v. Burnell

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 12, 2019

2019COA142

No. 13CA1435, People v. Burnell — Constitutional Law — Due
Process — Sixth Amendment — Right to Be Present at Trial;
Juries — Conduct Affecting Juries — Harmless Error

In this case, the trial court had informed counsel and the

defendant that they should stay within fifteen to twenty minutes of

the courthouse while the jury deliberated. The jury returned a

verdict on the morning of the third day of deliberations. When the

defendant still had not arrived after approximately forty minutes,

the trial court — without ever conducting an inquiry into the cause

of the absence — deemed the absence to be voluntary and received

the verdict in open court. A division of the court of appeals

concludes that the trial court erred in doing so, but that in the

absence of some indication that there was a conflicted juror, the

error was harmless beyond a reasonable doubt.
COLORADO COURT OF APPEALS 2019COA142

Court of Appeals No. 13CA1435
Mesa County District Court No. 12CR1299
Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Joshua Burnell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE TOW
Richman and Harris, JJ., concur

Announced September 12, 2019

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
¶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

1Because John and Arline Burnell share a surname with the
defendant, we refer to them by their first names — and defendant
by his surname.

1
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.

2
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).

3
¶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

4
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

5
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

6
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 demonstrate that his absence was involuntary in order to

preserve his right to be present.

¶ 16 Whether an absence is voluntary may, of course, be inferred

from the circumstances. In People v. Trefethen, the defendant had

informed the court that he was experiencing car problems. 751

P.2d 657, 658 (Colo. App. 1987). After waiting for two hours, the

court considered a number of factors — that the defendant’s last

known address was within walking distance of the courtroom, that

he did not suffer from physical impairments, and that he made no

attempt to secure alternative transportation — in determining that

the defendant was voluntarily absent. Id. at 659.

¶ 17 Here, by contrast, the court made no inquiries into Burnell’s

circumstances. Indeed, the only other information the trial court

7
had was that Burnell was on his way. Rather than attempt to

ascertain the cause of Burnell’s tardiness, the trial court merely

assumed that an unexplained absence must necessarily be a

voluntary absence. Thus, the trial court erred.

¶ 18 However, this violation clearly did not contribute to Burnell’s

conviction. When the court elected to proceed in Burnell’s absence,

the jury had already arrived at its verdict. The only remaining steps

were for the jury to deliver the already-completed verdict forms to

the court and for the verdict to be read aloud in open court.

¶ 19 Burnell argues that the denial of his right to be present when

the jury returned its verdict prevented him from requesting the

court to poll the jury, or at least from assisting his attorney in

making the decision to do so. Citing a decision by the Supreme

Court of Alaska, Burnell suggests that “requiring each juror to

assume the burden of his decision and affirm it in the defendant’s

presence” could cause a juror to hesitate or alter his or her

decision. Lee v. State, 509 P.2d 1088, 1094 (Alaska 1973).

¶ 20 Under the common law, in conducting a poll of the jury the

court’s “object is to ascertain for a certainty that each of the jurors

approves of the verdict as returned; that no one has been coerced or

8
induced to sign a verdict to which he does not fully assent.”

Humphries v. District of Columbia, 174 U.S. 190, 194 (1899).

Though Colorado has since codified the right to seek a poll of the

jury in Rule 31(d) of the Colorado Rules of Criminal Procedure, this

goal remains the same. See People v. Auman, 67 P.3d 741, 767

(Colo. App. 2002) (suggesting that the purpose of polling the jury is

to verify the verdict in a situation free of jury-room coercion), rev’d

on other grounds, 109 P.3d 647 (Colo. 2005).

¶ 21 Here, any suggestion that a poll of the jury could have altered

the outcome is wholly speculative. Notably, the defense attorney,

who was certainly in a position to assess whether a jury poll might

have been beneficial, did not request one. There is nothing in the

record, or even asserted on appeal, to suggest that the jury’s verdict

was the result of coercion, and we have no reason to believe that

any juror, having arrived at a verdict, was likely to have renounced

his or her decision upon questioning by the court. To reverse, as

Burnell urges us to do, on the mere possibility that a poll in the

presence of a defendant would have a different outcome from a poll

in his or her absence would require reversal in every case in which

9
the defendant was absent, but not voluntarily so, when the verdict

was received.

¶ 22 Of course, we recognize that it is not Burnell’s burden to

demonstrate harm here. Rather, the People must prove

harmlessness of constitutional error beyond a reasonable doubt.

James, ¶ 19. However, we conclude that demonstrating

constitutional harmlessness does not require dispelling wholly

speculative concerns. See COLJI-Crim. E:03 (2018) (defining

“reasonable doubt,” in part, as “not a vague, speculative or

imaginary doubt”).

¶ 23 It is important to note that we do not suggest that receiving a

verdict in a defendant’s nonvoluntary absence will always be

harmless beyond a reasonable doubt. To do so would essentially

convert the delivery of the verdict into a noncritical stage. On the

other hand, reversal based on the mere possibility that a polled

juror would waver in his or her commitment to the verdict could be

tantamount to a decision that the error would never be harmless —

essentially making this a structural error. There is no legal support

for such a bright line rule on either end of the spectrum.

10
¶ 24 Rather, in our view, a reasonable possibility that the error

might have contributed to the verdict arises when the record

demonstrates some basis for concern that there may have been a

reluctant or holdout juror. This may be indicated, for example, by a

particular juror’s tone or demeanor while responding to a jury poll,

the existence of jury questions that reflect juror reluctance, or the

need during deliberations to provide a “modified Allen” instruction

in the face of a deadlock. 2 Because nothing in the record suggests

any juror was conflicted in this case, we discern no reasonable

possibility that Burnell’s absence contributed to the verdict. 3

III. CRE 403

¶ 25 Burnell next argues that the trial court erred when it allowed

the prosecution to introduce evidence that Arline consulted with a

mental health professional before deciding to call the police.

2 A “modified Allen” instruction may be given to a deadlocked jury in
an effort “to encourage jurors to reach a verdict without coercing
them into doing so.” Gibbons v. People, 2014 CO 67, ¶ 1 (citing
Allen v. People, 660 P.2d 896, 898 (Colo. 1983)).
3 We note that the jury apparently deliberated for approximately a

day and a half, while the presentation of evidence took slightly less
than a day. On the facts of this case, we do not consider the length
of deliberations alone sufficient to create a reasonable doubt about
the harmlessness of the error.

11
Burnell contends that the evidence was not relevant and, even if it

had been, any probative value was substantially outweighed by the

danger of unfair prejudice. We perceive no error.

¶ 26 We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Russell, 2014 COA 21M, ¶ 22, aff’d, 2017 CO

3. A trial court abuses its discretion if its ruling is manifestly

arbitrary, unreasonable, or unfair. Id.

¶ 27 Relevant evidence is “evidence having any tendency to make

the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.” CRE 401.

¶ 28 At trial, Burnell argued that John “wanted a reason to kick

[him] out of the house” and “was frustrated that his 33-year-old son

was still living at home.” The prosecution argued that evidence that

John and Arline sought outside input, therefore, was relevant to

demonstrate their motive for calling the police.

¶ 29 But even relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice . . . .” CRE 403. Burnell contends that it was, asserting

that the evidence injected consideration of mental illness into the

12
case and created the impression that a medical professional familiar

with Burnell believed that he was a danger. We are unconvinced.

¶ 30 The evidence introduced at trial was that Arline called a

colleague — who was both a psychiatrist and a psychologist — who

was familiar with Burnell, and that he recommended she call the

police. There was no testimony that the colleague believed Burnell

was dangerous. Nor was there testimony that Burnell had ever

been diagnosed or treated by the colleague — or by anyone else.

¶ 31 In light of this testimony, we cannot say that the trial court

acted arbitrarily, unreasonably, or unfairly in admitting the

evidence.

IV. Jury Questions

¶ 32 We now turn to Burnell’s contention that the trial court did

not properly respond to a question from the jury during

deliberations. We perceive no error.

A. Background

¶ 33 During deliberations, the jury submitted a question to the

court asking “Could we have a definition of third degree assault?”

The court initially suggested a response directing the jury to

instruction number ten, which listed the elements of the crime.

13
Both the prosecutor and defense counsel said that they believed

that was an appropriate response.

¶ 34 In preparing the new instruction, the court noticed that

instruction number nine, defining the elements of assault in the

third degree on an at-risk adult, referred to “third degree assault as

described in instruction number 10,” but instruction number 10

listed the “elements of the crime of assault in the third degree.”

¶ 35 Believing that the alternative phrasing prompted the jury’s

confusion, the court provided the following response:

Jury Instruction 9, paragraph 3, refers to
“third degree assault” as described in
instruction 10 (“assault in the third degree”).
The offenses of “third degree assault” and
“assault in the third degree” are the same.
Therefore, you are referred to Jury Instruction
10 which contains the elements for the offense
of “third [de]gree assault” (also known as
“assault in the third degree.”).

Burnell’s counsel stated that he had no objection.

B. Analysis

¶ 36 Whether to provide additional instructions in response to a

question from the jury is left to the sound discretion of the trial

court. People v. Bass, 155 P.3d 547, 552 (Colo. App. 2006).

14
Because Burnell did not object to the trial court’s instruction, we

review for plain error. Id. at 551.

¶ 37 Absent a showing to the contrary, we presume that the jurors

understood the court’s instructions. People v. Fell, 832 P.2d 1015

(Colo. App. 1991). But when a jury “affirmatively indicates that it

has a fundamental misunderstanding of an instruction it has been

given, the basis for a presumption that the jury understands the

instruction disappears.” Leonardo v. People, 728 P.2d 1252, 1255

(Colo. 1986). In such cases, the trial court should “give appropriate

additional instructions in response to the jurors’ request unless: (i)

the jury may be adequately informed by directing their attention to

some portion of the original instructions . . . .” Id. (quoting III ABA

Standards for Criminal Justice § 15-4.3(a) (2d ed. 1980)).

¶ 38 Here, the jury did not express confusion about the content of

instruction number ten, defining assault in the third degree.

Rather, the jury indicated that it believed it did not have an

instruction defining third degree assault. The trial court’s response

properly directed the jury to the appropriate instruction and

informed the jury that assault in the third degree and third degree

assault refer to the same crime.

15
¶ 39 Further, even if the jury had some underlying confusion about

the content of instruction number ten, the court’s response made

clear that it was only addressing an inconsistency between

instruction numbers nine and ten. This highly specific response

was not likely to discourage the jury from seeking further

clarification if it so desired. Accordingly, we perceive no error in the

trial court’s response.

V. Motion for Mistrial

¶ 40 Finally, we address Burnell’s claim that the trial court erred

when it denied Burnell’s motion for a mistrial after the prosecutor,

in his opening statement, improperly referred to Burnell’s

invocation of his Fifth Amendment rights. Again, we perceive no

error.

A. Background

¶ 41 In his opening statement, the prosecutor described the

circumstances of Burnell’s arrest. He explained that when an

officer asked Burnell about the incident, Burnell admitted that he

and his father had argued and that his father was in fear of him,

but he denied that he had ever hurt his father. The prosecutor then

16
stated, “After a couple more questions, [Burnell] did invoke his Fifth

Amendment rights.”

¶ 42 Burnell’s counsel immediately objected and moved for a

mistrial. After some discussion, the trial court denied the motion

for a mistrial and instead elected to give a curative instruction:

It was improper for the prosecutor to have
referred to Mr. Burnell’s assertion of his Fifth
Amendment right to remain silent, as the
Defendant is never compelled to speak to the
police and the fact that he does cannot be
used as an inference of guilt and should not
prejudice him in any way. You are again
reminded that opening statements are not
evidence. You are instructed to disregard the
prosecution’s reference to Mr. Burnell’s
assertion of his Fifth Amendment right to
remain silent.

B. Standard of Review

¶ 43 The decision to grant or deny a motion for mistrial is left to the

sound discretion of the trial court. People v. Santana, 255 P.3d

1126, 1130 (Colo. 2011). In such circumstances, we will not

disturb the trial court’s decision absent a clear showing of an abuse

of discretion and prejudice to the defendant. Id.

¶ 44 Where the underlying violation is of constitutional dimension

and the mistrial motion was made at the time of the violation, we

17
review an erroneous denial of the motion for constitutional

harmless error. People v. Santana, 240 P.3d 302, 309 (Colo. App.

2009), rev’d on other grounds, 255 P.3d 1126 (Colo. 2011).

C. Analysis

¶ 45 It is well established that “the prosecution may not refer to a

defendant’s exercise of his Fifth Amendment right to remain silent

in the face of accusation.” People v. Key, 185 Colo. 72, 75, 522 P.2d

719, 720 (1974). But not every reference to a defendant’s exercise

of the right to remain silent requires reversal. Id. Reversal is only

required where the prosecutor’s comment on the defendant’s

exercise of the right creates an inference of guilt or where the

prosecutor argues that the defendant’s silence constituted an

implied admission of guilt. People v. Ortega, 198 Colo. 179, 183,

597 P.2d 1034, 1036 (1979); People v. Cornelison, 44 Colo. App.

283, 286, 616 P.2d 173, 176 (1980).

¶ 46 Here, the prosecutor stated that Burnell answered several

questions, and then chose to exercise his right to remain silent. In

reciting this sequence of events, the prosecutor did not directly

18
argue that Burnell’s silence reflected guilt. 4 Nor did he provide any

detail about the specific questions Burnell refused to answer.

Nevertheless, we perceive no valid reason for the prosecutor to have

mentioned Burnell’s invocation of his right to remain silent.

¶ 47 This conclusion, however, does not end the inquiry. The issue

on appeal is not whether the prosecutor engaged in misconduct, for

he undeniably did. Rather, the issue is whether the trial court

erred in electing to provide a curative instruction instead of

granting a mistrial. We conclude it did not.

¶ 48 “A mistrial is a drastic remedy and is warranted only if the

prejudice to the accused is too great to be remedied by other

means.” People v. Rosa, 928 P.2d 1365, 1372 (Colo. App. 1996).

Where a curative instruction is sufficient to remedy any prejudice, a

prosecutor’s improper comment on a defendant’s silence does not

necessitate a mistrial. See id.; see also People v. Rivera, 968 P.2d

1061, 1067 (Colo. App. 1997) (declining to reverse where the trial

court sustained the defendant’s objection to the prosecutor’s

4 We acknowledge that several statements made by the prosecutor
outside of the hearing of the jury suggest that he may have
intended to make an improper argument. However, no such
argument was ever made to the jury.

19
comment during closing argument and instructed the jury to

disregard the comment).

¶ 49 The prosecutor’s comment during his opening statement was

brief and not repeated. The context of the comment was not so

detailed as to suggest to the jury that Burnell stopped being willing

to talk as soon as his answers to the officer’s questions became

incriminating. And the court provided a curative instruction that

reminded the jury that the prosecutor’s statement was not evidence,

informed the jury that Burnell was not required to speak to the

police that evening, admonished the jury not to draw any inference

of guilt from the silence, and directed the jury to disregard the

statement. Importantly, the trial court’s curative instruction

explicitly told the jury that it was improper for the prosecution to

even mention the matter.

¶ 50 For these reasons, in our view, the prosecutor’s comment did

not so prejudice Burnell as to warrant a mistrial.

VI. Conclusion

¶ 51 The judgment is affirmed.

JUDGE RICHMAN and JUDGE HARRIS concur.

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