Chavez T. Smith, James D. McGee, James Evans Jr., v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporter s. Users ar e requeste d to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 99-CF-914 C HAVEZ T. S MITH, A PPELLANT, v. U NITED S TATES, A PPELLEE, No. 99-CF-940 J AMES D. M CG EE, A PPELLANT, v. U NITED S TATES, A PPELLEE, No. 99-CF-1031 J AMES E VANS, J R., A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeals from the Superior Court of the District of C olumbia (F1187-99) (F1139-99) (F1140-99) (Hon. Linda D. Turner, Trial Judge) (Argued November 13, 2001 Decided December 9, 2003) Thomas F. Dunn, appointed by the court, for appellant Chavez T. Smith. Joanne Vasco, appointed by the court, for appellant James D. McGee. Ed Wilh ite, appoin ted by th e court, f or appe llant Jam es Eva ns, Jr. Susan A. Nellor, Assistant U nited States Attorney, with whom Kenneth Wainstein , United States Attorney at the time the brief was filed, and John R. Fisher, Mary Patrice Brown, and James S. Sweeney, Assistant United States Attorneys, were on the brief, for 2 appellee. Before W AGNER, Chief Judge, and FARRELL and R EID, Associate Judges. W AGNER, Chief Judge: Following a jury trial, appellants, Chavez T. Smith, James D. McGee and James Evans, Jr., were convicted of one count of obstructing justice (D.C. Code § 22-722 (a)(1)) (2001). All of the appellants argue for reversal on the grounds that th e evidence was insufficient to support their convictions. Appellants, McGee and Evans, also argue that: (1) defense counsel and the court should not have permitted a jury tampering case to be tried by jury; (2) the jury se lection proc ess was u nfair; (3) they d id not kno wingly waive their right not to testify; (4) the court erred in failing to instruct the jury on confession, identification or the absence of flight; and (5) the sentences imposed are excessive and constitute cruel and unusual punishment. Concluding that the evidence was insuf ficient to support Smith s conviction, we reverse his conviction. Finding no error with respect to the claims of Mc Gee a nd Ev ans, w e affirm the judg ment o f the trial c ourt in th eir case s. I. Factual Background On February 18, 1999, the complaining witness, Michele Baxter, was on jury du ty in the Superior Court of the District of Columbia. While Baxter and other members of the venire panel stood in line awaiting admission into the courtroom for a criminal case in which Smith was a de fendant, she noticed acr oss the hall two men who she learned later were appellants, Smith an d McG ee. She no ticed them because o f a comm ent they m ade abou t a lady s skirt. Baxter recalled that she looked at Smith during the voir dire, but she could not 3 recall whether he look ed at her. Baxter testified that the next morning, she was walking down Indiana Avenue from the Metro train to the courthouse when she noticed Smith at a hot dog stand with McGee, whom she had seen with Smith the day before, and another person who was wearing a bomber jacket, later identified as Evans. As she neared the hot dog stand, she noticed the men looking at her. 1 The man in the bomber jack et said to her, Miss Parke r, Miss Parker, you better re mem ber to say n ot guilty in my case, in m y trial. Baxter thought that he was talking about the previous day, jury selection day. At the time, she noted that Smith was looking towards her. As Baxter passed the group, McGee said Yes, you was, I remember you from yesterday. She also heard McGee say that she was a juror because he remembered her from yesterday. As Baxter continued to walk, she said, The Lord is my shepherd and I shall not want. McGee responded, [a]nd he knows what I want. Baxter came to a curb where she had to stop to await the change of a traffic light, and at that point, the m en were directly adjacent like side by side to her. She said that McGee was the closest to her, and the man in the bomber jacket was next to McGee. She testified that Smith was on the side of [Evans] but directly on the side of him like one step not even one step behind him. She testified that Smith was looking at Evans and her, but he did not say anything. She testified that the man in the bomber jacket said, You better remember to say not guilty, not guilty on 1 On cross examination, Ba xter describe d what sh e observe d from the group w hile walking towards the courthouse as eyes, eye contact, eyestares. She also testified that another man wearing gray was also at the hot dog stand; however, Baxter never attributed any comments to him. 4 my trial, you better remember to say not guilty, not guilty on my trial. Agreeing, McGee said, Yes, you Miss Parker because I remem ber you fro m yesterd ay, and yo u know what I want when I made the statement. Baxter testified that McG ee continu ed to remind h er to say not guilty as she crossed the street. On direct examination, Baxter could not recall the group laughing in response to anything that was sa id, but she was aw are of them laughing. Howeve r, she could not recall seeing [Smith] laugh. On cross-examination, she could not recall the other m en laug hing or so testifie d. Baxter told one of the jurors about the incident and subseque ntly inform ed a depu ty U.S. Marshal and the trial judge. The deputy testified that Baxter appeared to be extre mely troubled and anxious over the incident. After the jury was dismissed, Baxter was asked to see if she could identify the men involved, and she identified Smith, Evans and McGee. II. All of the appellants argue that the evidence was insufficient to support the convictions. In reviewing a claim of evidentiary insufficiency, we view the evidence in the light most favo rable to the g overnm ent, recognizing the province of the fact finder to weigh the evidence , resolve issues of credibility and to draw reasonable inferences from the evidence presen ted. Mitchell v. United States, 683 A.2d 111, 114 (D.C. 1996) (citation omitted); Zanders v. United States, 678 A.2d 556, 563 (D.C. 1996) (citing Dyson v. United States, 450 A.2d 432, 436 (D.C. 1982) (other citation omitted)). [T]hat [a] case may rest on circumsta ntial evidenc e is of little consequence if the evidence is such that it may reasonab ly convince a trier of fact beyond a reasonable doubt. Gayden v. United States, 5 584 A.2d 578, 580 (D.C. 1990) (quoting Chaconas v. United States, 326 A.2d 792, 797 (D.C. 1974)), cert. denied, 502 U.S. 843 (1991). This court will reverse only where the government has failed to present evidence from which a reasonable mind might fairly infer guilt beyond a reasonab le doubt. In re M.I.W., 667 A.2d 573, 575 (D.C. 199 5); Roy v. United States, 652 A.2 d 1098, 1 103 (D.C . 1995) (citatio n omitted ). Applying that standard, we review appellants arguments that the evidence was insufficient to convict them of obstruction of justice. To establish the charge of obstructing justice, the government was required to prove beyond a reasonable doubt that the accused: (1) endeavored to influence, intimidate or impede a juror; (2) did so by corruptly persuading that juror; (3) acted knowing or believing that person was a juror; and (4) did so with the specific intent to influence, intimidate or impede that juror in the exercise of his or her o fficial duty. D.C. Code § 22-722 (a)(1); C RIMINAL J URY INSTRUCTIONS FOR THE D ISTRICT OF C OLUMBIA , No. 4.81 (4th ed. 2002). McGee focuses on the third and fourth elements of the offense, contending that the evidence was insufficient to show that he had knowledge that the complaining witness was a member of Smith s jury or that he acted with the intent to influence her in the exercise of her duty. Evans argues sim ply that the g overnm ent s eviden ce conce rning the en counter is insufficient to prove that he committed the crime. Smith argues that there was no evidence supporting the government s theory that he aided or abetted the commission of the offense. We consider each of these challenges. 6 A. McGee s Sufficiency Challenge McGee argues that the government failed to prove that he knew that Baxter was a member of Smith s jury and a cted corrup tly with the in tent to influen ce her. Ce ntral to his argument is a portion of Baxter s account of the incident. Baxter testified that as she walked toward the courthouse, she saw Smith and three other men standing near a hot dog stand. She said tha t one of them, a man in a bomber jacket, twice addressed her as Ms. Parker and told her to remember to say not guilty in his trial. When she did not respond, McGee said, Yes, you was, I remember you from yesterday. McGee contends that any statements attributed to him must be viewed in the context of the comment of the man in the bomber jacket. Viewed in that context, McGee contends, the evidence proves at best that he had knowledge that Baxter was a juror, but not that she was a member of Smith s jury or that he acted w ith the in tent to in fluence her. Viewed in the light most favorable to the government, a reasonable juror could find that McGee knew that Baxter was a member of Smith s jury and that he acted with the intent to influen ce her d ecision as a juro r. In addition to the evidence upon which McGee relies for his argument, there was other evidence that he h ad the requ isite know ledge and intent to comm it the offense. Specifically, Baxter testified that she had seen Smith and McGee the day before, seated together in the hallway outside of the courtroom, where she and other membe rs of the venire panel w ere waiting for mo re than an ho ur for the sele ction proce ss to begin. She testified that she was selected and sworn as a juror in Smith s case that day and that it was the only jury on which she was selected to serve. Baxter also testified that during the encounte r the next da y, McG ee said to her that she was a juror and that he remembered 7 her from the prev ious da y. Although there is no evidence that McGee was present in the courtroom when Baxter was actually selected as a juror or that Smith informed him of that fact, the evide nce, both direct and circumstantial, provides a basis for the jury to conclude reasonably that McGee knew that she was.2 McGee was in a position to observe Baxter among the jurors waiting to go into Smith s trial, and he admitted knowing that she was a juror because he remembered seeing her the previous day. Since Baxter testified that she had not been on any other cases and that she had seen McGee with Smith sitting together in the area of the courtroom, it is reasonable to infer that McGee saw Baxter while she was waiting to be called in the courtroom for Smith s case.3 Conside red with this evidence , McG ee s rema rks to Baxter provide support for a finding tha t he knew Baxter as a juror becau se of the eve nts associated with Smith s case the day before and that is what he was making reference to. It is of no consequence that the person in the bomber jacket who spoke to Baxter first during the encounter did not have her correct name. It is clear from the other evidence that McGee intended to influence the juror he saw the day before outside the courtroom w here Smith s trial was being h eld and that he k new B axter w as that p erson. Ordinarily, the intent to intimidate or influence a juror must be inferred from the context and nature of the alleged criminal conduct. McBride v. United States, 393 A.2d 2 This court makes no distinction between direct and circumstantial evidence when determining the suffi ciency of the g overnm ent s pro of. See Bernard v. United States, 575 A.2d 1191, 11 93 (D.C. 1990 ) (citations omitted). 3 It is within the province of the fact finder to draw reasonable inferences from the eviden ce pres ented. Mitchell, supra, 683 A .2d at 11 4. 8 123, 131 (D .C. 197 8), cert. denied, 440 U.S. 927 (1979). Baxter said that McGee stood closest to her when she waited for the traffic light before continuing to the courthouse and that he continued walking with her after the light changed. She described his side-stepping and looking at her, then back at Smith and the other men as he continued to make the remarks. Accord ing to Baxter, M cGee told her to remember not guilty, and she knew what he wanted. Baxter testified that although McGee was not blocking her path, she felt that he was attempting to interrupt her progress and that she was shocked and scared. When Baxter reached the courthouse, she cut ac ross the grass to avoid him . The nature of M cGee s remarks to Baxter that she remember to vote not guilty, admittedly with the knowledge that he knew h er in connection with her jury service, and the manner in which he approached her near the courthouse before the trial resumed are sufficient for a reasonable juror to find that he had the specific intent to intimidate her and influence the juror s vote. Baxter, who was intimidated by the conduct, perceived McGee s remarks as an effort to influence how she voted in the case, although it is not required that the victim actually be intim idated. See Irving v. United States, 673 A.2d 1284, 1289 (D.C. 1996). Here, there was evidence that McGee s remarks were successful in intimidating the juro r, as the evidence shows he intended. B. Evans Sufficiency Challenge Evans argues that the evidence was insufficient to convict him because: (1) the evidence showed that his encou nter with B axter was accidental; (2) there was no proof that he played any role in the incident at the hot dog stand; (3) Baxter never identified him as the person in the bomber jacket; and (4) the man in the bomber jacket referred to her as Ms. 9 Parker, and he was not asking h er to vote not guilty in Sm ith s case. Evans argum ents are readily dispos ed of. There was evidence from which the jury could find that Evans was the person in the bom ber jacket w ho initiated the remarks about how Baxter should vote as a juror. While B axter could not make an in-court identification of Evans, she identified him during an identification procedure conducted in the courthouse the day that the offense occurred. She testified that the man in the bomber jacket was among the three men wh o were shown to her at that tim e and that she was absolutely certain that he was the person who initiated the remarks referring to her as Ms. Parker. A deputy United States Marshal, Andrew Smith, testified that the three men whom Baxter identified at the show-up w ere Evans, Smith and McGee. A police officer, John Hendrick, also testified that Baxter identified all three men that day . Since Baxter testified that she saw the man in the bomber jacket during the show-up procedu re and cou ld identify bo th Smith a nd Mc Gee and their roles in the inciden t, it was reason able for the jury to conclude that Evans was the man in the bomb er jacke t. The evidence having been sufficient to show that Evans was the man in the bomber jacket, the only question remaining is whether the evidence was sufficient for the jury to conclude that McGee endeavored to impede or intimidate Baxter in the performance of her official duty. That their encounter at the hot dog stand may have been by chance does not dispel the evidence that Evans exploited the encounter. It was Evans who initiated the remarks about Baxter s jury service, te lling her that y ou better rem ember to say not gu ilty in my case, in my trial. He continued those warnings as he walked toward the courthouse with McG ee, who m ade similar remarks , and with S mith, wh o was on trial at the court. While Evans atta ched the w rong nam e to Baxter, the evidence showed that he knew that she 10 was a juror in a case. His companion, McGee, confirmed that he knew her from having seen her the day before, and Evans thereafter continued his admonitions to Baxter about how she should vote as she made h er way to the courtho use for Sm ith s trial. All of thes e events occurred in Smith s presence. Evans acknowledged making a statement to the marshals that Smith told him that Baxter was on his jury and that he then asked her if she was; howev er, Evans denied at trial only that Sm ith told him that before he asked her. It is reasonable for the jury to infer from this evidence tha t Evans know ingly and intentionally m ade an effort to accomplish the unlaw ful purpose that the obstru ction of justice statute was intended to prevent. See Irving, supra, 673 A.2d at 1289 (citation omitted). The evidence was ade quate to support Evans conviction. C. Smith s Insufficiency Challenge Smith s argum ent diffe rs from that of h is co-ap pellants . He argues that the evidence was insufficient to support the government s theory that he aided and abetted the commission of the offense. He contends that there was no evidence that he participated in any way in the crime. Th e govern ment arg ues that the e vidence, w hen view ed in the ligh t most favo rable to it, is sufficient to prove that Smith aided and abetted the crime that occurred in his presence. In order to prove an off ense on an aiding a nd abetting theory, the g overnm ent is required to prove: (1 ) that the offen se was co mmitted by som eone; (2) that the accused participated in the commission of the offense; and (3) that he did so with guilty knowledge. Green v. United States, 718 A.2d 1042, 1062 (D.C. 1998) (quoting West v. United States, 11 499 A.2d 8 60, 865 (D.C. 1 985)), cert. denied, 526 U.S. 1011 (1999). While mere presence at the scene o f a crime is insufficient to establish criminal participation in the offense, proof of presence at the scene o f a crime plus conduct which designedly encourages or facilitates a crime will support an inference of guilty participation in the crime as an aider and abettor. Jefferson v. United States, 463 A.2d 681, 683 (D.C. 1983) (citing Quarles v. United States, 308 A.2d 773, 774-75 (D.C. 1973)). Smith contends that the evidence showed only that he was present at this c hance en counter w ith Baxter and that the only action he took was to urge his co-defendants not to say a nythin g to Ba xter. The government argues that the evidence that Smith aided and abetted the o ffense con sisted of his p resence du ring the entire incident, the fact that he continu ally stared (or watched) Baxter throughout the incident and laughed when she attempted to rush away, and that McGee looked at Smith as he (McGee) warned Ms. Baxter to vote not guilty. Further, the government contends that Smith did not disassociate himself from McGee and Evans during the incident. Even when viewed in the light most favo rable to the g overnm ent, the evide nce is inade quate to sup port a finding of his guilt bey ond a re asonab le doub t. There was no evidence that the encounter was other than a c hance m eeting. It is conceded that Smith never said anything to Baxter. Baxter, the government s only witness to the encounter, acknow ledged that Smith said n othing to her. 4 The government contends that it was sufficient that Smith stared or watch ed Baxte r while Ev ans and M cGee sp oke to her and laugh ed whe n she wa lked awa y. It argues that even if S mith did n ot participate actively by making the remarks, his presence, status as defendant in the trial on which Baxter 4 Although not determinative of the issue, McGee and Evans testified that Smith told them either to leave B axter alone or not to talk to her. 12 was a juror, and his behavior were sufficient to establish that he participated in the obstruction of justice. In support of its argume nt, the governmen t relies principally on severa l cases, n one of w hich len d supp ort to its ar gume nt in this c ase. In the first, Montgomery v. United States, 384 A.2d 655 (D.C. 1978), the defendant was convicted of attempted petit larceny of linen from a department store on an aiding and abetting theory. Id. at 657-58. There was evidence from which it could be inferred that Montgom ery had knowledge that his companion was stealing merchandise and that he was acting as a loo k-out. Id. at 659. Not only did Montgomery depart from the area hastily after the theft, but he subsequently tried to bribe the store detective in an effort to influence his testimony.5 Id. at 658-59. Based on this evidence, this court held that a reasonable juror could find beyond a reasonable doubt that Montgomery assisted in the theft by serving as a look-out, and therefore was guilty of aiding and abetting the c rime. Id. at 660. Unlike Montgomery, there is no evidence in the present case that Smith knowingly associa ted himself with the criminal conduct or engaged in any affirmative conduct to bring it about or make it succeed. It is not reasonable to infer that his presence under the c ircumstan ces of this case warrant a finding of his participation in the crime. In Creek v. United States, 324 A.2d 688 (D.C. 1974), also relied upon by the governm ent, the court found sufficient for C reek s conviction of robbery evidence that he was with the robber imm ediately before the robbery , retraced his steps back to the victim s 5 Althoug h flight alone does not im ply guilt, it can not be ignored when other incrimina ting circumstances are present. Montgomery, supra, 384 A.2d at 659 (citations omitted). Evidenc e that the acc used soug ht to impede a witness fro m testifying is circumstantial evidence of consciousness of guilt. Id. (citation s omitte d). 13 home, stationed himself by her front gate while his companion seiz ed her purse, and fled with the thief with whom he remained until caught by the p olice. Id. at 689. This cour t held that this evidence, g iving the go vernme nt the bene fit of permiss ible inferenc es, was suf ficient for a juror to find that Creek s presence at the victim s gate encouraged or facilitated the robbery. Id. Unlike Creek, there is no evidence in this case from which it can be inferred that Smith s walk to the courthouse, where he was undisputedly required to be, aided and encouraged the remarks made by McGee and Evans. He simply did nothing nor said anything that would warrant this finding. That he looked at the victim is too thin a thread from which to infer h is particip ation in t he crim e. According to the complainant, Smith was the furthest away from her and said nothing. It would require speculation to conclude that since he was the defendant in the case, he must have instigated the remarks. In Rogers v. United States, 174 A.2d 356 (D.C. 1961), also cited by the governm ent, there was evid ence of so me ove rt involvem ent of the de fendant, R ogers, in the crime from which it could be inferred that he was an aider and abettor in the assault of the victim. In Rogers, the victim was traveling home from work at 2:30 a.m. when the principal, one Herring, propo sitioned him. Id. at 357. When the victim refused him, Herring walked away mom entarily only to return with Rogers and another man, who h ad been standing a short distance away . Id. Only then did Herring strike the victim with several blows and demand his money . The victim was pushed to a bench where he was searched and his money taken. Afterwards, Herring to ld his com panions to start moving before the police came, and the three left the crime scene together a nd remained togeth er until the po lice and the v ictim located them a short tim e later. Id. Significantly, the victim testified that all three men w ere after him. Id. at 358. The court held that this latter testimony formed a sufficient basis for 14 the jury to find that Roge rs associated himself w ith the venture as an aider and abettor, even though his actions may not ha ve reac hed the level of a n assau lt. Id. No similar active participation in the crime by Smith, as something he wanted to bring abo ut, is present in th is case. As the foregoing cases sho w, more than the accused s presence at the scene of the crime is required to p rove his gu ilt of the o ffense a s an aid er and a bettor. See also Jefferson, supra, 463 A.2d at 683 (citing Quarles, supra, 308 A.2d at 774-75). An additional requirement is that there be some proof of conduct which designedly encourages or facilitates the crime [to] support an inference of guilty participation in the crime as an aider and abettor. Id. The accu sed s prese nce will be equated with aiding and abetting when it is shown that it designedly encourages the perpetrator, facilitates the unlawful deed . . . or where it stimulates others to render assistance to the c riminal act. Catlett v. United States, 545 A.2d 1202, 1216 n.30 (D.C. 1988) (quoting Settles v. United States, 522 A.2d 348, 357 (D.C. 1987)) (in turn quoting Bailey v. United States, 135 U.S. App. D.C. 95, 98-99, 416 F.2d 1110, 1 113-1 4 (196 9)), cert. denied, 488 U.S. 1017 (1989). There is nothing in this record to show that Smith directly or even by his presence encouraged or stimulated McGee and Evans in their efforts to intimidate the juror. The governm ent s argument that Sm ith s guilt may be inferred from the eviden ce that Sm ith was watching Baxter during the encounter and that he laughed when Baxter hurried away after the incident is insufficient to permit the inference that he enco uraged h is compa nions to make the intimida ting comm ents that form the gist of the cr ime. In deed, th e com plainan t did no t testify th at Sm ith was laughin g. Nor can it be inferred reasonably that Smith was the only person who could have told Evans and McGee that Baxter had been selected as a juror in his case. There was evidence that McGee 15 was in the courtroom after the jury was selected, although he denied looking at the jury, and McGee had seen Baxter standing in line with other prospective jurors for the c ase. There is no evidence that Smith approved the comments of his companions; the evidence is to the contrary. Therefore, we conclude that the evidence w as insufficient to support Sm ith s conviction. III. Appellants, Evans and McG ee, make several add itional argum ents for reve rsal, none of which we find persuasive. We need to address each of them only briefly. A. Challenge to Trial by Jury Evans and McGee argue that there was inherent prejudice in a jury trial, given the nature of the offense. They contend that neither the court nor counsel too k steps to asc ertain whether the jury could impartially decide an obstruction of justice charge involving a juror. Since this claim was not raised during the trial, we review for plain error. See Brawner v. United States, 745 A.2d 354, 357 (D.C. 2000). Under that standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicia l to substantial righ ts as to jeopardize the very fairness an d integrity of the trial. Id. (quoting Coates v. United States, 705 A.2d 1100, 1104 (D.C. 1998) (in turn quoting Hasty v. United States, 669 A.2 d 127, 13 4 (D.C. 19 95)). App ellants can not meet that stand ard. The error, if any, was not obvious or plain. Appellants demanded a jury trial, to which they we re entitled absent an exp ress wa iver. See D.C. Code § 16-705 (a) (2001). They have cited no 16 authority for the proposition that a jury can not decide a case of this type. Moreover, steps were taken to assure that the jury would not be affected by the nature of the case. Appellants attorneys w ere perm itted to question the venire pan el. The jury was informed of the nature of the charge and que stioned about wh ether the fact that they were n ow jurors would make it difficult for them to decide the case where the offense was against a woman when she was a juror. No prospective juror indicated an inability to decide such a case impar tially. Ab sent suc h evide nce, w e find n o error, a nd clea rly no p lain erro r. Even assumin g error, appe llants may be deeme d to have invited it. They participated in the jury selection process, evincing their continu ed desire to have a jury trial as demanded. [C]ourts are especia lly reluctant to re verse for pla in error when it is invited. District of Colum bia v. Banks, 646 A.2d 972, 978 (D.C. 199 4) (in turn quoting District of Columbia v. Wical Ltd. P ship , 630 A.2d 174 , 182-183 (D.C . 1993)). No reason has been shown for this court to do so in this case. B. Jury Selection Process Appellan ts argue th at the jur y selecti on pro cess w as flaw ed. They provide a number of reasons for this challenge, including that: (1) a juror gave his juror number incorrectly two times, and the court incorrectly excused the juror, having transposed the numbers; (2) the court mistaken ly recalled tha t one juror h ad respon ded affirm atively to the Ridley6 question who had not; (3) the court ex cused a n umber o f jurors for ha rdship without adequate inq uiry and left others on the panel who had potential problems or who expressed an inability to be 6 United States v. Ridley, 134 U.S. App . D.C. 79, 412 F.2d 1126 (1969). 17 fair and impartial; and (4) they were not at the bench w hile portions of the voir dire we re conducted there. Appellants first three challenges are belied by the record or were adequate ly addressed by the trial cou rt.7 The dete rmination of a potentia l juror s imp artiality is within the p rovince of th e trial court, wh ich has bro ad discretion in determining whether a juror sh ould be excuse d for ca use. See Welch v. United States, 466 A.2d 829, 836 (D.C. 1983). Having reviewed the record, we find no abuse of discretion in the trial court s rulings during the jury selec tion proces s. Appellan ts have failed to show that they were deprived of a trial by a n imp artial jury . See id. (a defendant claiming denial of a trial by an impartial jury can no t rely on mere s pecula tion, bu t must d emon strate su ch dep rivation ). Appellants remainin g challeng e related to the jury trial right is that they were not present during voir dire at the bench. Appellants did not request to be present and made no objection to the proce dure. Ap pellants failure to request to be prese nt or to objec t to exclusion constitutes a waiver of that right and forecloses the opportunity to be heard on 7 Although juror number 840 did state his number incorrectly, he was ultimately excused for cause, and the court later corrected its o wn m isstatemen t of the num ber. Wh ile the court mistakenly thought that juror 691 had a response to the Ridley question, when the juror indicated tha t he did not, neither the court nor counsel posed any questions to him. Contrary to appellants assertion that certain jurors were excused without ad equate inquiry, the record shows tha t juror number 815 was excused at the request of Evans counsel, without objection, because she indicated that she had a prior bad jury experience. Juror number 879 was stricken without objection because she knew on e of the witnesses. Jurors 553, 780, 778, and 840 were excused because they indicated that their moral and religious beliefs might interf ere with the ir ability to be impartial. Juror 840 also indicated that personal and health problems would make service a hardship. While ap pellants com plain that the court excused juror 919 wh o had airline tickets for a trip ten days away , the record shows that the court gave counsel the option of keeping him, and they acceded to excusing him. Appellants also complain that some jurors (553, 567, 856, 259, and 417) had potential problems, and were left in the jury pool. Appellants state that they may have been overlooked. These jurors were either stricken or were not selected, and appellants have shown no prej udice a s a result of their re tention i n the jur y pool. 18 appeal. Welch, supra, 466 A.2d at 839 (footnote omitted). C. Right No t to Testify Appellants, Evans and McGee, argue that the trial court erred in failing to conduct an inquiry of them conce rning their decision to testify. They contend that the gove rnment s case against them was flawed, but they stood to be impeached if they testified.8 They contend that since the court queried Smith when he waived his right to testify, it should have inquired of them when they informed the court that they would testify. A defendant has a fundamental and personal right to testify in his or her own criminal trial which only the defendant can waive . Boyd v. United States, 586 A.2d 670, 674 (D.C. 1991). A personal and fundamental right will be deemed waived only if there is record evidence demonstrating an intentional relinquishment or abandonment of a known right or privilege. Id. at 674-75 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). At issue in Boyd was whether the defendant had waived her right to testify. While not deciding whether the trial co urt had a duty, sua sponte, to conduct a n inquiry o f the defend ant, this court stated that on ce the judg e becam e aware th at Boyd w as asserting th at she wa nted to testify, it had a duty to determine whether she had made a knowing and intentional waiver of the righ t to testify . Id. at 677. Further, this court stated that while it was not holding that the trial court had a sua spon te obligation to inquire of a non-testifying defendant whether he wanted to waive his right to testify, it would be prudent to m ake an inquiry on the record to avoid the issue on app eal or in c ollateral a ttacks. Id. (citation omitte d). 8 Evans had a prior conviction, and both had made prior inconsistent statements. 19 We did not address in Boyd whether a similar rule obtains for a testifying de fendant, and we need not do so here. The record adequately discloses that appellants were aware of the right not to testify before the y did so. A t the close of th e govern ment s ca se, their attorneys indicated tha t they wou ld testify, while Smith s counsel said that Smith would not testify. The cou rt then addre ssed Sm ith, in the prese nce of M cGee an d Evans and their counsel, concerning his right to testify or not to testify and whether he had co nferred w ith his lawyer about it. The attorneys for Evan s and McG ee did not request a sim ilar inquiry concerning their clients decision to testify. We find no plain error in the trial court s failure to conduct sua spon te a separate inquiry of Evans and McGee to determine whether they wanted to waive their right not to testify. D. Instructional Challenges Evans and M cGee arg ue that it was plain error for the trial court not to give a special cautionary instruction related to the nature of the charges after the prosecutor, in opening statemen t, improperly placed the jurors in the position of the comp laining witness. The cou rt sustained an objectio n to the rem arks and a dmonis hed the pro secutor that it w as improp er to do so. The trial court later gave an instruction that the jury should not allow the nature of the charges to affect their verdict. We find no abuse of discretion in the trial court s corrective action, and clearly no plain error in its failure to do more sua spon te. These appellants also contend tha t the trial court erred in failing to give instructions on confession s, identification a nd the abs ence of fligh t. They did not request the instructions, nor did they respond when the court asked for objections or requests for additional 20 instructions. Therefore, again, we review for plain error. We can not say that the court plainly erred in failing to give the instructions. The government did not seek to admit Evans statement as subs tantive e videnc e, but rath er used it to imp each h im. The standard instruction that appellants argue should have been given states that it applies where the statement is used as substan tive evid ence. CRIMINAL J URY INSTRUCTIONS FOR THE D ISTRICT OF C OLUMBIA No. 2.48 (4th ed. 2002). The identification instruction was not essential, as the defense theory was not misidentification, but that the requisite intent was not established, and the court so instructed the jury. In any event, appellants have shown no prejudice, as they were not precluded from arguing any evidence pertaining to identification or misidentification. For their claim that the trial court shou ld have giv en an ab sence of fligh t instruction, appellants have cited no sup porting auth ority. How ever, there is authority to the contrary. See, e.g., State v. Pettway, 664 A.2d 112 5, 1133-34 (Co nn. App. Ct. 1995 ) (court has no obligatio n to give absence of flight instruction ); State v. Jennings, 562 A.2d 545, 548 (Conn. App. Ct. 1989) (court s refusal to instruct on absence of flight as consciousness of innocence is consistent with the law). We ca nnot say th at the trial court p lainly erred in failing to give an instruction for which there is n o autho rity. See Brawner, supra, 745 A.2d at 357 ( the erro r must b e obvio us and clear un der cur rent law ). E. Sentencing Challenge Finally, appellants argue that the sentences imposed were disproportionate to the 21 crime, and therefo re amou nt to cruel an d unusua l punishm ent. 9 Appella te review of sentencing is extrem ely lim ited. Williams v. United States, 571 A.2d 212 , 214 (D.C. 1990 ). Generally, a sentence within statutory limits is n ot subje ct to revi ew. Walden v. United States, 366 A.2d 107 5, 1076 (D.C. 19 76). Here, appellants sentenc es are within statutory limits; therefore, they are not reviewable on appeal except for constitutional considerations. Greene v. United States, 571 A.2d 218, 222 (D.C. 1990) (citation omitted). We cannot say that the sentences are so disproportionate to the nature of the crime that they transgressed constitutional strictures. An endeavor to influence a juror in a pending case is a serious crime for which the legislators have provided lengthy penalties.10 Appellants effort to influence the juror not only intimidated her, but disrupted the administration of justice by causing a mistrial in th e case. The c ourt operate d within the bounds o f its discretion in imposing sentenc e. Therefore, we find n o sentencing error. For the foregoin g reasons, the judgment of con viction of Evans and McGee are affirmed. The judgment of conviction of Smith is reversed and remanded with instructions to vaca te his co nviction , and the mand ate in his case sh all issue f orthw ith. So ordered. 9 McG ee was se ntenced to not less than ten and no t more than thirty years imprison ment. Ev ans was s entenced to not less than eleven and not more than thirty-three years. Appellan ts have also stated, witho ut argum ent or citation to authority, that th e trial court cons idered an im proper elem ent in sentencing. Specifically, they refer to the court s statement that the integrity of the system depends upon the court imposing a substantial sentence because people have got to know that jurors are positively off limits. Generally, an asse rtion of a n issue w ithout ar gume nt or au thority w ill not be consid ered on appea l. 10 The penalty for obstruction of justice is imprisonment for not less than three years and not more th an life and a fine of $10,00 0 or both. D.C. Co de § 22-722 (b) (2 001). 22
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