Appeals from the Superior Court of the District of Columbia (F1187-99) (F1139-99) (F1140-99) (Hon. Linda D. Turner, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Wagner, 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 the 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 selection process was unfair; (3) they did not knowingly 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 insufficient to support Smith's conviction, we reverse his conviction. Finding no error with respect to the claims of McGee and Evans, we affirm the judgment of the trial c court in their cases.
On February 18, 1999, the complaining witness, Michele Baxter, was on jury duty 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 defendant, she noticed across the hall two men who she learned later were appellants, Smith and McGee. She noticed them because of a comment they made about a lady's skirt. Baxter recalled that she looked at Smith during the voir dire, but she could not recall whether he looked 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. *fn1 The man in the bomber jacket said to her, "Miss Parker, Miss Parker, you better remember to say not guilty in my case, in my 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 my trial, you better remember to say not guilty, not guilty on my trial." Agreeing, McGee said, "Yes, you Miss Parker because I remember you from yesterday, and you know what I want when I made the statement." Baxter testified that McGee continued to remind her 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 said, but she was aware of them laughing. However, she could not "recall seeing [Smith] laugh." On cross-examination, she could not recall the other men laughing or so testified.
Baxter told one of the jurors about the incident and subsequently informed a deputy U.S. Marshal and the trial judge. The deputy testified that Baxter appeared to be "extremely 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.
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 favorable to the government, recognizing the province of the fact finder to weigh the evidence, resolve issues of credibility and to draw reasonable inferences from the evidence presented. 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 circumstantial evidence is of little consequence if the evidence is such that it may reasonably convince a trier of fact beyond a reasonable doubt.'" Gayden v. United States, 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 reasonable doubt. In re M.I.W., 667 A.2d 573, 575 (D.C. 1995); Roy v. United States, 652 A.2d 1098, 1103 (D.C. 1995) (citation 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 official duty. D.C. Code § 22-722 (a)(1); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, 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 simply that the government's evidence concerning the encounter 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.
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 acted corruptly with the intent to influence her. Central 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 that 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, ...