UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jeffrey Jenkins, a Lorton prison inmate, appeals his convictions of

assault by striking, beating or wounding, and assault resulting in serious bodily injury. We affirm.

Jenkins first contends that the trial court erred in permitting the

trial testimony of a witness, Lieutenant Williams, after Williams violated the order to exclude witnesses at the hearing on the motion to

suppress. A trial judge may exercise his discretion in permitting a witness 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 evidence 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 suppression 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 suspect. United States v. Frankson, 83 F.3d 79, 81 (4th Cir. 1996). Jenkins need not have been informed specifically that he had a right to

a lawyer during the interrogation because the warning given "communicated 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 victim 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 statement 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 admitting his statement was harmless.

Jenkins next contends that the district court erred in admitting hearsay 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 sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment." 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 harmless, 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 defendant'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 defendant has voluntarily absented himself for abuse of discretion. Id.

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

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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 completed 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 proceedings. Both the government and Jenkins agree he left voluntarily. Jenkins 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 without 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 photographs 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-

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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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