408022157A
STATE OF DELAWARE,                             §                  1408022157B
                                               §
          Plaintiff Below,                     §
          Appellee.                            §

                                Submitted: April 12, 2017
                                Decided:   June 20, 2017

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

                                            ORDER

          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



1
    Other charges in the indictment were dismissed before trial.
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




2
  In the same sentencing proceeding, Lum also was sentenced for convictions from a September
2015 jury trial. After the sentencing, Lum’s trial counsel filed a single notice of appeal
encompassing all of the convictions for which Lum was sentenced on August 26, 2016. On May
16, 2017, the Court affirmed Lum’s September 2015 convictions. Lum v. State, 2017 WL 2167350
(Del. May 16, 2017). This is the Court’s decision on the parties’ Rule 26(c) submissions on Lum’s
July 2015 and August 2016 convictions.
3
  Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
                                               2
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



4
  Penson v. Ohio, 488 U.S. at 82.
5
  Trial Tr. at 13–14 (May 10, 2016).
6
  Following each note, Lum’s trial counsel made a request for a mistrial, which was opposed by
the State and then denied by the Superior Court.
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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




7
  Trial Tr. at 50–51 (May 11, 2016).
8
  Allen v. United States, 164 U.S. 492 (1896).
9
  Supra note 7, at 55–58.
10
   State v. Lum, 2016 WL 3639975 (Del. Super. June 29, 2016).
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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

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

process.”13

         (10) Lum contends that the charges against him should have been dismissed

because of delay in bringing the indictment. Under Superior Court Criminal Rule

48(b), the Superior Court, in its discretion, may dismiss an indictment “[i]f there is

unnecessary delay in presenting the charge to a grand jury.”14 In this case, Lum does

not allege—and the record does not reflect—that he was prejudiced by the four-

month interval between his arrest on August 28, 2014 and his indictment on

December 22, 2014. In the absence of any indication of prejudice, we find no plain

error.


11
   Lum raised a fourth claim having to do with his convictions in another case. See supra note 2
(regarding September 2015 convictions). The Court has not considered the claim in this appeal.
12
   Del. Supr. Ct. R. 8; Small v. State, 51 A.3 452, 456 (Del. 2012).
13
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
14
   Del. Super. Ct. Crim. R. 48(b); Hughey v. State, 522 A.2d 335, 340 (Del. 1987).
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      (11) In his second claim on appeal, Lum contends that the juror’s intent to

nullify the CCDW charge should have led to an acquittal on the CCDW charge and

a corresponding dismissal of the PFBPP charge. Lum is mistaken. A jury’s failure

to reach a unanimous verdict does not constitute an acquittal.15

      (12) In his third claim on appeal, Lum contends that the Superior Court

should have excluded the testimony proffered by the State’s witness concerning the

difficulty in recovering latent fingerprints from a firearm. We disagree. Having

reviewed the denial of the motion in limine and the witness’ testimony at the May

and August 2016 trials,16 we can discern no abuse of discretion or error of law in the

Superior Court’s evidentiary ruling allowing the testimony.17

      NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to

withdraw is moot.

                                         BY THE COURT:

                                         /s/ Karen L. Valihura
                                         Justice




15
   Bowers v. State, 2014 WL 2094133, at *2 (Del. May 16, 2014) (citing Richardson v. United
States, 468 U.S. 317, 325 (1984)).
16
   Trial Tr. at 102–114 (May 10, 2016). Trial Tr. at 80–91 (Aug. 2, 2016).
17
   Secrest v. State, 679 A.2d 58, 61 (Del. 1996).
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