v. Burnell, 2019 COA 142

Background

Defendant Paul Burnell lived with his parents and, after an argument with his father John, grabbed and bruised him; John takes medication that causes easy bruising. Police were called hours later; Burnell was charged with third-degree assault of an at-risk adult and harassment.
Jury trial concluded; the court instructed parties to stay within 15–20 minutes of the courthouse while the jury deliberated.
On the morning the jury returned a verdict (third day of deliberations), the jury notified the court it had reached a verdict; Burnell was not present ~40 minutes after notice despite defense counsel saying he was "on his way." The court made no inquiry into why he was late and deemed his absence voluntary, received the verdict in absentia, forfeited bond, and issued a warrant; Burnell arrived while these steps were occurring.
Burnell was convicted and sentenced to three years supervised probation; he appealed raising four claims: (1) violation of his right to be present when verdict was taken; (2) improper admission of evidence that a mental-health colleague recommended calling police; (3) inadequate response to a jury question about assault; and (4) denial of mistrial after prosecutor referred to his invocation of the Fifth Amendment.
The Court of Appeals held the trial court erred in taking the verdict in Burnell’s unexplained absence but that the error was harmless beyond a reasonable doubt; it also affirmed the evidentiary ruling, the jury-question response, and the denial of a mistrial (curative instruction given).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court could receive verdict when defendant absent	Burnell voluntarily waived presence by failing to be within the required 15–20 minute radius	Court erred by taking verdict without inquiring into cause of absence; absence was not shown voluntary	Court erred in proceeding without inquiry, but error was harmless beyond a reasonable doubt because jury had already reached a verdict and record showed no holdout juror
Admissibility of evidence that a mental-health colleague recommended calling police	Evidence showed victims sought outside input and supported their motive to call police	Evidence was irrelevant and unfairly prejudicial by implying mental illness or danger	Admission was not an abuse of discretion: testimony did not assert diagnosis or belief that defendant was dangerous
Whether trial court properly answered jury question asking for definition of third-degree assault	Direct jury to instruction listing elements and clarify nomenclature	Jury was confused by phrasing; needed clarification	Court’s response appropriately directed jury to the elements and explained term equivalence; no plain error
Whether prosecutor’s remark that defendant invoked Fifth Amendment required mistrial	Comment was harmless given curative instruction	Reference to invocation was improper and prejudicial; warranted mistrial	Prosecutor erred by mentioning invocation, but curative instruction cured prejudice; denial of mistrial was not an abuse of discretion

Key Cases Cited

Shields v. United States, 273 U.S. 583 (1927) (defendant has right to be present from impanelment until jury discharge)
Taylor v. United States, 414 U.S. 17 (1973) (a defendant may waive presence by voluntary absence)
Rushen v. Spain, 464 U.S. 114 (1983) (constitutional error tested under harmless-error standard)
United States v. Beltran-Nunez, 716 F.2d 287 (5th Cir. 1983) (court must inquire before deeming absence a waiver; cannot cursorily assume waiver)
Humphries v. District of Columbia, 174 U.S. 190 (1899) (purposes of polling the jury to detect coercion or lack of assent)
People v. Trefethen, 751 P.2d 657 (Colo. App. 1987) (factors to infer voluntary absence from circumstances)
Leonardo v. People, 728 P.2d 1252 (Colo. 1986) (trial court should give additional instruction when jury indicates fundamental misunderstanding)
People v. Key, 522 P.2d 719 (Colo. 1974) (prosecution may not comment on defendant’s invocation of Fifth Amendment)
People v. Auman, 67 P.3d 741 (Colo. App. 2002) (purpose of polling is to verify verdict free of jury-room coercion)