IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
No. 791 09-5-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
ANDREW ALLEN ECK,
Appellant. FILED: February 18, 2020
PER CURIAM — Andrew Eck appeals his convictions for six misdemeanor
counts of violating a court order. Eck argues he was denied effective assistance
of counsel because his attorney conceded guilt as to these charges. Because
defense counsel made a legitimate strategic choice that likely resulted in Eck’s
acquittal on more serious felony charges, we affirm.
FACTS
Andrew Eck and Demetria Murphy are married with two children. They
lived together until September 2017, when Murphy obtained a protection order
prohibiting Eck from contacting her. Eck moved in with his sister but left most of
his personal property at the couple’s home.
On September 14, 2017, Murphy left for work and Eck came to get some
of his possessions. Murphy returned while Eck was still at the home. Eck
became upset, accusing her of having an affair. Eck punched several holes in
the wall out of anger and Murphy left and got in her car. Eck began texting
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Murphy, threatening to “burn [her] room down” if she did not provide the
password to her bank account so he could investigate the alleged infidelity. A
“big burst of flames” erupted from the bedroom. Investigators surveyed the fire
damage and concluded that Eck poured fingernail polish remover on a bedside
table and ignited it.
The State charged Eck with first degree arson and violating a court order.
While awaiting trial, Eck made numerous phone calls to Murphy from jail. In
some of the calls, Eck made statements suggesting Murphy should testify
favorably on his behalf. The State charged Eck with five additional counts of
violating a court order and one count of witness tampering.
In opening statement, defense counsel stated that Eck had been drinking
and using drugs to cope with the recent death of his father and brother. Defense
counsel conceded that Eck violated the no-contact order but argued that he did
not maliciously start the fire:
As far as the no[-]contact, Mr. Eck, when he first went into the jail,
was still completely off his gourd and he’s saying mean things to
[Murphy]. When he got into jail and he started trying to talk to her,
and realistically, he doesn’t feel bad about talking to his wife. In his
view, she is the only one who helps him keep on the path that he
wants to be on now, which [is] a path where he[] starts trying to fix
some things that he’s done wrong. And so we’ll admit to those
violations and he’ll take responsibility for those violations.
But he just wasn’t trying to kill himself and he wasn’t trying to
burn down the house or burn down the room. He was trying to get
attention, and he was trying to get attention from a person that he
loves. So yes, this is a sad story and this is a sad story that ends
with Mr. Eck needing to make substantial changes in his life and
needing to deal with things that he hasn’t dealt with in the past.
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But it is not the story of an arsonist, and it is not a story of
somebody who’s controlling. And we will ask at the end of this trial
that you do find him guilty of a no-contact order violation. He
admits to those. But we will argue that there wasn’t damage and
there wasn’t substantial damage to anything in the house that
[Murphy] is still sleeping on the same mattress and everything was
taken care of. And that as soon as he realized that there was a fire
at all, it never was out of control. It was a second and it went out.
We’ll argue that this wasn’t a malicious and intentional fire, and we
believe at the end of this trial, you will find him not guilty of that part
of the offense.
Prior to Murphy’s testimony, Eck stipulated that he knew a court order prevented
him from contacting her.
During closing argument, defense counsel acknowledged that the
evidence clearly showed that Eck contacted Murphy in violation of the no-contact
order.
As far as the violations of [the] no[-]contact order, yeah, he called
her, there was a no[-]contact order. As I indicated before he
doesn’t really feel bad about it because he wanted to talk to his
wife. And she testified that he called her; you heard the calls.
There’s nothing I can say about the fact that he made those calls.
We expect you to find him guilty of the violations of [thel no[
]contact order.
The jury convicted Eck of the six counts of violating the no-contact order,
but acquitted him of the two felony charges. Eck appeals.
ANALYSIS
Eck argues he was denied effective assistance of counsel because his
attorney conceded guilt as to the no-contact order violations. We disagree.
Whether counsel was ineffective is a question of law we review de novo.
In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To show
ineffective assistance of counsel, a defendant must show both deficient
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performance and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225-26,
743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Counsel’s representation is deficient if it falls
below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d
668, 705-06, 940 P.2d 1239 (1997). We do not consider an alleged deficiency in
isolation, but rather within its surrounding context. State v. Monday, 171 Wn.2d
667, 675, 257 P.3d 551 (2011). A strong presumption exists that counsel’s
performance was reasonable. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260
(2011). A defendant is prejudiced if, but for the deficient performance, there is a
reasonable probability the trial outcome would have been different. Stenson, 132
Wn.2d at 705-06.
If defense counsel’s performance can be characterized as legitimate trial
strategy or tactics, performance is not deficient. Grier, 171 Wn.2d at 33.
Conceding guilt on a particular count can be a sound trial tactic when the
evidence on that count is overwhelming. State v. Silva, 106 Wn. App. 586, 596,
24 P.3d 477 (2001). This approach may help win the jury’s confidence and
preserve the defendant’s credibility when a more serious charge is at stake.
State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96 (2007); Silva, 106 Wn.
App. at 597-98. Defense counsel is not required to consult with the client before
making this strategic move. Silva, 106 Wn. App. at 596 (citing Underwood v.
Clark, 939 F.2d 473, 474 (7th Cir. 1991)).
Here, defense counsel made a tactical decision to concede Eck’s guilt as
to the misdemeanor charges. The evidence that Eck repeatedly violated the no
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contact order was overwhelming. Eck sent threatening text messages to
Murphy. The record also shows Eck’s booking number was used to place calls
from jail to Murphy. The telephone calls were recorded and played for the jury.
Murphy testified at trial and identified Eck’s voice on the recordings. During the
calls, Eck and Murphy discussed details relevant to Eck’s case. Defense
counsel’s decision to admit guilt as to the no-contact order violations was a
legitimate strategy to support the defense theory of the case, gain the jury’s
sympathy, and preserve Eck’s credibility as to the felony charges. Accordingly,
Eck’s ineffective assistance claim fails.1
We affirm.
FOR THE COURT: _______________________
1 We reject Ecks argument that defense counsel’s concession was a structural
deprivation of his right to counsel under U.S. v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.
2d 657 (1984). Cronic recognizes a narrow exception to the Strickland test, in which prejudice is
presumed when “‘counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.’” Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002)
(quoting Cronic, 466 U.S. at 659). Eck contends defense counsel failed to subject the State’s
proof regarding the no-contact order violations to a meaningful adversarial test and effectively left
him without counsel. But because defense counsel’s concession was a legitimate trial tactic
rather than a complete fai ure to contest the State’s case, Cronic does not apply.
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