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People v. Burnell

Court of Appeals of Colorado, Fifth Division

September 12, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Paul Joshua Burnell, Defendant-Appellant.

          Mesa County District Court No. 12CR1299 Honorable Brian J. Flynn, Judge

          Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TOW JUDGE.

         ¶ 1 Defendant, Paul Joshua Burnell, appeals his convictions for third degree assault of an at-risk victim and harassment. We affirm.

         I. Background

         ¶ 2 Burnell was living with his parents, John and Arline Burnell, [1] 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.

         II. 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 harmless.

         A. 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, ¶ 19.

         B. Relevant Facts

         ¶ 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 disagree.

         ¶ 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 ...


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