dissenting:
There is no question that the Arizona Constitution mandates a 12-person jury in this case and that appellant may raise the deprivation for the first time on appeal because it is fundamental error. This is reiterated most recently by the Arizona Supreme Court in State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984).
The problem is, when something is raised for the first time on appeal, there is no record from the trial court speaking to the point. That is the situation here. The majority decision reverses a conviction following a jury trial in the total absence of testimony or other evidence as to whether appellant and his counsel discussed the prospect of an 8-person jury.1 If they discussed it, appellant may have waived or acquiesced in a smaller jury. If appellant waived it or acquiesced in it, there is no basis for reversal of the conviction.
The question I raise, not argued or dealt with in any of the cases cited by the majority, rélates to whether the state must see to it that all waivers of constitutional rights appear affirmatively of record or else suffer automatic reversal.
The import of the majority decision is that not only may the jury issue be raised for the first time on appeal, but, unless waiver or acquiescence appears on the record, the issue will be decided without any evidentiary hearing. The majority decision says, in effect, that the right to a 12-person jury is like one of the constitutional rights discussed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), namely, that reversal will be mandatory unless the waiver of the constitutional right by the defendant himself appears affirmatively on the record. “We cannot presume a waiver ... from a silent record.” Id. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279-80.
In my opinion, this should not be treated as a “Boykin right.” The “Boykin rights” (also required by rule 17.2, Arizona Rules of Criminal Procedure) relate to pleas of guilty. The rule of automatic reversal should not and does not apply to all constitutional rights raised for the first time on appeal. When so raised, there should be an evidentiary hearing to determine whether or not the defendant knew of the right and whether it was in fact waived. I would remand this case to the trial court for a hearing and decision on whether appellant discussed the smaller jury with counsel and whether there was waiver or acquiescence.
State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S.Ct. 2179, 26 L.Ed.2d 549 (1970) is supportive of this approach. It held that a waiver of jury trial can be exercised through counsel and need not be made and announced by the defendant personally. Since Jelks, rule 18.1(b), Rules of Criminal Procedure, is now in effect and requires that the defendant be addressed personally prior to acceptance by the court of a waiver of jury trial and that the waiver be made upon the record. The rule, however, does not deal with waiver of the number of jurors. For *537that reason, the rationale of Jelks would still apply and a waiver of the 12-person jury (assuming the appellant acquiesced in it) could be exercised through counsel.
This is supported by decisions of the United States Court of Appeals in Cooks v. Spalding, 660 F.2d 738 (9th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982), and United States ex rel. Burnett v. Illinois, 619 F.2d 668 (7th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980). See also Hudson v. State, 250 Ga. 479, 299 S.E.2d 531 (1983).
To put some perspective on this, we may refer to another constitutional right of a defendant — the right to testify at trial or remain silent. If the defendant testifies, will we presume that his lawyer failed to advise him of his right to remain silent and reverse the judgment of conviction because the record does not speak to the point? To the contrary, we presume counsel discussed this with his client unless a showing is made to the contrary. At the very least, we will remand for an evidentiary hearing where the matter is raised for the first time on appeal.
In summary, if the 8-person jury issue can be raised for the first time on appeal, the state should have an opportunity to introduce proof at an evidentiary hearing that the appellant waived or acquiesced in the reduced number.
. A document filed by the appellant acting for himself after this appeal was submitted for decision is entitled "Supplemental statement of facts surrounding this case at hand." In it, appellant states:
7. In the State’s answer brief there was the question of reversing on the grounds that I was tried by an 8-person jury, to this I must add the fact that again I am not an attorney and had to relie (sic) on the word of my attorney, who, stated that this 8-person jury was proper, I thought that I had the right to a 12 member jury, but my attorney said that it doesn’t matter____
The document is not properly a part of the record on appeal and therefore cannot be considered in our decision. If nothing else, however, it indicates that a post-conviction eviden-tiary proceeding is necessary to finally resolve the jury issue at hand.