, 2014

Tucker found guilty of rape;
sentencing set for August 20

by Audrey Thomasson

LANCASTER—Calvin A. Tucker Jr. was found guilty last week of four felonies including rape and burglary in the sexual assault of an 89-year-old woman while she slept in her home in Lively.

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Conclusive DNA evidence cinched Judge Joseph E. Spruill Jr.’s decision, despite the defendant’s testimony he was innocent and sleeping at a friend’s house in Kilmarnock at the time of the attack on January 19, 2011.

Following the guilty verdict, Judge Spruill asked the accused if he had anything else to say.

Tucker, 34, again proclaimed his innocence.

“I wasn’t the person who did this...I don’t know what else to say about this. All that is a lie...” he said. Tucker repeated he was out drinking with his cousins that evening before spending the night at a friend’s, and that he didn’t need to rape anyone because he had a fiancée.

According to sentencing guidelines, Tucker faces up to life in prison when the judge delivers his sentence in August.

As Tucker was led from the courtroom, he told the judge there was no need for a sentencing hearing because he wouldn’t be around.

“Don’t do it,” a young woman cried. The woman had earlier identified herself as Tucker’s sister.

During the trial, the victim, now 90, testified of being awakened by a man around 2:30 a.m., but could not identify her attacker because he put a pillow over her face every time she screamed at him to get out of her house.

After her attacker left, she reached for the phone to call 911 but said the phone was gone and the other phones in the house were dead. “I grabbed my coat and ran to my friend’s house and banged on their door and told them someone broke into my house and raped me,” she said.

Under cross examination, the victim said she couldn’t judge her attacker’s height or weight because he was hovering over her. “I don’t think he was a heavy-set man,” she said.

The first time she saw Tucker’s face was when his picture appeared in the Rappahannock Record after his arrest, she said.

According to Lancaster County sheriff’s investigator Joan Kent, DNA swabs were taken from four possible suspects, including Tucker. During an interview with Tucker two weeks after the attack, he said scratches on his neck and base of his throat were the result of a fight he had with his fiancée on Christmas Eve. Also, he said he was in Philadelphia attending his father’s funeral at the time the victim was attacked.

Commonwealth’s Attorney Robert Cunningham and assistant Henrico Commonwealth’s Attorney Toni Randall presented testimony and forensic evidence the judge called thorough and professional.

Pre-trial motions

Defense attorney Brent Jackson of Richmond earlier filed motions against Cunningham for not following proper court procedures, failing to use the proper forms for subpoenas, and seeking the assistance of prosecutor Randall without notifying him.

“A week or two ago, I received an order from this court...to have (Randall) appointed to assist in prosecution of this case. I was quite shocked to see the order,” said Jackson. “I never received a copy of a motion. Under due process you do not file a motion without certifying that the defendant or his council has been notified. I ask that you vacate the order.”

Also, Jackson said Cunningham never responded to his subsequent motion to keep Randall off the case.

“I filed a motion and he filed no response. This is case law 101—you have to respond. This is a court of record...I am troubled...this is problematic,” he continued.

Cunningham said he asked the court to allow Randall’s assistance due to the complicated forensic evidence since Randall is an expert prosecutor in the area of forensic science. “It’s not unusual to use an assistant for trial,” he said.

“What other people do is not an applicable argument,” argued Jackson. “This is the very, very, very first time the Commonwealth’s Attorney has come in and said, ‘I need assistance because everyone else has done it.’”

Citing the state code, Jackson said a special prosecutor could only be used in cases of the prosecutor being ‘sick, having other temporary duties, or ethically disqualified.’

“When (Cunningham) ran for office, he indicated he was able and capable...and experienced...as reported in the local newspaper,” Jackson said. “He needs to do what I’ve been doing for 30 years and learn through experience...Every time I come here he has an assistant helping him...He is violating due process. I’d like to put council on the stand and ask him about his experience.”

“That’s not going to happen,” Judge Spruill replied. “You got a copy (of the motion) after it was filed. While the procedure leaves much to be desired...I don’t know how that effects this case. Mr. Cunningham is very inexperienced. He says he needs help,” stated the judge in denying Jackson’s motion and allowing Randall to assist.

During the trial, as Randall questioned state forensic scientist James Bullock about a screwdriver found in Tucker’s car matching pry marks on the victim’s back door, Jackson objected, saying he had not received Bullock’s report. However, when he found the report in his file, the judge suggested he turn his files over to Randall so she could organize them.

Proceedings continue

After testing the swabs from the four possible suspects, state DNA scientist Christen Van Italia noted Tucker could not be excluded and the statistical odds of finding another person whose DNA came as close as Tucker’s is “one in greater than 6.5 billion—the world population.”

During cross examination, Jackson questioned the collection of samples and suggested certain events or handling of evidence, including urinating, may have compromised, destroyed or distorted the DNA.

“No,” Van Italia replied each time. She testified the highest profile tests available were used and that she followed protocols established by the F.B.I.

“Isn’t it unusual to get a result of 1 in greater than 6.5 billion?” Jackson asked, suggesting cousins might have that same DNA.

“Cousins would have similar DNA, but not the same,” Van Italia replied. “Identical twins would be the only ones with identical DNA.”

On re-direct, Randall asked how many areas were tested.

“Thirteen core areas are typically used. We tested 16,” said Van Italia.

Taking the stand, Tucker testified he was at KC’s Crabs and Cues with his cousins until it closed and that he “stayed to help Cordell (Ward) bus tables.” He said they drove to Alley Cafe and drank there until it closed at 2 a.m. Next, they dropped off his cousin and drove to Ward’s house where they talked, made sandwiches and then Tucker slept on the living room sofa. He denied wearing the shirt with the missing button that night, nor of owning a necklace with a medallion found at the scene. Also, he said he had no convictions for lying or cheating.

In her cross-examination, Randall fired questions at Tucker.

“Ever been convicted of breaking into a house? Twice?” she asked.

“Yes,” Tucker replied.

“Assaulted your girlfriend?”

“No.”

“You’ve been convicted of malicious wounding, so you’ve assaulted other people before?”

“Yes.”

Randall then attacked Tucker’s credibility on where he was that evening, noting he first told investigator Kent he was in Philadelphia and then on a second interview said he was at KC’s.

“Your testimony is that you were consistent?”

Tucker claimed Kent told him the wrong date. Also, he claimed the scratches on his neck were from a fight with his fiancee LaTonya Newton some six weeks earlier.

Both Ward and Newton took the stand and backed his story, Ward saying Tucker slept at his house and Newton claiming she scratched him after he hit her.

Cunningham challenged Ward, asking if he knew whether Tucker left his house during the night. Ward noted he didn’t know, but that he didn’t hear a car leave but was awakened by a cell phone ringing several times during the night. However, he noted his family owned five cell phones.

Cunningham also took on Newton’s testimony, asking if she scratched him through his winter coat and reminding her that her Grand Jury testimony was that she scratched him on his right side while the scratch marks were actually on Tucker’s left side.

Kent was recalled to read Newton’s testimony from the Grand Jury transcript. Also, Kent testified it took her six minutes to drive from Ward’s house to the victim’s doing the speed limit, leaving Tucker plenty of time to make the round trip before daylight.

Tucker’s cellmate, Antonio Johnson, testified that Tucker shared with him details of the break-in and rape and that he knew the victim lived alone because he broke into the home at an earlier date. However, the defense accused Johnson of having case details because he found Tucker’s transcripts of the preliminary hearing.

In closing, defense attorney Jackson said the case ultimately came down to credibility of witnesses and DNA. “I’m not going to get into an argument I cannot win...but this man is adamant that he did not do this...he doesn’t know how his DNA got there, but he stands firm that he was not there.”

Announcing a verdict of guilty, Judge Spruill listed all the evidence against Tucker. He also told the victim she had been a courageous witness and thanked Randall, Cunningham and the investigators for a “very thorough and professional job.

“Mr. Jackson, you had a very difficult case...however, the DNA takes care of everything,” he said.

The judge set sentencing for 9 a.m. August 20.


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