                 IN THE SUPREME COURT OF IOWA
                             No. 09–0146

                          Filed July 6, 2012


STATE OF IOWA,

      Appellee,

vs.

ARZEL JONES,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marshall County,

Michael J. Moon, Judge.



      We granted further review of the court of appeals decision.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.


      Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, LLP, Ames,

for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Jennifer A. Miller, County Attorney, and

Suzanne M. Lampkin, Assistant County Attorney, for appellee.
                                          2

WIGGINS, Justice.

       Following his sentencing to consecutive prison terms totaling

thirty-five years, a criminal defendant asks us to review the district

court’s determinations that the written entry of the verdict was proper,

that a fork is a dangerous weapon, that the State did not commit a

Brady 1 violation or fail to disclose newly discovered evidence, that the

defendant’s trial counsel could not withdraw at the beginning of trial,

and that the defendant knowingly and voluntarily waived his right to a

jury   trial.    The    court    of   appeals    affirmed    the   district   court’s

determinations.        Pursuant to our discretion to decide issues after

granting further review, we choose to only address whether Iowa Rule of

Criminal Procedure 2.17(2) requires a trial court to announce the verdict

in open court following a bench trial and whether the State committed a

Brady violation. We let the opinion of the court of appeals stand as the

final decision of this court on the other issues.

       With regard to the rendering of the verdict, we hold rule 2.17(2)

requires a trial court to announce the verdict in a recorded proceeding in

open court. We find, however, that the district court cured its error and

substantially complied with rule 2.17(2) in this case. We further hold the

State did not commit a Brady violation. Accordingly, we affirm in part

and vacate in part the decision of the court of appeals and affirm the

judgment of the district court.

       I. Background Facts and Proceedings.

       In fall 2007, Arzel Jones met M.P. at the bar where she worked in

Marshalltown.       Shortly thereafter, they began a consensual sexual

       1See  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d
215, 218 (1963) (holding due process requires the prosecution to disclose exculpatory
evidence to the accused).
                                    3

relationship and saw each other on a daily basis.      On November 30,

Jones went to M.P.’s home and asked her to accompany him to his

apartment to look at a damaged kitchen wall. When they arrived, M.P.

noticed the wall was undamaged. Jones began accusing M.P. of being

unfaithful in their relationship.   Over the course of the next several

hours, Jones punched M.P. in the chest two or three times, slapped her

across the face, and slapped the back of her head.

       After M.P. did not show up for work, M.P.’s ex-boyfriend called

911. In the call, he reported a “woman beating” and identified the victim

as M.P. He described the attacker as a black male named “Kujo.” When

asked if M.P. and Kujo were outside, the ex-boyfriend replied, “No they’re

inside, but I guess a couple of days ago, whatever what happened was

she ended up uh—he ended up choking her and she got a cut on her

neck.” Because he was not sure of the address, the ex-boyfriend gave

the dispatcher directions to the location, described the location as a

yellow apartment building, and stated a number of black individuals

lived there.

       When police responded to the call and knocked on the door of

Jones’s apartment, Jones covered M.P.’s mouth with his hand and

placed his legs across her body, restraining her movement. After they

did not hear a response, the police attempted to look in the apartment’s

windows, but could not note anything other than the lights were turned

off.   Jones forced M.P. into the bedroom and continued to cover her

mouth. The police knocked at the door a second time, but again, no one

responded.

       After the police left, Jones told M.P. to call the police and her

family. At the direction of Jones, M.P. informed them she was in Ames
                                    4

with a friend. M.P. also called her employer and reported she would not

make it to work that night because her grandmother was sick.

      M.P. described her injuries as bruises to her chest and swelling on

the side of her face and around her eye.     M.P. did not believe Jones

would let her return home and did not want her parents or son to see her

injuries. Further, M.P. believed Jones felt sorry for his actions because

he began displaying different behavior, which included purchasing ice

packs and dinner for her. M.P. spent the weekend at Jones’s apartment

and left on the afternoon of December 3 to pick up her son from school.

      M.P. went to work that night and was finishing a late shift at the

bar during the early hours of December 4. Jones arrived at the bar, sat

at a table where he could see M.P., and ordered several drinks.      Just

before the bar closed, Jones purchased a six-pack of beer and left. M.P.

left work fearing that Jones was waiting for her in the parking lot. M.P.

did not see Jones, but after she started her car, Jones got into the car

with her.    Jones ordered M.P. to drive to the gas station near his

apartment. Upon arrival, Jones took the keys from the ignition and went

into the store, leaving M.P. in the car. When Jones came out of the store,

he ordered M.P. to get into the passenger seat so that he could drive.

Although M.P. informed Jones she needed to go home, Jones drove them

back to his apartment.

      M.P. feared she could not escape and followed Jones into his

apartment.   Once inside, Jones locked the door and ordered M.P. to

remove her clothes. During the next several hours, Jones forced M.P. to

engage in nonconsensual sexual activity by holding a metal fork to her

neck, threatened M.P.’s life, kicked M.P. in the face while wearing boots,

punched M.P. in the chest, and strangled her.
                                      5

      Jones then forced M.P. to take a shower and drove her to the

emergency room and two health clinics. He told her to tell the doctors

and her parents that she had broken up a bar fight. However, Jones

forced M.P. to leave each location before doctors could treat her.

      M.P. finally went home on the afternoon of December 4. After M.P.

told her parents that Jones had physically abused and sexually

assaulted her, they contacted the police and took her to the hospital.

M.P.’s treating physician testified M.P. had a laceration on the inside of

her mouth, bruises and welts on her face, bruises on her chest and arm,

and a welt on her neck. The physician estimated M.P. received the welt

on her neck sometime in the preceding twelve to eighteen hours.

      The State filed two trial informations.      One charged Jones with

third-degree kidnapping and domestic abuse assault causing bodily

injury for the events occurring on November 30.          The other charged

Jones with first-degree kidnapping, attempt to commit murder, two

counts of second-degree sexual abuse, first-degree harassment, and

domestic abuse assault causing bodily injury for the events occurring on

December 4.

      Eight days before trial, a police officer who responded to Jones’s

apartment on November 30 referred to the 911 call during his deposition.

Jones then requested a copy of the transcript detailing the call.     The

State did not provide a transcript to Jones until after trial.

      Jones waived his right to a jury trial and a three-day bench trial

began on January 23, 2008. The court did not reconvene the parties to

announce the verdict. Instead, the court rendered its verdict on March 7

via a written order.     The order detailed the court’s findings of fact,

conclusions of law, and found Jones guilty of third-degree kidnapping

and domestic abuse assault causing bodily injury for the events taking
                                     6

place on November 30, 2007. It also found Jones guilty of assault with

intent to inflict serious bodily injury, second-degree sexual abuse, third-

degree sexual abuse, and domestic abuse assault causing bodily injury

for the events of December 4. The court later amended the verdict by

written order, finding Jones guilty of assault causing bodily injury

instead of domestic abuse assault causing bodily injury in each case

because the State had failed to prove Jones and M.P. were in a

relationship sufficient to give rise to domestic abuse assault.

      Jones filed a combined motion in arrest of judgment and motion

for new trial in which he raised all of the arguments at issue in this

appeal.    The district court held a hearing on November 21, 2008, to

address Jones’s motions. At the outset, the court recited the crimes for

which it found Jones guilty.     After the hearing, the court denied the

motions.     The court then sentenced Jones to consecutive prison

sentences totaling thirty-five years. Jones appealed, and we transferred

the case to the court of appeals.        The court of appeals affirmed the

district court.   Jones filed an application for further review, which we

granted.

      II. Issues.

      The court of appeals held the district court did not err in

determining that the written entry of the verdict was proper, that a fork

is a dangerous weapon, that the State did not commit a Brady violation

or fail to disclose newly discovered evidence, that Jones’s attorney could

not withdraw at the beginning of the trial, and that Jones knowingly and

voluntarily waived his right to a jury trial. When a party requests further

review, we have the discretion to review all or part of any issue raised in

the application for further review. Everly v. Knoxville Cmty. Sch. Dist.,

774 N.W.2d 488, 492 (Iowa 2009). In the exercise of our discretion, we
                                      7

choose only to review whether the written entry of the verdict was proper

and whether the State committed a Brady violation. Therefore, we will

let the court of appeals opinion stand as the final decision in this appeal

on the other issues raised.    See State v. Marin, 788 N.W.2d 833, 836

(Iowa 2010).

        III. Standard of Review.

        We review interpretations of the Iowa Rules of Criminal Procedure

for correction of errors at law. State v. Finn, 469 N.W.2d 692, 693 (Iowa

1991). We review a trial court’s ruling on an asserted Brady violation

de novo because it is constitutional in nature. Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003).

        IV. Announcement of the Verdict.

        A. Interpretation of Iowa Rule of Criminal Procedure 2.17(2).

Rule 2.17(2) states, “In a case tried without a jury the court shall find the

facts specially and on the record, separately stating its conclusions of law

and rendering an appropriate verdict.”       Iowa R. Crim. P. 2.17(2).   We

must determine whether “on the record” as used in rule 2.17(2) requires

the court to render the verdict in open court.

        We have six other rules of criminal procedure that use the term

“on the record” or “upon the record.”        See Iowa Rs. Crim. P. 2.2(4),

2.11(8), 2.17(1), 2.22(5), 2.23(3)(d), 2.73(3).   From our review of these

rules, it is evident the meaning of “on the record” and “upon the record”

vary.   For example, rule 2.22(5) provides that the clerk of court shall

enter a sealed verdict “upon the record and disclose it to the court as

soon as practicable.”    Id. r. 2.22(5).   The clerk of court is not in the

courtroom with the defendant and does not address the defendant at any

time in open court. By contrast, we have held that “on the record” as

used in rule 2.17(1) requires “some in-court colloquy or personal contact
                                           8

between the court and the defendant” in order to ensure the defendant

knowingly, voluntarily, and intelligently waived his or her right to a jury

trial. See State v. Liddell, 672 N.W.2d 805, 812 (Iowa 2003); see also

Iowa R. Crim. P. 2.17(1).

      Notably, in Liddell, we overruled precedent that interpreted rule

2.17(1) not to require an in-court colloquy.                  672 N.W.2d at 813

(overruling State v. Lawrence, 344 N.W.2d 227 (Iowa 1984)). We made

this determination based in part upon the legislative history of rule

2.17(1) and in part upon practical considerations. See id. at 811–13. We

think it is illustrative to establish the legislative history of rule 2.17(1)

once again.

      As originally enacted in 1976 in conjunction with a major revision

to the criminal code, Iowa Rule of Criminal Procedure 2.17(1) provided,

“Cases required to be tried by jury shall be so tried unless the defendant

waives a jury trial in writing.” 2        1976 Iowa Acts ch. 1245(2), § 1301

(emphasis added); see also 4 John L. Yeager & Ronald L. Carlson, Iowa

Practice: Criminal Law and Procedure § 951, at 206 (1979).                      However,

before the rule became effective, the general assembly amended it to

read, “Cases required to be tried by jury shall be so tried unless the
defendant waives a jury trial in a reported proceeding in open court.”

1977 Iowa Acts ch. 153, § 44 (emphasis added).                    Thus, the general

assembly replaced “in writing” with “in a reported proceeding in open

court.”

      In 1981, the general assembly amended the rule again. In relevant

part, the rule now read, “Cases required to be tried by jury shall be so

tried unless the defendant voluntarily and intelligently waives a jury trial


      2Current   rule 2.17 was originally Iowa Rule of Criminal Procedure 16.
                                           9

in writing and on the record . . . .”            1981 Iowa Acts ch. 206, § 16

(emphasis added).        Although in Lawrence we concluded the 1977 and

1981 amendments did not require a judge to engage in an in-court

colloquy with the defendant, 344 N.W.2d at 229–30, we overruled that

decision and held that “on the record” in the context of rule 2.17(1) is

legislative shorthand for “in a reported proceeding in open court,” Liddell,

672 N.W.2d at 812.

      We have also had the occasion to interpret “on the record” as used

in rule 2.23(3)(d), pertaining to the entry of judgments. 3              See State v.

Lumadue, 622 N.W.2d 302, 304–05 (Iowa 2001); State v. Johnson, 445

N.W.2d 337, 342–44 (Iowa 1989). Like rule 2.17(1), the general assembly

adopted rule 2.23(3)(d) in 1976. See 1976 Iowa Acts ch. 1245(2), § 1301.

As originally enacted, rule 2.23(3)(d) provided:

      If no sufficient cause is shown why judgment should not be
      pronounced, and none appears to the court upon the record,
      judgment shall be rendered. Prior to such rendition, counsel
      for the defendant, and the defendant personally, shall be
      allowed to address the court where either wishes to make a
      statement in mitigation of punishment. In every case the
      court shall include in the judgment entry the number of the
      particular section of the Code under which the defendant is
      sentenced.

Id. However, before it became effective the general assembly added the

following language to the end of the rule: “The court shall state on the

record its reason for selecting the particular sentence.” 1977 Iowa Acts

ch. 153, § 66.

      In Johnson, we held that after a sentencing hearing the reviewing

court could look to the sentencing order to determine if the court gave

adequate reasons for its sentence.             445 N.W.2d at 343–44.          In other


      3Current   rule 2.23 was originally Iowa Rule of Criminal Procedure 22.3.
                                    10

words, we held the sentencing hearing, at which the defendant was

present, coupled with the written sentencing order complied with rule

2.23(3)(d)’s “on the record” requirement.      See id.   In Lumadue, we

appeared to reaffirm our holding in Johnson. Lumadue, 622 N.W.2d at

304–05. In doing so, however, we indicated that defendants “are entitled

to be informed, preferably face-to-face, about the consequences of their

criminal acts.” Id. at 305.

      Consistent with the changes to rules 2.17(1) and 2.23(3)(d), the

general assembly also amended rule 2.17(2) in 1977. When the general

assembly enacted rule 2.17(2), it read as follows:

      In a case tried without a jury the court shall make a general
      finding. Where requested by any party before or during trial,
      the court shall find the facts specially and in writing,
      separately stating its conclusions of law and directing an
      appropriate judgment.      A request for findings is not a
      condition precedent for review of the judgment.

1976 Iowa Acts ch. 1245(2), § 1301 (emphasis added). The next year, the

general assembly amended the rule to substantially its present state.

See 1977 Iowa Acts ch. 153, § 44.         Notably, the general assembly

replaced “in writing” with “on the record.” See id. Thus, the rule now

requires a court, following a bench trial, to “find the facts specially and

on the record, separately stating its conclusions of law and rendering an

appropriate verdict.” Iowa R. Crim. P. 2.17(2).

      We are mindful of the fact that we have made different

interpretations of “on the record” in different rules.   In this case, we

could conclude that, by the timing of the amendments to rules 2.17(2)

and 2.23(3)(d), the phrase “on the record” in rule 2.17(2) only requires

the court to file a written verdict because the general assembly inserted

“on the record” in both rules at the same time.      However, we decided

Liddell after Lawrence, Johnson, and Lumadue. We overruled Lawrence
                                         11

just two years after indicating our preference in Lumadue for face-to-face

interactions between the court and defendant.               Therefore, we could

conclude that, after Liddell, we retreated from our prior authority

interpreting “on the record” to mean the filing of a written document

because of practical considerations. Either conclusion is plausible.

       To decide which way to interpret rule 2.17(2), we start with the

principle that we strive to avoid constitutional problems when we

interpret our rules. See Simmons v. State Pub. Defender, 791 N.W.2d 69,

74 (Iowa 2010). If possible, we will construe a rule to avoid doubts as to

its constitutionality. Id. Applying this principle, we have found only one

case discussing the constitutionality of a court not returning its verdict

in open court. 4     See United States v. Canady, 126 F.3d 352 (2d Cir.

1997).

       In Canady, the district court did not reconvene court to announce

its verdict after a bench trial. Id. at 355. On appeal, the Second Circuit

Court of Appeals noted:

       The defendant’s right to be present at every stage of trial is
       “scarcely less important to the accused than the right of trial
       itself,” and is rooted in both the Sixth Amendment
       Confrontation Clause and the Fifth Amendment Due Process
       Clause.

Id. at 360 (citations omitted).               The court then held that the

announcement of the verdict is a critical stage of the trial and that the

defendant had a constitutional right to be present for the announcement

of the verdict.    Id. at 361.    Although the government argued it would

serve no useful purpose for the defendant to be present when the court

       4We recognize that Commonwealth v. Hembree, 751 A.2d 202, 203 (Pa. Super.

Ct. 2000), states that neither the Pennsylvania nor United States Constitutions
guarantee a criminal defendant the right to receive a nonjury verdict in open court.
However, this holding is without analysis and conflicts with United States v. Canady,
126 F.3d 352, 361–63 (2d Cir. 1997).
                                       12

returns its verdict after a bench trial, the Second Circuit disagreed,

stating:

                There is a distinctly useful purpose in ensuring that the
         pronouncement of the defendant’s guilt or innocence by the
         court is both face-to-face and public. It assures that the trial
         court is “keenly alive to a sense of [its] responsibility and to
         the importance of [its] functions.” When sentence is orally
         imposed, we have consistently held that it is “critical that the
         defendant be present.” We see no reason why a defendant’s
         presence is less critical when the court, instead of the jury,
         renders its decision as to the ultimate issue of whether the
         defendant is guilty or innocent. In the jury context, several
         courts, in rejecting the argument that the defendant’s
         presence is useless, have pointed to the fact that the
         defendant’s mere presence exerts a “psychological influence
         upon the jury.” This is because the jury in deliberating
         towards a decision knows that it must tell the defendant
         directly of its decision in the solemnity of the courtroom. We
         fail to see how the situation is any different when the fact
         finder is the district judge.

Id. at 361–62 (citations omitted). The court also found that the failure of

the court to read the verdict in open court violated the defendant’s Sixth

Amendment right to a public trial. Id. at 363.

         We agree with the proposition in Canady that a defendant’s

presence exerts a psychological influence on a judge in the same manner

as it would a juror.      When a defendant waives a jury trial, the judge

decides the case in the same manner as a juror. Just as a juror would,

the judge listens to the evidence, determines the facts, and applies the

facts as found to the law. A judge’s legal training does not include how

to determine the credibility of witnesses or disputed facts.

         We are unable to find any reported cases in which a judge has

changed his or her verdict when delivering it to a defendant in open

court.     The reason for this is simple.    If a judge changes his or her

verdict, the judge will do so without noting it on the record. Even though

jurors very rarely change their verdict when polled, the possibility that
                                          13

they may change their verdict requires a court to insist that the jury

return its verdict in the presence of the defendant. We cannot state with

certainty that the defendant’s presence in court when the judge returns

his or her verdict would not have the same effect on a judge as it would

on a juror.

         Additionally, trials in this country are not to be held in secret. The

requirement that verdicts be announced in open court “vindicates the

judicial system’s symbolic interest in maintaining the appearance of

justice and its pragmatic interest in giving the finder of fact a final

opportunity to change its decision.” Canady, 126 F.3d at 362 (citation

and internal quotation marks omitted). We agree with the Second Circuit

that “[p]eople in an open society do not demand infallibility from their

institutions, but it is difficult for them to accept what they are prohibited

from observing.”      Id. (citation and internal quotation marks omitted).

Our court reflects these principles with our present practice of streaming

our proceedings live on the internet and holding oral arguments in

various parts of the state in order for the public to view the work of the

court.

         Therefore, to avoid a possible conflict with the Fifth and Sixth

Amendments to the United States Constitution, we interpret rule 2.17(2)

to require the court to reconvene the proceedings and announce its

verdict in open court, unless the defendant has waived his or her right to

receive the verdict in open court. 5 We expect most defendants will waive


       5By this ruling, we are not commenting on whether our decisions in Johnson

and Lumadue are correct. It should be noted that when the defendant was sentenced in
those cases, the defendant was present in court and had an opportunity to address the
judge as to any reasons why the judge handed down the sentence. In the case in which
the defendant is not in the courtroom when the court renders its verdict, the defendant
does not have the same opportunity as the defendant who is present when his or her
sentence is handed down.
                                      14

the right to be present for the return of the verdict in a criminal case

tried without a jury, just as most parties in a civil case waive their

presence at the return of a jury verdict in a civil trial.

      Several practical considerations also support our conclusion.

First, upon a verdict of guilty, a defendant could decide to waive the

court’s use of a presentence report and his right of allocution, and

instead elect to proceed directly to sentencing in order to leave the

county jail to begin his prison sentence without delay.       If the court

renders its verdict in writing, thus necessitating that the court

communicate the verdict in some manner other than in an open court

proceeding, there may be a passage of time between the moment the

court renders its decision and the moment the defendant receives it.

This is not an issue of the defendant serving additional time because the

defendant will receive credit for time already served. See Iowa Code §

903A.5 (2007).      It is, however, an issue of the defendant serving

additional time in the county jail instead of the state prison, where he or

she could participate in certain prison programs.

      A second practical reason concerns immediate challenges to the

verdict.   A defendant may want to challenge the court’s verdict

immediately by bringing to light a glaring error by the court. It is also

possible the defendant will want the court to explain in more detail all or

part of the verdict. A defendant cannot immediately challenge a verdict

not rendered in open court. If the defendant cannot do so, it could add

to the time he or she must spend in the county jail. For example, in this

case, the court amended its verdict nearly a month later, finding Jones

guilty of assault causing bodily injury instead of domestic abuse assault

causing bodily injury.    If the court had announced its verdict in open
                                    15

court, Jones would have been able to bring the court’s error to light

immediately, and the court may have corrected it on the spot.

      Third, after the rendering of a guilty verdict, trial courts have the

discretion to defer judgment or the sentence. See id. § 907.3. Further,

the defendant may ask the court for a deferred judgment or sentence.

See State v. Stessman, 460 N.W.2d 461, 463 (Iowa 1990) (concluding a

criminal defendant who requested a deferred judgment consented to a

deferred judgment). Because the court can enter a deferred judgment or

sentence immediately following the rendering of the verdict upon the

defendant’s request, a defendant who does not receive his or her verdict

in open court may have to spend more time in the county jail waiting to

receive the verdict and waiting to hear the court’s response to his or her

request.   Granted, Jones would not have been eligible for a deferred

judgment or sentence because the court found him guilty of committing

forcible felonies. See id. §§ 702.11(1), 907.3. However, if rule 2.17(2) did

not require the court to announce the verdict in open court, then the

court would be permitted to render written verdicts following all bench

trials unless we carved out a narrow exception for cases involving forcible

felonies. This we decline to do.

      Fourth, in order to mail the verdict to the parties, the court must

send the verdict through the clerk’s office. It is conceivable a member of

the news media might be in the clerk’s office, learn of the verdict, and

then publish it prior to the defendant learning of it. See Canady, 126

F.3d at 359 (noting the defendant learned of his conviction by reading a

newspaper two weeks after the district court mailed its decision).

      Finally, a written verdict might not make it to the defendant at all.

A verdict sent through the mail could be lost prior to receipt. It could be

misplaced by a mail carrier or an attorney.       It could be sent to an
                                           16

attorney who is away on vacation and does not expect a verdict on a

particular date. 6 In any event, we do not want circumstances beyond the

court’s control to influence or dictate a criminal defendant’s receipt of the

verdict in his or her case. Certainty as to when and where the defendant

will receive the verdict is important.

       B. Remedy.         Having determined the rule requires the court to

announce the verdict in open court, we must determine the proper

remedy. In Canady, in which the court found the failure to return the

verdict in open court to be a structural error, the court determined the

proper remedy was to vacate the verdict and sentence, reconvene the

trial, and announce the verdict in open court. 126 F.2d at 364. In states

where courts have found their rules to require a court to return the

verdict in open court after a bench trial and where the court failed to do

so but later read the verdict in open court at sentencing, the defendant

was not entitled to any further relief. See State v. Cruz, 550 P.2d 1086,

1088–89 (Ariz. Ct. App. 1976); State v. Wolfe, 103 S.W.3d 915, 917–18

(Mo. Ct. App. 2003); see also Davis v. State, 416 So. 2d 444, 447 (Ala.

Crim. App. 1982) (refusing to grant further relief where, at sentencing,

the judge publicly acknowledged his verdicts and afforded the defendant

the opportunity to “say why sentence should not be passed”). The reason

for this position is that the court rendered its verdict in open court with

the defendant present, thus remedying any prior failure to do so.

       In an analogous context, the United States Supreme Court held

the failure to provide a defendant with a public proceeding demands a

       6In  this case, at the conclusion of trial on January 30, the court stated, “Thank
you. Matter is submitted. I will take a look at it. It won’t be this week. When I get a
chance, I’ll get a decision for you.” The court did not give the parties any indication as
to when to expect the verdict. The court did not render the verdict until March 7, and
there is no indication in the record the parties knew to expect the verdict on that date.
                                     17

remedy “appropriate to the violation.” Waller v. Georgia, 467 U.S. 39, 50,

104 S. Ct. 2210, 2217, 81 L. Ed. 2d 31, 41 (1984). There, the Court held

a suppression hearing should not have been entirely closed to the public.

Id. at 48, 104 S. Ct. at 2216, 81 L. Ed. 2d at 39. Instead of remanding

the case for a new trial, the Court remanded the case for a public

suppression hearing following a decision on which portions of the

hearing may be closed. Id. at 50, 104 S. Ct. at 2217, 81 L. Ed. 2d at 41.

The Court reasoned that, if the subsequent ruling would suppress the

same evidence, then a new trial would be a windfall for the defendant

and not in the interest of the public.        Id.   Accordingly, the Court

concluded a new trial is warranted only when a new, public suppression

hearing results in a “material change in the positions of the parties.” Id.

      We agree with the reasoning of the Supreme Court. We also agree

with the state court decisions holding the defendant is not entitled to

further relief if the court later reads the verdict at sentencing. See Davis,

416 So. 2d at 447; Cruz, 550 P.2d at 1088–89; Wolfe, 103 S.W.3d at

917–18. In this case, the district court recited its verdict in open court at

the November 21, 2008 hearing on the combined motion in arrest of

judgment and motion for a new trial. The reading of the verdict in open

court would not change the evidence produced at trial or the verdict

rendered by the court. Consequently, the court remedied its failure to

announce the verdict in open court. Therefore, Jones is not entitled to

any further relief.

      V. Exculpatory Evidence.

      Jones asserts the State committed a Brady violation by failing to

disclose the transcript of a 911 call made by M.P.’s ex-boyfriend to police.

To establish a Brady violation, Jones must prove by a preponderance of

the evidence “(1) the prosecution suppressed evidence; (2) the evidence
                                      18

was favorable to the defendant; and (3) the evidence was material to the

issue of guilt.”   DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011)

(citation and internal quotation marks omitted); accord Strickler v.

Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286,

302 (1999). With regard to the first prong of the test, we recently stated,

“The prosecution ‘has a duty to learn of any favorable evidence known to

. . . others acting on the government’s behalf in the case, including the

police.’ ” DeSimone, 803 N.W.2d at 103 (quoting Kyles v. Whitley, 514

U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995)).

“[W]hether the prosecutor succeeds or fails in meeting this obligation” is

irrelevant.   Kyles, 514 U.S. at 437–38, 115 S. Ct. at 1567–68, 131

L. Ed. 2d at 508. Further, the State must disclose evidence favorable to

the   defendant    regardless   of   whether   the   defendant    requests   it.

DeSimone, 803 N.W.2d at 103. This is because the “[n]ondisclosure of

evidence is the touchstone for suppression; the good or bad faith of the

prosecutor is not relevant.” Id.

      The court of appeals determined Jones waived his Brady-violation

claim by conceding at the hearing on Jones’s combined motion in arrest

of judgment and motion for a new trial that the State did not have prior

possession of the transcript. This purported concession is not clear from

the record. Further, based on above principles, it is of no consequence

that the prosecutor possessed or did not possess the call transcript prior

to the verdict.    The Marshalltown Police Department Communications

Center maintained a record of the 911 call as evidenced by the fact that

the State eventually provided Jones with a transcript.           Therefore, the

prosecutor had a duty to find the transcript or a recording of the call,

assuming it was favorable to Jones.
                                    19

      With regard to the second prong of the Brady test, impeachment

evidence constitutes evidence favorable to the accused and must be

disclosed pursuant to Brady. Id. at 105. In this case, M.P.’s credibility

was important to the State’s case. If the transcript had been disclosed

and Jones had used it effectively, it may have made a difference in the

outcome of the case. See id. (“ ‘Impeachment evidence . . . if disclosed

and used effectively . . . may make the difference between conviction and

acquittal.’ ” (quoting United States v. Bagley, 473 U.S. 667, 676, 105

S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985))). It is possible Jones

could have used the transcript to impeach M.P.’s testimony as to the

source of her injuries.    Therefore, we could find that the transcript

constitutes evidence favorable to Jones.

      Jones’s claim, however, fails on the third prong of the test.      An

accused is denied due process only when the “suppressed evidence is

material to the issue of guilt.” Id. Evidence is material when “ ‘there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’ ”      Id.

(quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at

494). In evaluating materiality, we must take into account the possible

effects nondisclosure had on the defense’s trial strategy. Id. However, a

“reasonable possibility” of a different outcome is not enough; materiality

requires a “reasonable probability” of a different outcome. Strickler, 527

U.S. at 291, 119 S. Ct. at 1953, 144 L. Ed. 2d at 308.

      The record in this case does not indicate more than a reasonable

possibility of a different outcome. If we assume the information in the

call is true, the call transcript indicates a black male named “Kujo” was

beating M.P. inside an apartment on November 30.          It also indicates

“Kujo” choked M.P. a couple of days earlier, resulting in a cut on her
                                     20

neck.    Therefore, this incident would have occurred on November 28.

Indeed, M.P. had a welt on her neck when she went to the hospital on

December 4. However, her physician testified the injury occurred during

the preceding twelve to eighteen hours. Granted, the State did not offer

evidence indicating “Kujo” was Jones.        However, the call transcript

indicates M.P. received an injury to her neck six days earlier, which is

inconsistent with the physician’s testimony.        Further, it does not

mention any other injuries. Moreover, even though M.P.’s ex-boyfriend

referred to “Kujo” and not Jones, the call transcript describes Jones’s

apartment as the location where M.P. was being beaten at the time the

call took place. Therefore, we cannot say the disclosure of the transcript

of the 911 call prior to the verdict would have given rise to a reasonable

probability of a different outcome. Accordingly, Jones’s claim that the

State committed a Brady violation fails.

        VI. Disposition.

        We hold rule 2.17(2) requires a trial court to announce the verdict

in a recorded proceeding in open court.        We also hold the remedy

ordinarily is to vacate the conviction, vacate the sentence, and remand

the case to allow the district court to announce the verdict in a recorded

proceeding in open court pursuant to rule 2.17(2). Further, we hold the

district court cured its error and substantially complied with rule 2.17(2)

such that no remand is required in this case. Thus, we affirm Jones’s

conviction and sentence.     Moreover, the State did not fail to disclose

material exculpatory evidence.      Finally, we let the court of appeals

opinion stand as the final decision in this appeal as to whether the

district court was correct in its determinations that a fork is a dangerous

weapon, that the State did not fail to disclose newly discovered evidence,

that the defendant’s trial counsel could not withdraw at the beginning of
                                      21

trial, and that the defendant knowingly and voluntarily waived his right

to a jury trial.

       DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

       All   justices   concur   except    Mansfield,   J.,   Cady,   C.J.,   and

Waterman, J., who concur specially.
                                     22
                                                  #09–0146, State v. Jones
MANSFIELD, J. (concurring specially).

      I agree that the defendant’s convictions should be affirmed.

However, I am unable to join part IV of the majority’s opinion.

      Our language is capable of many things, but I do not believe it

allows us to interpret the expression “find the facts specially and on the

record” as the majority has done. The majority reasons that the specific

phrase “on the record” means “orally and in the presence of the

defendant.” However, construing the entire passage, the majority then

goes on to say that it does not require the judge to tell the defendant

what facts the judge has found.        The judge only needs to tell the

defendant what his or her verdict is. So according to the majority, “find

the facts specially and on the record” really means “tell the defendant

orally in person what the verdict is.”           This insupportable rule

interpretation is justified by the existence of a “possible” constitutional

right not to be mailed the judge’s verdict in a bench trial. I do not believe

such a constitutional right exists, but in any event, the majority acts

inappropriately in not addressing the constitutional question head-on

and instead resorting to a contorted rule interpretation. See In re Young,

780 N.W.2d 726, 729 (Iowa 2010).

      The principle that we interpret statutes to avoid unconstitutional

results should be used judiciously. It is only a rule of construction and

only one of several such rules. See Iowa Code § 4.4(1) (2007) (stating

that “[i]n enacting a statute, it is presumed that . . . [c]ompliance with

the Constitutions of the state and of the United States is intended”).

When we rely on that rule to reach an implausible interpretation when

the more plausible interpretation would also be constitutional, as it is
                                       23

here, we are reshaping what the legislature gave us and exceeding our

proper role.
     I. The Meaning of “Find the Facts Specially and On the
Record.”
      The phrase “on the record” is used at seven different places in the

Iowa Rules of Criminal Procedure—rule 2.2(4)(a), rule 2.2(4)(d), rule

2.11(8), rule 2.17(1), rule 2.17(2), rule 2.23(3)(d), and rule 2.73(3).

      Rule 2.2(4)(a) states in part:

      Preliminary hearing.      The magistrate shall inform the
      defendant of the right to a preliminary hearing unless the
      defendant is indicted by a grant jury or a trial information is
      filed against the defendant or unless preliminary hearing is
      waived in writing or on the record.

(Emphasis added.)

      Rule 2.2(4)(d) states in part:

      Private hearing. Upon defendant’s request and after making
      specific findings on the record that: (1) there is a substantial
      probability that the defendant’s right to a fair trial will be
      prejudiced by publicity that closure would prevent and,
      (2) reasonable alternatives to closure cannot adequately
      protect the defendant’s fair trial rights, the magistrate may
      exclude from the hearing all persons except the magistrate,
      the magistrate’s clerk, the peace officer who has custody of
      the defendant, a court reporter, the attorney or attorneys
      representing the state, a peace officer selected by the
      attorney representing the state, the defendant, and the
      defendant’s counsel.

(Emphasis added.)

      Rule 2.11(8) provides:

      Ruling on motion. A pretrial motion shall be determined
      without unreasonable delay.       Where factual issues are
      involved in determining a motion, the court shall state its
      essential findings on the record.

(Emphasis added.)

      Rule 2.17(1) states in part:
                                    24
      Trial by jury. Cases required to be tried by jury shall be so
      tried unless the defendant voluntarily and intelligently
      waives a jury trial in writing and on the record within 30
      days after arraignment, or if no waiver is made within 30
      days after arraignment the defendant may waive within ten
      days after the completion of discovery, but not later than ten
      days prior to the date set for trial, as provided in these rules
      for good cause shown, and after such times only with the
      consent of the prosecuting attorney.

(Emphasis added.)

      Rule 2.17(2) provides:

      Findings. In a case tried without a jury the court shall find
      the facts specially and on the record, separately stating its
      conclusions of law and rendering an appropriate verdict.

(Emphasis added.)

      Rule 2.23(3)(d) states:

      Judgment entered. If no sufficient cause is shown why
      judgment should not be pronounced, and none appears to
      the court upon the record, judgment shall be rendered. Prior
      to such rendition, counsel for the defendant, and the
      defendant personally, shall be allowed to address the court
      where either wishes to make a statement in mitigation of
      punishment. In every case the court shall include in the
      judgment entry the number of the particular section of the
      Code under which the defendant is sentenced. The court
      shall state on the record its reason for selecting the
      particular sentence.

(Emphasis added.)

      Finally, rule 2.73(3), relating to appeals in simple misdemeanor

cases, provides that “the appeal shall be submitted to the court on the

record and any briefs without oral argument, unless otherwise ordered by

the court or its designee.” (Emphasis added.)

      Our cases and plain logic indicate that “on the record” does not

mean the same thing in all seven contexts. As noted by my colleagues,

we have interpreted “on the record” as used in rule 2.17(1) to require an
                                    25

in-person colloquy with the defendant. State v. Liddell, 672 N.W.2d 805,

811–12 (Iowa 2003).

      On the other hand, we have decided that “on the record” as used in

rule 2.23(3)(d) includes a written judgment entry. State v. Lumadue, 622

N.W.2d 302, 304 (Iowa 2001); State v. Johnson, 445 N.W.2d 337, 342–43

(Iowa 1989). Thus, a defendant must waive a right to jury in open court,

Liddell, 672 N.W.2d at 811–12, but a judge need not provide his or her

reasons for a sentence in open court in the defendant’s presence,

Johnson, 445 N.W.2d at 342–43.

      Also, although we have not previously decided what “on the record”

means in rule 2.11(8), it seems highly unlikely that when the court rules

on a pretrial motion, it has to do so in open court in the defendant’s

presence. Certainly, that is not the prevailing practice. Probably, “on the

record” as used in rule 2.11(8) includes a written order.

      And without doubt, “on the record” as used in rule 2.73(3) has

nothing to do with the in-person presence of the defendant.

      Additionally, rule 2.2(4)(d)’s reference to making specific findings

“on the record” likely does not require those findings to be made in the

defendant’s presence. That rule was adopted following decisions of the

United States Supreme Court and our court limiting the circumstances

under which preliminary hearings could be closed. See 1989 Iowa Acts

ch. 332 (now found at Iowa R. Crim. P. 2.2(4)(d)); Press-Enter. Co. v. Sup.

Ct., 478 U.S. 1, 13–14, 106 S. Ct. 2735, 2743, 92 L. Ed. 2d 1, 13 (1986);

Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142,

147–48 (Iowa 1988).     The underlying concern seems to be that the

specific findings would be reviewable on appeal; hence, “on the record.”

Press-Enter., 478 U.S. at 13–14, 106 S. Ct. at 2743, 92 L. Ed. 2d at 13;
                                    26

Des Moines Register & Tribune Co., 426 N.W.2d at 148. Thus, a written

finding would be sufficient.

      Lastly, we have not interpreted “on the record” as used in rule

2.2(4)(a). It appears from the context to mean something other than “in

writing.” See Iowa R. Crim. P. 2.2(4)(a) (stating that the magistrate shall

inform the defendant of the right to a preliminary hearing “unless the

defendant is indicted by a grand jury or a trial information is filed

against the defendant or unless preliminary hearing is waived in writing

or on the record” (emphasis added)). But our precedent would indicate, at

least indirectly, that it does not require an in-person colloquy with the

defendant. See State v. Brendeland, 402 N.W.2d 444, 445 (Iowa 1987)

(stating that “[d]efendant was bound by her lawyer’s filing of the waiver of

preliminary hearing”).

      We now have to decide what “on the record” means when the

phrase is used in rule 2.17(2). Does it mean the same thing as it does in

rule 2.17(1), or does it mean the same thing as it does in rules 2.23(3)(d)

and (presumably) 2.11(8)? I believe the latter is the correct analogy for

several reasons.

      First, rule 2.17(2) is written like rules 2.11(8) and 2.23(3)(d).   It

speaks in terms of the court doing something “on the record.”          Rule

2.17(1), by contrast, says that a valid waiver by a defendant must be “in

writing and on the record.”      (Emphasis added.)      This difference is

significant. If the phrase “on the record” as used in rule 2.17(1) could be

satisfied with a written waiver, then the rule would not make sense. In

that context “on the record” has to mean something other than “in

writing.”   Thus, rule 2.17(1) is best understood as requiring the jury

waiver occur in writing and “in a reported proceeding in open court.”

Liddell, 672 N.W.2d at 812.     Because the “in writing” language is not
                                      27

contained in 2.17(2) and we are talking about a court action that is

simply “on the record,” there is no apparent reason why we should

interpret rule 2.17(2) differently from rules 2.11(8) and 2.23(3)(d). See

Johnson, 445 N.W.2d at 342–43 (interpreting “the record” in the context

of rule 2.23(3)(d) to consist of “[t]he original papers and exhibits filed in

the trial court, the transcript of proceedings, if any, and a certified copy

of the docket and court calendar entries” (citation and internal quotation

marks omitted)).        Why should “on the record” when the court is

pronouncing its sentence mean something different from “on the record”

when the court is pronouncing its verdict?

      Typically, when we think of court actions that are “on the record,”

we have in mind events that become part of the official court record. See

id. This is to be contrasted with matters that are “off the record.” See

Black’s Law Dictionary 1123 (8th ed. 2004) (defining “on the record” to

mean “recorded as official evidence of a proceeding, such as a trial or

deposition” or “intended for quotation or attribution”).          In this sense,

something can become part of the official record whether it is a writing or

whether it is said aloud before a court reporter. While the context gives

us a good reason not to adhere to this definition in the case of rule

2.17(1),   there   is   no   contextual   reason   to   abandon    the   normal

understanding of “on the record” with respect to rule 2.17(2).

      Moreover, the majority fails to address the rest of the language in

rule 2.17(2). As noted, the rule states:

      Findings. In a case tried without a jury the court shall find
      the facts specially and on the record, separately stating its
      conclusions of law and rendering an appropriate verdict.

The court reads the rule as requiring the court “to announce the verdict

in open court,” but not as requiring it to state its factual findings in open
                                    28

court. However, this reverses the way in which the rule is written. It

does not say, “The court shall find the facts specially, rendering an

appropriate verdict on the record.”    It says, “[T]he court shall find the

facts specially and on the record, . . . rendering an appropriate verdict.”

In the words, according to the rule, the facts and not the verdict need to

be on the record. In Liddell, we held that “on the record” requires the

court to address the defendant in person and tell the defendant what

rights he or she is waiving. 672 N.W.2d at 812–14. If “on the record”

here does not require the court to read the factual findings aloud, then

“on the record” here does not mean the same thing it meant in Liddell.

      My colleagues try to make some hay out of the legislative history,

but their bales are meager. If we go back to the 1977 legislation, we can

see that the legislature made several amendments at the same time to

what have since become rules 2.2(4)(a), 2.17(1), 2.17(2), and 2.23. Those

amendments are enlightening and read as follows:

      Rule two (2), subsection four (4), paragraph a [now rule
      2.2(4)(a)]:

             a. PRELIMINARY HEARING.        The magistrate shall
      inform the defendant that he or she is entitled to a
      preliminary hearing unless the defendant is indicted by a
      grand jury or a true trial information is filed against the
      defendant or unless he or she waives the preliminary hearing
      in writing or on the record. . . .

            ....

          Rule 16 [now rule 2.17].         TRIAL BY JURY OR BY
      COURT.

             1. TRIAL BY COURT ALLOWED. Cases required to be
      tried by jury shall be so tried unless the defendant waives a
      jury trial in writing in a reported proceeding in open court.
             2. FINDINGS. In a case tried without a jury the court
      shall make a general finding. Where requested by any party
      before or during trial, the court shall find the facts specially
      and in writing on the record, separately stating its
      conclusions of law and directing an appropriate judgment. A
                                    29
      request for findings is not a condition precedent for review of
      the judgment.

            ....

      Rule twenty-two (22), subsection three (3), paragraph d [now
      rule 2.23]:

            d. JUDGMENT ENTERED. If no sufficient cause is
      shown why judgment should not be pronounced, and none
      appears to the court upon the record, judgment shall be
      rendered. Prior to such rendition, counsel for the defendant,
      and the defendant personally, shall be allowed to address
      the court where either wishes to make a statement in
      mitigation of punishment. In every case the court shall
      include in the judgment entry the number of the particular
      section of the Code under which the defendant is sentenced.
      The court shall state on the record its reason for selecting
      the particular sentence.

1977 Iowa Acts ch. 153 §§ 6, 44, 66.

      Reviewing those amendments together, we can see that the

legislature simultaneously inserted the phrase “on the record” in three

locations. Significantly, the legislature in 1977 did not adopt the phrase

“on the record” with respect to the jury waiver (current rule 2.17(1)).

Instead, it changed the prior language—“in writing”—to read “in a

reported proceeding in open court.”      If the legislature had intended to

harmonize the two subsections of 2.17, it is odd that it substituted

different phrases in each subsection—“in a reported proceeding in open

court” in 2.17(1) and “on the record” in 2.17(2). This suggests that the

legislature wanted two different things: The jury waiver had to be in open

court in the presence of a court reporter, but the verdict could be

rendered in writing or in a recorded proceeding in open court.

      My colleagues point out that when the legislature rewrote both

halves of what is now rule 2.17 in 1977, it removed the phrase “in

writing” from both subsections.    But this proves nothing because, as

noted, the legislature replaced “in writing” with two different phrases—“in
                                           30

a reported proceeding in open court” in subsection (1) and “on the

record” in subsection (2). From this fact, the more logical inference is

that the legislature intended two different modifications.                       Or the

legislature could have intended to modify one part of the rule and merely

clarify the other part. See NextEra Energy Resources, LLC v. Iowa Utils.

Bd., __ N.W.2d __, __ (Iowa 2012) (noting that amendments either can be

clarifying or can change the meaning of a law).                    The more illogical

inference is that the legislature took two identical phrases in the same

section and replaced them with two different phrases with the intention

that the two different phrases would actually mean the same thing.

       Accordingly, I agree with the court of appeals that rule 2.17(2)

“does not have an analogous history [as compared to rule 2.17(1)]

requiring a trial court’s verdict to be given in a reported proceeding in

open court.” 7

       II. The Constitutional Question.

       Having demonstrated why I believe the majority’s interpretation of

rule 2.17(2) is incorrect, I now turn to the majority’s view that we should

adopt it nonetheless to avoid constitutional problems. As noted by the

majority, its avoidance argument essentially rests on one federal
appellate case.      See United States v. Canady, 126 F.3d 352 (2d Cir.

1997). I am not persuaded by this isolated decision. Canady reasons in



       7Itis true that in 1981, the legislature made further amendments to what
became rule 2.17(1), introducing the “on the record” terminology:
               1. TRIAL BY COURT ALLOWED JURY. Cases required to be tried
       by jury shall be so tried unless the defendant voluntarily and intelligently
       waives a jury trial in a reported proceeding in open court writing and on
       the record . . . .
1981 Iowa Acts ch. 206 § 16. However, I do not think legislation four years later is a
particularly helpful guide to what the legislature meant in 1977.
                                        31

a paragraph that the defendant’s presence at the rendering of the verdict

is constitutionally required to assure that the court is “ ‘keenly alive to a

sense of [its] responsibility and to the importance of [its] functions.’ ” Id.

at 361 (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210,

2215, 81 L. Ed. 2d 31, 38 (1984)). This strikes me as overstated. The

United States Supreme Court has said that “a defendant is guaranteed

the right to be present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to the fairness of

the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658,

2667, 96 L. Ed. 2d 631, 647 (1987). The defendant “has a due process

right ‘to be present in his own person whenever his presence has a

relation, reasonably substantial, to the fulness of his opportunity to

defend against the charge.’ ” Id. (quoting Snyder v. Massachusetts, 291

U.S. 97, 105–06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934), overruled

in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct.

1489, 1491, 12 L. Ed. 2d at 654, 656 (1964)). While I fully agree that the

defendant has a constitutional right to be present when a jury verdict is

returned, this right is based on important considerations peculiar to jury

trials, such as the defendant’s right to face the jurors personally, the

defendant’s right to poll the jury, the potential for jurors to draw adverse

inferences from the defendant’s absence, and the need to take immediate

action if there is an inconsistency in the jury verdict.           See Larson v.

Tansy, 911 F.2d 392, 395–96 (10th Cir. 1990); see also Canady, 126

F.3d at 361. I do not believe a district judge needs to have the defendant

present when he or she issues a decision in a bench trial in order to be

impressed with the importance of what he or she is doing. 8


      8My   colleagues also argue that “trials in this country are not to be held in
                                           32

       The caselaw here is not monolithic. In State v. Wolfe, the Missouri

Court of Appeals found that no plain error had occurred when a trial

court failed to render its verdict in open court. 103 S.W.3d 915, 917–18

(Mo. Ct. App. 2003). As the court explained, “No case in Missouri, cited

to or found by us, expressly refers to a constitutional or statutory right of

a defendant to be present at the pronouncement of guilt in a court-tried

case.” Id. at 917. That court cited two out-of-state cases in support of

its decision. Id. at 917–18 (citing Davis v. State, 416 So. 2d 444 (Ala.

Crim. App. 1982), and State v. Cruz, 550 P.2d 1086 (Ariz. Ct. App.

1976)); see also Bailey v. State, 419 A.2d 925, 927 (Del. 1980) (stating

that “in a non-jury trial, we can think of no purpose to be served by

having a defendant, already in custody, taken to court for the sole

purpose of having a letter opinion verdict read to him”); Commonwealth v.

Hembree, 751 A.2d 202, 203 (Pa. Super. Ct. 2000) (holding, albeit

without analysis, that neither the Pennsylvania Constitution nor the

United States Constitution guarantees a criminal defendant the right to

receive a nonjury verdict in open court).              As a Washington appellate

court put it:

             In the absence of some extraordinary circumstance in
      which the defendant’s presence would have made a
      difference, we hold that presentation of findings and
      conclusions that formalize the court’s decision, announced
      in the defendant’s presence and based on proceedings at
_______________________
secret.” I agree, but do not understand how a decision in a bench trial that is filed with
the clerk is any less public than one announced in open court. In fact, it is more
public. Anyone can access that decision by going to the clerk’s office or (hopefully soon)
by retrieving it electronically. However, if the decision is merely announced in open
court, public access is more problematic. Citizens likely will not have advance notice
that the court has reached a decision and, therefore, will not be able to attend the
proceeding where it is delivered in person. To obtain a copy afterward, they will have to
contact the court reporter and order the transcript at their expense unless the
transcript becomes part of the appellate record. All of this confirms, in my mind, that
the alleged right is not one of constitutional dimensions.
                                         33
       which he or she was present, is not a critical stage of the
       proceedings. A defendant’s presence at the time findings
       and conclusions are entered does not have “a relation,
       reasonably substantial,” to the fulness of his opportunity to
       defend against the charge.

State v. Corbin, 903 P.2d 999, 1002 (Wash. Ct. App. 1995) (quoting In re

Personal Restraint of Lord, 868 P.2d 835, 844 (Wash. 1994)); cf. State v.

Pruitt, 187 P.3d 326, 333–34 (Wash. Ct. App. 2008) (distinguishing

Corbin where the defendant was absent for the trial itself).

       The conceptual flaws in the majority’s decision are further exposed

by the majority’s holding on remedy.            According to the majority, any

statutory or constitutional violation arising from a failure to bring the

defendant back to the courtroom for the rendering of the verdict can be

remedied by announcing the defendant’s convictions at the sentencing

hearing. 9   So much for the majority’s suggestion that the defendant’s

personal presence at the rendering of the verdict is constitutionally

required because of the possibility the judge might change his or her

mind as to the defendant’s guilt. Thus, the majority’s “remedy” consists

of nothing more than what routinely happens in any criminal case tried

to the court.     In any such case, the defendant has to be personally

present for sentencing. In order to pronounce sentence, the court has to
remind the defendant of what he or she has been convicted of.

       Usually, the remedy defines the right. If a violation of the alleged

“right” can always be remedied by business as usual, then the right



       9I realize the majority claims to have decided the case on statutory rather than
constitutional grounds and to have provided a statutory rather than a constitutional
remedy. However, Jones raised both statutory and constitutional arguments. By
deciding it was unnecessary to reach Jones’s constitutional arguments, the majority
necessarily decided that his remedy for a constitutional violation would have been no
broader than his remedy for a statutory violation. Otherwise, my colleagues would have
had to reach and definitively resolve Jones’s constitutional arguments.
                                       34

really amounts to nothing more than business as usual. It diminishes

the courts when they devote time to finding such “rights.”

      The   majority    also   notes    several   “practical   considerations”

supporting its conclusion that judges should be required to render

nonjury verdicts in criminal cases in the presence of the defendant.

Generally they are based on a questionable assumption that a verdict

will get to the defendant more quickly if the defendant is required to

receive it in person. I think the potential for delay may be just as great if

the defendant has to be in the courtroom before the court can render a

verdict than if the verdict is sent to him or her, especially in these days of

e-mail. The majority says, “[W]e do not want circumstances beyond the

court’s control to influence or dictate a criminal defendant’s receipt of the

verdict in his or her case.”    I don’t know exactly what my colleagues

mean by this, but I suspect that sometimes courts have less control over

the physical movements of criminal defendants than they do over the

mail or e-mail.

      I personally think it is a good practice for a trial judge to have the

defendant in the courtroom when rendering verdict.             As the Canady

court noted, this reinforces the importance of what the court is doing in

the solemnity of the courtroom. 126 F.3d at 361–62. But I cannot read

rule 2.17(2) or the United States or Iowa Constitutions as demanding

this practice.    A strength of our legal system is that it follows many

practices not because they are mandated by law or the Constitution but

because they assure dignity and respect for our proceedings.

      For the foregoing reasons, I would affirm the district court and

uphold the court of appeals decision in its entirety.

      Cady, C.J., and Waterman, J. join this special concurrence.
