Before Steadman, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Henry F. Greene, Motions Judge)
(Hon. Stephanie Duncan-Peters, First Trial Judge)
(Hon. Colleen Kollar-Kotelly, Second Trial Judge)
Argued September 30, 1999
Edward Cheeseman Roberts was convicted by a jury of one count of carnal knowledge of a child under sixteen years of age and one count of rape, both in violation of D.C. Code § 22-2801 (repealed 1995). *fn1 On appeal, Roberts contends that the indictment on which he was brought to trial was unconstitutionally vague and that the prosecution's evidence constructively amended the allegedly defective indictment. Roberts also claims that the trial judge committed plain error by failing, sua sponte, to preclude the prosecutor from cross-examining Roberts on the subject of Roberts' failure, prior to trial, to apprise either the police or his family or friends of his claim that his sexual relations with the complaining witness were consensual. We affirm Roberts' convictions for carnal knowledge and rape.
I. THE TRIAL COURT PROCEEDINGS *fn2
The complaining witness in this case, K.L.W., is Roberts' cousin. In 1990, when she was a fifteen-year-old high school student, K.L.W. came to live with Roberts and his wife and children. K.L.W. testified that thereafter, for a period of more than two years, Roberts repeatedly molested and raped her. K.L.W. estimated that, in all, she had been abused approximately two dozen times. *fn3
In May 1992, K.L.W. became pregnant. *fn4 Prior to her pregnancy, K.L.W. had been too afraid *fn5 and ashamed to disclose the abuse that she had endured. Following the discovery of her condition, however, K.L.W. told a schoolmate and her basketball coach what had happened to her. She repeated her account to the police, and Roberts was arrested.
On March 16, 1994, a grand jury returned an indictment which included the following counts:
COUNT ONE: Between on or about March 18, 1990, and on or about March 17, 1991, within the District of Columbia, Edward Cheeseman Roberts carnally [k]new and abused a female child named K.L.W., who was then under sixteen years of age, that is, about 15 years of age. (Carnal Knowledge, in violation of 22 D.C. Code, Section 2801).
COUNT THREE: Between on or about March 18, 1991, and on or about October 31, 1992, within the District of Columbia, Edward Cheeseman Roberts [had] carnal knowledge of a female named K.L.W., forcibly and against her will. (Rape, in violation of 22 D.C. Code, Section 2801). *fn6
Following the return of the indictment, Roberts' attorney filed a motion for a bill of particulars. Counsel also asked the court to dismiss the indictment as duplicitous and unconstitutionally vague. She reiterated these criticisms of the indictment on several occasions prior to trial and continued to request its dismissal.
On November 21, 1994, the government responded as follows to the request for a bill of particulars:
1. Counts one and two of the indictment relate to an incident which occurred in the winter of 1990 and 1991 inside 2111 16th Street, S.E., in Washington, D.C.
2. Counts three and four relate to an incident which occurred between, on or about October 19, 1992, inside 2111 16th Street, S.E., in Washington, D.C.
On February 8, 1995, Judge Henry F. Greene denied Roberts' motion to dismiss the indictment. In light of the government's claim that Roberts had committed numerous acts of carnal knowledge and rape, the judge recognized that Roberts was entitled to reasonable notice of the specific acts of which he was being accused and for which he would be tried:
I don't think that the government can just have the jury kind of picking and choosing to decide . . . which offense it wants to plug into the indictment.
The prosecutor responded by referring to the two incidents identified in the government's bill of particulars. She indicated that these incidents were the ones of which K.L.W. had the best recollection.
On February 14, 1995, the case went to trial before Judge Stephanie Duncan-Peters. The parties presented their evidence and made their closing arguments, the judge instructed the jury, and the jurors began their deliberations. The foreman of the jury then advised the court that, according to one of the jurors, another member of the jury "has had discussions about the credibility of a witness in this case with people outside the jury room who know and ...