Edward Cheeseman Roberts v. U.S.
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 96-CF-1092
EDWARD CHEESEMAN ROBERTS, APPELLANT,
v.
UNITED STATES, APPELLEE.
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)
ON PETITION FOR REHEARING
(Filed June 1, 2000)
Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein, Public Defender
Service, was on the brief, for appellant.
Stephen J. Gripkey, Assistant United States Attorney, with whom Wilma A. Lewis, United
States Attorney, and John R. Fisher and Rachel Adelman-Pierson, Assistant United States
Attorneys, were on the brief, for appellee.
Before STEADMAN, SCHWELB, and RUIZ, Associate Judges.
Opinion for the court by Associate Judge SCHWELB.
Concurring opinion by Associate Judge RUIZ at p. __.
SCHWELB, Associate Judge: 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violation of D.C. Code § 22-2801 (repealed 1995).1 On appeal, Roberts contends that the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.
1
Roberts
All District of Columbia Code provisions relating to sexual offenses were repealed in
1995. They were supplanted by the Anti-Sexual Abuse Act of 1994, which is now codified in
D.C. Code §§ 22-4101 et seq. (1996).
2
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 PROCEEDINGS2
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.3
In May 1992, K.L.W. became pregnant.4 Prior to her pregnancy, K.L.W. had been too
afraid5 and ashamed to disclose the abuse that she had endured. Following the discovery of
2
The trial at which Roberts was convicted lasted eight days, and extensive testimony was
presented. We summarize only those facts and proceedings that we consider relevant to the
issues on appeal.
3
There was also evidence that Roberts had molested K.L.W. and her sister when the two
girls were very young.
4
On February 9, 1993, K.L.W. gave birth to a baby girl. Roberts acknowledged at trial, and
DNA tests independently disclosed, that he was the child's father. Roberts testified, however,
that he had sexual relations with K.L.W. only once, that these relations were consensual, and
that K.L.W.'s daughter must have been conceived during that single voluntary sexual encounter.
5
K.L.W. also testified that Roberts had physically abused his wife in K.L.W.'s presence,
(continued...)
3
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).[6]
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.
5
(...continued)
and she feared that he might similarly harm her.
6
The indictment also charged Roberts with sodomy on a minor (Count Two) and sodomy
(Count Four). A motion for judgment of acquittal (MJOA) was granted at Roberts' first trial
with respect to Count Four.
At the second trial, Roberts was found guilty of taking indecent liberties with a minor,
as a lesser included offense of sodomy of a minor. The government acknowledges that the
indecent liberties charge is not a lesser included offense of sodomy and that this conviction
must be vacated.
4
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 have
opinions about the witness." The judge subsequently declared a mistrial on the basis of juror
5
misconduct.7
More than a year later, on March 21, 1996, Roberts' second trial began before Judge
Colleen Kollar-Kotelly. As previously noted, Roberts was convicted of carnal knowledge and
rape.8 This appeal followed.
II.
LEGAL DISCUSSION
A. General principles.
Roberts first contends that the indictment in this case is unduly vague and that it violates
his rights under the Fifth and Sixth Amendments. Although the charging document is hardly
a model of clarity, and although its shortcomings have been compounded by a singularly
infelicitous bill of particulars, we conclude that the indictment passes constitutional muster.
Rule 7 (c) of the Superior Court Rules of Criminal Procedure requires that the
indictment shall contain "a plain, concise and definite written statement of the essential facts
constituting the crime charged." As the court stated in United States v. Silverman, 430 F.2d 106
(2d Cir. 1970), cert. denied, 402 U.S. 953 (1971), this requirement
performs three constitutionally required functions. It permits the
7
The record does not disclose whether the defense made a motion for a mistrial. No double
jeopardy claim has been asserted on Roberts' behalf.
8
See also note 6, supra.
6
accused "to be informed of the nature and cause of the
accusation" as required by the Sixth Amendment. It prevents any
person from being "subject for the same offense to be twice put
in jeopardy of life or limb" as required by the Fifth Amendment.
Finally, it preserves the protection given by the Fifth Amendment
from being "held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury."
8 Moore, Federal Practice ¶ 7.04 at 7-15 (1969).
430 F.2d at 110 (construing the federal counterpart of Super. Ct. Crim. R. 7 (c)).
In
determining whether an indictment satisfies these constitutional standards, the Supreme Court
has focused on two criteria, namely,
first, whether the indictment contains the elements of the offense
intended to be charged, and sufficiently apprises the defendant of
what he must be prepared to meet, and, secondly, in case any
other proceedings are taken against him for a similar offence,
whether the record shows with accuracy to what extent he may
plead a former acquittal or conviction.
Russell v. United States, 369 U.S. 749, 763-64 (1962) (quoting Hagner v. United States, 285
U.S. 427, 431 (1932)) (internal quotation marks omitted).
The indictment must also be
sufficiently definite to enable the court to ensure, at trial, that the defendant is being tried only
for the acts with which the grand jury has charged him, and not for different conduct. "The very
purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to
offenses charged by a group of his fellow citizens acting independently of either prosecuting
attorney or judge." Russell, supra, 369 U.S. at 771 (quoting Stirone v. United States, 361 U.S.
212, 218 (1960)). If an indictment satisfies these standards, it is immaterial "whether it could
have been made more definite and certain." Hagner, supra, 285 U.S. at 431.
Roberts complains that the indictment in this case is too general and vague. Focusing
on the time frames set forth in the two counts at issue -- one year in Count One, more than
7
nineteen months in Count Three -- Roberts complains that the indictment lacks "reasonable
particularity as to time and place." See, e.g., Wong Tai v. United States, 273 U.S. 77, 81 (1927).
According to Roberts, the lack of specificity as to dates permits the prosecution, rather than
the grand jury, to select the precise conduct upon which the trial is to be focused. Roberts also
contends that, contrary to the teaching of Russell and Stirone, he has been tried for conduct
different from that charged by the grand jury.
Counsel's argument on Roberts' behalf has been cogently presented. We agree that it
may be difficult to prepare a defense (and particularly an alibi defense, though Roberts
presented none) where the date of the alleged wrongdoing has not been identified. We also
agree that the government's bill of particulars lends a measure of plausibility to Roberts' claim
that he may have been indicted for crimes different from those of which he was convicted.
Nevertheless, Roberts' position does not carry the day.
B. The meaning of the indictment.
In ascertaining the meaning of the indictment, we must first look to its language. Count
One of the indictment (carnal knowledge) states that Roberts "carnally [k]new" K.L.W.
"[b]etween on or about March 18, 1990, and on or about March 17, 1991." Count Three of the
indictment states that Roberts raped K.L.W. "[b]etween on or about March 18, 1991 and on or
about October 31, 1992."
Although the indictment in this case does not use a phrase such as "on divers dates" or
"repeatedly,"9 its language, structure, and context reflect that the grand jury was seeking to
9
Cf. State v. Mancinone, 545 A.2d 1131, 1135-36 (Conn. App. Ct.), certif. denied, 551 A.2d
(continued...)
8
accuse Roberts of more than a single act of carnal knowledge during the one-year period
covered by Count One and of more than a single act of rape during the even longer time frame
embraced by Count Three. The word "repeatedly" does not appear in either count, but it was
surely implied by the lengthy periods to which each count refers, especially where the end of
the period described in Count One and the beginning of the period reflected in Count Three are
both defined by K.L.W.'s sixteenth birthday, rather than by any alleged act of rape or
molestation. The most reasonable interpretation of the indictment, in our view, is that each
count accuses Roberts of engaging in a series of individual criminal acts between the dates set
forth in that count. If that were not what the drafter intended, then the long periods covered by
each count, defined by the date of a single incident and K.L.W.'s sixteenth birthday, would
make very little sense.
The foregoing common sense construction is supported by the specific context in which
the indictment in this case was returned. By the time the grand jury acted, a preliminary
hearing had been held, and it was no secret to the prosecutors or to the defense that K.L.W. had
accused Roberts of raping and molesting her on a number of occasions, some prior to her
sixteenth birthday on March 18, 1991, and some thereafter.10 Indeed, in this case, we have
available to us grand jury testimony which sheds light on this very subject. According to the
detective who presented the case to the grand jury, K.L.W. told him that the molestation "was
ongoing and continuous. She told me that whenever Mr. Roberts' wife was not in the house that
9
(...continued)
757 (Conn. 1988), cert. denied, 489 U.S. 1017 (1989); Commonwealth v. Niemetz, 422 A.2d
1369, 1372 (Pa. Super. Ct.1980), both discussed infra, in which such language was explicitly
included in the charging documents.
10
In her motion to dismiss the indictment, Roberts' trial attorney alleged that "[a]t a
preliminary hearing and through discussions with government counsel, it is alleged that there
were several incidents which took place during each of the time periods set forth in the
indictment."
9
he would find her wherever she was, whether it was morning, noon or evening, and force her
to satisfy him."
Although Roberts now invokes the government's bill of particulars to contest this
common sense construction, his argument is undermined by the position he took, persuasively
and unequivocally, in the trial court.
In her initial motion to dismiss the indictment as
duplicitous, filed on November 15, 1994, Roberts' trial attorney argued as follows:
Logic dictates that each of these counts is not intended to allege
that there was a single act of intercourse lasting an entire year.
Further, if the government were pursuing only one distinct
incident, the date in the indictment would be tailored specifically
to that incident, rather than solely to the birthdate of the
complainant.
Counsel's reasoning is as persuasive today as it was when the above-quoted passage was
written, and the meaning of the indictment has not changed since then.11
We recognize that, after the fact, the government treated the indictment as though each
count involved only a single incident of carnal knowledge or rape. Read literally, the bill of
particulars may support that interpretation, although it could also be construed as specifying
the proof to be offered at trial even if each count of the indictment covered a series of acts,
rather than a single one. Moreover, the government requested the trial court to allow it to
introduce evidence of sexual assaults not specified in the bill of particulars as "other crimes"
evidence, see Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), thus arguably
11
During a colloquy before Judge Greene on February 8, 1995, however, Roberts' attorney
insisted that the grand jury "charged [Roberts] with one act in each of those counts."
10
implying that such offenses were not within the scope of the indictment.12 Each party has thus
taken a position in this court which is less than faithful to the position which that party took
in the trial court. Nevertheless, giving the indictment its most reasonable construction, we
conclude that the grand jury charged a series of individual acts in each count, and that the
government was entitled, at trial, to present evidence of an offense or offenses which were
alleged to have been committed during the period specified in that count.13
C. Roberts' claim of inadequate notice.
Roberts contends that the period of time covered by each count of the indictment is so
protracted that he was denied fair notice of the crime with which he was charged. We do not
agree.
12
Based on the prosecutor's contentions in the trial court, Judge Greene stated: "I was
under the impression that all of this other evidence was coming in under a Drew or an unusual
sexual preference theory."
13
In the trial court, Roberts argued that the indictment was duplicitous in that each count
embraced more than one offense. Cf. Super. Ct. Crim. R. 8 (a) ("Two or more offenses may
be charged in the same indictment . . . in a separate count for each offense."). Charging
documents similar to the indictment now before us have been sustained by a number of courts,
notwithstanding their arguable duplicity. See, e.g., authorities cited in note 10, supra; see also
United States v. Shorter, 257 U.S. App. D.C. 358, 360, 809 F.2d 54, 56 (1986), cert. denied, 484
U.S. 817 (1987), discussed infra at p. [14]. But in any event, duplicity
is not fatal, and does not require dismissal of the count. The
proper remedy is to require the government to elect upon which
charge contained in the count it will rely, and defendant is not
harmed if the proof is limited to only one of the charges in the
duplicitous count. It is held also that the risk of a nonunanimous
verdict inherent in a duplicitous count may be cured if the court
gives a limiting instruction that requires the jury to find
unanimously that the defendant was guilty with respect to at least
one distinct act.
1A CHARLES ALAN WRIGHT, FEDERAL PRACTICE
(footnotes omitted).
AND
PROCEDURE § 145, at 83-85 (3d ed. 1999)
11
"Good pleading undoubtedly requires an allegation that the offense was committed on
a particular day, month, and year, but it does not necessarily follow that the omission[14] to state
a particular day is fatal upon a motion in arrest of judgment." State v. Mulkey, 560 A.2d 24, 26
(Md. 1989) (quoting Ledbetter v. United States, 170 U.S. 610, 612 (1898)). "The particularity
of time, place, circumstances, causes, etc. . . . is not essential to an indictment." Glasser v.
United States, 315 U.S. 60, 66 (1942). A young victim of rape or sexual molestation often
cannot be expected to recall exact dates and times, and this is especially true where, as in this
case, the defendant's wrongful conduct allegedly made K.L.W. afraid to report the abuse
contemporaneously. Cf. Farris v. Compton, 652 A.2d 49, 55 (D.C. 1994). Recognizing these
realities, the courts have consistently given prosecutors and grand juries leeway in terms of
the particularity required in an indictment in this kind of case. See, e.g., Jackson v. United
States, 503 A.2d 1225, 1226-27 (D.C. 1986); Mulkey, supra, 560 A.2d 24, 26-31 (Md. 1989)
(collecting authorities); State v. Lakin, 517 A.2d 846 (N.H. 1986); Mancinone, supra, 545 A.2d
at 1135-36; Niemetz, supra, 422 A.2d at 1373. As the Maryland Court of Appeals stated in
Mulkey, supra, 560 A.2d at 27, "the exact date of the offense is not an essential element, and
is not constitutionally required to be set forth." The courts have therefore tolerated some
generality as to dates so long as the defendant has not suffered substantial prejudice.
The Jackson decision, supra, is the District of Columbia authority closest to the present
case. In Jackson, the defendant was charged with seventeen counts of sexual abuse of children
aged seven, eight and twelve over several different time frames in 1980 and 1981. The longest
of these time frames was nine months. We held in Jackson that the failure of the indictment
to allege specific dates did not render it unconstitutional, and that in light of "the child-
14
Or, in this case, the inability to recall the date of an incident.
12
complainants' inability to recall events by specific time and date, the indictment was more than
adequate to safeguard appellant's rights."
503 A.2d at 1227.
Although Jackson is
distinguishable from this case in several respects, including the age of the complainants and
the number of individual offenses with which the defendant was charged, the case lends some
support to the government's contention that the indictment in the present case is
constitutionally sufficient.
The facts of the cited cases from other jurisdictions vary, but several of the decisions
involve situations quite similar to those now before us. The analysis of the issue by the
Supreme Court of New Hampshire in Lakin, supra, is particularly instructive, for the nature of
the charges, the time period covered by the indictment, and the age of the complainant are all
comparable to the circumstances of the present case.
Derek S. Lakin was convicted of
aggravated felonious sexual assault upon a child who was between thirteen and sixteen years
of age during the period of abuse. The indictment alleged that Lakin had performed the acts
of sexual penetration "between May 1982 and February 1984." Lakin moved to dismiss the
indictment for insufficient particularity. His motion was denied, and his subsequent conviction
was affirmed upon the following grounds:
The aggravated felonious sexual assault statute does not
require proof of the exact date of the assault as an element. . . .
A defendant therefore need only be informed that he must meet
proof that he committed the assaultive acts at some time during
a specified period. Where no defense is possible on the basis of
the victim's age, or the statute of limitations, a defendant
generally has no basis for complaining that the indictment fails to
allege a precise date, absent a showing that the inexactness raises
a possibility of prejudice specific to him. . . . Nor does the
breadth of the period alleged provide grounds to fear the
possibility of double jeopardy.
Courts may tailor double
jeopardy protection to reflect the scope of the time period
charged in an earlier prosecution.
13
517 A.2d at 847 (citations omitted).
In Mancinone, supra, the defendant was charged with risking injury to two female
juveniles by engaging in sexual activity with them "on divers dates between August 1982 and
November 1984." The girls were approximately thirteen or fourteen years old at the time of
the abuse. The defendant was convicted of these charges. He complained on appeal that the
open-ended period of more than two years
referred to in the charging document had
effectively precluded him from presenting the defenses of alibi and impossibility. The court
disagreed, noting that where, as in Mancinone's case, the offense was of a "continuing nature,"
the prosecution could not readily
provide precise dates.
The court specifically rejected
Mancinone's constitutional contentions:
Generally in such cases, as long as the information provides a
time frame which has a distinct beginning and an equally clear
end, within which the crimes are alleged to have been committed,
it is sufficiently definite to satisfy the requirements of the [S]ixth
[A]mendment to the United States [C]onstitution . . . .
545 A.2d at 1136 (citations and internal quotation marks omitted). The court explained that
in order to establish a constitutional violation, a defendant who has been convicted on the basis
of an imprecise charging document must make "a clear and specific showing of prejudice to
the defense," and that he cannot prevail "merely by establishing that the presentation of his
defense may be more burdensome and difficult." Id. (citations, ellipsis and internal quotation
marks omitted). Finally, the court noted that Mancinone, like Roberts in the present case, had
denied engaging in the unlawful activity "whatever the dates." The court ruled that, under these
circumstances, the "burdens and difficulties" posed by the imprecise charging documents were
"not of the kind and magnitude to warrant reversal of [Mancinone's] conviction." Id.
14
In Niemetz, supra, the defendant was charged by information with sexually abusing his
stepdaughter "on (or about) divers dates beginning in 1972 and continuing until August 1977,"
a period more than twice as long as that alleged in the present case. The victim was seventeen
years old at the conclusion of the alleged abuse. Like K.L.W. in this case, the complainant had
become the mother of the defendant's child. In addition, Niemetz' victim had had an abortion.
The approximate dates of at least those sexual assaults which resulted in her pregnancy were
thus reasonably ascertainable.
The court nevertheless upheld the defendant's conviction,
observing that precision in specifying the dates of particular incidents of molestation was not
required where the conduct was of a continuing nature. 422 A.2d at 1373-74. The court did
not
believe that it would serve the ends of justice to permit a person
to rape and otherwise sexually abuse his child with impunity
simply because the child has failed to record in a daily diary the
unfortunate details of her childhood.
Id. at 1373; accord, Mulkey, supra, 560 A.2d at 29-30 (quoting Niemetz).
We are persuaded by these authorities that Roberts had constitutionally sufficient
notice of the charges against him. We are aware of no authority in any jurisdiction which
would support invalidation of Roberts' conviction for lack of notice on facts comparable to
those here.
D. Conviction of uncharged offenses -- Constructive Amendment.
Roberts next contends that he was unconstitutionally convicted, both of carnal
knowledge and of rape, "on the basis of facts not found by, and perhaps not even presented to,
15
the grand jury which indicted him." Russell, supra, 369 U.S. at 770. His argument in that regard
is twofold. He claims first, that the indictment was not sufficiently specific to assure that he
would be tried only for the offenses charged by the grand jury, and second, that the prosecutor
constructively amended the indictment by introducing evidence of uncharged crimes and
obtaining Roberts' conviction of them.
Given our construction of each count of the indictment as alleging a series of individual
incidents rather than a single one, see Part II B, supra, and our conclusion that the indictment
is not unconstitutionally vague, the first of these two contentions cannot prevail. "[T]wo or
more acts, each of which would constitute an offense standing alone and which therefore could
be charged as separate counts of an indictment, may instead be charged in a single count if
those acts could be characterized as part of a single, continuing scheme." Shorter, supra note
14, 257 U.S. App. D.C. at 360, 809 F.2d 54 at 56. That is how the charging documents were
framed in Lakin, Mancinone, and Niemetz. Here, as in Shorter, all of the evidence presented by
the government related to sexual assaults on K.L.W. during the periods specified in the
indictment.
For substantially the same reasons, we are likewise unpersuaded by Roberts' claim that
the amendment was constructively amended. It is necessary, however, to explicate the theory
on which Roberts bases this claim. With respect to his carnal knowledge conviction, Roberts
relies on K.L.W.'s own testimony. K.L.W. told the jury at trial that she did not reveal to the
government the specifics of the only incident identified in the bill of particulars until she
spoke with a prosecutor who became involved in the case after the return of the indictment.15
Thus, according to Roberts, the grand jury did not know about, and therefore could not have
indicted him upon, the conduct that led to his conviction of carnal knowledge.
15
K.L.W. did not personally testify before the grand jury.
16
Roberts makes a different, though related, argument with respect to his conviction of
rape. He points out, correctly, that the only incident identified in the bill of particulars as
relating to the rape charge is one that occurred in October 1992. K.L.W. also claimed to have
been raped in May 1992, however, and it was the alleged May rape that resulted in her
pregnancy and in the subsequent birth of her daughter. The jury heard testimony regarding both
of these incidents, and Roberts argues that the verdict as to the rape count may very well have
been based on the alleged May 1992 sexual assault. Pointing to the fact that the May incident
was not mentioned in the government's bill of particulars, Roberts reasons that it was not part
of the indictment, that he therefore may have been convicted of an offense for which the grand
jury did not indict him, and that the indictment had thus been constructively amended to charge
the May incident.
If we were to accept Roberts' contention that each count of the indictment referred only
to a single discrete incident, then we would be bound to agree with his claim of constructive
amendment. Given our view that each count embraced a series of separate incidents, however,
the evidence at trial corresponded to the grand jury's allegations. Although the specific details
of the carnal knowledge incident specified in the bill of particulars had not been individually
presented to the grand jury, that body heard ample evidence of the entire series of events of
which that incident was a part. "Nowhere in the criminal law do we require all evidence
presented at trial to be presented to the grand jury; it is custom and practice to present just
enough to get the indictment." United States v. Staggs, 881 F.2d 1527, 1535 (10th Cir. 1989)
(Logan, J., concurring). Finally, the period of time alleged in Count Three embraced both of
the rapes regarding which the jury heard evidence.
E. The bill of particulars, variance, and prejudice.
17
Notwithstanding our rejection of Roberts' claim of constructive amendment, we agree
with him that the evidence presented by the prosecution at trial, at least as to rape, cannot
readily be reconciled with the government's bill of particulars.
The prosecutor there
represented that the incident underlying the rape charge occurred in October 1992, and
evidence of that offense was duly introduced at the trial. But as noted above, the trial jury also
heard of a second alleged rape, namely, the one that took place in May 1992 and resulted in the
birth of K.L.W.'s daughter. The prosecutor then asked the jury "to find [Roberts] guilty of rape,
for when he raped her all of the times after she turned sixteen." The jurors were never told
which was the charged offense.
The judge instructed the jury that Roberts had been charged with one count each of
carnal knowledge and rape, that there had been evidence of more than one act, and that the
jurors had to agree unanimously that all of the elements of carnal knowledge or rape had been
proved on at least one occasion before they could convict Roberts of either count. There was
no objection to this instruction or to the consideration by the jury of alleged sexual assaults
not identified in the bill of particulars.
"The function of a bill of particulars is to enable the accused to prepare for trial and to
prevent surprise, and to this end the government is strictly limited to proving what it has set
forth in it." United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828
(1962). "Courts must therefore view with suspicion attempts by parties to adduce proof of
facts which modify or contradict assertions recorded in their bill of particulars." United States
v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963). In light of these authorities, Roberts might well
have been in a position to insist, on the basis of the government's bill of particulars, that the
jury be limited to consideration of his guilt or innocence only of the October rape. Had such
a request been made on variance grounds, the trial judge might well have granted it.
18
But "it is well settled that a variance between the proof and the bill of particulars is not
grounds for reversal unless the appellant is prejudiced by the variance." Id.; see also United
States v. Francisco, 575 F.2d 815, 818 (10th Cir. 1978). The court explained in Francisco that
[p]rejudice is normally considered to be present if there is danger
[that] the accused will be prosecuted a second time for the same
offense, or that he was so surprised by the proof that he was
unable to prepare his defense adequately.
Id. at 819 (citations omitted).
The court indicated that a defendant's failure to ask for a
continuance may defeat a claim of surprise. Id.
In the present case, there was no prejudice. "[I]t can hardly be doubted that [Roberts]
would be fully protected from again being put in jeopardy for the same offense[s], particularly
when it is remembered that [he] could rely [not only upon the indictment but also] upon other
parts of the present record in the event that future proceedings should be taken against [him]."
Russell, supra, 369 U.S. at 764; accord, Nichols v. United States, 343 A.2d 336, 343 (D.C. 1975);
Lakin, supra, 517 A.2d at 847. We agree with the government that "[h]ere, the indictment and
trial transcript would adequately protect [Roberts] against subsequent jeopardy for any act of
sodomy, carnal knowledge or rape against complainant during the entire period alleged in the
indictment." Indeed, we do not understand counsel for Roberts to be arguing to the contrary.
Roberts likewise has made no claim of surprise. At trial, he made no objection to the
consideration of incidents not specified in the bill of particulars, nor did he request a
continuance when they were mentioned. Moreover, this was Roberts' second trial. Although
the transcript of his first trial is not before us, we are aware of no allegation by Roberts that
he was surprised at his second trial by the introduction of evidence of incidents not disclosed
19
at the earlier trial before Judge Duncan-Peters.
Given the lack of prejudice, "we do not believe that the law is or should be so
preoccupied with theory that practical consequences must be disregarded." Helm v. United
States, 555 A.2d 465, 469 (D.C. 1989). As the Supreme Court remarked in the context of a
dispute over the sufficiency of an indictment, "[c]onvictions are no longer reversed because
of minor and technical deficiencies which did not prejudice the accused." Russell, supra, 369
U.S. at 763 (quoting Smith v. United States, 360 U.S. 1, 9 (1959)). In this case, sloppy
prosecutorial draftsmanship has created readily avoidable problems which are quite unrelated
to Roberts' guilt or innocence or to the fairness of his trial, and the defects in the charging
documents have enabled conscientious and resourceful defense counsel to mount plausible
appellate challenges to Roberts' convictions. But "[a] criminal prosecution is more than a game
in which the government may be checkmated and the game lost merely because its officers
have not played according to rule." McGuire v. United States, 273 U.S. 95, 99 (1927); see also
United States v. Ceccolini, 435 U.S. 268, 279 (1978); Robinson v. United States, 697 A.2d 787,
791-92 (D.C. 1997). A more precise indictment and a more accurate bill of particulars would
certainly have simplified this case and served the interests of justice. We conclude, however,
that these pleading deficiencies do not warrant reversal.
III.
CONCLUSION
Roberts' conviction for taking indecent liberties with a minor is vacated. See note 6,
supra. His convictions for carnal knowledge and rape are
20
Affirmed.16
16
Roberts' final contention need not detain us long. Roberts testified at trial that he had
sexual relations with K.L.W. on only one occasion and that K.L.W. was a voluntary participant
in that encounter. Roberts asserted on direct examination that he never mentioned this
consensual sex to anyone for several years because he was ashamed of his conduct. A police
detective who interviewed Roberts testified, however, that Roberts denied ever having had sex
with K.L.W. at all.
On cross-examination and in closing argument, the prosecutor focused heavily on the
point that if Roberts' testimony were true, one would have expected him to tell his family and
friends the truth about what had occurred, and that Roberts would have told the police officer
who questioned him that there had been no rape and that the sexual relations had been
consensual. The prosecutor sought to show that Roberts only came up with the "consensual
sex" theory after DNA testing had rendered implausible his earlier denial of any sexual
relations with K.L.W.
With the exception of a single objection to a specific question, which was sustained,
Roberts did not object to this entire line of inquiry and argument. Relying on Doyle v. Ohio,
426 U.S. 610, 619 (1976), however, Roberts now asserts that the trial judge committed plain
error by not intervening, sua sponte, and by failing to prohibit the cross-examination and
closing argument of which Roberts now complains.
Much of the prosecutor's questioning related to the period that predated Roberts'
receipt of advice or rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Some of it
carried over to the post-advice of rights period. All of it at least arguably constituted a
reasonable response to Roberts' exculpatory explanation of his silence on direct examination.
In any event, we must review the judge's failure to intervene on her own initiative under
the "plain error" standard. Applying that standard to the record before us, we conclude that
Roberts has shown neither that the alleged error was "obvious" nor that it resulted in a
miscarriage of justice. See, e.g., Coates v. United States, 705 A.2d 1100, 1104-05 (D.C. 1998);
id. at 1105 (Ruiz, J. concurring); Hasty v. United States, 669 A.2d 127, 134 (D.C. 1995); Hunter
v. United States, 606 A.2d 139, 142-46 (D.C.), cert. denied, 506 U.S. 991 (1992). Accordingly,
we discern no basis for reversal.
21
22
RUIZ, J., concurring.
I join the majority opinion in concluding that the indictment
returned against Roberts was sufficient, and that the evidence presented at trial neither
constructively amended the indictment nor impermissibly varied from it. That conclusion is
possible in this case because, uncustomarily, we are aided by having a transcript of the grand
jury hearing to inform us of what the grand jury in fact heard. With that information, we can
confidently conclude that the ambiguous language of the indictment is properly read to include
a series of discrete acts within two defined periods of time. In this case, the government
permissibly chose to prosecute one of the incidents charged in each of the two time periods
defined by the grand jury.
Where I part company with my colleagues is with characterizing challenges to the
sufficiency of, or departures from, an indictment as a “technical” matter because it does not
go to guilt or innocence or to the fairness of trial . Compare ante at ___ , with Robinson v.
United States, 697 A.2d 797, 793-94 (D.C. 1997) (Ruiz, J., concurring) (“[T]he grand jury is
[not] a quaint technicality,” but a “community-based check” on federal law enforcement
power). The Constitution provides the right to be charged for serious crimes by indictment.
See U.S. CONST. amend. V. That requirement was considered to insert a valuable check by peers
against the power of the prosecution and of judges. See Russell v. United States, 369 U.S. 749,
770-71 (1962). In exercising the judicial power that the grand jury clause was designed to
limit, we must conform fully to the substantial purpose of that constitutional protection.
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