United States of America, Plaintiff-appellee, v. Osborne Mckinley Smith, A/k/a Mack, Defendant-appellant, 956 F.2d 1163 (4th Cir. 1992)

Appellant Osborne McKinley Smith appeals his conviction in the United States District Court for the Northern District of West Virginia. Finding no merit in his arguments, we affirm.

Smith was charged with distribution of crack and distribution of crack within a thousand feet of a public school. See 21 U.S.C. §§ 841(a) (1), 845a(a). At his trial, the defense rested without presenting any evidence. See J.A. at 21. Defense counsel had not objected to voir dire and did not object to the jury instructions. The jury found Smith guilty on both counts of the indictment, and the court sentenced him to 33 months of imprisonment on count one, to be served concurrently with a like sentence on count two but consecutively to any state sentence being served. The court also fined Smith $1,200 and imposed a special assessment of $100. See id. at 25.

Smith raises two arguments on appeal, neither of which has merit.

Smith first argues that the district court's failure to notify him of his right to testify on his own behalf "rendered [his] trial unfair and denied him the due process secured by the fifth amendment." Appellant's Br. at 5. This court has previously held that a trial court does not have an affirmative duty to advise a defendant of his right to testify or a duty to obtain a record waiver of such right. See United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991). Smith attempts to distinguish McMeans by arguing that in this case, there was " [in]sufficient basis from which to infer whether the right to testify ha [d] been waived." Id. Assuming that evidence from which an inference of waiver may reasonably be made is necessary, the district court had ample evidence before it from which to infer waiver. The court expressly informed Smith of his right to produce evidence in his favor and to remain silent. See J.A. at 9-10. Notwithstanding that Smith was apprised of these rights, he chose not to testify on his own behalf.

Smith argues that the district court erred by failing to read the witness list to the potential jurors during voir dire.¹  There is not an "affirmative duty on [a] trial court" in this circuit to read the witness list during voir dire "absent a timely request ... by the defense." United States v. Harris, 814 F.2d 155, 157 (4th Cir. 1987). Smith urges us to reconsider Harris in light of Batson v. Kentucky, 476 U.S. 79 (1986). Nothing in Batson, however, draws into question this court's holding in Harris, and as a single panel of the court, we have no authority to reconsider Harris. See, e.g., Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991). Accordingly, we reject Smith's claim as to the court's voir dire.² 

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district court.

AFFIRMED.