Michael Roy Fuller v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 6, 1996
• Docket: 2520934
• Status: Unpublished

Opinion

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. February 7, 2008 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.

February 7, 2008

- 2 - "[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.

- 3 - 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.

- 4 -