County District Court No. 12CR1299 Honorable Brian J. Flynn,
J. Weiser, Attorney General, Carmen Moraleda, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, Paul Joshua Burnell, appeals his convictions for
third degree assault of an at-risk victim and harassment. We
2 Burnell was living with his parents, John and Arline
Burnell,  when he got into an argument with John. As
the argument went on, John told him to leave and threatened
to call the police if he did not. Burnell then took the phone
from John, grabbed him by the wrists, and made him sit down
on their couch. John, who takes medication that causes him to
bruise easily, was left with bruised and cracked skin where
Burnell had grabbed him. After spending approximately thirty
minutes yelling at John, Burnell gathered some of his
belongings and left the house.
3 John then drove to the park to pick up Arline and tell her
what had happened. John and Arline did not immediately call
the police, though they had some concern for their safety.
Instead, they discussed the matter and first called one of
Arline's colleagues, a psychiatrist and psychologist who
was familiar with Burnell, to seek outside input. Several
hours after Burnell had left, they called the police and
reported the incident.
4 Burnell was ultimately convicted of third degree assault of
an at-risk victim and harassment, and sentenced to three
years of supervised probation. He now appeals, contending
that the trial court (1) violated his right to be present
when it took the verdict in his absence; (2) erroneously
admitted evidence that a medical professional recommended
that his parents report him to the police; (3) inadequately
responded to a jury question; and (4) improperly denied his
motion for a mistrial when the prosecutor referred to his
exercise of his Fifth Amendment right to remain silent. We
address each contention in turn.
Right to be Present
5 We are first asked to consider whether the trial court
committed reversible error by taking the verdict while
Burnell was not present. We conclude that while it was
improper to proceed under the circumstances, the error was
Applicable Law and Standard of Review
6 "Article II, section 16, of the Colorado Constitution,
and the Due Process Clause, as well as the Sixth Amendment to
the United States Constitution, guarantee the right of a
criminal defendant to be present at all critical stages of
the prosecution." People v. White, 870 P.2d
424, 458 (Colo. 1994). The United States Supreme Court has
held that this right applies "from the time the jury is
impaneled until its discharge after rendering the
verdict." Shields v. United States, 273 U.S.
583, 589 (1927).
7 This right, however, may be waived either expressly or
through the conduct of the defendant such as by voluntarily
failing to appear after trial has commenced. People v.
Janis, 2018 CO 89, ¶ 17 (citing Taylor v.
United States, 414 U.S. 17, 19 n.3 (1973)). Indeed, the
Colorado Rules of Criminal Procedure state that if a
defendant has "[v]oluntarily absent[ed] himself after
the trial has commenced, whether or not he has been informed
by the court of his obligation to remain during the
trial," the trial court shall consider the defendant to
have waived his right to be present, and the trial court may
at its discretion proceed with the trial. Crim. P. 43(b)(1).
8 Whether proceeding with trial in the absence of the
defendant was appropriate, then, rests on whether the trial
court correctly determined that the defendant waived his
right to be present by voluntarily absenting
himself. Whether this absence was a waiver of Burnell's
right to be present is a constitutional question that we
review de novo. Zoll v. People, 2018 CO 70, ¶
15. Where preserved, error in the denial of a defendant's
right to be present is reviewed for constitutional harmless
error. Rushen v. Spain, 464 U.S. 114, 117-20 (1983);
Zoll, ¶ 16. Under this test, constitutional
error requires reversal unless the People can "prove
beyond a reasonable doubt the absence of any reasonable
possibility that the error might have contributed to the
conviction." James v. People, 2018 CO 72,
9 On May 7, 2013, the court heard closing arguments, and the
jury began to deliberate. At that time, the court told the
parties and counsel that if they "could just stay within
15 or 20 minutes of the courthouse, it[']s helpful to
us." The court explained that it would keep the
attorneys updated as to whether the jury wanted "to stay
through the evening, if they're gonna come back tomorrow,
what time, if they order dinner, all those things."
10 Two days later, at 8:35 in the morning, the jury notified
the court that it had reached a verdict. The court contacted
the attorneys, but by 9:09, Burnell had yet to arrive at the
courtroom. The court asked the defense attorney whether there
was "any reason to wait any longer," and defense
counsel explained that "someone from [her] office
reached [Burnell] very shortly after [they] got the word that
the verdict had come in" and that he wanted to be
present for the verdict and was on his way.
11 After a five-minute delay, defense counsel informed the
court that she had called Burnell, but he did not answer his
phone. She explained that she had called her office to
confirm that Burnell had said he was on his way, and told the
court she did not know why he was not there yet. The court
then made the following findings:
Okay. I am finding that Mr. Paul Burnell, the Defendant, was
given notice that we had a verdict and that he's been
given sufficient time to get here for the verdict. I did ask
the parties to be 15 or 20 minutes from the courthouse if we
were to receive a verdict. It's now been 40 minutes, I
believe, since those notifications went out, and we've
had a jury waiting, so I'll be proceeding with the taking
of the verdict in absentia of Mr. Burnell given that I find
that he's given up his right to be present for the
verdict since he was notified and there's - he's been
given - or given us no reason not to proceed.
12 The court called the jury in and heard the verdict.
Immediately afterward, the court ordered Burnell's bond
forfeited and issued an arrest warrant. Burnell arrived in
the courtroom, it appears, while the court was in the process
of doing so. The court did not attempt to determine why
Burnell had arrived late. C. Analysis
13 On appeal, the People argue that the simple fact that
Burnell was required to be within fifteen to twenty minutes
of the courthouse but failed to arrive within forty minutes
is sufficient to determine his absence was voluntary. We
14 In order to proceed in Burnell's absence, the trial
court was required to first find that Burnell was
voluntarily absent. On its face, then, the mere fact
that Burnell was absent at a time he was required to be
present, without more, is insufficient to find a waiver of
his right to be present. See United States v.
Beltran-Nunez, 716 F.2d 287, 291 (5th Cir. 1983) (A
defendant's right to be present at trial "cannot
cursorily, and without inquiry, be deemed by the trial court
to have been waived simply because the accused is not present
when he should have been.").
15 Unfortunately, the trial court made no attempt to
determine whether Burnell's absence was voluntary. Having
been informed that Burnell wanted to be present and was on
his way, the court instead relied on the fact that Burnell
had "given [the court] no reason not to proceed,"
in effect requiring Burnell, or his attorney, to ...