FILED FEBRUARY 1, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37143-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MARTINIANO ELUTERIO CAMACHO, ) ) Appellant. )
LAWRENCE-BERREY, J. — Martiniano Camacho appeals his conviction and
sentence for second degree assault. He argues his oral waiver of his right to a jury trial
was insufficient because it was not knowing or intelligent. He also argues the trial court
abused its discretion by failing to meaningfully consider his request for an exceptional
sentence downward. We disagree and affirm.
FACTS
The State charged Martiniano Camacho with second degree assault and alleged a
deadly weapon enhancement. Judge Bruce Spanner presided over Camacho’s
arraignment and fully advised Camacho of his various constitutional rights, including his
right to a jury trial. The court asked Camacho if he had any questions about these rights, No. 37143-3-III State v. Camacho
and Camacho responded that he did. Rather than asking questions about his
constitutional rights, he asked how he might obtain video of the purported assault that
occurred outside a gas station. The court advised Camacho against talking about the case
and asked him again if he had any question about his constitutional rights. Camacho
responded that he had a right to the video. The court then stated it had asked Camacho if
he had questions about his constitutional rights and he wanted to discuss something else.
At a pretrial hearing presided over by Judge Samuel Swanberg, Camacho asked to
represent himself. Camacho explained that he had been diagnosed with attention deficit
disorder, was currently taking medication for his condition, and assured the court that his
condition was under control. He also explained that he had previously been found
competent. Judge Swanberg addressed the appropriate litany of concerns before ruling on
Camacho’s request, including asking Camacho what experience he had in the justice
system. Camacho responded that he had been involved in the justice system since he was
13 years old. Judge Swanberg found that Camacho’s waiver of his right to an attorney
was knowing, intelligent, and voluntary. This finding is not contested.
At the same pretrial hearing, Camacho also asked to waive his right to a jury trial.
Judge Swanberg asked whether a form was available and continued the hearing so the
form could be completed and presented.
2 No. 37143-3-III State v. Camacho
Judge Cameron Mitchell presided over the continued pretrial hearing. The parties
discussed various issues, including Camacho’s earlier request to waive his right to a jury
trial. The court asked whether there was a signed waiver of jury trial. Camacho
explained, “Yes, your Honor. I want a bench trial. I have the paper with waiver of jury
trial in my [cell]. I’m sorry I didn’t bring it here today, but, yes, I want a bench trial. I do
not want a jury trial.” Report of Proceedings (RP) (Sept. 25, 2019) at 9. The trial court
treated this oral request as a sufficient waiver. Camacho never entered the written
waiver.
The matter proceeded to a bench trial. Primarily based on store surveillance video
showing the altercation in the parking lot, Judge Joseph Burrowes found that Camacho,
without provocation, brandished a knife and took several stabs toward the victim, who
feared for his life.
At sentencing, Camacho asked to be sentenced “under diminished capacity . . .
because [of his] mental health” and because he was “‘forced to defend’” himself. RP
(Oct. 18, 2019) at 39, 41. In announcing the sentence, Judge Burrowes expressed relief
that no one was stabbed. He also said there were “no mitigating factors that I can see by
you, sir.” RP (Oct. 18, 2019) at 43. The court imposed a top of the standard range
sentence of 96 months, which included the 12-month deadly weapon enhancement.
3 No. 37143-3-III State v. Camacho
Camacho timely appealed.
ANALYSIS
WAIVER OF RIGHT TO JURY TRIAL
Camacho contends the trial court erred by failing to ensure that his oral waiver of
his right to a jury trial was knowing and intelligent. He contends the law requires a
colloquy between the court and the defendant, and no colloquy occurred here. The State
disagrees, but urges us to not review this purported error. We agree with the State that
Camacho is barred from asserting this purported error on appeal.
The “invited error doctrine” precludes a criminal defendant from appealing an
error that he helped create. State v. Mercado, 181 Wn. App. 624, 629-30, 326 P.3d 154
(2014). The doctrine bars a defendant from setting up an error and then appealing over it.
Id. at 630. “To determine whether the invited error doctrine is applicable to a case, we
may consider whether the [defendant] affirmatively assented to the error, materially
contributed to it, or benefited from it.” Id. In other words, the defendant must materially
and voluntarily contribute to the error appealed. Id. The State bears the burden of proof
that an error is invited. Id.
Here, Camacho understood that one purpose of the continued pretrial hearing was
for him to present and file the jury trial waiver form. When asked if he had the form,
4 No. 37143-3-III State v. Camacho
Camacho apologized for leaving it in his cell, but reaffirmed his earlier request for a
bench trial. Camacho materially contributed to the error by leaving the jury waiver form
in his cell and not filing it. Had Camacho brought the form to the pretrial hearing and
filed it, his jury trial waiver would have been sufficient under CrR 6.1(a).
The State additionally argues review is precluded because the error asserted is not
a manifest error affecting a constitutional right. We agree.
Generally, this court does not review an issue raised for the first time on appeal.
RAP 2.5(a). There are exceptions to this, including where the error claimed is a manifest
error of constitutional magnitude. RAP 2.5(a)(3). One component of “manifest” error
requires that it be so obvious that the error warrants appellate review. State v. O’Hara,
167 Wn.2d 91, 99-100, 217 P.3d 756 (2009).
To be effective, a waiver of the jury trial right must be knowing, intelligent, and
voluntary. State v. Castillo-Murcia, 188 Wn. App. 539, 547, 354 P.3d 932 (2015).
“Appellate courts do not presume the defendant waived his right to a jury trial unless
there is ‘an adequate record showing that the waiver occurred.’” Id. (quoting State v.
Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 (2006)). “Because Washington requires
only a personal expression of waiver from the defendant, the right to a jury trial is easier
to waive than other constitutional rights.” Id.
5 No. 37143-3-III State v. Camacho
There is no obvious error because the record strongly suggests that Camacho made
a knowing, intelligent, and voluntary waiver of his jury trial right. With respect to
knowing, Camacho purposefully waived his jury trial right twice in open court. With
respect to intelligent, Camacho was previously advised of his jury trial right at
arraignment, expressed no misunderstanding of that right, and had extensive experience
as a felony defendant in superior court. With respect to voluntary, Camacho himself
waived his jury trial right. Given the record, the purported error is not so obvious to
warrant appellate review.
We now address three points raised by our dissenting colleague:
Shifting burden of proof
The dissent asserts we are placing “the burden of disproving a waiver on
Martiniano Camacho.” Dissent at 6-7. Not so. We have chosen to not reach the issue of
jury waiver. Our choice might be different if there was a colorable argument that
Camacho lacked the capacity to understand his constitutional right to a jury trial. But
there is no colorable argument. The record establishes that Camacho had sufficient
capacity. He was taking appropriate medication for his attention deficit disorder and
advised one judge that he had previously been found competent. After asking Camacho
about his experience and capabilities of trying his own case, the judge found that
6 No. 37143-3-III State v. Camacho
Camacho knowingly, intelligently, and voluntarily waived his right to an attorney.
Because Camacho had the experience and capability to try his own case, he certainly had
the capacity to waive his right to a jury trial.
Inferring, implying, or imputing waiver
The dissent asserts we are inferring, implying, or imputing to Camacho that he
waived his right to a jury “based on his actions.” Dissent at 7. This also is not so. We
have chosen not to reach the issue of jury waiver, in part, because the record establishes
that Camacho himself twice told the trial court he wanted to waive his right to a jury and
to have a bench trial. We have not inferred, implied, or imputed anything.
State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979) is instructive. There, Wicke
appealed his driving while intoxicated (DWI) conviction from district court to superior
court. Id. at 641. Under the rules at the time, his appeal was de novo and he had a right
to a new trial. Id. Once in superior court, defense counsel advised the trial court, with
Wicke at his side, that his client was waiving his right to a jury trial. Id. The trial court
did not question Wicke if he had discussed the waiver of this right with counsel or if he
agreed with what his counsel said. Id. Wicke was again found guilty. Id. On appeal,
Wicke asserted for the first time that his trial counsel’s oral waiver of his jury right did
7 No. 37143-3-III State v. Camacho
not comply with CrR 6.1(a). Id. The Court of Appeals agreed and reversed. The
Supreme Court accepted review.
Before reaching the issue of waiver, our high court wrote: “Under most
circumstances, we are simply unwilling to permit a defendant to go to trial before a trier
of fact acceptable to him, speculate on the outcome and after receiving an adverse result,
claim error for the first time on appeal which, assuming it exists, could have been cured
or otherwise ameliorated by the trial court.” Id. at 642-43. Nevertheless, the court
addressed the issue “because the present record is inadequate under current United States
Supreme Court standards to demonstrate a valid waiver of the constitutional right to a
jury trial.” Id. at 644. The court noted that every reasonable presumption should be
indulged against waiver. Id. at 645. And because the right to a jury was personal to
Wicke and because Wicke had not personally assented to the waiver, the sufficiency of
Wicke’s waiver “may be questioned.” Id. at 644. The court concluded: “Because this is
an uncomplicated DWI case, rather than remanding for a reference hearing to determine if
a sufficient standard of proof might be forthcoming to establish a valid jury waiver, the
practical disposition is to concur with the Court of Appeals and remand for a new trial.”
Id. at 645.
8 No. 37143-3-III State v. Camacho
We distinguish Wicke. There, the record was inadequate to establish that Wicke
personally waived his jury trial right. Here, the record is adequate. Camacho personally
waived his jury trial right twice in open court.
If the record was inadequate to establish a sufficient waiver, we would remand
under RAP 9.111 rather than grant Camacho a new trial. As opposed to an uncomplicated
DWI case, Camacho’s prosecution involves a second degree assault case with multiple
witnesses.
Destroying the principle of a trial court finding
The dissent asserts, by denying review of the substantive issue, we are
“destroy[ing] the principle that the trial court must find the waiver to be voluntary,
knowing, and intelligent.” Dissent at 10. We disagree.
Our decision to not review the issue is based on the unique facts of this case that
reflect invited error. Here, Camacho left the jury waiver form in his cell. Had he
remembered the form, it would have been entered in the record and this issue would not
have arisen.
1 For example, we would direct the trial court to consider the existing record, the contents of its standard 2019 jury waiver form, and perhaps even Camacho’s previous felony judgments that might reflect his past experience of jury and bench trials. And based on all this, enter findings on whether Camacho’s waiver of his jury right was knowing, intelligent, and voluntary.
9 No. 37143-3-III State v. Camacho
Our decision could also be based on other facts, facts that show the purported
constitutional error was not manifest. As discussed above, the record strongly suggests
that Camacho made a knowing, intelligent, and voluntary waiver of his jury trial right.
Sometimes the purported error will be manifest. In those situations, the
substantive issue will be addressed and an appellate court will have to determine whether
to affirm, remand for findings, or reverse for a new trial. This is not one of those
situations.
TRIAL COURT’S CONSIDERATION OF EXCEPTIONAL SENTENCE
Camacho contends the trial court abused its discretion by failing to meaningfully
consider his request for an exceptional sentence downward. He argues the trial court did
not consider the failed defense of self-defense or his argument that his capacity was
impaired. We disagree.
Defendants are not entitled to an exceptional sentence below the standard range.
State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). However, they are entitled
to request the court to consider such a sentence and to have that request meaningfully
considered. Id. A trial court abuses its discretion when it categorically refuses to
consider or impose an exceptional sentence below the standard sentence range for any
reason. Id.
10 No. 37143-3-III State v. Camacho
Camacho asserts two bases for an exceptional sentence downward: (1) the failed
defense of self-defense and (2) his impaired ability to understand the wrongness of his
actions.
No evidence of failed self-defense
Some defenses can be insufficiently proved at trial but nevertheless permit a trial
court to impose an exceptional sentence downward. See State v. Hutsell, 120 Wn.2d 913,
921, 845 P.2d 1325 (1993). Camacho contends the trial court found evidence of self-
defense, although legally insufficient to find him not guilty. The evidence he points to is
a purported finding by the trial court that he dropped the knife before chasing the victim.
This misconstrues the trial court’s findings.
The trial court found that Camacho’s claim he dropped the knife was not credible.
Instead, based on witness testimony and the surveillance video, the trial court found that
Camacho chased the victim while brandishing the knife. Because the trial court did not
find any credible evidence of self-defense, a failed self-defense did not provide a basis to
impose an exceptional sentence downward.
No evidence mental health contributed to the assault
RCW 9.94A.535(l)(e) permits a court to impose an exceptional sentence
downward if “[t]he defendant’s capacity to appreciate the wrongfulness of his or her
11 No. 37143-3-III State v. Camacho
conduct, or to conform his or her conduct to the requirements of the law, was
significantly impaired. Voluntary use of drugs or alcohol is excluded.”
The trial court did not find that Camacho’s capacity to commit the assault was
diminished by a mental health condition. Rather, it found that Camacho “appeared to be
under the influence of methamphetamine at the time of the incident.” Clerk’s Papers
at 43.
In summary, the trial court did consider Camacho’s request for a mitigated
sentence below the standard range. In rejecting it, the court determined there was no
factual basis for it. The trial court’s written findings support this determination.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
SAG I: SELF-DEFENSE
Camacho reargues that he acted in self-defense. However, the trial court is the
finder of facts. It found that Camacho was not a credible witness. This court will not
review issues of witness credibility. We defer to the finder of fact, who is in the best
position to make such determinations. In re Estate of Barnes, 185 Wn.2d 1, 9, 367 P.3d
580 (2016).
12 No. 37143-3-III State v. Camacho
SAG II: FORM OF QUESTIONING
During Camacho's cross-examination of the victim, he tried to read into the record
the entire transcript of the victim's police interview. The trial court sustained the State's
objection. In doing so, Camacho contends the trial court erred. We disagree.
A witness may be questioned on cross-examination about a prior inconsistent
statement. ER 613. This rule does not permit a transcribed interview to be admitted. The
transcribed interview is hearsay, i.e., an out-of-court statement offered in court to prove
the truth of the matter asserted. ER 80l(c).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J . \ j I CONCUR:
~. Jp(? Korsmo, J.P.T. 2
2 JudgeKevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.
13 No. 37143-3-111
FEARING, J. (dissent) -The trial court record fails to establish that Martiniano
Camacho voluntarily and intelligently waived the right to a jury trial, not because of any
fault of the prosecution or error by the superior court judges, but because of
circumstantial error. Despite the constitutional error, the majority rules that Camacho
cannot assert the violation of his right to a jury because he invited the error. The majority
also denies review because Camacho did not assert his right to a jury trial below and any
error is not manifest constitutional error. The majority's employment of the invited error
rule and rejection of manifest constitutional error principle destroys the requirement that
the trial court confirm that a waiver of the fundamental right to a jury be voluntary,
knowing, and intelligent. I therefore dissent.
PROCEDURE
On August 1, 2019, the trial court arraigned Martiniano Camacho on charges of
second degree assault. The superior court judge listed Camacho's constitutional rights,
including his right to an impartial jury in his home county. The judge then asked
Camacho if he had any questions about the rights read to him. Camacho responded that No. 37143-3-III State v. Camacho - Dissent
he had questions. Instead of asking questions about his rights, however, Camacho
insisted on his innocence and demanded to see a video of store surveillance. During the
colloquy with the court, Camacho repeatedly interrupted the judge's comments.
Camacho never indicated that he understood his constitutional rights, let alone his right to
a Jury.
On August 28, 2019, Martiniano Camacho appeared before a second superior
court judge for purposes of an omnibus hearing. The hearing did not address whether
Camacho would prefer a jury or bench trial.
On September 4, 2019, Martiniano Camacho appeared before a third superior
court judge. Camacho complained about the performance of his assigned counsel and
requested that he represent himself. After a colloquy with the court, Camacho agreed to
postpone a decision to represent himself.
On September 18, 2019, Martiniano Camacho appeared before the same judge
who conducted the hearing on September 4. During the pretrial hearing, Camacho
complained about his appointed counsel's supposed refusal to spend time with him and to
answer his questions. Camacho insisted that, if only his counsel would speak to the
prosecutor and explain the inconsistencies in the prosecution's case, the State would
dismiss the charges. Apparently, counsel did not share Camacho's optimism. Camacho
asked to represent himself.
During the September 18 hearing, the third superior court judge conducted a
thorough colloquy with Martiniano Camacho to determine Camacho's competency to
2 No. 37143-3-III State v. Camacho - Dissent
represent himself. At the beginning of the colloquy, Camacho repeated his habit of
interrupting the judge when the judge spoke. Camacho indicated that he had been in the
justice system since the age of 13 and that the third judge had prosecuted him as a
juvenile. Camacho disclosed that he suffered from attention deficit disorder, but he
claimed that medications controlled the disorder. After the detailed questioning of
Camacho, the court found Camacho to have knowingly, voluntarily, and intelligently
waived the right to representation by counsel.
During the September 18 pretrial hearing and after authorizing Martiniano
Camacho to represent himself, the superior court judge scheduled a trial for September
30. Camacho then expressed a desire to subpoena an investigator, who had engaged in
seductive movements during her questioning of him. The following colloquy then
occurred between Camacho and the judge:
THE DEFENDANT: Last but not least is this, Your Honor: I want to waive my jury-to a jury trial. THE COURT: Okay. Is there a form that we- , THE DEFENDANT: I want bench. THE COURT: Is that it? That's just a handwritten one? MR. VANDER SYS [standby defense counsel]: Yeah. THE COURT: I think we have a specific form, Mr. Camacho, that we use for purposes of making sure that a person is properly advised of their rights with regards to making that choice. THE DEFENDANT: Your Honor-were you done? THE COURT: Yes. But I don't want to hear further as far as your motion for a subpoena of the- THE DEFENDANT: That's-you're telling me I have to do that through paperwork?
THE COURT: This matter-I'm going to continue it for-if we could just reset it, I'm going to reset it one week-
3 No. 37143-3-III State v. Camacho - Dissent
THE DEFENDANT: Thank you, Your Honor. THE COURT:-to the [September] 25th for purposes of any motions you want to file, Mr. Camacho, as well as to address-at that point in time you are to be provided with the standard form for a waiver of counsel. And you can submit that at that time-not waiver of counsel-a waiver of [jury] trial.
Report of Proceedings (RP) (Sept. 18, 2019) at 27-30.
A fourth superior court judge presided over the September 25 hearing. The court
signed an order allowing Martiniano Camacho to represent himself. Camacho then
complained about his standby counsel and requested a different one. The court denied
the request. The following colloquy between the superior court judge and Camacho then
ensued:
THE COURT: Is there a waiver of jury trial in this case? MR. CAMACHO: Yes, your Honor. I want a bench trial. I have the paper with waiver of jury trial in my room. I'm sorry I didn't bring it here today, but, yes, I want a bench trial. I do not want a jury trial. THE COURT: Thank you.
RP (Sept. 25, 2019) at 9. The trial court, standby counsel, and Camacho then discussed
trial concerns. Contrary to the majority opinion's conclusion, the record does not
establish that the trial court treated any oral request or any comments by Martiniano
Camacho about a form being in his jail cell to be a sufficient jury waiver. For all we
know, the court expected that Camacho would file his written waiver before the
beginning of trial. The record does not indicate whether Martiniano Camacho read or
signed the waiver of jury form purportedly located in his jail cell. Nor does the record
disclose the language in the waiver of jury form.
4 No. 37143-3-III State v. Camacho - Dissent
A bench trial proceeded on September 30, 2019 before a fifth superior court judge.
The trial court did not then address any waiver of a jury trial. The record on review
contains no written jury trial waiver. The record on review lacks any questioning of
Martiniano Camacho by a superior court judge about whether Camacho knowingly,
voluntarily, and intelligently waived his constitutional right to a jury trial. The record
lacks any finding that Camacho voluntarily, knowingly, and intelligently waived his
constitutional right.
LAW AND ANALYSIS
Jury Trial Right
United States Constitution Amendment 6 and Washington Constitution, article I,
sections 21 and 22 grant an accused the right to a jury trial. Duncan v. Louisiana, 391
U.S. 145, 154, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Pierce, 134 Wn. App.
763, 770, 142 P.3d 610 (2006). Washington Constitution, article I, section 21 reads:
The right of trial by jury shall remain inviolate ....
Washington Constitution, article I, section 21 declares:
In criminal prosecutions the accused shall have the right to . . . have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed ....
A jury trial is "fundamental to the American scheme of justice." Ramos v. Louisiana,
_U.S._, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020). There is no more
fundamental right in the United States than the right to a jury trial. State v. Larraco, 32
Kan. App. 2d 996, 999, 93 P.3d 725 (2004).
5 No. 37143-3-111 State v. Camacho - Dissent
A Washington statute and court rule also addresses an accused's waiver of a jury
trial. RCW 10.01.060 declares, in pertinent part:
That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.
None of the five superior court judges reviewing Martiniano Camacho's prosecution
assented to any waiver by Camacho. CrR 6. l(a) declares:
Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.
Martiniano Camacho filed no signed written waiver, and again no superior court judge
consented to a waiver. A court cannot intelligently consent to acceptance of a waiver
without questioning the accused as to whether he voluntarily, knowingly, and
intelligently wishes to forego his right.
Waiver of Jury
The constitutional right to a jury trial, like other constitutional rights, may be
waived. State v. Forza, 70 Wn.2d 69, 70,422 P.2d 475 (1966); State v. Brand, 55 Wn.
App. 780, 785, 780 P .2d 894 ( 1989). Nevertheless, the waiver of a constitutional right,
including the right to a jury, must be made knowingly, voluntarily, and intelligently.
State v. Thomas, 128 Wn.2d 553,558,910 P.2d 475 (1996); City of Bellevue v. Acrey,
103 Wn.2d 203,207, 691 P.2d 957 (1984). Courts indulge every reasonable presumption
against waiver of fundamental rights and against the validity of a jury waiver. Glasser v.
United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 ( 1942); City of Bellevue v.
6 No. 37143-3-III State v. Camacho - Dissent
Acrey, 103 Wn.2d 203, 207; State v. Griffith, 11 Wn. App. 2d 661,687,455 P.3d 152
(2019). The State bears the burden of establishing a valid waiver. State v. Wicke, 91
Wn.2d 638,645, 591 P.2d 452 (1979). Contrary to these principles, this court's majority
indulges a presumption in favor of waiver and places the burden of disproving a waiver
on Martiniano Camacho.
CrR 6 .1 (a)' s requirement of a written waiver seeks to impress on the accused the
gravity of the right relinquished and to provide the best evidence of a waiver. State v.
Downs, 36 Wn. App. 143, 145 n.2, 672 P.2d 416 (1983). Despite CrR 6.l(a)'s use of the
mandatory "shall," the Washington Supreme Court has permitted an oral waiver. State v.
Wicke, 91 Wn.2d 638, 646 (1979). Still, for an oral waiver to be effective, the evidence
must show the defendant voluntarily, knowingly, and intelligently waived the right. State
v. Wicke, 91 Wn.2d at 646.
If the defendant presents a written waiver, the trial court need not engage in an
"extended colloquy" on the record to confirm the waiver. State v. Brand, 55 Wn. App.
780, 785 ( 1989). When the accused files no written waiver of a jury trial, a valid waiver
requires some colloquy between the court and the defendant personally. Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Williams, 23
Wn. App. 694,698, 598 P.2d 731 (1979). In State v. Wicke, 91 Wn.2d 638 (1979), a
consolidation of two appeals, the trial court reversed a conviction in the one prosecution
wherein the trial court did not engage in a colloquy, but affirmed a conviction in the
7 No. 37143-3-III State v. Camacho - Dissent
second prosecution wherein the trial court engaged in an extensive colloquy. In both
appeals, the record lacked a written waiver.
A waiver of jury may not be inferred, implied, or imputed to the accused based on
his actions. City ofBellevue v. Acrey, 103 Wn.2d 203,207 (1984); City ofSeattle v.
Crumrine, 98 Wn.2d 62, 65 653 P.2d 605 (1982). One reason for this rule is CrR 6.l(a)'s
requirement of a written waiver. City of Bellevue v. Acrey, 103 Wn.2d 203, 208. This
court's majority also breaches this principle of law.
The law supports a briefer colloquy of the accused by the trial court before the
court finds that the accused voluntarily, knowingly, and intelligently waived his right to a
jury as opposed to when the accused seeks to represent himself. State v. Castillo-Murcia,
188 Wn. App. 539, 547, 354 P.3d 932 (2015); State v. Brand, 55 Wn. App. 780, 786
(1989). The rationale behind the stunted questioning for purposes of waiver of a jury is
that the defendant may stand a better chance of acquittal with a judge in a prosecution
wherein the accused possesses technical defenses. State v. Brand, 55 Wn. App. at 786-
87. No one suggests that the charges against and defenses of Martiniano Camacho fit
Camacho's benefiting from a bench trial. Regardless, no superior court judge questioned
Camacho.
We do not know if Camacho understood that a unanimous vote of twelve people
would be required to convict him during a jury trial, while a bench trial required only the
vote of one person. Camacho may have believed a simple majority of twelve jurors could
convict him. An accused's understanding of the difference between a bench and jury trial
8 No. 37143-3-111 State v. Camacho - Dissent
implicates whether he knowingly and intelligently waived the right. United States v.
Cochran, 770 F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 274-
75 (6th Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981).
Invited Error
My learned brethren ignore the lack of an enforceable waiver by ruling that invited
error precludes review of the substantive question of waiver. The invited error doctrine
precludes a criminal defendant from seeking appellate review of an error he helped
create, even when the alleged error involves constitutional rights. State v. Studd, 13 7
Wn.2d 533, 546-47, 973 P.2d 1049 (1999); State v. Mercado, 181 Wn. App. 624, 629-30,
326 P.3d 154 (2014). The doctrine of invited error prohibits a party from setting up an
error at trial and then complaining of it on appeal. State v. Wakefield, 130 Wn.2d 464,
475,925 P.2d 183 (1996). To determine whether the invited error doctrine is applicable
to a case, we may consider whether the petitioner affirmatively assented to the error,
materially contributed to it, or benefited from it. State v. Momah, 167 Wn.2d 140, 154,
217 P .3d 321 (2009).
To be invited, the error must be the result of an affirmative, knowing, and
voluntary act. State v. Lucero, 152 Wn. App. 287, 292, 217 P.3d 369 (2009), rev 'don
other grounds, 168 Wn.2d 785,230 P.3d 165 (2010); State v. Mercado, 181 Wn. App.
624, 630 (2014). The defendant must materially contribute to the error challenged on
appeal by engaging in some type of affirmative action through which he knowingly and
voluntarily sets up the error. In re Personal Restraint of Call, 144 Wn.2d 315, 328, 28
9 No. 37143-3-III State v. Camacho - Dissent
P.3d 709 (2001). The State bears the burden of proof on invited error. State v. Thomas,
150 Wn.2d 821, 844, 83 P .3d 970 (2004 ).
The majority rules that Martiniano Camacho invited error when he asked for a
bench trial and informed the superior court that he left the waiver form in his jail cell.
The majority omits that the record does not show that Camacho signed the waiver form,
that the record does not disclose the language of any waiver form, and that the superior
court never ruled that Camacho had waived the constitutional right to a jury. The first
superior court judge informed Camacho of his right to a jury, but Camacho never
responded that he understood the right. Camacho affirmatively asked for a bench trial.
But the record lacks any detail about the extent to which Camacho knew of his right and
thereby knowingly and intelligently waived the right and thereby invited any error.
The majority cites no case law, in which a court found that an accused invited
error in the context of waiver of a jury trial. In all cases, in which the reviewing court
upheld the waiver of the right, the trial court engaged in some form of colloquy with the
accused. No such colloquy occurred with Martiniano Camacho. Under the majority's
ruling, an accused simply by requesting a bench trial will forego the right to a jury
without the court exploring and finding that the waiver of a jury was knowing, voluntary,
and intelligent. This court's ruling on invited error thereby destroys the principle that the
trial court must find the waiver to be voluntary, knowing, and intelligent.
The only foreign decision addressing whether the accused loses the right to a jury
trial by invited error is City of Wichita v. Bannon, 37 Kan. App. 2d 522, 154 P.3d 1170
10 No. 37143-3-III State v. Camacho - Dissent
(2007). On appeal, the city claimed that Jeff Bannon invited error when his counsel
wrongly informed the trial court that Bannon waived his jury right and Bannon remained
silent while his counsel spoke. The court reversed the conviction because of the lack of a
jury waiver. The court reasoned that application of invited error "was inconsistent with
substantial justice" since defendant had not waived his right. The facts on Martiniano
Camacho are disparate, but City of Wichita v. Bannon teaches us that invited error does
not suit waiver of the jury right.
I recognize that courts hold an accused, who represents himself, to a standard of a
licensed attorney. Nevertheless, Martiniano Camacho asked for a bench trial while
representing himself. The record reflects no conversation between Camacho and any
counsel about the important right to a jury before any invited error.
This court's majority may consider Martiniano Camacho's experience in the
judicial system to be a factor favoring application of invited error. If so, this court
engages in fact-finding, an activity unbecoming a reviewing court. The sentencing record
establishes sixteen earlier felonies. Although we might conclude that Camacho had
earlier been party to a jury trial, such would be speculation. Some of his charges could
have been handled in juvenile court, where he had no right to a jury. He could have pied
guilty without a trial in other prosecutions. In short, we do not know the extent to which
he submitted his cases to juries in the past. Regardless, Camacho's conduct before the
many judges before whom he appeared suggest a low intelligence and eagerness to
11 No. 37143-3-111 State v. Camacho - Dissent
quickly resolve his prosecution. Anyway, without a written waiver, the law demanded
some colloquy between the court and Camacho. No colloquy occurred.
Manifest Constitutional Error
The majority also concludes that Martiniano Camacho cannot raise his claim to an
invalid waiver for the first time on appeal. Nevertheless, a challenge that the jury trial
right was not waived is a manifest constitutional error that can be raised for the first time
on appeal. RAP 2.5(a)(3); State v. Griffith, 11 Wn. App. 2d 661 (2019); State v.
Williams, 23 Wn. App. 694, 695 (1979). In State v. Hos, 154 Wn. App. 238, 249-50, 225
P.3d 389 (2010), the State contended on appeal that the defendant could not raise the
issue of a valid waiver because she did not call attention to the error to the trial court.
With scant analysis, we rejected this contention.
The majority's view that an accused loses the right to assert as error on appeal an
invalid waiver of a jury, when the accused did not suggest to the trial court that his
waiver was invalid, would prevent the appeals court from almost always, if not always,
reviewing such a claim of error. In none of the appellate decisions addressing a waiver of
a jury did the defendant mention to the trial court a lack of a jury waiver or an insufficient
waiver. If the accused had brought the issue to the trial court's attention, any failure to
waive would have been corrected.
Remedy
One dissenting judge in a Washington decision suggests that the remedy for a
failure of the trial court to determine whether the accused voluntarily, knowingly, and
12 No. 37143-3-111 State v. Camacho - Dissent
intelligently waived a jury is to remand to the trial court to conduct a hearing on the
question. State v. Brand, 55 Wn. App. 780, 793 (1989) (Winsor, dissenting). Most other
decisions remand for a new trial, however. In State v. Wicke, 91 Wn.2d 638 (1979), the
Washington Supreme Court remanded for a new trial because of the invalid waiver.
I would reverse and remand for a new trial. At the least, the prosecution of
Martiniano Camacho should be remanded for a hearing on the voluntary, knowing, and
intelligent nature of the jury waiver.
I DISSENT:
J4,:r: Fearing, J.