                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Petty and McCullough
UNPUBLISHED


              Argued at Richmond, Virginia


              CALVIN A. TUCKER
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1527-12-2                                     JUDGE LARRY G. ELDER
                                                                                   JULY 2, 2013
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF LANCASTER COUNTY
                                          Joseph E. Spruill, Jr., Judge Designate

                               Thomas M. Hendell (Elizabeth B. Hurd; Dunton, Simmons &
                               Dunton, L.L.P., on briefs), for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Calvin A. Tucker (appellant) appeals from his bench trial convictions for rape, object

              sexual penetration, burglary, and possession of burglary tools. On appeal, he contends the trial

              court erred in denying his motion to vacate its order appointing a special prosecutor both because

              the Commonwealth’s motions requesting the appointment were not in writing as required by

              Rule 3A:9 and because the court entered the order of appointment without providing appellant

              notice and an opportunity to be heard as required by the Due Process Clauses of the United

              States and Virginia Constitutions.1 We hold no reversible error occurred, and we affirm

              appellant’s convictions.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Appellant does not in this appeal challenge the underlying authority of the court to
              appoint a special assistant prosecutor or the admission of the DNA evidence, which the special
              assistant prosecutor handled.
                                                  I.

       A lower court’s interpretation and application of the Rules of Court presents a question of

law subject to de novo review. LaCava v. Commonwealth, 283 Va. 465, 469-70, 722 S.E.2d

838, 840 (2012) (citing Moore v. Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 153

(2008)). We also review constitutional questions de novo on appeal. See, e.g., Shivaee v.

Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005).

       Rule 3A:9(b)(3) provides that “[a]ny motion made before trial shall be in writing if made

in a circuit court, unless the court for good cause shown permits an oral motion.”2 The manifest

purpose of the rule is to provide notice to the parties so that no one is surprised or prejudiced.

Similarly, procedural due process, where applicable, entitles one to “reasonable notice” and an

“opportunity to be heard.” McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995);

see also Klimko v. Va. Emp. Comm’n, 216 Va. 750, 757, 222 S.E.2d 559, 565 (1976). We hold

no reversible error occurred here for three reasons.

       First, pursuant to Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986), no

written motion was required and no process was due because the Commonwealth’s Attorney did

not need judicial approval to employ a special assistant prosecutor. Id. at 379-80, 345 S.E.2d at

275 (“The Commonwealth’s attorney is authorized to employ his own assistants, and no court

approval is required.” (citing Code § 15.1-9, now Code § 15.2-1632)). Thus, any absence of

written notice and a hearing violated neither Rule 3A:9(b)(3) nor due process.



       2
            The Commonwealth contends appellant failed to preserve this argument for appeal.
However, Rule 5A:18 “does not prohibit reliance on statutes or cases not presented to the trial
court to support, on appeal, a position otherwise adequately presented at trial.” Lash v. Henrico
Cnty., 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc). Appellant argued that he
had not received a motion and that he “[didn’t] even know if [the Commonwealth’s Attorney]
filed a motion.” Counsel argued further that “a court of record requires . . . that the document is
filed . . . to bring issues before this court.” Thus, we hold Rule 5A:18 does not bar this issue.

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       Second, even if a court order was required to authorize the involvement of a special

assistant prosecutor from another Virginia locality, no error occurred under Rule 3A:9(b)(3)

because good cause existed to excuse the Commonwealth’s failure to submit a written motion.3

Appellant’s notice of entry of the ex parte order also provided him with notice of the

Commonwealth’s underlying request. After appellant received that notice, the trial court

permitted both counsel to make argument on the motion to vacate, as well as on the motion for

appointment of a special prosecutor. Implicit in the court’s procedure was a finding that good

cause existed to excuse the filing of a written motion for such appointment because appellant

received notice of the motion, had a chance to make argument on it, and established no prejudice

from the fact that the motion was not in writing.

       Third, even if we assume that entry of the order of appointment without prior notice to

appellant constituted a violation of his procedural due process rights, any error was “harmless

beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17

L. Ed. 2d 705, 710-11 (1967); Cairns v. Commonwealth, 40 Va. App. 271, 286, 579 S.E.2d 340,

347 (2003) (“An error does not affect the [outcome] if we can determine, without usurping the

[trial court’s] fact finding function, that, had the error not occurred, the [result] would have been

the same.”). The trial court provided appellant with notice of entry of the order and conducted a

subsequent hearing at which appellant was permitted to present argument opposing the

appointment. Thereafter, the trial court reconsidered its decision to enter the order of

appointment and ruled that the order would stand. See Baldwin v. Commonwealth, 43 Va. App.


       3
         We assume without deciding, as we did in Walls v. Commonwealth, 38 Va. App. 273,
278-79, 563 S.E.2d 384, 386-87 (2002), that this portion of the rule applies to the
Commonwealth as well as to the defense. We also assume without deciding that it applies to all
motions made prior to trial, whether or not the rule specifically requires the particular type of
motion to be made before trial. Thus, we need not address the parties’ arguments regarding
whether the holding to this effect in Walls, 38 Va. App. at 279, 563 S.E.2d at 387, was dictum.

                                                -3-
415, 421-24, 598 S.E.2d 754, 757-59 (2004) (holding any error resulting from ex parte

proceeding was cured by subsequent hearing on the same issue at which the defendant submitted

evidence and argument). Thus, any error was harmless.

       Appellant claims entry of the order on an ex parte basis prejudiced his defense because

“[he] would not have been convicted but for the DNA evidence against him,” which was

admitted “only . . . with the special prosecutor’s assistance at trial.” Appellant’s claim of

prejudice improperly focuses on the final result at trial rather than on the specific impact of the

claimed error on his procedural due process rights. As the Supreme Court held in Yarbrough v.

Commonwealth, 258 Va. 347, 362, 519 S.E.2d 602, 609 (1999) (emphasis added), “the

appointment of a special prosecutor does not prejudice the defendant. This is necessarily so

simply because such an appointment does not alter the truth-finding process of the defendant’s

trial.” Thus, to the extent appellant speculates that the DNA evidence would not have been

admitted but for the special prosecutor’s assistance at trial, this consideration simply is not

relevant. No principle of law provides a defendant with the right to have an incompetent

prosecutor. To the contrary, as Yarbrough makes clear, “a Commonwealth’s Attorney, no less

than any other member of the bar, is subject to the rules of professional responsibility,” and “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.” Id. at 361,

519 S.E.2d at 608-09.

       Citing Yarbrough, appellant also claims the trial court erred because it let stand the

original order of appointment rather than vacating it and entering a new order reflecting its ruling

made after the notice and hearing requirements had been met. We reject this contention.

       In Yarbrough, the trial court’s first order of appointment was based on Code § 19.2-155,

which applies where the Commonwealth’s attorney is unable to act due to some “temporary

                                                -4-
disability or ethical bar.” 258 Va. at 355, 519 S.E.2d at 605. Presumably because no such

problem or bar existed in that case, the trial court later vacated its first order and entered a

second based on its inherent authority. Id. at 355-56, 519 S.E.2d at 605. In reviewing the trial

court’s appointment of a special assistant prosecutor in Yarbrough on appeal, the Supreme Court

made no ruling regarding this procedure of vacating the first order and entering a second,

observing it “need[ed] only [to] be concerned with [the second order and] whether the

appointment of a special prosecutor on motion of the Commonwealth falls within this broad

discretion afforded to a trial court.” Id. at 361, 519 S.E.2d at 608.

        On the differing facts in the instant case, in which the trial court’s first and only order of

appointment was based on its inherent authority, we hold it would elevate form over substance to

require the trial court to vacate its order and enter a new order containing precisely the same

ruling. Cf. Purvis v. Commonwealth, 31 Va. App. 298, 308-09 & n.4, 522 S.E.2d 898, 903 &

n.4 (2000) (holding claimed error harmless because it would “exalt form over substance” to hold

“that one judge’s trying multiple unrelated offenses in a bench trial presumptively constitutes

reversible error while holding that the same judge’s trying the same offenses separately but in

rapid succession presumptively is not error”). Because the trial court provided appellant with

notice of entry of the order and an opportunity to object and make argument on his objections,

appellant received all the process he was due, and the trial court’s refusal to vacate the order and

enter a second order identical to the first was not reversible error.

                                                  II.

        For these reasons, we hold no reversible error occurred, and we affirm appellant’s

convictions.

                                                                                             Affirmed.




                                                 -5-
