                   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.
                                 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




                                - 2 -
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.




                                 - 3 -
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



                                  - 4 -
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.



                               - 5 -
     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


                                - 6 -
trial issue on appeal.




                         - 7 -
                                 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.



                                 - 8 -
     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



                                - 9 -
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



                                - 10 -
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




                              - 11 -
§ 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



                                - 12 -
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



                              - 13 -
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




                              - 14 -
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.




                              - 15 -
