(Dissenting).
{23} I cannot agree with the majority’s holding that a defendant can never waive the right to be present at the commencement of the trial, no matter what the circumstances. Under the particular circumstances of this case, it seems to me that a clear, knowing, and unequivocal waiver was made, and I would hold Defendant to it, at least on direct appeal. In addition to the issue upon which the majority reverses, Defendant raised a host of other related contentions, including ineffective assistance of counsel, that I believe are more appropriately resolved in habeas corpus proceedings. See Duncan v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993). I would therefore affirm the convictions and leave Defendant to his post-conviction remedies.
{24} I have no quarrel with the majority’s statement of the general rule concerning the presence of a defendant or with the majority’s and other cited cases’ application of that rule to defendants who were erroneously held by trial courts to have impliedly waived a right to presence by what appears to be simple absence. See, e.g., Crosby v. United States, 506 U.S. 255, 256-57, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (reciting that Crosby was found to have voluntarily absented himself because he had notice of the trial date, had appeared for pretrial hearings, and was seen packing and leaving his house on the night before the trial). Nor do I quarrel with Defendant’s cited authority, State v. Harris, 229 Wis.2d 832, 601 N.W.2d 682, 685 (1999), in which the trial court sought a defendant’s waiver after telling him, erroneously, that nothing other than ministerial excusáis occurred during his absence from the von* dire.
{25} The foregoing circumstances, however, are quite different from the circumstances in this case, circumstances which I believe support a holding that Defendant both waived his rights in connection with jury selection and affirmatively led the trial court into the error he is now claiming the trial court made. See State v. Arellano, 1998-NMSC-026, ¶¶ 14-20, 125 N.M. 709, 965 P.2d 293 (holding that a defendant can waive his right to a sworn jury by knowing that the jury is unsworn and waiting until after the trial to complain about it); Cuoco v. United States, 208 F.3d 27, 30-32 (2d Cir.2000) (holding, in context of ineffective assistance of counsel claim, that federal court would not have reversed a defendant’s conviction when that defendant made a clear and unequivocal waiver of his right to be present during his trial on the record during a pretrial hearing, and before the jury was summoned into the courtroom; further holding that Crosby did not require a different result).
{26} The circumstances of this case are not like those in Crosby or Harris, but are more like those in Arellano and Cuoco. In this ease, as the majority notes, the trial court had severed Defendant’s trial from that of his co-defendant and was prepared to go forward with the trial of the co-defendant only. It was only upon Defendant’s specific request to waive his presence that the trial court changed its mind. Further, the trial court did not change its mind quickly. It needed to be persuaded by Defendant’s counsel, after cautioning him on the record in Defendant’s presence that the co-defendant’s jury selection might not be advantageous to Defendant. In addition, the trial court required a written waiver to be filed by Defendant himself. Finally, the waiver was hardly perfunctory. It recited the irregularities in the jury selection process and expressly recited that Defendant not only waived those irregularities but also waived any issue on appeal based on them.
{27} Our jurisprudence is replete with eases permitting fundamental constitutional rights to be waived. See, e.g., State v. Aragon, 1999-NMCA-060, ¶ 11, 127 N.M. 393, 981 P.2d 1211. Even the right to counsel, the denial of which would otherwise amount to a structural defect, can be waived, as long as a defendant “ ‘knows what he is doing and his choice is made with eyes open.’ ” State v. Lewis, 104 N.M. 218, 220, 719 P.2d 445, 447 (Ct.App.1986) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also State v. Rodriguez, 114 N.M. 265, 268, 837 P.2d 459, 462 (Ct.App.1992) (holding that deprivation of right to counsel may amount to structural defect).
{28} Under the circumstances of this case, it appears to me that Defendant and his attorney made a conscious and informed decision to try the ease to a particular jury at a particular time. We need not speculate about whether they liked the particular jury or liked the circumstances of being tried together with a co-defendant. The important point is that we should not allow Defendant to have a second bite of the apple, at least not without making a factual showing that the record we have does not accurately reflect the knowing, tactical decision that it appears to reflect. Accordingly, I would affirm the convictions on this direct appeal and leave Defendant to his post-conviction remedies.