      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 DIVISION ONE                  c2
                      Respondent,
                                                 No. 72001-5-1                 —
                 v.
                                                 UNPUBLISHED OPINION           ~
ERIC SLANE,
                                                                               CO


                      Appellant.                 FILED: January 19, 2016 ~"


      Dwyer, J. — Eric Slane appeals multiple felony and misdemeanor

convictions of malicious mischief and a conviction of bail jumping. He contends

that he was deprived of his constitutional due process right to have a jury

determine each element of the crime beyond a reasonable doubt when his

attorneys argued, over his objection, that he committed the acts underlying the
charges. He further claims that because his attorneys pursued a strategy that he
disagreed with, he was deprived of his constitutional right to counsel. But the
jury was required to find every element of the charged crimes proved beyond a
reasonable doubt in order to convict Slane, and Slane's counsels' strategy did

not relieve the State of its burden of proof. Slane entered a plea of not guilty,

and his attorneys made sound tactical decisions consistent with the objective of
his plea and subjected the State's case to meaningful adversarial testing. Slane
No. 72001-5-1/2



fails to establish a violation of his right to due process or his right to the effective

assistance of counsel. We affirm.

                                                I


       In the early morning hours of August 26, 2011, police responded to reports

that the tires of more than a dozen vehicles parked along the same road in a

north Seattle residential neighborhood had been slashed.1 An owner of one of

the vehicles saw a man wearing dark clothing and a white hat crouched by a

vehicle plunging a knife into a tire. Approximately an hour after the police first

responded to the scene, a police officer noticed a man hiding in the bushes near

the vehicles. The man, later identified as Eric Slane, was wearing dark clothing

and dropped a white hat as he emerged from the bushes. He was carrying two

folding knives.

       Slane lived in a group home on the same street where the damage

occurred. He told the police officer that he heard a commotion and came outside

to investigate. Slane's vehicle, parked along the same street, was unharmed.
Video surveillance footage showed a man wearing dark clothing and a white hat

next to one of the vehicles that sustained damage.

        Based on this August 2011 incident, and on Slane's failure to appear at a

July 2013 court hearing, the State charged Slane with two felony counts of
malicious mischief in the second degree, five misdemeanor counts of malicious

mischief in the third degree, and one count of bail jumping. Although the State


      1Another vehicle parked on a driveway on the same street sustained a different type of
damage during the incident. The rear window ofthat vehicle was shattered and inside the vehicle
was an unbroken bottle of liquid that appeared to contain urine.
No. 72001-5-1/3



initially filed charges in December 2011, trial was delayed for various reasons,

including questions regarding Slane's competency.2

       For several months before the April 2014 trial, it was clear that Slane's

attorneys planned to raise defenses to all charges based on Slane's mental

health. A few weeks before trial, when Slane's attorneys moved to sever the bail

jumping charge from the malicious mischief charges, Slane strenuously opposed

the motion. But he did not object when his attorneys confirmed that they would

pursue a diminished capacity defense to the malicious mischief charges and the

statutory affirmative defense of uncontrollable circumstances to the bail jumping

charge.3 During voir dire, Slane's counsel extensively questioned potential jurors

about their attitude toward a mental health defense.

       At the outset of opening remarks, one of Slane's attorneys told the jury

that Slane was a paranoid schizophrenic who was experiencing a psychiatric

crisis in the summer of 2011. Counsel claimed that because of his acute

symptoms, Slane could not, and did not, form malicious intent. Slane interjected:
        I did not want this defense. They did this—they wouldn't— ... let
        me come to court without this defense. It was the only way I could
        get in front of a jury. I need witnesses.

After he directed obscenities at counsel and argued with the court, Slane

eventually allowed his counsel to continue her argument. Slane's attorney

predicted that the State would present abundantevidence showing that Slane

        2Following an evaluation by staffat Western State Hospital, the trial courtdetermined
that Slane was competent to stand trial.
        3 Under RCW 9A.76.170(2), it is an affirmative defense to bail jumping "that
uncontrollable circumstances prevented the person from appearing or surrendering, and that the
person did not contribute to the creation ofsuch circumstances in reckless disregard ofthe
requirement to appear or surrender, and that the person appeared or surrendered as soon as
such circumstances ceased to exist."
No. 72001-5-1/4



caused the damage at issue and explained that the defense did not intend to

challenge that evidence. Instead, defense counsel argued that the jury should

find Slane not guilty of the charges because he did not cause the property

damage with malicious intent and because his mental health symptoms

prevented him from appearing in court in July 2013.

      Slane's attorneys presented evidence to support his defense, including the

testimony of Slane's friend of several years, who testified about Slane's

longstanding mental health issues and said that Slane told him he damaged the

vehicles in order to discover what people were thinking about him. In addition,

Slane's mental health case manager testified that Slane was increasingly

disengaged in the summer of 2011. She also testified that a few days after the

property damage incident, Slane was found non-responsive in the shower with

the shower running. He was taken to the emergency room. Approximately two

weeks later, based on concerns about Slane's deteriorating mental health, the

case manager filed a petition for him to be evaluated for possible involuntary

commitment.

       Finally, defense counsel presented the only expert testimony in the case,

that of forensic psychologist, Dr. Paul Spizman. Dr. Spizman testified that he

believed that Slane was experiencing acute symptoms of his mental illness in

September 2011 and that there was a "very distinct possibility" that Slane was

unable to form the mental state of malice. Among other evidence, Dr. Spizman

relied on video evidence showing Slane in the back of a police vehicle on the

night of the incident in which he appeared to respond to internal stimuli. Dr.


                                         4
No. 72001-5-1/5



Spizman also testified that Slane appeared to have decompensated in July 2013,

around the time he failed to appear in court, and that his mental health symptoms

could have interfered with his ability to appear.

       Slane did not testify. When the defense counsel rested its case, Slane

objected citing a constitutional "right not to rest" and his right to "competent

counsel." The court explained to Slane that he would be removed from the

courtroom if he continued to disrupt the proceedings. Slane responded by

leaving the courtroom "under protest." In closing arguments, defense counsel

urged the jury to find Slane not guilty of all charges.

       The jury convicted Slane as charged. The court imposed no further

confinement, suspending the remainder of the sentence upon 24 months of

probation. As a condition of probation, the court required Slane to undergo a

mental health evaluation and follow treatment recommendations. Slane appeals.

                                           II


       The Fourteenth Amendment right to due process and the Sixth

Amendment right to a trial by jury, taken together, entitle a criminal defendant to

a jury determination of guilt beyond a reasonable doubt as to every element of
the charged crime. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000); In re Winship, 397 U.S. 358, 364, 90 S. Ct.

1068, 25 L. Ed. 2d 368 (1970); U.S. Const, amends. VI, XIV; Wash. Const, art.

I, §§ 3, 22. In this case, for the jury to convict Slane of malicious mischief in the
second degree, the State was required to prove beyond a reasonable doubt that
Slane (1) knowingly and maliciously (2) caused physical damage to the property
No. 72001-5-1/6



of another in an amount exceeding seven hundred and fifty dollars. RCW

9A.48.080(1)(a). To find Slane guilty of malicious mischief in the third degree,

the jury had to find beyond a reasonable doubt that Slane (1) knowingly and

maliciously (2) caused physical damage to the property of another, "under

circumstances not amounting to malicious mischief in the first or second degree."

RCW 9A.48.090(1)(a). "Malice" means "an evil intent, wish, or design to vex,

annoy, or injure another person" and may be inferred from an act done in willful
disregard of another's rights or an act wrongfully done without just cause or
excuse. RCW 9A.04.110(12). Finally, to convict Slane of bail jumping, the State

was required to establish beyond a reasonable doubt that Slane (1) was
"released by court order or admitted to bail with knowledge of the requirement of
a subsequent personal appearance before any court of this state" and (2) he
failed to appear as required. RCW 9A.76.170(1).
       Slane claims that defense counsel "conceded that he committed all of the

acts underlying the malicious mischief and bail jumping charges" and thereby
violated his constitutional right to require the jury to find each element of the
charged crimes beyond a reasonable doubt. In support of this argument, Slane
cites State v. Humphries, 181 Wn.2d 708, 336 P.3d 1121 (2014).

       The State charged Humphries, among other crimes, with unlawful
possession of a firearm based on prior robbery convictions that rendered him
ineligible to possess a firearm. Humphries, 181 Wn.2d at 712. Defense counsel
wanted to stipulate that Humphries had a previous conviction for a "serious
offense" so the jury would not learn of the specific nature ofthe prior convictions.

                                           6
No. 72001-5-1/7



Humphries, 181 Wn.2d at 712. Although counsel informed the trial court that

Humphries did not agree with the proposed stipulation, the court determined that

the decision was tactical and the defendant's consent was not required. The

court allowed counsel to stipulate to the prior offense element of the crime on his

client's behalf, over his objection. Humphries, 181 Wn.2d at 712.

       Reversing Humphries' firearm conviction and this court's decision, our

Supreme Court held that counsel's stipulation to an element of the crime over the

defendant's personal objection amounted to an involuntary waiver of his

constitutional right to due process. Humphries, 181 Wn.2d at 718. This was so

because "[wjhen the parties stipulate to the facts that establish an element ofthe

charged crime, the jury need notfind the existence of that element, and the
stipulation therefore constitutes a waiver of the 'right to a jury trial on that
element,' as well as the right to require the State prove that element beyond a

reasonable doubt." Humphries, 181 Wn.2d at 714 (citation omitted).

       Slane contends that by allowing counsel to proceed with a mental health

defense after he voiced objections, the court impermissibly permitted counsel to

stipulate to an element ofthe offense over his explicit objection, as in Humphries.
However, Slane's reliance on Humphries is misplaced. As the State correctly

points out, there are legally significant differences between Slane's attorneys'
arguments to the jury in this case and entry ofa formal stipulation to an element
of the crime. The primary distinction being that a stipulation relieves the State of
its burden of proof as to the element to which the parties stipulate. Here, on the
other hand, the defense argument had no effect on the State's burden to present
No. 72001-5-1/8



evidence or its burden of proof. The instructions informed the jury that Slane's

plea of not guilty put "in issue every element of each crime charged" and that the

State bore the "burden of proving each element of each crime beyond a

reasonable doubt."

      While Slane's attorneys focused only on challenging the State's claim that

Slane acted "knowingly and maliciously" and demonstrating that his mental

health condition prevented him from appearing in court, the jury was

nevertheless specifically instructed that Slane could only be convicted upon proof

beyond a reasonable doubt that he "caused physical damage to the property" of
the victims and that he "failed to appear before a court" on July 15, 2013. The

jury was also instructed that the lawyers' arguments could not be considered as
"evidence" and were merely intended to assist the jury to "understand the

evidence and apply the law." As the court specifically noted in Humphries, unlike
a formal stipulation, "an attorney's concession during closing argument does not

waive any ofthe defendant's relevant constitutional rights. The State is still
required to bear its burden, present admissible evidence, and convince a jury of
every element ofthe crime beyond a reasonable doubt." Humphries, 181 Wn.2d
at717n.4.

                                         Ill


       Slane also contends that his attorneys abandoned him by asserting a

mental health defense over his objection and thereby violated his constitutional

right to counsel. Slane claims that counsel presented evidence that was
beneficial to the State's case, and that by conceding his actions, counsel failed to
No. 72001-5-1/9



subject the State's case to meaningful adversarial testing. Therefore, he argues

that this is a case where we must presume ineffective assistance.

      To safeguard the fundamental right to a fair trial, a criminal defendant is

entitled to the effective assistance of counsel. See Strickland v. Washington. 466

U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume that

counsel is effective, and the appellant bears the burden of proving otherwise.

Strickland, 466 U.S. at 689. Under Strickland, the benchmark for evaluating a

claim of ineffectiveness is whether the attorney's conduct "so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result." Strickland. 466 U.S. at 686. Strickland set forth a

two-part, performance-and-prejudice test whereby the appellant must show that

counsel's representation fell below an objective standard of reasonableness, and

there is a reasonable probability that, but for counsel's deficient performance, the

outcome of the proceeding would have been different. Strickland. 466 U.S. at

688, 694. Both deficient performance and prejudice are required before the court

may conclude that a conviction "resulted from a breakdown in the adversary

process that rendered] the result [ofthe proceeding] unreliable" and in violation

of the Sixth Amendment. Strickland. 466 U.S. at 687.

       Although Strickland's test generally governs, ineffective assistance may

be presumed in limited circumstances under United States v. Cronic. 466 U.S.

648, 650, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). In Cronic, the companion

case to Strickland, the Court identified three distinct situations in which such a

presumption is appropriate: (1) when the defendant is completely denied
No. 72001-5-1/10



counsel "at a critical stage of his trial," (2) when counsel "entirely fails to subject

the prosecution's case to meaningful adversarial testing," and (3) when, although

counsel is available to assist, "the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is so small that a presumption

of prejudice is appropriate without inquiry into the actual conduct of the trial."

Cronic, 466 U.S. at 659-60.

       As an initial matter, Slane characterizes his objection to the strategy his

lawyers pursued as clear and consistent throughout the proceedings. But in fact,
the record is somewhat ambiguous as to the nature of Slane's objection and

whether he abandoned it. Slane claimed for the first time during opening

remarks that he did "not want this defense" as his attorney discussed his mental

health status in connection with the malicious mischief charges. But he did not

raise the issue again after opening statements or at any other point. He did not
seek the appointment of new counsel, nor raise any issue with the court about a
conflict with his attorneys. When one of Slane's attorneys expressed concerns

about competency the day after opening statements, she said her concerns were

based on Slane's inability to engage with counsel, but said she did not believe

that his disengagement stemmed from a disagreement or conflict. The court's
colloquy with Slane at this point included some discussion about the defense
strategy. Slane's answers reflected that he understood the defense, but he did
not reiterate any objection or opposition. Slane did not object to the testimony of
any of the defense witnesses nor to the jury instruction on the affirmative defense
of uncontrollable circumstances. And while Slane strenuously voiced his


                                            10
No. 72001-5-1/11



dissatisfaction with trial counsel at the conclusion of the case, this appeared to

be based on his view that the defense prematurely rested its case.

       Nevertheless, even if we assume that Slane opposed the assertion of a

mental health defense with respect to both the malicious mischief and bail

jumping charges and that his objection was not fleeting, his argument hinges on

the notion that the client must agree, not only with the objective, but also with the

means to pursue that objective. This is incorrect.

       It is a cardinal rule of attorney-client relations that "a lawyer shall abide by

a client's decisions concerning the objectives of representation and .. . shall

consult with the client as to the means by which they are to be pursued." Rules of

Professional Conduct (RPC) 1.2(a). In the criminal context, certain decisions

must ultimately rest with the defendant after consultation with the lawyer,

including what plea to enter, whether to waive a jury trial, whether to testify, and
whether to appeal. ABA Criminal Justice Standards for the Defense

Function std. 4-5.2 (4th ed. 2015); RPC 1.2(a). "An attorney undoubtedly has a

duty to consult with the client regarding important decisions, including questions
of overarching defense strategy. That obligation, however, does not require

counsel to obtain the defendant's consent to every tactical decision." Florida v.

Nixon. 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (internal

quotation marks and citation omitted). In general, counsel, notthe client, "'is in
charge of the choice oftrial tactics and the theory of defense.'" In re Personal
Restraint of Stenson, 142 Wn.2d 710, 734, 16 P.3d 1 (2001) (quoting United

States v. Wadsworth. 830 F.2d 1500, 1509 (9th Cir. 1987)). "The adversary


                                           11
No. 72001-5-1/12



process could not function effectively if every tactical decision required client

approval." Taylor v. Illinois. 484 U.S. 400, 418, 108 S. Ct. 646, 98 L. Ed. 2d 798

(1988).

        While the constitutional right to effective assistance of counsel places an

outer limit on the attorney's decision-making power, Strickland does not define

the Sixth Amendment right to counsel in terms of the defendant's right to control

the defense. Stenson. 142 Wn.2d at 733 (decision to admit guilt in penalty phase

of capital trial over the objection of the accused fell within the province of counsel

to determine matters of strategy); see also State v. Cross. 156 Wn.2d 580, 605-

06, 132 P.3d 80 (2006) (decision to present evidence about the accused's mental

health at sentencing, over his objection, properly rested with defense counsel).

And again, only a tactical decision not "to subject the prosecution's case to
meaningful adversarial testing" constitutes "a denial of Sixth Amendment rights
that makes the adversary process itself presumptively unreliable." Cronic. 466

U.S. at 659.

          Slane pleaded not guilty to the crimes and therefore, the objective of the

representation was to have the jury find him not guilty. Slane's attorneys
mounted a defense consistent with that objective.4 Slane does not suggest that

counsel failed to consult with him about the means to achieve that objective. Nor


        4 In contrast, in several cases Slane relies on from other jurisdictions, the attorneys'
conduct conflicted with the defendant's objective in entering a not guilty plea. For instance, in
Cooke v. State 977 A.2d 803 (Del. 2009), the pleas available in Delaware were guilty, not guilty,
nolo contendere, or guilty but mentally ill. Cooke, 977 A.2d at 842. Although Cooke chose to
plead not guilty, rather than guilty but mentally ill, his attorneys infringed upon his right to enter
the plea ofhis choice by asking the jury tofind him guilty but mentally ill. Cooke. 977 A.2d at
842-43: see also State v. Carter. 270 Kan. 426, 440, 14 P.3d 1138 (2000) (by urging jury to
convict on felony murder count to avoid conviction of premeditated murder, "defense counsel was
betraying the defendant by deliberately overriding his plea of not guilty").
                                                   12
No. 72001-5-1/13



did the strategic decision of counsel not to challenge certain facts fail to subject

the State's case to adversarial testing.

       The United States Supreme Court's decision in Florida v. Nixon is

instructive. Nixon was on trial for capital murder. Nixon. 543 U.S. at 180. Given

Nixon's confession and "overwhelming evidence" of his guilt, Nixon's attorney

determined that the only way to avoid a death sentence was to concede guilt and

focus on the penalty phase. Nixon. 543 U.S. at 180, 181. Trial counsel

attempted to explain this strategy to Nixon and secure his consent, but Nixon

was uncooperative and eventually removed from the courtroom. Nixon, 543 U.S.

at 181-82. The Florida Supreme Court vacated Nixon's conviction and sentence

after finding trial counsel ineffective for conceding guilt without the defendant's

express consent. Nixon, 543 U.S. at 186-87. The court presumed prejudice
under Cronic because it found that the concession "allowed the prosecution's

guilt-phase case to proceed essentially without opposition" and left the
prosecution's case unexposed to "meaningful adversarial testing." Nixon, 543

U.S. at 185.

       The United States Supreme Court disagreed. Acknowledging that criminal

defendants must consent to guilty pleas, the Court determined that the

concession to murder was not the "functional equivalent" of a guilty plea. Nixon.

543 U.S. at 187-88. "Nixon retained the rights accorded a defendant in a criminal

trial. . . . The State was obliged to present during the guilt phase competent,

admissible evidence." Nixon. 543 U.S. at 188. Trial counsel did not cede the

case; he cross-examined witnesses and attempted to exclude prejudicial


                                           13
No. 72001-5-1/14



evidence. Nixon, 543 U.S. at 188. Nixon's express consent to the concession

strategy was not required. Nixon. 543 U.S. at 189. Furthermore, the Court held

that "if counsel's strategy, given the evidence bearing on the defendant's guilt,

satisfies the Strickland standard, that is the end of the matter." Nixon. 543 U.S.

at 192.

          The defense strategy in this case, while unsuccessful, was sound. Slane

argues that the defense evidence, such as the testimony about his nonsensical

explanation for why he damaged the vehicles, merely corroborated his guilt and

benefitted the State. Slane's argument fails to appreciate that the defense

evidence also undermined the State's assertion that he possessed the requisite

intent and supported the claim of uncontrollable circumstances. The argument

also ignores the strength of the evidence indicating that Slane caused the

damage in question and failed to appear in court. He was found hiding in the

vicinity of the damaged cars around the time ofthe incident. He was wearing
clothes matching the description provided by an eyewitness and depicted in

surveillance video. He had knives in his possession. The knives were consistent

with puncture marks on the tires and there were indications they had recently
been used to cut rubber. The State also presented the testimony of a records

custodian to establish that Slane had been charged with a felony, had been

released, and failed to appear at a required court hearing.

          While even conceding a client's guilt may be an appropriate trial strategy

in some cases, Slane's counsel did not pursue a strategy of conceding guiltthat

was inconsistent with his plea of not guilty. It is reasonable to assume that


                                           14
No. 72001-5-1/15



acknowledging Slane's conduct lent credibility to the defense argument that

Slane's mental health symptoms rendered him unable to form malicious intent or

appear in court as required. See Nixon, 543 U.S. at 192 ("[Cjounsel cannot be

deemed ineffective for attempting to impress the jury with his candor and his

unwillingness to engage in a useless charade." (internal quotation marks

omitted)); see also United States v. Thomas. 417 F.3d 1053, 1056-59 (9th Cir.

2005) (no prejudice where attorney conceded participation in one robbery where

defendant was "in effect, caught red-handed" but contested the remaining

charges which carried significantly greater penalties). In the face ofsignificant
evidence establishing Slane's conduct, it was reasonable for counsel to focus on
the mens rea element and affirmative defense rather than challenging facts that

were not readily disputable.

       In sum, counsels' decision to acknowledge Slane's actions did not amount

to an involuntary waiver of a constitutional right nor violate Slane's constitutional
right to due process. And here, where defense counsel pursued a reasoned trial
strategy in light of the evidence available and did not override his choice of plea,
Slane fails to establish a violation of his constitutional right to the effective

assistance of counsel.

       Affirmed.



We concur:



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