Michael Roy Fuller v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata, and Overton
Argued at Alexandria, Virginia
MICHAEL ROY FULLER
v. Record No. 2520-93-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Benjamin N. Kendrick, Judge
Gail Starling Marshall, for appellant.
Robert H. Anderson, III, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief), for
appellee.
Michael Fuller appeals from his conviction of attempting to
obstruct justice in violation of Code § 18.2-460(B). Fuller
contends that the trial court erred in (1) dismissing Fuller's
witness, (2) sustaining objections to defendant's questions as to
his reputation, and (3) failing to grant defendant's motion to
set aside the verdict of guilty as to the attempt to obstruct
justice as contrary to the law. Finding no error, we affirm the
judgment of the trial court.
Fuller was arrested after an altercation at the Stafford
County Sheriff's office and charged with carrying a concealed
weapon and attempting to obstruct justice. The details of this
event were presented at trial and the parties are familiar with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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them.
At a jury trial, Fuller acted as his own counsel. He
subpoenaed eight witnesses to testify on his behalf. Upon motion
of the Commonwealth, the court asked Fuller to proffer the
relevancy of the witnesses. Fuller gave a brief statement as to
what each would say. After ensuring that the witnesses had
nothing that addressed the Commonwealth's case, the judge
released them. Fuller objected.
The release of the witnesses was not error. None of the
subpoenaed witnesses was present when the incident at the
Sheriff's office took place, and Fuller's proffer failed to show
that they had any evidence that was material or favorable to his
case. Absent such a showing, Fuller's rights were not violated.
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982);
Howard v. Commonwealth, 6 Va. App. 132, 144, 367 S.E.2d 527, 534
(1988).
Fuller later attempted to elicit character evidence from his
witnesses. The Commonwealth objected to Fuller's questions and
was sustained. Fuller made no proffer as to what these witnesses
would say. He asked questions that would have brought out
inadmissible evidence, not concerning Fuller's good character for
a trait involved in the particular prosecution. See Barlow v.
Commonwealth, 224 Va. 338, 340, 297 S.E.2d 645, 646 (1982).
Without a proffer as to what the witnesses would have said,
the denial of their testimony cannot constitute reversible error.
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"[W]hen testimony is rejected before it is adjudicated, an
appellate court has no basis for adjudication unless the record
reflects a proper proffer." Whittaker v. Commonwealth, 217 Va.
966, 968, 234 S.E.2d 79, 81 (1977). Absent such a proffer, the
court cannot consider an error assigned to the rejection of
unheard testimony. Id.
The jury convicted Fuller on the charge of attempting to
obstruct justice. Fuller moved to set aside the verdict as being
contrary to the law. The judge denied the motion.
On appeal Fuller argues that his actions as claimed by the
Commonwealth do not violate Code § 18.2-460(B), which states:
B. If any person by threats of bodily harm or
force knowingly attempts to intimidate or impede a
judge, magistrate, justice, juror, witness, or any
law-enforcement officer, lawfully engaged in the
discharge of his duty, or to obstruct or impede
the administration of justice in any court
relating to a violation of or conspiracy to
violate § 18.2-248 or § 18.2-248.1(a)(3), (b) or
(c) he shall be guilty of a Class 5 felony.
Fuller argues that this section requires an affirmative,
aggressive force directed against an officer and that such a
force was not present here. We need not define the exact amount
of action necessary to establish a violation of § 18.2-460(B).
We do find, however, that Fuller's actions in this case
sufficiently impeded the officers such that he violated the
statute. Indeed, in closing argument at trial the defendant's
assigned standby counsel argued that if the jury believed the
Commonwealth's witnesses, then Fuller was guilty.
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Because we find that the trial court committed no error and
that the evidence supports a conviction under § 18.2-460(B), we
will not disturb the judgment of the trial court.
Affirmed.
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