UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4363

JEFFREY JENKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-444-A)

Submitted: October 29, 1996

Decided: December 6, 1996

Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Drewry B. Hutcheson, Jr., Alexandria, Virginia, for Appellant. Helen
F. Fahey, United States Attorney, Dennis M. Kennedy, Assistant
United States Attorney, John David Kuchta, Special Assistant United
States Attorney, Joseph A. Aluise, Third Year Law Student, Alexan-
dria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jeffrey Jenkins, a Lorton prison inmate, appeals his convictions of
assault by striking, beating or wounding, and assault resulting in seri-
ous bodily injury. We affirm.

Jenkins first contends that the trial court erred in permitting the
trial testimony of a witness, Lieutenant Williams, after Williams vio-
lated the order to exclude witnesses at the hearing on the motion to
suppress. A trial judge may exercise his discretion in permitting a wit-
ness to testify at trial when the witness had earlier been present in
court contrary to the judge's order. United States v. Marson, 408 F.2d
644, 650 (4th Cir. 1968), cert. denied, 393 U.S. 1056 (1969). It is not
an abuse of discretion to permit the testimony when there is no evi-
dence of prejudice, collusion, or willful violation of the court's order.
See United States v. Gammon, 961 F.2d 103, 105 (7th Cir. 1992).
There is no indication here that the government knew Williams was
in the courtroom as Smith, its second witness, testified at the suppres-
sion hearing. Furthermore, Williams testified first and thus could not
have altered his testimony based upon hearing what Smith had to say.
Williams' subsequent testimony at the suppression hearing, which
could have resulted in additional incriminating evidence admitted
against Jenkins at trial, was barred by the court. Finally, Williams'
trial testimony shows no signs of collusion based upon what he
improperly heard at the suppression hearing. The trial court thus did
not abuse its discretion in allowing Williams' testimony.

Jenkins next contends that the trial court erred at the suppression
hearing in concluding that Williams personally gave him warnings
under Miranda v. Arizona, 384 U.S. 436 (1966). This contention lacks
merit because the transcript of the hearing establishes that Williams
did indeed advise Jenkins of his rights.

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Jenkins also asserts that the Miranda warning itself was inadequate
because he was not told he had a right to an attorney being present
during the interview. We have held that the satisfaction of Miranda
does not turn on the precise formulation of the warnings, but on
whether the warnings reasonably convey the requisite rights to a sus-
pect. United States v. Frankson, 83 F.3d 79, 81 (4th Cir. 1996). Jen-
kins need not have been informed specifically that he had a right to
a lawyer during the interrogation because the warning given "commu-
nicated to [him] that his right to an attorney began immediately and
continued forward in time without qualification." Id. at 82. Therefore,
this contention is also meritless.

Jenkins also maintains that the Miranda warning he received was
incomplete because he was never told that, if indigent, an attorney
would be appointed for him. Assuming arguendo that the court erred
in admitting Jenkins' statement because the Miranda warning was
incomplete, such error was harmless. The erroneous admission of a
statement taken in violation of Miranda is"harmless only when the
court, after assessing `the record as a whole to determine the probable
impact of the improper evidence on the jury,' can conclude beyond
a reasonable doubt that the error did not influence the jury's verdict."
Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir. 1980) (quoting
Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir.), cert. denied, 437 U.S.
910 (1978)).

A careful review of the record as a whole reveals that Jenkins'
statement did not affect the jury's verdict. Jenkins' sneaker print
resembled the print on the victim's face. The victim's blood was
found on the bottom of Jenkins' shoe, and Jenkins himself testified
that he engaged in an altercation with the victim and stomped the vic-
tim several times after he was already on the ground. Jenkins' three
witnesses corroborated this account.

On appeal, Jenkins maintains that any error in admitting the state-
ment is not harmless, because neither he nor his witnesses would have
testified at trial had the statement been suppressed. Without his and
his witnesses' testimony, he contends, the government's evidence
would have been insufficient to convict. This contention is meritless
because it rests entirely on convenient speculation. For that matter,
the government could argue that had the statement been suppressed,

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it would have put on more evidence at trial, such as testimony from
the victim. Because a reasonable jury would have convicted Jenkins
based upon all the evidence at trial, we find that any error in admit-
ting his statement was harmless.

Jenkins next contends that the district court erred in admitting hear-
say through its medical witness. The witness, an emergency room
physician who treated the victim, testified on direct that "[t]here was
reportedly -- and I got this second- or third-hand as I often do in the
ER -- a loss of consciousness -- " (J.A. 99). The doctor mentioned
this factor in the context of discussing the treatment he ordered for the
victim.

We find that the second-hand information offered by the doctor
was not admitted in error because it falls into an exception to the
hearsay rule under Fed. R. Evid. 803(4), which allows admission of
hearsay "made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sen-
sations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treat-
ment." Rule 803(4) does not require that the hearsay statement at
issue be made by the victim. John W. Strong et al., McCormick on
Evidence § 277, at 248 (4th ed. 1992).

Moreover, even if the hearsay was admitted in error, it was harm-
less, because other witnesses testified firsthand that they observed the
victim unconscious. Accordingly, we find this contention also fails.

Jenkins also maintains that the district court erred in continuing the
trial after he voluntarily absented himself from the courtroom. A
defendant may waive his constitutional right to be present at his own
trial. Taylor v. United States, 414 U.S. 17, 19-20 (1973). And a defen-
dant's voluntary absence without compelling justification constitutes
a waiver of the right to be present. United States v. Camacho, 955
F.2d 950, 953 (4th Cir. 1992), cert denied, 510 U.S. 1000 (1993). We
review a district court's decision to proceed with trial once a defen-
dant has voluntarily absented himself for abuse of discretion. Id.

During voir dire, Jenkins articulated his dissatisfaction with coun-
sel. When the judge refused to readdress Jenkins' motion for a new

                     4
attorney, Jenkins slipped out of his chair onto the floor and refused
to respond to the court. After the judge satisfied himself that Jenkins
was not ill, was conscious and simply ignoring the court, he com-
pleted jury selection with Jenkins still present in the courtroom.

While counsels' opening arguments were not transcribed for the
record, counsels' briefs make it clear that during the government's
opening argument, Jenkins was given the option by the court of
remaining in the courtroom or removing himself from the proceed-
ings. Both the government and Jenkins agree he left voluntarily. Jen-
kins later returned to the proceedings while the government's second
witness was testifying.

Under these circumstances, we find that the district court did not
abuse its discretion in continuing with trial. Considering its heavy
docket, the presence of jurors and witnesses ready to proceed, and
Jenkins' evident lack of cooperation, the court correctly found that
there was, on balance, a controlling public interest to continue the
trial in Jenkins' absence. Unlike in Camacho, where the defendant
was late to court due to a snowstorm and trial was commenced with-
out him, here Jenkins elected to leave court after voir dire and after
the trial had begun. Consequently, the court properly continued with
trial. This claim is thus also meritless.

Last, Jenkins maintains that photos of the victim's face introduced
at trial were inflammatory and should have been excluded. We review
the admission of photographs for abuse of discretion. United States
v. Whitfield, 715 F.2d 145, 147 (4th Cir. 1983).

The admission of photos of the victim's face was proper because
the photos demonstrated a tread pattern from a shoe which had been
imprinted on his face during the assault. Thus, as in Whitfield, the
photos here connected the victim's wounds with a weapon--Jenkins'
shoes. Id.

Jenkins further asserts that the court erred in admitting two photo-
graphs when one would have sufficed. In fact, the record shows that
the government attempted to introduce three photos, and that the two
admitted photos showed different angles of the victim's face. Conse-

                    5
quently, there was sufficient basis to introduce more than one photo.
Jenkins' last claim is thus also without merit.

Accordingly, we affirm Jenkins' convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court, and argument would not
aid the decisional process.

AFFIRMED

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