[Copyrighted Material Omitted]
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
and Harris, JJ., concur.
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
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, 47 S.Ct. 478, 71 L.Ed. 787 (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, 429 P.3d 1198, 2018 CO
89, P17 (citing Taylor v. United States, 414 U.S.
17, 19 n.3, 94 S.Ct. 194, 38 L.Ed.2d 174 (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.
[¶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, 425 P.3d 1120, 2018 CO 70, P15. 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, 104 S.Ct. 453, 78 L.Ed.2d
267 (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, 426 P.3d
336, 2018 CO 72, P19.
[¶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 ...