Before Steadman, Farrell, and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia Hon. Russell F. Canan, Trial Judge
In this case concerning a challenge to a rape conviction under former D.C. Code § 22-2801 (repealed in 1995), appellant Mark Bobb contends that the trial court erred by: (1) requiring him to testify at a preliminary hearing held pursuant to D.C. Code § 22-4122 (1996) because of his consensual sex defense theory; (2) allowing the government to cross-examine him, at the pre-trial hearing, on matters beyond the scope of his direct testimony; and (3) violating, at trial, his Fifth Amendment constitutional privilege against self- incrimination by permitting "in depth cross examination" of him by the government at trial, based on his testimony at the § 22-4122 hearing. We affirm the judgment of the trial court and conclude that the court did not: (1) compel Bobb to testify at the § 22-4122 hearing; or (2) abuse its discretion at the pre-trial hearing by allowing the government to cross-examine Bobb regarding the details of his assertions of consensual sex with the complainant. Furthermore, Bobb has not shown plain error in the government's use, at trial, of his pre-trial hearing testimony to impeach his credibility.
BACKGROUND AND FACTUAL SUMMARY
On June 7, 1994, a woman accused Bobb of rape. Bobb maintained that he and the woman had consensual sex. Bobb was arrested and tried for the offense of rape. Prior to trial, Bobb filed a motion, pursuant to § 22-4122, informing the court that: "At the trial in this matter the defense intends to put on evidence, through cross and direct examination, of the complainant's past sexual behavior with the accused for the purpose of establishing consent." *fn1
D.C. Code § 22-4122 is part of the District's Anti-Sexual Abuse Act which, among other things, was enacted to "make changes to certain evidentiary and procedural aspects of sexual abuse cases." Council of the District of Columbia, Committee on the Judiciary, Report on Bill 10-87, "Anti-Sexual Abuse Act of 1994," at 1 (September 28, 1994). Section 22-4122 "codi[fies] [a] . . . federal rule of evidence *fn2 which prevents the unnecessary introduction, at trial, of evidence of a sexual abuse victim's prior sexual conduct. This provision is commonly referred to as the 'rape shield law.'" Id. at 15. Under § 22-4122, "[i]f the . . . accused . . . intends to offer . . . evidence of specific instances of an alleged victim's past sexual behavior," the defendant must make a motion to this effect. § 22-4122 (b)(1). A "written offer of proof" must be filed with the motion. § 22-4122 (b)(2). Upon consideration of the motion, the trial court is required to schedule a hearing if, among other factors, the evidence "is constitutionally required to be admitted"; or shows "past sexual behavior" under circumstances where consent is an issue in the case before the court. § 22-4122 (a) *fn3 , (b)(2).
In filing the § 22-4122 motion, counsel for Bobb attached a short written offer of proof, stating in full:
1. The defendant is charged with the forcible rape of [the complainant] on or about June 7, 1994.
2. The defendant and the complainant are known to each other.
3. Based upon information and belief counsel would state that beginning approximately February, 1994, the defendant and the complainant engaged in consensual vaginal and oral intercourse and that the complainant received some compensation in return.
At the § 22-4122 pre-trial hearing, which was closed to the public, see § 22-4122 (b) (2) ("a hearing in chambers"), counsel for the defense called the complainant as the first witness. She denied having consensual sex with Bobb on June 7, 1994, or any other occasion. After her testimony, the trial court asked counsel for Bobb whether he had any other witnesses. He replied: "We call the defendant. I note my objection though. Okay. I don't think we need to have the interpreter present." Bobb asserted that he had had consensual sex with the complainant approximately four or five times between October 1993 and June 1994. The government conducted fairly extensive cross-examination of Bobb. Defense counsel objected, variously, on the grounds that: the cross-examination was beyond the scope of the direct; there was no need for further cross-examination; and certain questions were irrelevant.
At the end of the § 22-4122 hearing, counsel for Bobb moved to seal the entire proceeding. The trial court agreed to seal the proceeding but stated that it could "be unsealed for the purpose of the parties getting a transcript so they can have it available to test the defendant's testimonial credibility if he chooses to testify." Just before trial commenced, defense counsel stated an objection to the unsealing of the hearing transcript, based on the statutory language in § 22-4122 (b)(2) requiring the hearing to be held "in chambers." The trial court noted that the judge who presided over the hearing had already denied defense counsel's request.
At trial, the government's evidence revealed that on June 7, 1994, Bobb went to the rooming house on Fuller Street, N.W., in the District of Columbia, where he previously lived, to retrieve a blender. The complainant shared a room with her boyfriend in the same rooming house. Her boyfriend collected rent at the rooming house, and Bobb had alerted the complainant's boyfriend on the morning of June 7, 1994, that he needed to get his blender. Later that day, according to the testimony of the complainant, Bobb knocked on the door to the complainant's room and asked for the blender. After the complainant gave him the blender, she closed the door. Bobb knocked on her door again to turn in his keys to the rooming house. When the complainant opened the door and extended her arm to take the keys, Bobb grabbed her wrist and forced her into a bathroom. He choked the complainant and threatened to kill her if she shouted. Eventually he raped her. After the rape, the complainant immediately called her boyfriend who was at work. He went at once to the Fuller Street rooming house and found the complainant screaming and crying. He ...