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Extra prosecutor not against rules, court says

The Court of Appeals of Virginia has affirmed a Lancaster County man’s rape conviction despite his objections to the prosecutor’s use of extra help with DNA evidence.

When Calvin Tucker was charged with the 2011 assault of an 89-year-old woman in her home, local Commonwealth’s Attorney Robert Cunningham called on assistant Henrico County Commonwealth’s Attorney Toni Randall to help with DNA evidence.

The DNA evidence proved crucial, and Tucker was convicted of four felonies last year and sentenced to 85 years in prison, according to the Rappahannock Record.

Tucker’s lawyers cried foul on the use of Randall in the case. The judge failed to give the defense a chance to be heard on the appointment of a special prosecutor, they argued.

In an unpublished opinion Tuesday, a three-judge panel of the Court of Appeals rejected the arguments. A commonwealth’s attorney does not need to ask a judge’s permission to employ a special prosecutor, the court said, and Tucker’s lawyer had a chance to voice objections in a later hearing.

Tucker’s lawyers argued his defense was prejudiced because the critical DNA evidence might not have come in to court without the help of the skilled assistant special prosecutor. That consideration is simply not relevant, the appeals court said.

“No principle of law provides a defendant with the right to have an incompetent prosecutor,” wrote Judge Larry G. Elder for the panel.

The duty of competence may require a commonwealth’s attorney of lesser experience to seek the association of more experienced counsel when prosecuting a difficult, complex case, Elder said.

Tucker insisted he was innocent throughout his trial and sentencing. He took the stand to maintain an alibi defense.

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