IN THE SUPREME COURT OF TI-[E STATE OF DELAWARE

SHAKIR SWAIN, §
§ No. 1 87, 2017
Defendant Below, §
Appellant, § Court BeloW_Superior Court
§ of the State of Delaware
v. §
§ Cr.IDNo.1512019137B
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: December 6, 2017
Decided: December 20, 2017

Before VALIHURA, VAUGHN and TRAYNOR, Justices.
0 R D E R

This 20th day of December 2017, after considering the briefs and the record
below, it appears to the Court that:

(l) A Superior Court jury found Shakir Swain guilty of Possession of a
Firearm by a Person Prohibited, and Possession of Ammunition by a Person
Prohibited. The court sentenced SWain to fifteen years of unsuspended Level V time
followed by descending levels of supervision SWain makes one claim on appeal:
that the Superior Court violated his Sixth Amendment right to a fair trial before an
impartial jury When, in the presence of the jury, the bailiff escorted his only Witness,
Kavon Warner, into a side room after Warner finished testifying because there Was

an outstanding capias for his arrest.

(2) On December 30, 2015, Dover police executed a search warrant at
Swain’s residence. Police soon thereafter apprehended Swain, who was attempting
to escape through a second-floor-bedroom window. Police conducted a “visual
inventory” of the bedroom and discovered a loaded .40-caliber handgun, two cell
phones, and keys.l SWain admitted that the two cell phones were his. Moreover, at
trial, the State’s forensic-latent-print examiner stated that a latent print impression_
recovered from one of the cell phones_belonged to SWain.

(3) Swain called Kavon Wamer as his only witness. Before Wamer
testified, Swain’s lawyer was aware that Wamer had an outstanding capias and
would be taken into custody at the conclusion of his testimony. Wamer testified
that he was the one who brought the firearm into SWain’s residence, and he put it
down near Swain’s bed to play videogames. When Wamer finished testifying, the
bailiff escorted Warner out of the courtroom_in front of the jury_-through a “side
door” in order to take him into custody.2

(4) Defense counsel objected, but did not ask for any specific relief, such
as a mistrial or curative instruction. The prosecutor responded that “nothing Was

said about the capias . . . in front of the jury. The witness was simply walked to the

 

1 App. to Opening Br. A79, A139-40.
2 App. A166-67.

side door and exited through that door. I don’t see the prejudice.”3 At sidebar, the
trial judge noted that this was “standard procedure . . . . Otherwise when [Warner]
leaves the courtroom, there [would be] no way to stop him from leaving.”4 The
judge overruled SWain’s objection. Later, the trial judge offered to provide a
curative instruction, but defense counsel declined.
(5) This Court reviews claims of constitutional error de novo.5
(6) We do not find that having Wamer escorted out of the courtroom
following his testimony was inherently prejudicial Furthermore, SWain’s lawyer
knew in advance that Warner would be taken into custody but did not request that a
different procedure be employed. Instead, he objected after the fact. At best, SWain
might have been entitled to a cautionary jury instruction, but Swain declined the trial
judge’s offer to provide such an instruction. Thus, SWain waived the objection.

NOW, TI-[EREFORE, IT IS ORDERED that the judgment of the Superior

 

 

Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. T raynor
Justice

3 App. Al67.

4 Id.

5 Hall v. State, 788 A.2d 118, 123 (Del. 2001).
3

