     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.




                                    20
