              IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                    )
                                      )
                                      )
            v.                        )       I.D. No. 1408022157 A&B
                                      )
                                      )
DATWAN LUM,                           )
                                      )
            Defendant.                )


                            MEMORANDUM OPINION



      Defendant Datwan Lum seeks a new trial after being found guilty at his

second trial of charges of Carrying a Concealed Deadly Weapon (“CCDW”) and

Possession of a Weapon by a Person Prohibited (“Person Prohibited”). He argues

the court erred when it did not grant a mistrial after the jury sent a note during

its deliberations that one of the jurors was claiming a right to jury nullification.

He also asserts the court erred when it gave an Allen charge after receiving a

second note from the jury inquiring what would happen if the jury could not

reach a verdict by the end of the day.

                                      Background

      This matter arises from Defendant’s second trial. Lum first stood trial in

2015 on the charges of Resisting Arrest as well as the CCDW charge. The court

severed the Person Prohibited charge and planned to submit it to the same jury

in a bifurcated trial after the jury returned a verdict on the other charges. The

jury found Defendant guilty of Resisting Arrest but was unable to reach a

                                          1
verdict on the CCDW charge. Because the jury could not reach a verdict on the

CCDW charges, the court declared a mistrial on that charge and did not

conduct the anticipated Person Prohibited phase of the bifurcated trial. It did,

however, enter a finding of guilt on the Resisting Arrest charge.

       Defendant’s retrial on the CCDW and Person Prohibited charges began

on May 10, 2016. Once again the court severed the Person Prohibited charge

by bifurcating trial of that charge, so only the CCDW charge was before the

jury during the first phase of the second trial.1              The jury found Defendant

guilty of CCDW, whereupon the Person Prohibited charge was presented to the

jury at the second phase of the bifurcated trial. The jury also found Lum guilty

of that charge. The issues here stem from two notes sent to the court by the

jury during its deliberations on the CCDW charge. Those notes and the issues

they raise are discussed below.


                                         The evidence

       The State’s case against Defendant was a strong one. Two New Castle

County Police Officers attempted to stop Defendant on Third Street in

Wilmington      adjacent     to,   and    within    sight    of,   the   Wilmington      Police

Department’s central headquarters.2 Defendant, who was standing outside

holding a child when the detectives approached in their unmarked Crown

Victoria, apparently recognized the Crown Vic as a police vehicle and ran. One

of the officers gave chase on foot and the other pursued in the car. The chase

1  The jury was not told of the pendency of the Person Prohibited charge. It only learned of
that charge after it found Lum guilty of CCDW.
2 The legality of the stop is not an issue here.


                                               2
was a short one; Defendant, who was never out of sight of the pursuing county

officers, was quickly apprehended with the assistance of some Wilmington

police officers who happened to be nearby.

       During the chase the officers, who were about 20 feet away from

Defendant at the time, saw a silver and brown object which appeared to be a

gun, either fall or being thrown from the waistband of the Defendant’s cargo

pants.     One officer saw bullets spill out of the weapon as this happened.

Within seconds after Lum was apprehended one of the officers returned to the

spot where the object fell or was tossed, and located a silver revolver with a

brown handle. He also found bullets matching the caliber of the revolver. Police

later tested the weapon for fingerprints and found none which were useable.

They swabbed the gun to recover any DNA but did not send the swabs for DNA

testing. Unlike the first trial, the State introduced testimony at the second trial

that (1) useable fingerprints are not often found on handguns, (2) DNA swabs

of handguns often do not yield useable DNA and (3) the laboratory cost of

analyzing the swabs of this revolver for DNA was substantial.3


                            The jury deliberations and the notes

       The trial lasted two days, with the first consisting of the presentation of

the evidence and the second consisting only of closing arguments and

instructions. The jury began deliberations around 10:30 and three hours later

sent a note to the court stating:

3  The State did not introduce such evidence at the first trial, and Defendant’s counsel argued
to the jury that the absence of any fingerprint or DNA identification raised a reasonable doubt
about his client’s guilt. This argument was not available to Defendant in the second trial.

                                               3
              The jury has not been able to reach a verdict because
              #12 has claimed the right to perform jury nullification
              in regards to the law in question. It is not a matter of
              needing more time to discuss evidence, and arguments
              for and against the use of nullification have all been
              exhausted.

The court read the note verbatim to the parties out of the presence of the jury,

except (with the agreement of counsel) it did not identify juror “#12” when

reading the note.       Defendant requested a mistrial, which the State opposed.4

The court denied Lum’s request and opted to reread to the jury a portion of its

earlier instructions:

              I wanted to tell you that, when you took the oath as
              jurors, you obligated yourself to follow the law as I give
              it, not as you think it ought to be. The people that
              make the laws of this state are the General Assembly,
              the elected people, not judges and not juries. I’m going
              to reread to you one paragraph that I instructed you
              on earlier.
              Nor are you to be concerned with the wisdom of any
              legal rule that I give you. Regardless of any opinion
              that you may have about what the law ought to be, it
              would violate your sworn duty to base a verdict on any
              view of the law other than what I give you in these
              instructions. It would also violate your sworn duty as
              judges of the facts to base a verdict on anything but
              the evidence in the case.

The court did not give an Allen charge at this time.

        Roughly 20 minutes later the jury sent a second note to the court:

              Juror in question is requesting specific information in
              regards to the procedures of the Court in the event
              that a verdict has not been arrived at by the end of the
              day.




4   Tr. 45.

                                          4
Upon receipt of the note, the court advised counsel it was considering reading

an Allen charge to the jury. The State agreed, but the defendant objected and

again requested a mistrial.         The court recalled the jury and read to it the

standard Allen charge, with one important omission—it did not read the

following language which appears in the court’s standard charge:

              If much the greater number of you are on one side,
              each dissenting juror ought to consider whether his or
              her position is a reasonable one.

The court explained it omitted this language because, under the circumstances

(an apparent 11-1 split) the omitted language might be too coercive. The court

also told counsel that Delaware Supreme Court dictum in Collins v. State5

dissuaded it from reading the omitted language. In Collins the Supreme Court

was confronted with whether the use of majority/minority language in an Allen

charge constituted plain error. After reviewing the holdings of several federal

courts of appeal the Collins Court concluded:

              An Allen charge that instructs the majority and the
              minority to re-examine their views has been approved
              in the First, Fourth, Sixth and Eighth Circuits. The
              Allen charges approved by these circuits differed in
              their wording, but each drew a distinction between
              majority and minority jurors and in some fashion
              asked both groups to reconsider their views.
              Importantly, each of those circuits found repeated
              warnings—as was done here—that jurors not give up
              their individual convictions, diminished the risk that
              the majority/minority distinction might be coercive.
              The Seventh and the District of Columbia Circuits
              agree    with    the    Third     Circuit  that    any
              majority/minority distinction is coercive.


5  56 A.3d 1012 (Del. 2012). This court did not mention Collins by name when it referred to
the Supreme Court’s opinion.

                                              5
               Although these approaches suggest that any
               instruction using the majority/minority distinction is
               best avoided, the divergent federal precedent
               persuades us that it was not plain error for the trial
               judge to make the distinction in his Allen charge in
               this case. The error in wording—if there was one—was
               neither plain nor obvious.6


                                       The verdict

        Minutes after hearing the Allen charge the jury announced it had a

verdict; it found the defendant guilty of CCDW. The court thereupon told the

jury that it still had work to do. The State’s sole evidence in the second phase

of the bifurcated trial was a stipulation that at the time of these events the

defendant was a “person prohibited.” Defendant presented no evidence, and

after brief closing arguments the court read jury instructions (including a

repetition of the charge on the Presumption of Innocence and Reasonable

Doubt) to the jury on the person prohibited charge. The jury retired again to

deliberate and quickly found Defendant guilty of the person prohibited charge.


                                        Analysis

        Defendant makes two arguments why the court should have declared a

mistrial.     First he argues that juror twelve’s assertion of a “right” of jury

nullification automatically required a mistrial. Second he contends the court

erred when it gave an Allen charge after the jury’s second note.




6   Id. at 1021 (footnotes omitted).

                                           6
                                  The “nullification note”

       Without meaningful citation7 to any authority Defendant argues that

once it received the nullification note “the only remedy was for the Court to

declare a mistrial.”8 The court has had occasion in the past to opine on the

consequences of counsel’s failure to submit any authority in support of a

written argument. In Gonzalez v. Caraballo9 it wrote:

               In order to develop a legal argument effectively, the
               Opening Brief must marshall the relevant facts and
               establish reversible error by demonstrating why the
               action at trial was contrary to either controlling
               precedent or persuasive decisional authority from
               other jurisdictions. The failure to cite any authority in
               support of a legal argument constitutes a waiver of the
               issue on appeal. Accordingly, we hold that all of the
               legal issues raised by Flamer in this appeal have been
               waived.
               These principles apply with equal force to papers filed
               in this Court. Courts throughout the country hold that
               they are not obligated to do “counsel's work for him or
               her.” The Court is not asking counsel to routinely
               submit arguments worthy of publication in a law
               review; indeed, in some instances (such as a party's
               failure to provide discovery) it is often unnecessary to
               cite any authorities. Nonetheless, in all but the
               simplest motions, counsel is required to develop a
               reasoned argument supported by pertinent authorities.
               Counsels' performance in this matter fell well short of
               that standard. Counsel are on notice that henceforth
               this Judge will summarily deny any motion filed by a
               represented party involving a question of law or the
               application of law to fact in which the party does not
               meet this standard.


7  Lum cited only Flonnory v. State, 778 A.2d 1044 (Del. 2001), for the unremarkable
proposition that he is entitled to a trial by impartial jurors. He did not cite a single authority
which discusses jurors who claim the right to nullification.
8  It should be kept in mind Defendant does not object to the language used by the court
when it instructed the jury after the Nullification Note; instead he argues that no instruction
should have been given at all and that the court should have declared a mistrial.
9 2008 WL 4902686 at *3 (Del. Super.)(footnotes omitted).


                                                 7
Lum’s claims relating to the Nullification Note are therefore summarily denied.

However, since juror assertions of the right to nullification are thankfully rare

in this state, the court will briefly discuss the fruits of its and the State’s

research on the issue.

       It goes without saying that neither the State nor the defendant has a

right to proceed with a nullification juror on the jury.10 Jury nullification is the

antithesis to a right to a fair trial by an impartial jury. The Supreme Court of

California put it well:

               Jury nullification is contrary to our ideal of equal
               justice for all and permits both the prosecution's case
               and the defendant's fate to depend upon the whims of
               a particular jury, rather than upon the equal
               application of settled rules of law. As one commentator
               has noted: “When jurors enter a verdict in
               contravention of what the law authorizes and requires,
               they subvert the rule of law and subject citizens—
               defendants, witnesses, victims, and everyone affected
               by criminal justice administration—to power based on
               the subjective predilections of twelve individuals. They
               affect the rule of men, not law.” A nullifying jury is
               essentially a lawless jury.11

It does not follow, however, that a juror’s expression of intent to nullify the law

requires an automatic mistrial. Rather there are intermediate steps which a

trial judge should undertake before declaring a mistrial. In a landmark case

the United States Court of Appeals for the Second Circuit wrote “trial courts

have the duty to forestall or prevent such conduct, whether by firm instruction

or admonition or, where it does not interfere with guaranteed rights or the need


10  Salcido v. Runnels, 2007 WL 2900426 at n.1 (N.D. Cal.)(“Juror nullification is not a right
under the Constitution, laws or treaties of the United States.”).
11 People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001)(citations omitted).


                                                8
to protect the secrecy of jury deliberations.”12 The first step in the effort to

“forestall or prevent” jury nullification is reminding the jury of its obligation to

follow the law. According to the Supreme Court of Washington:

               [T]he trial court has a duty to investigate if it comes to
               its attention during deliberations that a juror may be
               attempting nullification. * * * [A] study of the case law
               reveals that some general guidelines have emerged.
               First, if a juror or jurors accuse another juror of
               refusing to deliberate or attempting nullification, the
               trial court should first attempt to resolve the problem
               by reinstructing the jury.13


        Here the court took this limited step when it reread to the jury the

instruction on its obligation to follow the law. This court recognizes that the

line between preventing jury nullification and intruding into the secrecy of the

jury’s deliberations is a fine one worthy of the Flying Wallendas. Fortunately

the first step taken here—reminding the jury of its obligation to follow the law

as given by the trial judge—cured the problem and remained far short of

intruding into the secrecy of the jury’s deliberations. There was therefore no

reason to declare a mistrial as requested by Defendant.


                                     The Allen charge

        Defendant contends the court abused its discretion when it gave an Allen

charge after receiving the second note from the jury. Lum does not contend

that the language of the Allen charge itself was coercive, instead he contends

that the mere fact the court gave the charge could have coerced the jury.


12   United States v. Thomas, 116 F.3d 606, 616 (2nd Cir. 1997).
13   State v. Elmore, 123 P.3d 72, 80 (Wash. 2005)(en banc).

                                               9
        Lum does not contend that the language of the charge itself was coercive.

Nonetheless, on at least four occasions in his briefs he asserts that he was not

given an opportunity to object to that charge. Lum explicitly concedes that he

“does not argue that this factor [the words used in the instruction] weighs in

favor of a finding of coerciveness.” It is therefore not entirely clear to the court

why he asserts that he was not given an opportunity to object to the charge. In

case it is missing something, the court will briefly address Lum’s contention

that he was not given an opportunity to object to the charge.

        The court disagrees with Lum that he was not given an opportunity to

object to the Allen charge.          It is the responsibility of counsel to make an

objection if he or she feels one is appropriate. “In our adversarial system,

counsel has an obligation to object,”14 and the court cannot solicit objections

from counsel at every turn in the trial. Nothing in the record shows that the

court said anything to prevent Lum’s counsel from objecting or making a

record. If counsel believed they were being rushed they had an obligation to

speak up, allow the court to correct any mistake it made, and at the same time

make a record of how they were prevented from making an objection.

        The court now turns to Lum’s contention that the Allen instruction, or

the mere giving of that instruction, was coercive. Courts of this State look to

four factors when determining whether an Allen charge is appropriate: (1) the

timing of the instruction, (2) the words used in the instruction, (3) the length of

the deliberations both before and after the instruction, and (4) the complexity


14   Beeks v. State, 2015 WL 7756858 at *3 (Del.).

                                               10
of the case.15 Some of those factors weigh against finding the instruction was

coercive:


              The words used in the instruction.        As   mentioned   above,   Lum

               concedes in his brief the language of the instruction was not

               coercive. Nonetheless he also argues that “[e]ssentially, the jury

               received the message that it was not allowed to leave until it came

               to a unanimous verdict.” The jury received no such message. On

               at least four occasions the court told the jurors that they should

               not surrender their views simply for the purpose of arriving at a

               verdict.

                    o “how important and desirable it is for you to unanimously

                       agree upon a verdict, but only if you can do so without

                       violence to your individual judgment.”16

                    o “You should not surrender your conscientious convictions.”17

                    o “Each of you must decide the case for yourself.”18

                    o “Remember at all times, no juror should yield to his or her

                       conscientious belief as to the weight and meaning of the

                       evidence.”19




15   Collins v. State, 56 A.3d 1012, 1020 (Del. 2012).
16   Tr. 57.
17   Id.
18   Id.
19   Id. at 58.

                                                11
The notion that the jury somehow believed it was not allowed to leave until it

arrived at a unanimous verdict is belied by the very last words of the

instruction:


                   I do not suggest that, in any way, you
                   must remain together until a verdict is
                   reached, nor do I suggest that you
                   deliberate—excuse me—nor do I suggest
                   that you must deliberate for any particular
                   length of time before you are discharged.



           The length of the jury’s deliberations before the instruction. The jury

            had deliberated a little more than three hours when the court gave

            the Allen charge.   This was not an instance, therefore, where an

            exhausted jury was being compelled to deliberate further.


On the other side of the coin some of the factors weigh in favor of a finding the

instruction was coercive:


           The length of the jury’s deliberations after the instruction. Needless

            to say, when deciding whether to give an Allen charge a trial court

            has no way of knowing how long a jury will deliberate after the

            instruction. Thus this factor therefore does not play a role in that

            decision. It can serve, however, as an after-the-fact barometer of

            the coerciveness of the charge. In this case the fact that the jury

            deliberated for approximately five minutes after the charge was

            given weighs in favor of finding it was coercive.



                                        12
             The complexity of the case. The relative complexity of a case does

              not budge the needle on the coerciveness meter. It does, however,

              play a role in the cost-benefit analysis courts engage in when

              deciding whether to give an Allen charge.                      This case was

              straightforward and short, involving comparatively short testimony

              from three police officers.        The court fully understands that the

              time police officers spend testifying (or waiting to testify) in court

              takes time away from their primary duty—protecting the public.

              Even so, the simplicity of this case weighed against giving an Allen

              charge.


       As in all matters involving judicial discretion, there is no algorithm for

judges to use when deciding to give an Allen charge.                     Rather, a judge is

required to weigh these factors as well as “the totality of circumstances”                  20


when deciding whether an Allen charge is (or will be) coercive. A balancing of

the factors discussed above does not tip the scale strongly one way or the

other. There is, however, one of those amorphous “other circumstances” which

when viewed in the “totality of circumstances” persuades the court that its

Allen charge could have been coercive. Lum correctly makes the point that the

Allen charge was not responsive to the jury’s question. Recall that the second

note read:

              Juror in question is requesting specific information in
              regards to the procedures of the Court in the event

20  See Desmond v. State, 654 A.2d 821, 828 (Del. 1994) (finding that the totality of the
circumstances leads the Court to conclude that the Allen charge was not coercive).

                                              13
            that a verdict has not been arrived at by the end of the
            day.


The court finds that in light of this question the Allen instruction conveyed the

impression that the court would declare a mistrial if the jury did not reach a

verdict by the end of the day. As Defendant notes, during voir dire the jurors

acknowledged they were able to stay for three days, which meant that they

were all available to retire for the day and return for further deliberations the

next day. With 20/20 hindsight the court now believes the jury could simply

have been asking if additional deliberations could take place the following day

which means one or more of them could have construed the Allen instruction

as meaning “You cannot come back tomorrow. If you do not reach a verdict

today there will be a mistrial.” This tips the scale in favor of declaring a

mistrial.


      It is therefore ORDERED that:

      1. Defendant’s motion for a new trial is GRANTED

      2. Defendant’s convictions for CCDW and Person Prohibited are

VACATED.




June 29, 2016                                 _____________________
                                              John A. Parkins, Jr.
                                              Superior Court Judge




                                       14
oc:   Prothonotary

cc:   James K. McCloskey, Esquire, Tianna S. Bethune, Esquire, Department
      of Justice, Wilmington, Delaware
      Colleen E. Durkin, Esquire, Matthew C. Buckworth, Esquire, Collins &
      Associates, Wilmington, Delaware




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