Hubert Garl Mullins v. Commonwealth ( 1996 )

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
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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.
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