(concurring in part and dissenting in part).
{32} I concur in part and dissent in part. I agree with the Majority that Rule 5-612 allows a defendant to knowingly, intelligently, and voluntarily waive his or her right to be present at jury selection. Majority ¶ 14. However, I cannot concur in the result that the Majority has reached. Therefore, I respectfully dissent.
{33} In this case, the appellate record contains an affirmative waiver signed by Defendant and his attorney. As such, I believe that Defendant’s more appropriate remedy in this case is through habeas corpus proceedings, as suggested by Judge Pickard of the Court of Appeals. See Padilla, 2000-NMCA-090, ¶¶ 23, 28, 129 N.M. 625, 11 P.3d 589 (Pickard, C.J., dissenting); State v. Arellano, 1998-NMSC-026, ¶ 19 n. 2, 125 N.M. 709, 965 P.2d 293; Duncan v. Kerby, 115 N.M. 344, 346-47, 851 P.2d 466, 468-69 (1993).
{34} Nonetheless, on the record before us, I can only conclude Defendant’s waiver appears voluntary, knowing, and intelligent. No one disputes that a defendant can waive his or her fundamental rights. See Hovey, 104 N.M. at 670, 726 P.2d at 347; Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124. In Arellano, a decision by defense counsel based on trial strategy was sufficient for this Court to find waiver of defendant’s right to a sworn jury. 1998-NMSC-026, ¶¶ 15-19, 125 N.M. 709, 965 P.2d 293. Defendant had failed to object to the fact that the jury was unsworn, even though defense counsel readily admitted to knowledge of this defect and characterized his decision not to alert the court as tactical. Id. On appeal, defendant argued that he did not voluntarily and intelligently waive his right to a sworn jury. Id. This Court rejected defendant’s argument as defense counsel knew of the defect and decided for matters of strategy to go forward with trial and, thus, sufficiently waived the error. Id.
{35} Unlike Arellano, we do not need to infer a waiver from Defendant’s actions or lack thereof in this case. Here, Defendant and his attorney both signed a written waiver of Defendant’s right to presence at jury selection, his right to his counsel’s presence at jury selection, and his right to appeal any issue arising from that jury selection. The Majority looks at these facts and sees Defendant’s rights as “bargained away.” Majority ¶ 21. I look at these facts and see an affirmative, signed waiver which clearly enumerates the irregularities that occurred during this jury selection. Defendant and his attorney made a strategic decision to request that Defendant’s trial be rejoined with his prior co-defendant’s and to go forward with a jury chosen by his prior co-defendant’s attorney and, thus, invited the error of which Defendant now complains. See State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33 (Ct.App.1995) (“[T]o allow a defendant to invite error and to subsequently complain about that very error would subvert the orderly and equitable administration of justice.” (internal quotation marks omitted)). While I appreciate the Majority’s concern that Defendant was waiving multiple rights in one fell swoop as it were, Defense counsel and Defendant both came into court the day after jury selection and actively solicited the permission of the court to rejoin the trials and to waive the irregularities arising out of that jury selection. Indeed, the trial court warned Defendant and his counsel in open court of the dangers of going to trial with a jury picked without the assistance of Defedant or his attorney. See, e.g., Riddle, 249 F.3d 529, 533-35 (6th Cir.2001); Cuoco v. United States, 208 F.3d 27, 31-32 (2nd Cir.2000); Singleton, 2001-NMCA-054, ¶¶ 11-16, 130 N.M. 583, 28 P.3d 1124. It is true Defendant did not verbally participate in the exchange with the trial court except as to the bench warrant. However, given the detail of the waiver drafted by Defendant’s attorney and signed by both, I will not assume that Defendant’s attorney failed to counsel Defendant as to the consequences of the waiver in this case. See Arellano, 1998-NMSC-026, ¶ 18, 125 N.M. 709, 965 P.2d 293.
{36} Accordingly, based on this record, I cannot concur with the Majority that Defendant’s waiver was not voluntary, knowing and intelligent. Moreover, I believe that this issue is more properly reviewed through the writ of habeas corpus and not on direct appeal. Thus, I respectfully dissent.