State v. Camacho
| Decision Date | 01 February 2021 |
| Docket Number | No. 37143-3-III,37143-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. 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.
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, 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.
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, 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.
Camacho timely appealed.
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,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.
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 thatCamacho 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 didnot 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....
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