COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

HUBERT GARL MULLINS 

 MEMORANDUM OPINION* BY 

v. Record No. 1250-94-3 JUDGE JAMES W. BENTON, JR. 

 JUNE 25, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 David L. Scyphers (Johnson, Scyphers & 

Austin, P.C., on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Hubert Garl Mullins was convicted by a jury of conspiracy to 

distribute cocaine and two counts of distribution of cocaine. He 

contends that the trial judge erred in (1) finding no statutory 

speedy trial violation, (2) joining his trial with another 

defendant and denying his motion to sever the individual counts 

of the indictment, (3) denying his motion for a continuance, (4) 

allowing testimony concerning baggies that were found at his 

business but not produced at trial, and (5) by admitting in 

evidence cocaine and a related certificate of analysis that were 

not connected to him. For the reasons that follow, we reverse 

the convictions and remand for a new trial. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 I. 

 The grand jury indicted Mullins on one count of conspiracy 

to distribute cocaine and seven counts of distribution of 

cocaine. The Commonwealth alleged that Mullins, an operator of a 

game room and pool hall in Coeburn, Virginia, participated in a 

cocaine distribution ring in Southwest Virginia. 

 In a bill of particulars, the Commonwealth alleged that the 

seven counts of distribution of cocaine involved distribution to 

seven different individuals. Four of the individuals, Billy 

Hopkins, Scott Sluss, Steve Wright, and Dexter Ring, did not 

testify at trial. Although testimony proved that Mullins sold 

cocaine, none of the evidence proved that Mullins distributed 

cocaine to any of these four individuals. Another individual, 

Kenneth Dale Pruitt, testified that Mullins did not distribute 

cocaine to him and that he never agreed with Mullins to 

distribute cocaine. No evidence proved that Mullins distributed 

cocaine to Pruitt. At the close of the Commonwealth's 

case-in-chief, the trial judge struck the five counts charging 

distribution to those five individuals. The prosecutor readily 

admitted that "[t]he only viable counts from the Commonwealth's 

evidence are Counts 1, 5, and 8." 

 Count 1 involved the conspiracy. In one of its supplemental 

responses to Mullins' motion for a bill of particulars, the 

Commonwealth listed twenty-two individuals as members of the 

alleged conspiracy. At trial, Patricia Ann Beaver and Clifford 
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Mullins testified that Mullins advanced them cocaine to sell and 

that they paid him from the proceeds of the sales. In addition, 

Dale Marshall testified that he "associated . . . with [Mullins] 

for the purpose of distributing cocaine." The jury convicted 

Mullins of conspiracy. 

 Counts 5 and 8 charged distribution of cocaine to Clifford 

Mullins and David Ely respectively. Clifford Mullins testified 

that he purchased "[an] eight ball of cocaine" from Mullins. He 

further testified that he used cocaine about one hundred times 

after obtaining it from Mullins. Ely testified that on ten to 

fifteen occasions he purchased cocaine at the game room from 

Mullins. The jury convicted Mullins of distributing cocaine to 

Clifford Mullins and David Ely. 

 Larry Michael Popp, who was tried jointly with Mullins, was 

also charged with conspiracy to distribute cocaine and with 

aiding and abetting in the distribution of cocaine. At trial, 

Pruitt testified that he purchased large amounts of cocaine for 

Popp who would in turn sell it. Russell Barry Peters and Joe 

Greer admitted receiving cocaine from Pruitt and delivering it to 

Popp. Johnny Poole, a cocaine user, stated that he purchased 

cocaine from Popp. From this evidence and other testimony at 

trial, the jury convicted Popp of conspiring to distribute 

cocaine and distribution of cocaine. 

 II. 

 Mullins was indicted by a grand jury on October 30, 1992. 
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He was arrested November 16, 1992, and later released on bail. 

Under these circumstances, Code § 19.2-243 required that Mullins' 

trial commence within nine months from the date of his arrest. 

 Mullins was tried on February 7, 1994. Obviously, more than 

nine months elapsed from the time of Mullins' arrest on November 

16, 1992, until his trial on February 7, 1994. However, Code 

§ 19.2-243 contains the following language pertinent to the 

speedy trial issue: 

 The provisions of this section shall not 

apply to such period of time as the failure 

to try the accused was caused: 

* * * * * * * 

 By continuance granted on the motion of 

the accused or his counsel, or by concurrence 

of the accused or his counsel in such a 

motion by the attorney for the Commonwealth, 

or by the failure of the accused or his 

counsel to make a timely objection to such a 

motion by the attorney for the Commonwealth 

 . . . . 

 Mullins concedes that he requested a continuance to January 

19, 1993. He contends that for purposes of the speedy trial 

analysis the nine month time period should be calculated from 

that date. He argues that when other delay attributed to him is 

considered, the time to try him expired on January 18, 1994, 

twenty days prior to his trial date. The Commonwealth argues 

that when the motions and continuances are properly charged to 

Mullins no violation occurred. 

 For purposes of this appeal, we focus on the contested 

period from October 25, 1993 to February 7, 1994. The 
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Commonwealth contends that Mullins agreed to a continuance for 

that period. Mullins asserts that he did not. 

 Mullins raised the issue of speedy trial in a motion to set 

aside the jury's verdict. The trial judge held an evidentiary 

hearing on May 24, 1994 to determine if Mullins had agreed to the 

continuance. At that hearing, the trial judge relieved Mullins' 

trial counsel from his representation and substituted Mullins' 

current counsel. Mullins' trial counsel was called as a witness 

and testified that prior to the October 1993 request for a 

continuance several motions filed by Mullins had not been 

resolved. He further testified that the following occurred at an 

October 1993 session of the court: 

 What happened, and I, I could go through and 

reconstruct all this. I haven't had the 

benefit of doing that. But what recall, what 

I recall happening was we appeared before the 

Court, there were joinder motions pending. 

There was briefs that I had written on that 

as late a December that the Court wanted 

briefs submitted. We filed motions opposing 

that. We filed motions I think for 

severance. They had motions for joinder. 

And there was umpteen motions, and it was 

from my recollection, I thought we talked to 

the Court at the bench. We may not have. It 

may have been in camera. I thought it was at 

the bench. The Court wanted to know if 

everybody was prepared to go forward. I 

recall saying the Court hasn't ruled on all 

these motions. Your Honor said, well does 

that mean you're prepared to go forward? I 

said well I can't go forward without the 

Court ruling. And it was discussed, and it 

was agreed it'd be continued. And then I 

received a continuance order which I 

forwarded, actually I wrote a letter dated 

October 20th advising that it had been 

continued, and then a letter dated October 

21st attached to which I forwarded a copy. 
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 Following the May 1994 evidentiary hearing, the prosecutor 

and Mullins' counsel submitted briefs on the issue. The trial 

judge convened another hearing on June 17, 1994. However, the 

record on appeal does not include the transcript from the June 

17, 1994 hearing. The trial judge ruled on that day that "for 

reasons stated to the record" he found Mullins' right to a speedy 

trial had not been denied. We do not know whether the trial 

judge heard more testimony at that hearing or why the trial judge 

ruled that Mullins' was charged with the disputed time period. 

 "The importance of the record is obvious, for it is 

axiomatic that an appellate court's review of the case is limited 

to the record on appeal." Turner v. Commonwealth, 2 Va. App. 96, 

99, 341 S.E.2d 400, 402 (1986). Moreover, because we are 

required to review the record "in assessing responsibility for 

delay in trying a defendant," Godfrey v. Commonwealth, 227 Va. 

460, 464, 317 S.E.2d 781, 783 (1984), any hearing germane to that 

issue is indispensable to our review. "If . . . the transcript 

is indispensable to the determination of the case, then the 

requirements for making the transcript a part of the record on 

appeal must be strictly adhered to." Turner, 2 Va. App. at 99, 

341 S.E.2d at 402. That responsibility lies with Mullins, the 

appellant. Ferguson v. Commonwealth, 10 Va. App. 189, 194, 390 

S.E.2d 782, 785, aff'd in part, rev'd in part, 240 Va. ix, 396 

S.E.2d 675 (1990). Because the transcript is indispensable to a 

determination of the issue, this Court cannot consider the speedy 
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trial issue on appeal. 
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 III. 

 An accused may be tried for several offenses at one trial 

"if justice does not require separate trials," Rule 3A:10(c), and 

the offenses are "based on the same act or transaction, or on two 

or more acts or transactions that are connected or constitute 

parts of a common scheme or plan." Rule 3A:6(b). See also Cheng 

v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603 (1990). 

 Seven counts of the indictment alleged that Mullins 

distributed controlled substances to "John Doe[s]" one through 

seven. The other count of the indictment alleged that Mullins 

engaged in a conspiracy with others to distribute cocaine. Prior 

to trial, the Commonwealth filed a "proffer of evidence" alleging 

that Mullins' eight charges were connected in various ways and 

arose from "a common plan and scheme." The trial judge ruled 

that the offenses could be joined because they were transactions 

that comprised a common scheme or plan. 

 Mullins asserts that the proffer proved to be erroneous. 

Indeed, the record establishes that at the conclusion of its 

case-in-chief, the prosecutor stated: "The only viable counts 

from the Commonwealth's evidence are Counts 1 [conspiracy], 5 

[distribute to John Doe #4], and 8 [distribution to John Doe 

#7]." Thus, the Commonwealth tacitly conceded that the evidence 

was insufficient to support counts 2, 3, 4, 6, and 7, despite 

having proffered evidence that those charges constituted part of 

a common plan or scheme. 
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 A trial judge's decision to join offenses will be reversed, 

however, only for an abuse of discretion. Cheng, 240 Va. at 33, 

393 S.E.2d at 603. We find no basis to hold that the trial judge 

abused his discretion in allowing joinder of the offenses based 

on the Commonwealth's initial and supplemental proffers of 

evidence. The judge had no reason to believe that the 

Commonwealth would not or could not prove its case. 

 However, after the trial judge struck five counts of the 

indictment that the Commonwealth failed to prove, Mullins moved 

for a mistrial because of the Commonwealth's failure to prove a 

common scheme and the prejudice resulting from the joinder. The 

Commonwealth's evidence failed to prove that Mullins' 

distribution of cocaine to Clifford Mullins (Count 5) was related 

in any way to the distribution to David Ely (Count 8). The 

Commonwealth also did not prove that the conspiracy between 

Mullins and Popp was in any way related to the cocaine 

distributions to either Clifford Mullins (Count 5) or David Ely 

(Count 8). The entire record is devoid of any proof relating the 

conspiracy and distribution charges to a common plan or scheme. 

 Because the Commonwealth failed to offer any evidence that 

tended to prove that the eight indictments or three convictions 

were "based on the same act or transaction, or on two or more 

acts or transactions that [were] connected or constitute[d] parts 

of a common scheme or plan," Rules 3A:10(b), 3A:6(b), the record 

supports Mullins' argument that the joinder of all eight charges 
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prejudiced his defense to the three unrelated charges. During 

its case-in-chief, the Commonwealth introduced evidence of the 

two unrelated drug distributions and the conspiracy. Instead of 

being limited to proving a particular, distinct crime, the 

Commonwealth introduced evidence of all the other crimes. If the 

three crimes had been prosecuted separately, the Commonwealth 

could not have been entitled to introduce evidence of the other 

alleged offenses at each trial. See Godwin v. Commonwealth, 6 

Va. App. 118, 123, 367 S.E.2d 520, 522-23 (1988). Given the 

Commonwealth's failure to connect any of the offenses to a common 

plan or scheme, the net effect of the admission of evidence on 

all the eight charges was to deny Mullins a fair trial. 

Consequently, we hold the trial judge abused his discretion in 

overruling Mullins' motion for a mistrial at the close of the 

Commonwealth's case. See Conway v. Commonwealth, 12 Va. App. 

711, 717, 407 S.E.2d 310, 313 (1991)(en banc); Henshaw v. 

Commonwealth, 3 Va. App. 213, 220, 348 S.E.2d 853, 857 (1986). 

 IV. 

 When Mullins was indicted, an accused could demand that he 

be tried individually. See Code § 19.2-263 (repealed 1993). 

Mullins moved for separate trials. On March 2, 1993, the trial 

judge ordered Mullins' trials severed from the other defendants 

as required by Virginia law. Id. One month later, the trial 

judge granted the Commonwealth's motion for a continuance until 

August 11, 1993. During that continuance, Code § 19.2-262.1 
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became effective on July 1, 1993, and changed the law as follows: 

 On motion of the Commonwealth, for good cause 

shown, the court, in its discretion, may 

order persons charged with participating in 

contemporaneous and related acts or 

occurrences or in a series of acts or 

occurrences constituting an offense or 

offenses to be tried jointly unless such 

joint trial would constitute prejudice to a 

defendant. If the court finds that a joint 

trial would constitute prejudice to a 

defendant, the court shall order severance as 

to that defendant or provide such other 

relief justice requires. 

Code § 19.2-262.1. 

 On July 15, the Commonwealth moved the trial judge to join 

the trials of Mullins and Popp with four other defendants. In 

addition to Popp and Mullins, the Commonwealth named Sammy 

Stallard, Dexter Ring, Roger Murphy and George Mayes as 

co-defendants and asked the trial judge to jointly try all the 

co-defendants. The Commonwealth's supplemental proffer of 

evidence alleged that all of these individuals participated "in a 

large scale distribution of cocaine scheme from 1988 through 

1992." In a ruling from the bench, the trial judge allowed the 

Commonwealth to try the individuals jointly, except for Sammy 

Stallard. Nothing in the record states why the Commonwealth 

ultimately decided to try only Popp and Mullins together. 

 The Commonwealth asked for and received the continuance 

because of its failure to furnish Mullins with a bill of 

particulars. Mullins alleges that the continuance was a stalling 

tactic designed to make use of the favorable provisions of Code 
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§ 19.2-262.1. We need not decide that point. We only note that 

by continuing the case until August, the Commonwealth was able to 

try Mullins and Popp together. We also recognize that 

"procedural provisions of the statute in effect on the date of 

trial control the conduct of the trial insofar as practicable." 

Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 

(1978), cert. denied, 441 U.S. 967 (1979). However, because this 

case must be retried we need not address whether the trial judge 

abused his discretion in changing his ruling so as to allow a 

joint trial, where the indictments occurred long before the 

effective date of the new procedure and the record suggests that 

the trial was delayed because of the Commonwealth's tactic. 

 V. 

 Mullins contends that the trial judge should not have 

allowed testimony concerning the plastic bags seized by the 

police from the attic of his game room. The Commonwealth 

attempted to prove that the bags found by the police were the 

type used by Mullins to package cocaine. When Mullins' counsel 

asked to view the bags seized by the police, the Commonwealth 

stated that the bags could not be found. 

 Mullins did not allege and there is no indication in the 

record that the baggies were exculpatory evidence. See Brady v. 

Maryland, 373 U.S. 83 (1963). When Brady is not applicable, the 

Supreme Court has held that "unless a criminal defendant can show 

bad faith on the part of the police, failure to preserve 
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potentially useful evidence does not constitute a denial of due 

process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). 

 Virginia does not offer any greater protection than set forth in 

Youngblood. See Tickel v. Commonwealth, 11 Va. App. 558, 562-63, 

400 S.E.2d 534, 537 (1991); Thomas v. Commonwealth, 244 Va. 1, 

18, 419 S.E.2d 606, 615-16, cert. denied, 506 U.S. 958 (1992). 

Accordingly, the trial judge did not err in allowing testimony 

concerning the plastic baggies discovered at Mullins' game room. 

 VI. 

 Mullins also contends that the trial judge erred in refusing 

to grant a continuance when the Commonwealth amended the bill of 

particulars at trial. The record reflects that Mullins' counsel 

never requested a continuance based on the amendment. Instead, 

counsel requested that Clifford Mullins and Kenneth Pruitt "not 

be able to testify in regard to those two counts [of cocaine 

distribution], or that those two counts be severed." 

 Rule 5A:18 bars this Court from considering the 

appropriateness of a continuance if counsel does not request one. 

 Counsel may not "remain silent at trial" and claim on appeal 

that the trial judge erred. Gardner v. Commonwealth, 3 Va. App. 

418, 423, 350 S.E.2d 229, 232 (1986). "The purpose of this rule 

is to allow correction of an error if possible during the trial, 

thereby avoiding the necessity of mistrials and reversals." Id.

 VII. 

 At trial, the Commonwealth introduced in evidence a bag of 
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cocaine during the testimony of Ely. The Commonwealth 

acknowledged that another individual, not Mullins, had sold the 

bag of cocaine to an undercover agent. No testimony connected 

Mullins to the bag of cocaine. Nonetheless, the trial judge 

allowed introduction of the cocaine during Ely's testimony as 

proof that the cocaine was packaged in a fashion similar to 

cocaine purchased by Ely from Mullins. The judge instructed the 

jury that the cocaine is "for the purpose of showing to you what 

a baggy of white powder looks like" and that the baggy with 

cocaine "is not what allegedly was purchased by Mr. Ely from 

[Mullins]." 

 Generally, the "[a]dmission of items of demonstrative 

evidence to illustrate testimonial evidence is . . . a matter 

within the sound discretion of a trial court." Mackall v. 

Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert.

denied, 492 U.S. 925 (1989); Peoples v. Commonwealth, 147 Va. 

692, 705, 137 S.E. 603, 607 (1927). However, such evidence is 

inadmissible if it is highly prejudicial and without significant 

probative value. Taylor v. Commonwealth, 17 Va. App. 271, 275, 

437 S.E.2d 202, 204 (1993). 

 The Commonwealth prosecuted Mullins for distributing 

cocaine. Admitting into evidence cocaine that the Commonwealth 

did not link to Mullins was highly prejudicial because cocaine 

was a substance that went to the heart of the charged crime. To 

prove the manner of packaging, the Commonwealth could have 
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introduced empty baggies tied in a particular way. Instead, the 

trial judge permitted the Commonwealth to offer proof of a 

substance that could have inflamed the passions of the jury. We 

hold the trial judge abused his discretion in allowing such proof 

and the corresponding certificate of analysis. 

 For these reasons, we reverse Mullins' convictions due to 

the trial judge's abuse of discretion in failing to grant a 

mistrial and in admitting the bag of cocaine and certificate of 

analysis. We remand this case for a new trial. 

 Reversed and remanded.