author: GILBERTSON, J. SABERS, Justice,

text:
    2001 SD 19
    STATE of South Dakota, Plaintiff and Appellee, v. Dawn Marie FRAZIER, Defendant and Appellant.
    No. 21375.
    Supreme Court of South Dakota.
    Argued Oct. 25, 2000.
    Decided Feb. 21, 2001.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, for plaintiff and ap-pellee.
    Bruce A. Hubbard, Hansen, Hubbard & Swanson, Sturgis, South Dakota, for defendant and appellant.
   GILBERTSON, J.

[¶ 1.] Dawn Frazier (Frazier) was convicted by a jury for the kidnapping and felony murder of Morning Star Standing Bear and sentenced to life imprisonment. She appeals her conviction and sentence. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] On June 15, 1999, Frazier, Chaske White, Robert Horse, and Jerry Horse were partying at another friend’s home in Rapid City. During the course of the evening, they left the house and went to a bar. While at the bar, Jerry Horse picked up a young woman with whom he was acquainted, Morning Star Standing Bear. When the bar closed, Standing Bear accompanied the group back to the friend’s home for additional partying. Standing Bear was visibly intoxicated at this point and passed out for a short time at the friend’s home. Eventually, Frazier, White, Robert Horse, Jerry Horse and Standing Bear left the house in Frazier’s vehicle.

[¶ 3.] After dropping Jerry Horse off at his home, the remaining four continued to drive around the area of north Rapid City. By this time, Standing Bear was nearly unconscious. Ultimately, the group stopped on a gravel road outside Rapid City. At this point, Standing Bear was removed from the car by White and Robert Horse where she was kicked, beaten and stabbed numerous times. Her injuries were caused, in part, by a car jack and a broken beer bottle. As a result of these injuries, Standing Bear died. Her naked body was dragged into a ditch where it was discovered the next morning.

[¶ 4.] The next day, law enforcement interviewed Jerry Horse regarding his involvement with Standing Bear. Through this interview, law enforcement was lead to Frazier. In the evening hours of June 17, 1999, Department of Criminal Investigation (DCI) agent Jones located Frazier at the home of White’s mother. He requested that Frazier accompany him to the DCI office. Frazier agreed and drove her own car there.

[¶ 5.] Upon her arrival, she was taken to a conference room where she was interviewed by Jones, beginning at 7:55 p.m. At the commencement of the interview, Jones read Frazier her Miranda rights. Frazier waived those rights; the interview lasted approximately 50 minutes. The first interview, the Miranda warning and Frazier’s waiver were not recorded. A second interview began at 9:30 p.m. No Miranda warnings were given at the commencement of this second interview, which lasted until 11:10 p.m. Jones questioned Frazier a third time, beginning at 1:45 a.m. At this time, Jones reminded Frazier of her Miranda rights, which had previously been read to her. Frazier stated that she understood her rights and would continue speaking with Jones. The third interview lasted 28 minutes. At 2:20 a.m., Jones again questioned Frazier, this time for approximately 15 minutes.

[¶ 6.] A final interview between Frazier and Jones commenced at 2:40 a.m. Prior to the final interview, Frazier told Jones that she was afraid of White and possible retaliation by him against her. To ease her fears and support Jones’ assertion that White would be incarcerated for his participation, Jones arranged for White to be escorted in handcuffs past the open door of the room where Frazier was being questioned.

[¶ 7.] Thereafter, Frazier gave°a detailed description of what had happened during the early morning hours of June 17, 1999. She claimed that White directed her as to where she should drive. Frazier claimed that she repeatedly requested to go home because she was tired, but White refused. She believed that Robert Horse and possibly White were going to have sex with Standing Bear. White instructed Frazier to stop the car on the gravel road where Standing Bear was killed. Frazier claimed that White ordered her to stay in the car and not watch what White and Robert Horse were doing. She stated that while looking in the rear view mirror, she witnessed White and Robert Horse beating Standing Bear. Frazier got out of the car on a number of occasions, once to open the trunk of her car, several times to urge White and Robert Horse to “hurry up,” each time returning to the car upon threats from White. Each time she left the confines of the car, she witnessed further beating, but according to her statement, she did not actually participate. Finally, after Standing Bear’s lifeless body was dragged across the road into a ditch, Frazier drove White and Robert Horse back into Rapid City.

[¶ 8.] Frazier was charged with the kidnapping and felony murder of Standing Bear. Prior to trial, Frazier made a motion to suppress the statements made to law enforcement, including her consent to the search of her residences. This motion was based on the fact that Frazier was not read her Miranda rights by law enforcement at the commencement of each interview. It was also based on alleged deception by law enforcement, and Frazier’s lack of food and sleep.

[¶ 9.] In its findings of fact, the circuit court found that Frazier had been read her Miranda warnings, that she understood her rights, and that she agreed to waive those rights and answer Jones’ questions. The circuit court also found that Frazier was cordial and polite and was not under the influence of alcohol or drugs, but she was “likely tired” after working during that day. According to the circuit court’s findings of fact, Frazier was reminded of her Miranda rights at the beginning of the third interview. Frazier indicated a willingness to continue talking with Jones. Based on these facts, the court found that Frazier knowingly, freely and voluntarily waived her right to remain silent and her right to have an attorney present. The court also found that Frazier’s statements to law enforcement personnel and consent to search were, beyond a reasonable doubt, given freely and voluntarily.

[¶ 10.] Frazier also challenged the admission of two taped interviews between Jerry Horse and law enforcement personnel. Because Jerry Horse was unavailable to testify at trial, the State sought to admit the interviews under SDCL 19-16-35, the residual exception to the hearsay rule. Frazier claimed these statements did not exhibit “circumstantial guarantees of trustworthiness” as required under the evidentiary rule. Frazier argued that the two statements often contradicted each other, the statements were not made under oath, and the statements pertained to a period during which Jerry Horse was highly intoxicated. In addition, Frazier claimed that the admission of the statements violated her rights under the Confrontation Clause of the United States Constitution. The circuit court found that Jerry Horse’s statements were the best evidence of how Standing Bear came to be in Frazier’s car. In addition, the court found that the statements were not particularly incriminating as to Frazier, merely reiterating much of her own statement. For those reasons, the court allowed the State to introduce those statements.

[¶ 11.] On January 14, 2000, the jury convicted Frazier on both counts. The circuit court sentenced her to life imprisonment on both counts with sentences to run concurrently. She now appeals, raising the following issues:

1. Whether the circuit court erred in denying Frazier’s motions to suppress her statements and the subsequent searches of her car and residences.
2. Whether the circuit court erred by admitting out of court statements of Jerry Horse into evidence.
3. Whether the circuit court erred in giving a jury instruction on flight or concealment.
4. Whether the trial court erred in denying Frazier’s motion for judgment of acquittal.
5. Whether South Dakota’s felony murder statute is unconstitutional as cruel and unusual punishment.

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the circuit court erred in denying Frazier’s motions to suppress her statements and the subsequent searches of her car and residences.

[¶ 13.] We review a trial court’s decision on a motion to suppress under a de novo standard. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. “Although the underlying circumstances surrounding an interrogation are factual determinations, ultimately voluntariness is a legal question, requiring independent judicial review.” Id. (citing Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15 (1985)).

[¶ 14.] This issue can be further divided into two sub-issues: (a) whether the Miranda rights given to Frazier had become stale by the time of her confession; and (b) whether Frazier’s waiver of those rights was given in a free and voluntary manner.

[¶ 15.] A. Whether the Miranda rights read to Frazier had become stale by the time of her confession.

[¶ 16.] Miranda warnings are required whenever a suspect is in police custody. State v. Gesinger, 1997 SD 6, ¶ 17, 559 N.W.2d 549, 552. The circuit court concluded that from the time of her arrival at the DCI office, Frazier could reasonably have believed that she was not free to leave. There is no dispute that Frazier was read her Miranda warnings upon arrival at the DCI office, and reminded of those rights before commencement of the third interview at approximately 1:45 a.m. Frazier argues that by the early hours of the morning of June 18th, the prior warnings had grown “stale,” which would require law enforcement to repeat the warnings. We do not agree.

[¶ 17.] Initially, “once the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each successive interview.” State v. Davis, 268 Kan. 661, 998 P.2d 1127, 1138-39 (2000). A set of warnings must be repeated “ ‘only in those situations where a substantial probability exists that warnings given at a previous interrogation are so stale and remote that a substantial possibility exists that the suspect was unaware of his or her constitutional rights at the time subsequent interrogation occurs.’ “ People v. Baltimore, 292 Ill.App.3d 159, 226 Ill.Dec. 372, 685 N.E.2d 627, 630 (1997). To determine whether a previous Miranda warning has grown stale or remote, courts must look to the totality of the circumstances surrounding the warning. Commonwealth v. Scott, 561 Pa. 617, 752 A.2d 871, 875 (2000). Relevant factors include:

the length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether the statements obtained are materially different from other statements that may have been made at the time of the warnings.

Id. In sum, Miranda warnings will not be considered stale when there has been a “ ‘clear continuity of interrogation.’ ” Id.

[¶ 18.] Applying these factors to the case at hand, we find there was a “clear continuity of interrogation” such that Jones was not required to readvise Frazier of her Miranda rights. Frazier was under police supervision the entire time she was at the DCI office. Each time Frazier was interviewed, she was questioned by the same officer (Jones), at the same location (DCI office), and all but one interview was in the same room at the DCI office. The subject matter of each interview was the same, i.e., the death of Standing Bear. Frazier relies heavily upon the span of time between the. initial warning and her final statement. While Frazier was read her Miranda rights roughly six and a half hours before her final statement, she was reminded of those rights a mere hour before her final interview. Even without the reminder, the six and a half hour time span would not cause the initial warning to become stale. See Davis, 998 P.2d at 1138 (holding that a six and a half hour break between the initial warning and defendant’s confession did not cause the initial warning to become stale); State v. Trostle, 191 Ariz. 4, 951 P.2d 869, 879 (1997) (warning not stale after seven hours); Osborne v. State, 263 Ga. 214, 430 S.E.2d 576, 578 (1993) (warning not stale when defendant was questioned the next day); State v. Rowe, 479 A.2d 1296, 1299 (Me.1984) (warning not stale after more than nine hours). After examining the totality of the circumstances, there was a clear continuity of interrogation and it is apparent that Frazier was aware of her constitutional rights at all times during the interview process. The mere passage of time, on its own, such as occurred here, will not convince us otherwise.

[¶ 19.] B. Whether Frazier’s waiver of her rights was given in a free and voluntary manner.

[¶20.] Frazier challenges the waiver of her Miranda rights as well as the consent to search her residences. The same voluntariness test applies to both challenges. Incriminating statements or confessions are not voluntary if, in light of the totality of the circumstances, the will of the defendant has been overborne by law enforcement. State v. Smith 1999 SD 83, ¶ 36, 599 N.W.2d 344, 352. When considering the totality of the circumstances, we examine the following factors:

(1) the defendant’s age; (2) the defendant’s lack of education or low intelligence; (3) the absence of any advice to the defendant of [her] constitutional rights; (4) the length of detention; (5) the repeated and prolonged nature of the questioning; and (6) the use of physical punishment such as deprivation of food or sleep. A defendant’s prior experience with law enforcement officers and the courts is also a factor this Court considers.

Id. “Deception or misrepresentation by the officer receiving the statement may also be factors for the trial court to consider, however, the police may use some psychological tactics in interrogating a suspect.” State v. Darby, 1996 SD 127, ¶ 31, 556 N.W.2d 311, 320. “The question is not whether the interrogators’ statements [or actions] were the cause of the confession but whether those statements [or actions] were so manipulative or coercive that they deprived [Frazier] of [her] ability to make an unrestrained, autonomous decision to confess.” Smith, 1999 SD 83,. ¶ 36, 599 N.W.2d at 352. The circuit court found that Frazier waived her right to remain silent and consented to the search of her residences. The court further determined that the waiver and consent were “voluntary beyond a reasonable doubt.” We review these determinations de novo. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d at 488.

[¶21.] Initially, it should be noted that at the time of her arrest, Frazier was 31 years old. There is no record of Frazier’s educational background or intelligence, nor is it alleged that she was deficient in either category. Although she has had little involvement with the criminal justice system, she was informed of her constitutional rights before any questioning began.

[¶ 22.] Frazier relies upon the following evidence to support the claim that her statements were not made voluntarily; the repeated and prolonged questioning; the fact that she had only two and a half hours of sleep the previous night; the fact that she yawned repeatedly during the interviews; the fact that the consent to search form was signed at 4:40 a.m.; and finally, the deception and misrepresentations by law enforcement.

[¶ 23.] Frazier was questioned for a total of five and a half hours. During the interviews, Frazier yawned on a number of occasions and stated several times that she was tired. Yet, at no time did she request that questioning cease. There were several breaks, during which time she was allowed to smoke, drink coffee, lie down, watch television, and use the restroom. Frazier was alert and responsive during questioning; she was cordial and polite to Jones. While the consent to search form was signed in the early hours of the morning, the issue of searching her residences had been brought up earlier. Although she may have been tired from the questioning, “there is no evidence that [she] was so overcome by fatigue or stress as to prevent a voluntary waiver.” State v. Ferola, 518 A.2d 1339, 1346 (R.I.1986); see State v. Ervin, 979 S.W.2d 149, 161 (Mo.1998) (finding no evidence that defendant’s lack of sleep “affected his ability to understand and voluntarily waive his rights” even when he had not slept for twenty-four hours). It is a fact of life for law enforcement that suspected criminals do not often readily volunteer incriminating evidence. It takes time to elicit the facts, explore inconsistencies and arrive at the truth.

[¶ 24.] The deception that Frazier claims coerced her statements include statements by Jones that her stay at the DCI office would be brief, the questioning was a two-way street, that Jones would not discard Frazier like an old rug, and if she answered his questions and consented to the search, she would be allowed to return home. In addition, Jones arranged for White to be led past the open door of Frazier’s interrogation room in handcuffs. Police interview tactics are an important part of the interrogation process and may be used to obtain a confession so long as the confession is “ ‘a product of the suspect’s own balancing of competing considerations.’ ” Darby, 1996 SD 127, ¶ 31, 556 N.W.2d at 320 (quoting State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990)). We cannot say that these statements and misrepresentations were overly coercive or manipulative. Jones’ statements were merely psychological tactics, which did not interfere with Frazier’s “unconstrained, autonomous decision to confess.” Id. While lack of sleep and deception may have existed, after reviewing the totality of the circumstances, we cannot say that the circuit court erred in holding that Frazier’s waiver of her Miranda rights and consent to search was free and voluntary.

[¶ 25.] 2. Whether the circuit court erred by admitting out of court statements of Jerry Horse into evidence.

[¶ 26.] Jerry Horse was interviewed on two separate occasions by law enforcement, first on June 17, 1999 and again on June 22. These statements were admitted at trial under SDCL 19-16-35, the residual hearsay exception. Jerry Horse’s unavailability was stipulated by the parties, as he was a fugitive at the time of trial. At a hearing on the issue, the State argued that the statements were reliable because they were corroborated by Frazier’s confession. The circuit court admitted the statements because they were material as to how the victim came to be in Frazier’s vehicle, and the statements were the best evidence available for trial on that issue. Frazier challenges the admission of those statements under SDCL 19-16-35 and the Sixth Amendment to the United States Constitution.

[¶ 27.] Whether the statements are admissible under SDCL 19-16-35 need not be decided as we find that their admission violates the Federal Confrontation Clause. U.S. Const, amend. VI.

The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.

Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117, 126 (1999) (citing Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990)). While the Confrontation Clause does not bar all hearsay statements against a criminal defendant, it does “bar[ ] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651 (1990). For purposes of constitutional analysis, the proponent of the evidence must either produce the declarant, or if the declarant is unavailable, it bears the burden of showing “indicia of reliability” before the statement may be admitted. The United States Supreme Court has stated that such “indicia of reliability” is inferred when “the evidence falls within a firmly rooted hearsay exception.” Id. at 815, 110 S.Ct. at 3146, 111 L.Ed.2d at 652. Where, as in the present case, the evidence does not fall within an established exception, it is inadmissible without a showing of “particularized guarantees of trustworthiness.” Id. at 816, 110 S.Ct. at 3147, 111 L.Ed.2d at 653. See also Lilly, 527 U.S. at 125, 119 S.Ct. at 1894, 144 L.Ed.2d at 127. These “particularized guarantees of trustworthiness” can be shown from the totality of the circumstances, but only those circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” Wright, at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 655. Of specific importance to this case, evidence that corroborates the statement cannot be used to support a finding of trustworthiness. Id. at 822, 110 S.Ct. at 3150, 111 L.Ed.2d at 656-57. The statement must be trustworthy on its own. Lilly, 527 U.S. at 138, 119 S.Ct. at 1901, 144 L.Ed.2d at 135.

[¶ 28.] As previously noted, the statements of Jerry Horse were admitted into evidence under SDCL 19-15-35, the residual hearsay exception. State residual hearsay exceptions are not considered a “firmly rooted hearsay exception for Confrontation Clause purposes.” Wright, 497 U.S. at 817, 110 S.Ct. at 3147, 111 L.Ed.2d at 653. As such, the prosecution does not receive the inference of reliability that would apply under a firmly rooted hearsay exception. Applying the law as expressed by the United States Supreme Court, we begin with the presumption that hearsay statements are inádmissible against criminal defendants. The prosecution, as pro-' ponent of the statement, bears the responsibility of overcoming this presumption with independent indicia of reliability. During a hearing on this issue, the prosecution did not offer one such indication. No mention was made as to why Horse’s statements were inherently reliable, so as to make cross-examination unnecessary or superfluous. Instead, the prosecution relied entirely upon the fact that much of the statements were corroborated by the defendant’s own statement. Whether the statement is corroborated by other evidence is irrelevant to the admissibility of the statement. Id. at 822, 110 S.Ct. at 3150, 111 L.Ed.2d at 656-57. Whether the statement is the best or only available evidence on a particular topic is also irrelevant. Whether the statement is particularly incriminating as to the defendant is, likewise, irrelevant. None of these considerations become an issue until after the proponent has proven the statement to be trustworthy and reliable.

[¶ 29.] The State now seeks to demonstrate the reliability of Jerry Horse’s statements by noting that the statements were recorded, the officers used open-ended questions, the statements are “plausible,” and because Jerry Horse had no reason to lie. While certain procedural protections were in place during the interview, they will not overcome this constitutional violation. Using the existence (or absence) of procedural protections as part of the constitutional analysis was explicitly rejected by the United States Supreme Court in Wright. The Wright Court stated that “we do not believe the Constitution imposes a fixed set of procedural prerequisites to the admission of such statements at trial.” Id. at 818, 110 S.Ct. at 3148, 111 L.Ed.2d at 654. Instead, the State must show from the totality of the circumstances that the statements are trustworthy? The State has failed to carry this burden. To justify the admission of these statements .on the grounds urged by the State would clearly violate the United States Supreme Court’s mandate in Wright. We refuse to find that every statement given to police will be admissible against a criminal defendant merely because the statement is recorded, “plausible,” and the proponent later claims that the declarant had no reason to lie. None of these reasons espoused by the State would render cross-examination of Jerry Horse unnecessary or of “marginal utility.” Id. at 823, 110 S.Ct. at 3150, 111 L.Ed.2d at 657. Because the prosecution did not offer even a scintilla of evidence as to the independent reliability of Jerry Horse’s statements, it was error for them to be admitted.

[¶ 30.] The question for us thus becomes whether the admission was harmless error. It is during this phase of the analysis where a court is allowed to consider corroborating evidence. As the United States Supreme Court stated, “the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless.” Id. at 3150-51. In applying harmless error analysis we must decide beyond a reasonable doubt whether the erroneously admitted statements were harmless. See Stanga, 2000 SD 129, ¶ 20, 617 N.W.2d at 491. The harmless error doctrine preserves the essential purpose of criminal trials: to decide a defendant’s guilt or innocence. The rule “promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684-85 (1986).

[¶ 31.] With Confrontation Clause infractions, “[a]n assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation, such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867 (1988). In Stanga, after examining all the evidence, we encountered little doubt. He was caught in the midst of his crime. Here, there are doubts.

[¶ 32.] This is a case where the defendant was convicted as a principal to murder and kidnapping. She did not commit the crimes herself, but she drove the perpetrators and their victim to the site where the victim was beaten to death. Then she drove the perpetrators away. Critical to the jury’s decision on her guilt was the question when she knew of their intent. Was she simply used by these persons to accomplish their own ends or was she a willing participant in aiding them knowing their criminal purpose? Her primary defense at trial was that she may have suspected some criminal purpose but was unaware of the perpetrators’ specific intentions. She also claimed she was afraid of one of the perpetrators, White, and dared not cross him. The out-of-court statements from Jerry Horse were used to refute her.

[¶ 33.] In closing arguments, the State referred several times to Jerry Horse’s out-of-court statements to prove the defendant lied to the police. The statements were also used to rebut her defense that she feared White, by showing her cool response when Jerry Horse asked her if the murder really happened. For something that, according to the State on appeal, had little probative value, Jerry Horse’s statements were certainly put to good use. The evidence is not so overwhelming that these statements cannot be said to have weighed against her in ultimately tipping the scales toward a guilty verdict. Therefore, we cannot say that these wrongfully admitted statements were not prejudicial beyond a reasonable doubt. We reverse.

[¶ 34.] 3. Whether the circuit court erred in giving a jury instruction on flight or concealment.

[¶ 35.] Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law. An appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning “ ‘the jury might and probably would have returned a different verdict if [the] instruction had been given.’ ” State v. Walton, 1999 SD 80, ¶ 12, 600 N.W.2d 524, 528 (quoting State v. Rhines, 1996 SD 55, ¶ 111, 548 N.W.2d 415, 443) (alteration in original) (additional citations omitted).

[¶36.] Frazier challenges the following instruction:

Flight or concealment by the defendant, after the events charged in the indictment occurred, does not create a presumption of guilt. You may consider evidence of flight or concealment, however, as tending to prove the defendant’s consciousness of guilt. You are not required to do so. You should consider and weigh evidence of flight or concealment by the defendant in connection with all the other evidence in the case and give it such weight as in your judgment it is fairly entitled to receive.

This instruction is'set forth in the South Dakota Pattern Jury Instructions (criminal) at 1-14-9.

[¶ 37.] In the past, instructions on flight or concealment have been viewed with disfavor because they appear to comment on the evidence. See State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). For this reason, such instructions are to “be used sparingly and only when the special circumstances and evidence require.” Id. However, an instruction on flight or concealment is allowed when the evidence supports four inferences:

(1) the defendant’s conduct constituted flight [or concealment]; (2) the defendant’s flight [or concealment] was the result of consciousness of guilt; (3) the defendant’s guilt related to the crime with which [she] was charged; and, (4) the defendant felt guilty about the crime charged because [she], in fact, committed the crime.

United States v. Martinez, 190 F.3d 673, 678 (5th Cir.1999).

[¶38.] Frazier argues that her conduct did not constitute flight. We agree. While the homicide was being committed, her thoughts were not for the rescue of the dying Standing Bear; rather, she expressed fear of discovery as she exited the car, against the instructions of the perpetrators, with a demand for them to “just hurry up ... I want to go.” However, after leaving the crime scene and body, her actions do not constitute flight. She returned the few miles to Rapid City, the logical place for law enforcement to try to find her.

[¶ 39.] We do not believe that an instruction on flight is necessary or even permissible each time a criminal suspect leaves the scene of the crime. There must be some affirmative act by which the defendant seeks to avoid apprehension. State v. Hutchinson, 139 N.C.App. 132, 532 S.E.2d 569, 574 (2000); State v. Wilson, 185 Ariz. 254, 914 P.2d 1346, 1349 (Ariz.Ct.App.1996); State v. Whittenmeir, 725 S.W.2d 686, 688 (Tenn.Crim.App.1986). To endorse the use of a flight instruction every time a defendant leaves the scene of a crime would contradict the warning we issued in Menard, that the instruction should be used “sparingly.” Indeed, the instruction would become part of nearly every criminal trial except where the accused was apprehended at the scene of the crime.

[¶ 40.] A much stronger case has been made for a claim of concealment of Frazier’s involvement in the crime. To avoid damage to the car, she refused to allow the beating to continue on the trunk. When told by White and Robert Horse that they had killed Standing Bear, Frazier told them, “we need to go ... if you guys don’t come with me, I’m going right now.” After the homicide, to avoid discovery, the perpetrators asked to put the body in the car trunk. Frazier responded, “no way.” When she saw White’s bloody hands, shé informed him, “don’t touch me.” Once in the car, she told White, “don’t touch nothing” with his bloody hands. At the home of White’s mother, Frazier opened the trunk of her car to facilitate the disposal of Standing Bear’s bloody clothes by White. When contacted by the police with a request to provide the shoes she wore the night of the murder, she intentionally turned in the wrong pair of shoes. Finally, during the first four interviews with law enforcement, she denied any knowledge of the crime. In closing argument to the jury, the State argued evidence of this type constituted evidence of concealment.

[¶ 41.] After reviewing the instructions as a whole, we find that they provided a correct statement of the law. The jury was instructed that every presumption favors the defendant’s innocence, and that guilt must be proven beyond a reasonable doubt. These instructions are constitutionally and statutorily mandated in their application to the jury’s resolution of the case. In contrast, the flight or concealment instruction is a rarity in that it informs and authorizes the jury to ignore its application if the jury so decides. In addition, the circuit court instructed the jury on the effect of White’s alleged threat of force against Frazier. After listening to the evidence and all the instructions, the jury found Frazier guilty of kidnapping and felony murder. Frazier has failed to establish that were it not for the instruction on flight or concealment, the jury would have returned a different verdict. Therefore, it was not error to give this instruction.

[¶ 42.] 4. Whether the trial court erred in denying Frazier’s motion for judgment of acquittal.

[¶ 43.] When the State rested its case, Frazier moved for a judgment of acquittal on the grounds that the State had failed to make a prima facie case of kidnapping and felony murder. Although we reverse on the Confrontation Clause issue, we believe it is proper to also examine Frazier’s claim that the evidence was insufficient so as to justify the entry of a judgment of acquittal. Our basis for this decision rests on double jeopardy principles. Should we conclude that the evidence was insufficient, the State is constitutionally prohibited from retrying her. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1, 9 (1978). If, on the other hand, we find the evidence is sufficient, Frazier will be precluded from claiming double jeopardy protection at retrial. State v. Mascarenas, 129 N.M. 230, 4 P.3d 1221, 1230 (N.M. 2000). See Dubria v. Smith, 197 F.3d 390, 403 (9th Cir.1999) (reaching the merits of defendants insufficiency argument after reversing conviction on other grounds); Mascarenas, 4 P.3d at 1230 (noting that “[although not mandated by the double jeopardy clause, it is accordingly clearly the better practice for the appellate court on an initial appeal to dispose of any claim properly presented to it that the evidence at trial was legally insufficient to warrant the thus challenged conviction.”); State v. Brown, 258 Neb. 330, 603 N.W.2d 419, 430 (1999) (stating that the court “must consider Brown’s challenge to the sufficiency of the evidence in order to determine whether Brown may be retried.”).

[¶ 44.] When reviewing a motion for judgment of acquittal, we must ultimately decide “whether [the] State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged.” State v. Holzer, 2000 SD 75, ¶ 10, 611 N.W.2d 647, 650.

In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. In determining the sufficiency of the evidence, this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.

State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (quoting State v. Kneeht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421).

[¶ 45.] When a trial court considers a motion for acquittal, it takes into account all the evidence it has admitted. Because a finding that the evidence is insufficient to sustain a guilty verdict is treated the same as a judgment of acquittal, a reviewing court must likewise consider all the evidence the trial court had before it, including any evidence that is later determined to bé inadmissible. Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265, 274 (1988). There are two bases for this rule.

From a defendant’s viewpoint, if the evidence were determined to be sufficient, such a review would constitute an invasion of the province of the jury. Conversely, if the evidence were determined to be insufficient, it would be unfair to the [prosecution] because other evidence might have been produced by the [state’s] attorney at trial if the questioned evidence had been excluded there.

People v. Sisneros, 44 Colo.App. 65, 606 P.2d 1317, 1319 (Colo.App.1980). Therefore, we review all the evidence admitted at trial, including the Jerry Horse statements that were wrongfully admitted.

[¶ 46.] Frazier was convicted of kidnapping in violation of SDCL 22-19-1. That statute provides in relevant part that:

Any person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person, ... (2) To facilitate the commission of any felony or flight thereafter; (3) To inflict bodily injury on or to terrorize the victim or another; ... is guilty of kidnapping.

In addition, Frazier was convicted of felony murder pursuant to SDCL 22-16-4, which reads, “[h]omicide is murder in the first degree when ... committed by a person .engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, [or] kidnapping... Frazier contends there was insufficient evidence to avoid the granting of a motion for acquittal for kidnapping and felony murder based upon that kidnapping. We disagree.

[¶ 47.] We cannot say that the evidence is so insufficient as to overturn the trial court’s ruling. Frazier drove her car to the secluded area where Standing Bear was killed. She had every opportunity to stop driving or turn the car around. In her statement to law enforcement, Frazier claimed that she believed Robert Horse and White were going to rape Standing Bear. At no time during the beating did Frazier leave the scene, despite ample opportunity to do so. After Standing Bear’s body was dragged into the ditch, she drove White and Robert Horse back to Rapid City. Frazier has failed to show that no reasonable jury could have returned a guilty verdict as to the kidnapping charge. She “simply recites whatever evidence is most favorable to [her] and derides unfavorable evidence and inferences therefrom .... ” State v. Miller, 429 N.W.2d 26, 38 (S.D.1988). The evidence and the inferences therefrom are adequate to support the trial court’s denial of the motion for acquittal on the kidnapping charge.

[¶ 48.] There is no dispute that Standing Bear died as a result of the actions of Frazier, White and Robert Horse. Because we have found the evidence sufficient to affirm the trial court’s ruling, as to the charge of kidnapping, the evidence is also sufficient to support the ruling on the felony murder charge. Therefore, double jeopardy does not prohibit the retrial of Frazier on these charges.

[¶ 49.] 5. Whether South Dakota’s felony murder statute is unconstitutional as cruel and unusual punishment.

[¶ 50.] As there will be a retrial, at this time it is unknown whether Frazier will be convicted of any crime, let alone felony murder or kidnapping. As such we do not reach this issue.

Conclusion

[¶ 51.] We affirm in part and reverse and remand in part for retrial.

[¶ 52.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 53.] SABERS and AMUNDSON, Justices, concur in part and dissent in part.

SABERS, Justice,

concurring in part and dissenting in part.

[¶ 54.] Dawn Frazier was thirty-one years old at the time of her arrest. She has no prior convictions. As a result of the jury’s verdict she was sentenced to two counts of life imprisonment without parole. This jury verdict was supported by the improper out of court statements and an improper instruction on flight. The majority opinion recognizes error in both respects: 1.) the circuit court erred by admitting into evidence the out of court statements of Jerry Horse; and 2.) the circuit court erred in giving the jury instruction on flight. Additionally, the majority opinion unnecessarily addresses the sufficiency of the evidence to support these reversed convictions. I address each error in turn and then their cumulative impact.

[¶ 55.] 1. SUFFICIENCY OF THE EVIDENCE.

[¶ 56.] The majority opinion conducts a review of the sufficiency of the evidence. It is well settled that the double jeopardy clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to his conviction.” Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir.1995) (quoting Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265 (1988). Yet, there is one important exception to this rule: retrial is barred if we find that the evidence was legally insufficient. Id.; Woodall v. U.S., 72 F.3d 77, 78 (8th Cir.1995). However, it is not even necessary to discuss the issue.

[¶ 57.] Frazier’s conviction has been reversed for a constitutional evidentiary error, a classic example of “trial error” that does not trigger the double jeopardy prohibition. See Jacob v. Clarke, 52 F.3d 178, 180 (8th Cir.1995). “It is undisputed that the Double Jeopardy Clause does not bar retrial after appellate reversal for trial error.” Satter v. Leapley, 977 F.2d 1259, 1263 (8th Cir.1992). This line of cases does not require us to consider the sufficiency of the evidence and I respectfully submit that it is of no benefit to the bench or bar to do so. The discussion of the sufficiency of the evidence should be completely omitted.

[¶ 58.] 2. JURY INSTRUCTION ON FLIGHT OR CONCEALMENT.

[¶ 59.] I concur with the majority opinion that it was error to give a flight instruction on these facts. Instructions on flight should be cautiously applied. State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). The simple act of leaving the scene of a crime does not satisfy the requirements necessary to warrant a flight instruction. There must be something more. An affirmative act to avoid apprehension is required to permit such an instruction. State v. Hutchinson, 139 N.C.App. 132, 532 S.E.2d 569, 574 (2000); Mitchell v. State, 876 P.2d 682, 685 (Okl.Crim.App.1994).

[¶ 60.] The majority opinion concludes that this instruction did not affect the verdict and therefore Frazier suffered no prejudice. Yet, this jury instruction empowered the jury to consider evidence of this nonexistent flight to prove “consciousness of guilt.” The constitutionally and statutorily mandated instructions on the “presumption of innocence” and “proof beyond a reasonable doubt” that the majority opinion relies upon to offset the prejudice of these errors in effect proves the point. This errant instruction cannot be viewed as harmless when it highlighted to the jury evidence which was improperly categorized and presented as evidence of guilt. In fact, the defect in giving an improper “flight” instruction is that it improperly relieves the State of the burden to prove guilt “beyond a reasonable doubt” and throws out the “presumption of innocence.” We have recently unanimously reversed under somewhat similar “downplaying” of these two key instructions. State v. Nelson, 1998 SD 124, ¶ 20, 587 N.W.2d 439, 447.

[¶ 61.] The force behind our statement that these instructions should be used sparingly is suspect under the majority opinion. By refusing to find reversible error in this instance, perhaps the most egregious example of the improper use of a flight instruction, we are tacitly approving the use of such instructions throughout the state. In light of the apparent unanimous agreement of this Court that Frazier’s conduct does not constitute flight, this proposition seems remarkable. I refuse to join the majority opinion’s failure to find harmful error, despite its recognition that “[t]o endorse the use of a flight instruction every time a defendant leaves the scene of a crime would contradict the warning we issued in Menard, that the instruction should be used ‘sparingly.’ Indeed, the instruction would become part of nearly every criminal trial except where the accused was apprehended at the scene.” This strongly worded warning constitutes a mere suggestion if we encourage this reworked instruction on flight.

[¶ 62.] 3. CUMULATIVE IMPACT.

[¶ 63.] The majority opinion fails to appreciate the cumulative effect of these errors and their resulting prejudice which affected the fairness of Frazier’s trial. “We have previously held that the cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial.” State v. Davi, 504 N.W.2d 844, 857 (S.D.1993); McDowell v. Solem, 447 N.W.2d 646, 651 (S.D.1989). Moreover, this Court may address a constitutional issue sua sponte. State v. Beck, 2000 SD 141, ¶ 15, 619 N.W.2d 247.

[¶ 64.] We have recognized that a “snowball effect” of the errors at trial may deprive a defendant of a fair trial. Jenner v. Leapley, 521 N.W.2d 422, 432 (S.D.1994). How can one agree with the majority opinion that the errors at trial were nonprejudicial. The cumulative effect of the errors which occurred during Frazier’s trial denied her right to a fair trial. See State v. Jahnke, 353 N.W.2d 606, 611 (Minn.App.1984) (reversing Jahnke’s conviction and remanding for a new trial based on prose-cutorial misconduct).

[¶ 65.] Viewing the errors at Frazier’s trial in isolation may lead some to conclude that they were not sufficiently prejudicial, yet that is not the consideration. “Our system of criminal justice is founded on the twin cornerstones of fairness and proof beyond a reasonable doubt.” Dillon v. State, 311 Ark. 529, 844 S.W.2d 944, 949 (Ark1993). The Supreme Court of Arkansas correctly characterized the majority opinion’s fallacy:

It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we must conclude that the almost total disregard of the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here.

Id. at 948.

[¶ 66.] In summary, the errors that occurred at trial, viewed cumulatively, denied Frazier her right to a fair trial as required by our constitutions. To jealously guard the integrity of our judicial system, a new trial is required. Two significant errors stand out. Frazier was denied the ability to contest the out-of-court accusations made by a man on the run from the law, in violation of her constitutional right to confront her accuser. Additionally, the jury was allowed to improperly consider the fact that she left the scene of the crime as “consciousness of guilt.” The majority opinion recognizes both as clear eiTor.

[¶ 67.] The circuit court sentenced Frazier to life imprisonment for her passive participation in the “kidnapping” and murder of Standing Bear. In every case, we are mindful of the impact a sentence can impose on all parties involved. However, we must insure that evei'y pi’otection that the law can muster is utilized to achieve the integiity of our judicial system. Such protections are not intended to impede the call of justice. Instead, such protections are designed to insure that each citizen is given the opportunity to contest the charges brought against them. As Frazier’s conviction does not meet this rigorous standard, I dissent.

[¶ 68.] Therefore, I would reverse and remand for a new fair trial and eliminate entirely the unnecessary discussion of the sufficiency of the evidence.

[¶ 69.] AMUNDSON, Justice, joins this special writing.

      . Standing Bear’s blood alcohol content at the time of her death was 0.342%.

      . Only the third and fifth interviews were tape-recorded.

      . Frazier had personal belongings at a friend’s apartment and at her mother's house. She consented to the search of both residences.

      . At the time of trial, Jerry Horse was a fugitive; an arrest warrant had been issued for him in connection with a robbery in Norfolk, Nebraska.

      . White pled guilty to first-degree murder and kidnapping. In exchange, the State agreed not to seek the death penalty. He was sentenced to life imprisonment on each charge with the sentences to run consecutively. Robert Horse was convicted of first-degree murder and kidnapping by a jury and sentenced to life imprisonment on each conviction.

      . At one point in the interview process Frazier claimed to be sleepy. The officer offered to take a break to let her take a nap. Instead, she opted for a cup of coffee, cigarettes and to continue the interview.

      . These tactics can be distinguished from those used in Stanga. In that case, the interrogating officer repeatedly promised the defendant that any statements made during the interrogation were between the two of them, and would not leave the interrogation room. Stanga, 2000 SD 129, ¶¶ 10-11, 617 N.W.2d at 489. We found that such statements effectively nullified the Miranda warning previously given to the defendant. Id. ¶¶ 18-19, 617 N.W.2d at 490-91.

      . While not dispositive, at the end of the final interview, Frazier stated she had not been threatened in any fashion to give the statement, that she was promised nothing to give it and that she offered it of her own free will.

      . The statute provides in relevant part:
      A statement not specifically covered by any of §§ 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable as a witness and if the court determines that
      (1) the statement is offered as evidence of a material fact;
      (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
      (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

      . As previously noted, Horse’s statements pertained to a period of time during which he was highly intoxicated.

      . It would be prudent for the circuit courts of this state to carefully consider the constitutional implications addressed in this opinion any time SDCL 19-15-35 is invoked against a criminal defendant.

      . Even though the instruction addresses flight or concealment, upon retrial it would be advisable to draft this instruction to conform to the evidence rather than give it as previously drafted even though it is a pattern instruction. If the evidence is limited to concealment rather than both flight and concealment, the instruction should be drafted to deal solely with the concealment allegation of the State.

      . In Nelson, we reversed and remanded for a new trial when the trial court failed to include and repeat the instructions on "proof beyond a reasonable doubt” and the “presumption of innocence” at the end of the case. The facts of this case are even more egregious.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Gary Dean DeCAMP, Appellant.
    No. 00-0101.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Terry E. Rachels, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.
   CADY, Justice.

The primary issue we consider in this appeal is whether prior convictions for possession of a controlled substance can be considered under the sentencing enhancement provisions of Iowa Code section 124.401(5) (1999), when the prior convictions predated the amendment providing for enhanced sentencing and were identified by a different code section. We conclude the prior convictions can be considered and affirm the judgment and sentence of the district court. We preserve an additional issue of ineffective assistance of counsel for postconviction relief proceedings.

I. Background Facts and Proceedings.

Gary DeCamp was arrested for possession of a controlled substance and carrying a concealed weapon on November 11,1998. The concealed weapon was a knife in a sheath attached to DeCamp’s belt. The weapon was observed by a state trooper after he stopped the automobile driven by DeCamp for failing to dim the high beam lights. The trooper conducted a pat down of DeCamp after he observed the weapon, and found methamphetamine in a cylindrical object located in a pocket of DeCamp’s pants. A subsequent search of the interior of the vehicle uncovered additional drugs contained in a vial.

DeCamp was handcuffed and placed in the trooper’s patrol car. After the trooper informed DeCamp of his Miranda rights, DeCamp acknowledged to the trooper that he owned the drugs discovered in the car and that he has had a long history of a drug problem.

The stop was recorded by a video camera mounted on the trooper’s car. The trooper also wore a microphone which enabled the video tape to record sound. Pursuant to a state patrol policy, the video tapes of stops made by troopers are erased ninety days after an arrest.

DeCamp was formally charged by a trial information on November 20, 1998, with carrying a concealed weapon and possession of a controlled substance. The trial information alleged DeCamp had been convicted of possession of a controlled substance on three prior occasions, and charged the current possession offense as a felony under the enhanced sentencing provisions of Iowa Code section 124.401(5). The trial information claimed DeCamp had been convicted of possession of a controlled substance on December 3, 1992, May 25,1994, and April 11,1996.

DeCamp filed a motion for discovery on January 8, 1999. He requested the State produce a variety of items, including any recorded statements or photographs. The district court granted the motion on January 13, 1999. DeCamp learned at a subsequent hearing on a motion to suppress that the stop made by the trooper had been videotaped. This video tape, however, was never produced by the State.

At trial, the trooper who arrested DeCamp testified that the video tape had been erased pursuant to the state patrol policy ninety days after the arrest and prior to the time the county attorney contacted him to inquire about the video tape. DeCamp denied at trial that he made any admissions to the trooper following the stop, and testified he believed the video tape would have supported his testimony. Nevertheless, defense counsel did not request that a spoliation instruction be given to the jury, and did not attempt to establish prosecutorial bad faith in failing to produce the video tape.

DeCamp was found guilty of the charges by the jury. He then admitted the three prior convictions for possession of a controlled substance. The district court subsequently sentenced DeCamp on the offense of possession of a controlled substance by elevating the crime to a felony based on the three prior convictions. DeCamp claimed the three convictions should not have been used to elevate the crime to a felony because the enhanced sentencing provisions of section 124.401(5) do not include prior convictions which predated the effective date of the enactment of the enhanced sentencing provisions or those which arose when the crime of possession of a controlled substance was defined by a different section in the Code.

DeCamp appeals. He claims his trial counsel was ineffective for failing to establish prosecutorial bad faith in the erasure of the video tape and to request a destruction of evidence instruction. He also claims the trial court erred in elevating the possession conviction to a felony and imposing the enhanced sentencing provision.

II. Standard of Review.

We review claims of ineffective assistance of counsel de novo. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We review the challenge to a sentencing statute for correction of errors at law. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). Likewise, we review issues of statutory interpretation for correction of errors at law. State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998).

III. Enhanced Sentencing.

We first address the claim that the district court erred by considering DeCamp’s prior convictions for possession of a controlled substance in enhancing his sentence. The crime of possession of a controlled substance is defined in section 124.401(5). This section also provides for a penalty for the crime, and for enhanced punishment based on prior convictions. In pertinent part, the subsection provides:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this subsection is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this subsection is guilty of a class “D” felony.

Iowa Code § 124.401(5) (emphasis added).

The enhanced sentencing language for prior convictions was not added to the statute until 1998. See 1998 Iowa Acts ch. 1138, § 25 (codified at Iowa Code § 124.401(5) (1999)). Additionally, prior to 1993, the offense of possession of a controlled substance was defined in section 204.401(3). See Iowa Code § 204.401(3) (1991). However, the Code editor transferred section 204.401 to section 124.401 in 1993, and section 204.401(3) became section 124.401(3). See Iowa Code § 124.401(3) (1993). The definition and degree of the crime, nevertheless, did not change. Compare id., with Iowa Code § 204.401(3). In 1996, section 124.401(3) was then renumbered to its present section 124.401(5) to accommodate amendments to other parts of section 124.401. See 1996 Iowa Acts-eh. 1164, §§ 1, 2, 4 (codified at Iowa Code § 124.401 (1997)).

DeCamp argues the enhanced punishment provisions only apply to prior convictions under section 124.401(5), and not pri- or convictions from when the crime was previously defined in section 124.401(3) or section 204.401(3), because the legislature specifically limited the enhanced punishment to “a person who commits a violation of this subsection and has previously been convicted ... of violating this subsection.” Iowa Code § 124.401(5) (emphasis added). Thus, DeCamp asserts he has no prior convictions under section 124.401(5) because his prior convictions occurred when the crime was defined under either section 124.401(3) or section 204.401(3). DeCamp also asserts that statutes which are amended to provide for enhanced punishment for prior convictions are presumed to only apply prospectively. See State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999).

In Tomquist, we faced the question whether the sexually predatory offense statute, which was enacted effective July 1, 1996 to provide for enhanced punishment based on a prior conviction of a sexually predatory offense, permitted a pre-July 1, 1996 conviction to be used to enhance a subsequent conviction for a sexually predatory offense. Id. at 306. As part of our analysis, we recognized statutes are presumed to be prospective in their operation, and concluded that nothing in the statute expressed a legislative intent that the statute should be applied retroactively. Id. at 307. Moreover, we found the language used by the legislature in that statute revealed an intent that only prior convictions after the effective date of the enactment be considered. Id. Thus, we held that the sentencing enhancement language of the sexually predatory statute only applies to prior convictions after July 1, 1996. Id.

Although Tomquist correctly considered the legislature’s intent in concluding that the enhanced punishment provisions only apply to prior convictions after the effective date of the enactment which established enhanced punishment for prior convictions, that portion of the analysis which included a consideration of the principles of prospective and retrospective application of a statute was not relevant and confused the issue. See Iowa Code § 4.5 (1999) (“statute is presumed to be prospective in its operation unless expressly made retrospective”); Tornquist, 600 N.W.2d at 307. We disavow the prospective application analysis used in Tomquist.

The principle that statutes are presumed to apply only prospectively means they “apply only to actions [that] arise after the effective date of the statute.” Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995). The only relevant action for the purpose of determining the prospective or retrospective application of a statute is the commission of the acts which make up the elements of the current offense. See State v. Miller, 606 N.W.2d 310, 312 (Iowa 2000) (“enhanced punishment is based on [defendant’s] conduct at the time of the latest offense,” and defendant is not prosecuted for his prior convictions); State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999) (“the enhancement of punishment is for the pending offense, not the previous offenses”). Yet, recidivism laws do not define a different or separate crime or add elements to existing crimes. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999); State v. Tobin, 333 N.W.2d 842, 845 (Iowa 1983); State v. Biggles, 235 N.W.2d 112, 112-13 (Iowa 1975); State v. Robinson, 165 N.W.2d 802, 804 (Iowa 1969); State v. Eichler, 248 Iowa 1267, 1273, 83 N.W.2d 576, 579 (1957); see Almendarez-Torres v. United States, 523 U.S. 224, 244, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350, 368-69 (1998) (prior convictions do not constitute elements of the current offense and instead concern punishment only). Their purpose is “to deter and punish incorrigible offenders.” State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974); see Biggles, 235 N.W.2d at 113; Robinson, 165 N.W.2d at 804. They do not punish for the old offense, but stiffen the punishment for the latest offense. Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 2250, 141 L.Ed.2d 615, 624 (1998); Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948); see Miller, 606 N.W.2d at 312. Thus, the only acts at issue for the purpose of determining whether a statute providing for an enhanced sentence for prior convictions offends the principles of prospective application of a statute are the acts that make up the latest offense. Miller, 606 N.W.2d at 312; Stoen, 596 N.W.2d at 507. The effective date of the enhanced sentencing provisions gives the offender notice his future acts will be subject to enhanced punishment based on the prior convictions. See Stoen, 596 N.W.2d at 507-08 (amended operating while intoxicated statute did not operate as an ex post facto law as applied to the defendant because the statute’s enhanced penalty amendments were in effect at the time the defendant committéd the pending offense). Thus, the issue of enhanced sentencing based on prior convictions is outside the scope of the principles which apply to the prospective or retrospective application of a statute.

Instead, the question we face is whether the legislature intended to include prior convictions which occurred before the effective date of the enhanced punishment provisions. Unlike the principles of prospective application of a statute, there is no presumption that the statute did not intend to include convictions prior to the effective date of the enhanced sentencing provisions. Instead, our first task is to look to the language of the statute to determine the legislative intent. Schultz, 604 N.W.2d at 62; State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999); State v. Green, 470 N.W.2d 15, 18 (Iowa 1991).

If a statute is plain and its meaning is clear, we do not search for meaning beyond the expressed terms. State v. Perez, 563 N.W.2d 625, 628 (Iowa 1997). In the absence of clear legislative intent, we turn to the rules of statutory construction. Id.

A statute must be construed in its entirety. State v. Broten, 295 N.W.2d 453, 454 (Iowa 1980). In resolving the dispute in this case, it is important to consider that section 124.401 establishes the offenses as well as the penalties governing controlled substances, just as section 204.401 did pri- or to the Code section change in 1993 by the Code editor. Generally, each subsection within section 124.401 addresses a separate offense, ranging from manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance under section 124.401(1), to simple possession of a controlled substance under section 124.401(5). The exception is section 124.401(2), which permits the weight of the controlled substances involved in multiple violations of subsection (1) to be combined for the purpose of charging a single violation when the acts constitute a single scheme, plan, or conspiracy. See Iowa Code § 124.401(2). Thus, our legislature generally has used separate subsections to define separate offenses. When this has been done, the penalty for each offense immediately follows the description of the offense in each subsection. See id. § 124.401(l)(a) (“[violation of this subsection ... is a class ‘B’ felony”); § 124.401(3) (“[a] person who violates this subsection commits a serious misdemeanor”); § 124.401(5) (“[a]ny person who violates this subsection is guilty of a serious misdemeanor for a first offense”). The phrase “this subsection” appears after the descriptions of the crime and before the descriptions of the penalties for the crime. The placement of this phrase is significant.

It is a common practice in drafting statutes to make reference to definitions and other matters set forth in the same statute without repeating the definition or previous matters. See 1A Norman J. Singer, Sutherland Statutory Construction § 21.13, at 128 (Clark Boardman Callaghan 5th ed.1993) [hereinafter Singer], This is normally done by using linking expressions to avoid clutter and repetition in a statute. See id. Linking expressions are used to refer to words in the preceding sentence and direct the reader back to what has just been previously stated. See id. They add cohesiveness from one thought to the next in a paragraph.

Considering the drafting approach followed by our legislature in section 124.401, it is clear that the phrase “this subsection” was used to connect the penalty to the crime without the necessity of repeating the definition of the crime or identifying the crime by name. The definitions of the controlled substance crimes are expansive, and linking expressions are helpful to direct the reader back to the definition of a crime just provided to develop cohesiveness within each subsection. Thus, our legislature used the phrase “this subsection” throughout the section as a substitute for the description of each offense, not as a literal identification for the numeric designation of the subsection. The amendments in 1998 reflect this same approach. See 1998 Iowa Acts ch. 1138, § 25. There is certainly nothing to suggest that the number of the section had any particular relevance.

We also construe statutes to avoid unreasonable results. Schultz, 604 N.W.2d at 62; State v. Pace, 602 N.W.2d 764, 772 (Iowa 1999); In re S.M.D., 569 N.W.2d 609, 611 (Iowa 1997). In this case, if we construed the phrase “violating this subsection” to mean violating the current section number of the Code, then only convictions which occurred after the time when section 124.401(3) was renumbered to section 124.401(5) would be included. We can discern no reason why our legislature would select the time period in which a Code section was renumbered as a date to begin the inclusion of prior convictions. This interpretation also conflicts with the concept that the renumbering of a statute is considered to be a continuation of the prior statute. Iowa Code § 4.10; 1A Singer § 22.33, at 290-91.

Finally, we do not apply the literal meaning of a word if it fails to reflect the manifest intent of our legislature. State v. Link, 341 N.W.2d 738, 740 (Iowa 1983). The purpose of enhanced sentencing provisions in a statute is to deter and punish recidivism. This purpose is better served by an interpretation that aligns the phrase “violating this subsection” with a description of the offense rather than a particular numeric designation. A literal application of the phrase “this subsection” would limit the scope of enhanced sentencing to those prior convictions which occurred after the Code renumbering process, and consequently, would limit the general objectives of enhanced sentencing by eliminating repeat offenders from its scope. See State v. Peterson, 347 N.W.2d 398, 402 (Iowa 1984).

We conclude the phrase “violating this subsection” in the enhanced sentencing provisions of the first unnumbered paragraph of section 124.401(5) refers to the definition of the offense and not the particular numeric designation of the subsection. Thus, a prior conviction for the crime of possession of a controlled substance in violation of the current subsection or any predecessor section or subsection can be considered in applying the enhanced sentencing provisions of section 124.401(5).

IY. Ineffective Assistance.

Ineffective assistance of counsel claims presented on direct appeal are typically preserved for posteonviction relief proceedings to allow for a full development of the facts surrounding the conduct of counsel. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We can only address ineffective assistance claims on direct appeal if the record is sufficient. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).

In this case, we are unable to fully evaluate the claims raised. The record does not reveal the actions or inactions of the prosecutor as they relate to the court order for discovery. The record also fails to reveal whether the conversation between the trooper and DeCamp which resulted in the disputed admissions was included on the video tape. Finally, the record fails to disclose the actions of defense counsel. We conclude the claim for ineffective assistance of counsel should be preserved for postconviction relief to permit the development of a full and complete record.

V. Conclusion.

We conclude the trial court properly considered DeCamp’s three prior convictions for possession of a controlled substance in applying the enhanced sentencing provisions. In addition, we preserve the ineffective assistance of counsel claim for postconviction relief.

AFFIRMED.


author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellant, v. Randy Lee TALBERT, Appellee.
    No. 00-0146.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Victoria Siegel, County Attorney, and Mark Tremmel, Assistant County Attorney, for appellant.
    Steven Gardner of Kiple, Kiple, Denefe, Beaver & Gardner, L.L.P., Ottumwa, for appellee.
   LAVORATO, Chief Justice.

We granted the State’s application for discretionary review, challenging a district court finding that there was insufficient evidence to establish a prior violation of a foreign state’s driving-while-intoxicated statute necessary to subject the defendant, Randy Lee Talbert, to an enhanced penalty for a present OWI violation. We affirm.

I. Background Facts and Proceedings.

The State charged Talbert in a trial information with OWI, second offense, in violation of Iowa Code section 321J.2(1) (Supp.1997). The trial information alleged that this was Talbert’s second offense based on a 1988 judgment entered against him in Tennessee.

Talbert pleaded guilty to the OWI offense but requested a trial on the issue of the prior conviction, which the district court set for a later date. That issue was tried to the court.

During trial, the State offered, and the court received, into evidence an authenticated docket entry from Tennessee showing a judgment entry against an individual identified as Randy Lee Talbert. The docket entry showed an Iowa driver’s license number matching the defendant’s license number. The judgment entry did not identify the offense by code section. However, the entry did contain the following reference: “TRAFFIC-DWI-INFLUENCE OF LIQUOR.” The judgment entry also contained language suspending Talbert’s driver’s license and ordering him to complete an alcohol abuse program.

The State also offered into evidence a photocopy of Tennessee Code Annotated section 55-10-401 and asked the court to take judicial notice of it. This provision •prohibits a person under the influence of an intoxicant from operating a motor vehicle on a public road. The court admitted the photocopy over Talbert’s objection that the judgment entry did not identify this particular code section as the one supposedly violated.

At the close of the State’s evidence, Talbert moved to dismiss on the ground that the State had failed to generate a fact issue on the element of a prior OWI offense. In support of his motion, Talbert argued that

the sole piece of evidence introduced by the State with regard to a claim that the defendant had a prior offense in 1988 consists of [the judgment entry]. As indicated, there are three separate charges set forth.... One says traffic, one says DWI, one says influence of liquor. And the judgment entry does not make a finding of the offense for which the defendant was being found guilty, nor does it contain a code section for which the court can take judicial notice. Without the State having introduced the record showing the Code section for which the defendant was convicted, the court cannot take judicial notice that it consisted of a statute substantially similar or substantially corresponding to Iowa Code section 321J.2. And without that information, the State has clearly failed to meet its burden of proof beyond a reasonable doubt.

Following the bench trial, the district court entered a ruling finding Talbert guilty of OWI, first offense. The court found that Talbert was the same person in the Tennessee judgment entry and that Tennessee Code Annotated section 55-10-401 substantially corresponded to Iowa Code section 321J.2. See Iowa Code § 321J.2(4)(c) (providing that convictions under statutes of other states that substantially correspond to section 321J.2 are counted as previous offenses and permitting courts to take judicial notice of statutes of other states defining offenses substantially equivalent to the one defined in section 321J.2 and to therefore consider them as corresponding statutes).

The court, however, found that the State had failed to prove that the Tennessee conviction was for a violation of Tennessee Code Annotated section 55-10-401. The court referred to the Tennessee conviction as “an element” of OWI second offense requiring proof “beyond a reasonable doubt.” The court determined that the reference to “TRAFFIC-DWI-INFLUENCE OF LIQUOR” in the judgment entry was not sufficient to meet the burden of proof.

Later, the court amended its ruling to delete references to the Tennessee conviction as “an element” of OWI second offense. The court, however, again referred to the burden of proof as “beyond a reasonable doubt.” In addition, the court again concluded that the State had not established that the conviction in the Tennessee judgment entry was for a violation of Tennessee Code Annotated section 55-10-401.

II. Issues.

The State contends here that the district court erred in determining it had not established that the conviction in Tennessee was for a violation of Tennessee Code Annotated section 55-10-401. Additionally, the State contends that the district court erroneously applied the “beyond a reasonable doubt” standard as to the Tennessee conviction and that, regardless of the standard of proof, it presented sufficient evidence to meet its burden.

We first consider whether the district court applied the correct standard of proof and then consider whether the evidence was sufficient to prove the prior conviction in Tennessee.

III. Procedural Issue.

Before proceeding to the merits, we must dispose of the State’s contention that the district court erred in considering Talbert’s contention that he had not previously been convicted of OWI because his objection was untimely. The contention is premised on Iowa Rule of Criminal Procedure 18(9), which provides:

After conviction of the primary or current offense, but prior to pronouncement of sentence, if the indictment or information alleges one or more prior convictions that by the Code subjects the offender to an increased sentence, the offender shall have the opportunity in open court to affirm or deny that he or she is identical with the person previously convicted.... If the offender denies he or she is the person previously convicted, sentence shall be postponed for such time as to permit a trial before a jury on the issue of the offender’s identity with the person previously convicted. Other objections shall be heard and determined by the court, and these other objections shall be asserted prior to trial of the substantive offense in the manner presented in [rule of criminal procedure] 10.

Iowa R.Crim.P. 18(9) (emphasis added).

The State argues that Talbert’s objection to the Tennessee judgment as proof of a conviction under Tennessee Code Annotated section 55-10-401 falls within the “other objections” category and thus should have been raised before trial. Because it was not so raised, the State asserts the district court should not have addressed the matter in the identity phase of the trial.

We reject the State’s contentions. The State never resisted Talbert’s motion to dismiss on the basis that the grounds of his motion were untimely because he did not raise them by a pretrial motion according to rule 18(9). By its action, the State waived the objection it now makes. We therefore have nothing to review on this issue. See State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995) (holding that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal).

Additionally, to prove the prior conviction, the State had to prove identity. According to rule 18(9), the court had to submit that issue to the jury. See Iowa R.Crim. P. 18(9) (“On the issue of identity, the court may in its discretion reconvene the jury which heard the current offense or dismiss that jury and submit the issue to another jury to be later impaneled.”). Because Talbert pleaded guilty to OWI, first offense, the court rather than a jury decided the identity issue. (Neither party objected to the court trying the identity issue.) Because the State chose to prove identity with the Tennessee judgment entry and the photocopy of the Tennessee statute, that evidence was “fair game” and therefore subject to proper objection and rejection by the court.

IY. Did the District Court Err in Applying the Reasonable-Doubt Standard?

In State v. Schultz, we held that, when a prior OWI violation is used to enhance the punishment for an OWI offense, the prior violation is not an element of the crime charged. 604 N.W.2d 60, 62 (Iowa 1999). The State seizes on this holding and several United States Supreme Court cases to support its position that due process allows it to prove the prior violation by a standard of proof lower than “beyond a reasonable doubt.”

We reject the State’s contention. Notwithstanding what we said in Schultz, this court has long held that the State must prove OWI convictions for enhanced OWI purposes beyond a reasonable doubt before the court can impose the enhanced penalties. See, e.g., State v. Griffin, 257 Iowa 852, 854, 135 N.W.2d 77, 78 (1965); State v. Eichler, 248 Iowa 1267, 1270-72, 83 N.W.2d 576, 577-78 (1957); State v. Gardner, 245 Iowa 249, 252, 61 N.W.2d 458, 460 (1953); State v. Barlow, 242 Iowa 714, 719, 46 N.W.2d 725, 728 (1951); see also Iowa R.Crim. P. 18(9). We reaffirm the holding of these cases.

Y. Did the State Prove the Prior Conviction Beyond a Reasonable Doubt?

The State’s final contention is that it proved the prior conviction regardless of what burden of proof applies. We disagree.

Findings of fact in a bench trial have the effect of a special verdict. Iowa R.App. P. 4. The district court’s findings are binding on us if those findings are supported by substantial evidence. Glaus v. Whyle, 526 N.W.2d 519, 523 (Iowa 1994). “We view the evidence in its light most favorable to the judgment, and we construe the findings of the trial court liberally to uphold, rather than defeat, the result reached.” Id.

The State poses the following argument: The Tennessee judgment entry included the terms “traffic,” “DWI,” and “influence of liquor.” The judgment was therefore entered for an offense involving driving and intoxication. The term “DWI” links the judgment to the Tennessee statute, which is entitled “Driving While Intoxicated.” In addition, the judgment entry stated that Talbert’s driver’s license had been revoked and that he had been ordered to complete an alcohol abuse program. These measures were imposed because of Talbert’s conviction of DWI. Finally, Iowa Code section 321J.2 does not require that the out-of-state judgment expressly note the statutory provision of the other state that was violated.

Iowa Code section 321J.2 provides in pertinent part:

4. In determining if a violation charged is a second or subsequent offense for purposes of criminal sentencing or license revocation under this chapter:
c. Convictions or the equivalent of deferred judgments for violations in any other states under statutes substantially corresponding to [section 321J.2] shall be counted as previous offenses. The courts shall judicially notice the statutes of other states which define offenses substantially equivalent to the one defined in [section 321J.2] and can therefore be considered corresponding statutes.

Iowa Code § 321J.2(4)(c).

The State is correct when it argues that this language does not require a foreign judgment to expressly note the specific statutory provision violated in the prior offense. Furthermore, in determining whether a defendant has committed a pri- or offense for enhancement purposes, a judgment upon which the State seeks to rely in proving its case need not, even in general terms, identify the prior offense. See Gardner, 245 Iowa at 258-61, 61 N.W.2d at 464-65.

However, when the judgment entry does not designate the offense in the prior judgment, the State must supplement the judgment entry in that respect by introducing other parts of the record that do show the crime which was charged and for which the defendant was convicted and sentenced. Id. at 261, 61 N.W.2d at 465. Additionally, section 321J.2(4)(c) requires that the foreign statute and the Iowa statute substantially correspond to one another. Therefore, the State must in some way connect the statute violated in the prior conviction with the statute allegedly violated in the pending case.

Viewing the evidence in the light most favorable to the judgment, we conclude there was insufficient evidence to connect Tennessee Code Annotated section 55-10-401, Talbert’s prior conviction, and his current offense. As mentioned, the Tennessee judgment entry does not show the Code section Talbert violated. Nor has ■the State introduced any evidence from the record in the Tennessee case that might connect that judgment with Tennessee Code Annotated section 55-10-401. For example, the State did not offer a formal charge or a transcript of the criminal proceedings tending to establish that Talbert was tried and convicted of violating Tennessee Code Annotated section 55-10-401.

We faced an analogous situation in State v. Sanborn, 564 N.W.2d 813 (Iowa 1997). In Sanborn, the defendant was convicted of possession of a firearm by a felon. 564 N.W.2d at 815. To prove the defendant’s status as a felon, the State attempted to prove that the defendant’s prior Florida conviction in 1986 constituted a felony. To prove this fact, the State introduced a photocopy of a 1993 Florida statute that the defendant had allegedly violated. Id. at 816. We found the evidence insufficient to establish the defendant’s status as a felon. Id. at 817. Significantly, we noted that the exhibit contained no penalty provisions and there was no record evidence that the violation for which the defendant was allegedly convicted in 1986 was the same as that described in the photocopied 1993 version of the statute.

We conclude the record in this case supports the district court’s finding that there was insufficient evidence Talbert violated Tennessee Code Annotated section 55-10-401. For that reason, the State has failed to prove beyond a reasonable doubt the prior violation necessary to subject Talbert to an enhanced penalty for OWI.

VI. Disposition.

Because the State failed to prove beyond a reasonable doubt the prior violation necessary to subject Talbert to an enhanced penalty for OWI, we affirm the district court’s judgment.

AFFIRMED.


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Rodney LUMADUE, Appellant.
    No. 99-1898.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
   NEUMAN, Justice.

Defendant Rodney Lumadue sought an expeditious resolution to charges pending against him for third-degree attempted burglary and fourth-degree criminal mischief. The district court accommodated him. In a span of five minutes the court reviewed Lumadue’s written “Waiver of Jury Trial and Stipulation to Trial on the Minutes of Testimony,” considered the minutes and pronounced him guilty, advised him of his right to file a motion in arrest of judgment, sentenced him to concurrent sentences of imprisonment on each charge, and gave him his appeal rights.

Lumadue now seeks resentencing because the court overlooked his right to allocution and gave no reasons for his sentence on the record. The State contends Lumadue waived- the right to allocution and the court’s reasons for the sentence, though terse, were legally sufficient. Lu-madue has the stronger arguments. We therefore affirm the judgment but vacate the sentence and remand for resentencing.

I. Right of Allocution.

Iowa Rule of Criminal Procedure 22(3)(d) directs that prior to the rendition of judgment “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.” Consistent with the United States Supreme Court’s interpretation of a comparable federal rule, we require a record establishing that the court has “invited, or afforded an opportunity for” the defendant to speak regarding punishment. State v. Craig, 562 N.W.2d 633, 637 (Iowa 1997) (citing Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 673 (1961)). No special language is required to fulfill the rule’s mandate. State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999). “The important thing is whether the defendant is given an opportunity to volunteer any information helpful to the defendant’s cause.” Craig, 562 N.W.2d at 635.

The State concedes the court failed to accord a right of allocution here. It defends the court’s failure, however, on the ground Lumadue waived the right when he stipulated, in writing, to a bench trial on the minutes of testimony. That writing included the following assertion: “I waive personal conversation with the Court concerning this charge.... ”

We are not entirely certain what waiver of “personal conversation with the court” is intended to mean in the context of criminal proceedings. But because the relinquishment comes in a document relating to waiver of jury trial, we conclude it has no bearing on post-trial sentencing proceedings. Cf. id. at 636 (extensive colloquy during guilty plea hearing immaterial to exercise of allocution right at sentencing). The sheer ambiguity of the “right” Lumadue is alleged to have waived prevents us from finding, on this record, that Lumadue’s supposed relinquishment of his allocution right was knowing and intentional. See State v. Seager, 571 N.W.2d 204, 209 (Iowa 1997) (waiver defined as “intentional relinquishment of a known right”). The court’s departure from the rule requires a remand for resentencing. See Craig, 562 N.W.2d at 636 (failure to accord defendant allocution not harmless error).

II. Sentencing Reasons.

The same rule implicated in Luma-due’s allocution argument calls upon the court to “state on the record its reason for selecting the particular sentence.” Iowa R.Crim. P. 22(3)(d) (emphasis added). The three-page transcript before us reveals no compliance with this rule. The State defends the omission on the ground the court signed a pre-printed “Prison Order” which included the following statement: “The Court has determined that this sentence will provide reasonable protection of the public. Probation is denied because it is unwarranted.”

The question is whether the quoted boilerplate satisfies rule 22’s on-the-record requirement. We hold that it does not. As the State rightly notes, this court has held that reasons given in a written judgment entry may be sufficient to permit appellate review of the court’s discretionary action. State v. Johnson, 445 N.W.2d 337, 342-43 (Iowa 1989) (“record” for purposes of criminal appeal includes original documents filed in trial court, transcript and certified docket and court calendar entries). But in Johnson, where the dispute concerned concurrent or consecutive sentencing, the court personally advised the defendant — as part of the sentencing colloquy — that the offenses were separate and “shall run consecutively.” Id. at 343. The court thereafter elaborated on the reasons for the sentence in its judgment entry. We determined the sentencing colloquy, in combination with the written judgment entry, formed a sufficient basis for appellate review of the sentence for abuse of discretion. Id. at 343-44; see also State v. Garrow, 480 N.W.2d 256, 259-60 (Iowa 1992) (statement of reasons sufficient if it demonstrates exercise of discretion and reveals motive for a particular sentence imposed); State v. Matlock, 304 N.W.2d 226, 228 (Iowa 1981) (trial court should state reasons for sentence but error harmless because court lacked authority to enter less severe sentence).

The record before us more closely resembles State v. Cooper, 403 N.W.2d 800 (Iowa Ct.App.1987). There the sentencing proceedings were not transcribed and the court’s sentencing order offered only the following statement of reasons: “The court has reviewed the circumstances of the offense, and the defendant’s prior background.” Cooper, 403 N.W.2d at 802. The court of appeals held that such vague and generalized considerations presumably inform every court’s basic sentencing decision. Id. Missing was a rationale relating to this offense, and this defendant’s background. Id. The court remanded for re-sentencing, convinced neither the defendant nor the system was well-served by a record requiring so much guesswork to review. Id.; see also State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982) (statement reflecting only nature of offense insufficient to reveal exercise of discretion); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct.App.1987) (mere statement that defendant does not qualify for probation insufficient under rule 22(3)(d)).

We recognize the time pressures facing busy judges in a high-volume court. But defendants are not fungible commodities. They are entitled to be informed, preferably face-to-face, about the consequences of their criminal acts. Rule 22(3)(d) and our prior cases require as much. The integrity of our system of justice demands it.

We affirm the judgment of the district court but remand for resentencing in compliance with the Rules of Criminal Procedure.

JUDGMENT AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.