State of Washington v. Daniel Christopher Lazcano ( 2017 )

1
i
FILED
MARCH 16, 2017
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. 32228-9-111
Respondent, )
)
v. )
)
DANIEL CHRISTOPHER LAZCANO, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Daniel Lazcano appeals his conviction for first degree murder on
numerous grounds: (1) the trial court abused its discretion when it refused to accept a
plea agreement to second degree manslaughter, (2) the trial court erred when it excused
an impaneled juror for financial hardship, (3) the prosecutor engaged in improper
vouching when he elicited evidence from the State's witnesses that those witnesses
promised to testify truthfully in exchange for immunity or favorable plea agreements,
(4) cumulative error deprived him of a fair trial, and ( 5) insufficient evidence supports his
conviction because the State relied on alternative means and failed to prove both means
beyond a reasonable doubt. Lazcano also contends the trial court erred when, as part of
his sentence, it required him to register as a felony firearm offender. Lazcano further
No. 32228-9-III
State v. Lazcano
filed a lengthy statement of additional grounds for review. We affirm Lazcano's
conviction for first degree murder and the sentence requirement of registration. The
numerous assignments of error and statements of additional grounds prolong this opinion.
FACTS
The prosecution of Daniel Lazcano arises from the death of Marcus Schur on
December 27, 2011, in rural Whitman County. This court previously reviewed the
conviction of Daniel Lazcano's brother, Frank, for the same homicide. State v. Lazcano,
188 Wn. App. 338,354 P.3d 233 (2015), review denied, 185 Wash. 2d 1008, 366 P.3d 1245
(2016). Because the evidence entered in the respective trials varied, we begin anew with
the facts surrounding the death of Schur.
In mid-December 2011, a burglar entered Ben Evensen's Rosalia house. Rosalia,
an agricultural community of 500 denizens, lies immediately south of the Whitman and
Spokane Counties border and thirty-three miles south of the City of Spokane. Defendant
Daniel Lazcano, Evensen's roommate, concluded that the burglar stole some of
Lazcano's possessions, including two of his firearms. Lazcano and his brother, Frank,
suspected Marcus Schur to be the thief. Because of the pilfering, Frank lent Daniel the
farmer's AK-47 rifle, a firearm previously used by Daniel.
Because they suspected Marcus Schur as the burglar, Daniel and Frank Lazcano
visited Schur's girlfriend, Ambrosia "Amber" Jones. Daniel expressed to Jones his
2
No. 32228-9-III
State v. Lazcano
displeasure with the theft in part because the stolen firearms held sentimental value.
Frank promised to kill Schur if found. Jones relayed Daniel and Frank Lazcano's
comments to Marcus Schur. Schur returned Lazcano's firearms by placing them in Ben
Evensen's backyard with no one else present.
Despite the reappearance of his firearms, Daniel Lazcano remained incensed at
Marcus Schur because Lazcano believed Schur retained other possessions of Lazcano.
Lazcano told Ben Evensen's mother, Susan Consiglio, that Frank and he would confront
Schur when located. Consiglio worried about violence and discouraged Lazcano from
encountering Schur. At a later date and while inside an automobile, the Lazcano brothers
spoke again to Consiglio and informed her they were going to Spokane to find Schur,
who they believed dwelled with friends in a trailer park. Consiglio noticed an AK-47
rifle resting in the car between the brothers.
On December 27, 2011, Susan Consiglio notified Daniel Lazcano, then in
Spokane, of the presence of Marcus Schur in Malden, a small village five miles west of
Rosalia. Lazcano called his friend Kyle Evans and asked Evans ifhe wished to "whup
Marcus's ass." Report of Proceedings (RP) (Dec. 3, 2013) at 412. Evans declined
because of his busy calendar.
After calling Kyle Evans, Daniel Lazcano and his girlfriend, McKyndree Rogers,
drove from Spokane to the house ofLazcano's uncle, Travis Carlon, who lived in Pine
3
I
No. 32228-9-111
State v. Lazcano
City, a rural community three miles southwest of Malden. Daniel Lazcano and Rogers
joined Frank Lazcano and his girlfriend, Jamie Whitney, at the Carlon residence. Frank
watched football and first eschewed accompanying Lazcano in a pursuit of Marcus
Schur. Lazcano eventually convinced Frank to escort him. The brothers left Pine City in
Lazcano's little white car, owned by his stepfather, Eli Lindsey.
Daniel and Frank Lazcano arrived at Nick Backman's Malden home, where
Marcus Schur, David Cramer, Ambrosia Jones, and Backman were present. Cramer and
Schur were brothers. Frank exited the car, while Daniel drove to the back of the house.
Frank approached and knocked on the home's front door. Schur, hearing the knock,
exited the home's back door. Cramer opened the front door. Frank struck Cramer
several times in the face, and Cramer staggered to the ground. Frank ran toward
Ambrosia Jones, flung her across the living room, and broke her hand. Frank rushed
through the kitchen and departed through the back door.
As Marcus Schur fled through the backyard, Daniel Lazcano waited with a gun.
Lazcano yelled, "' Stop, Marcus,'" and then opened fire. RP (Dec. 9, 2013) at 980. Two
bullets struck Schur. One bullet lacerated an artery under Schur's collarbone and then
collapsed his left lung. Schur quickly bled to death.
Daniel and Frank Lazcano deposited Marcus Schur's body in the trunk of the
white car. Ambrosia Jones peered outside a window from Nick Backman's residence and
4
No. 32228-9-111
State v. Lazcano
saw a white car that she knew to be Daniel Lazcano's vehicle. She thought, but could not
be sure, she saw Lazcano inside the car. She did not see Schur's dead body.
The brothers Lazcano drove from Nick Backman's residence to Travis Carlon's
Pine City house. Frank entered the abode, while Daniel sat in the passenger's seat of the
car. Frank hurriedly exclaimed to Carlon: "We got one in the car with two in the chest."
RP (Dec. 4, 2013) at 513. Carlon and Frank exited the house. Carlon deduced that
Daniel and Frank Lazcano had killed Marcus Schur. Carlon told the brothers not to
discuss the slaying at his house because he expected the soon arrival of law enforcement
officers. Carlon directed the two brothers to meet him outside Pine City. Frank Lazcano
led the way in Daniel's white car, and Carlon followed in his own vehicle.
Miles into the rolling Palouse hills, Frank Lazcano and Travis Carlon stopped their
respective cars. Frank suggested the three use cinder blocks, stored in his garage, to
dispose of Marcus Schur's body. Carlon agreed and declared: "[I]fthere's no body
found, then there wouldn't be a crime." RP (Dec. 4, 2013) at 520. Frank Lazcano
remained at the stopping spot, while Carlon and Daniel Lazcano drove to Pine City to
retrieve the cinder blocks. On the drive, Daniel Lazcano repeatedly confessed: "Uncle, I
fucked up." RP (Dec. 4, 2013) at 524. For some unknown reason, Carlon and Lazcano
reversed plans, decided not to retrieve Frank's blocks, and returned to Frank's position.
5
No. 32228-9-III
State v. Lazcano
Upon the reunion of the three, Frank Lazcano recommended hiding Marcus
Schur's corpse in Bonnie Lake, ten miles northwest of Pine City. Frank requested that
Travis Carlon take possession of Frank's AK-47. Carlon opened his trunk, and Frank
planted his rifle inside. The brothers Lazcano separated from Carlon, with the brothers
journeying toward Bonnie Lake and Carlon returning home to Pine City. Carlon stopped
on the way, took Frank's AK-47 from his trunk, and hid the firearm behind a fence post.
When Travis Carlon arrived home, he telephoned Eli Lindsey, Daniel and Frank
Lazcano's stepfather, and instructed Lindsey to come to Carlon's residence. Lindsey
obeyed. The two then drove in Lindsey's truck to the location where Carlon secreted the
AK-47. Carlon plunked the AK-47 in the truck. The two drove to the T.J. Meenach
Bridge in Spokane, where Carlon flung the rifle into the Spokane River. A Spokane
Sheriffs Department dive team later discovered the firearm.
Meanwhile back in the pastoral Palouse, Daniel and Frank Lazcano reached
Bonnie Lake. The two exited the white car and removed Marcus Schur' s dead body from
the car's trunk. The brothers dragged the cadaver by the legs to the water's edge. They
bound Schur's hands with a belt and his feet with a shirt. Daniel Lazcano gathered rocks.
Frank placed the rocks on the corpse and submerged the body below water level.
Late on December 27, 2011, Frank Lazcano drove the white car, with girlfriend
Jamie Whitney accompanying him in a second car, to Spokane County. In a rural area
6
No. 32228-9-III
State v. Lazcano
north of the city of Spokane, Frank ignited the car. Whitney drove the two back to Pine
City. The fire department and law enforcement responded to the fire. Police read the
vehicle identification number on the car and traced the charred vehicle's ownership to Eli
Lindsey.
In March 2012, a hiker sighted Marcus Schur's body in Bonnie Lake. Jamie
Whitney, Ben Evensen, Daniel Lazcano, and Frank Lazcano, all fearful of the body's
discovery, convened a meeting. Daniel volunteered to assume the blame since Daniel
shot Schur. Frank offered to take the blame because the police only knew of Frank being
present at Nick Backman's home on December 27. During the conference, Daniel
explained to Evensen that Daniel shot Schur. During the explanation, Daniel raised his
arms and pantomimed firing a rifle.
At an unidentified time, a police officer questioned Jamie Whitney, Frank
Lazcano's girlfriend. Whitney told the officer that, on the night of the murder, she
retrieved Frank along a highway because Frank's vehicle malfunctioned. Travis Carlon
had advised Whitney to tell this story to the police. A law enforcement officer also
questioned McKyndree Rogers, Daniel Lazcano's girlfriend. Rogers informed the police
that she and Daniel socialized on the night of the murder. Daniel and Frank Lazcano
respectively reported matching accounts to police of their activities on December 27 and
28. The two explained that Daniel spent the evening with McKyndree Rogers in
7
No. 32228-9-111
State v. Lazcano
Spokane, Frank traveled alone to the Backman house in Malden, and the white car failed
at a grocery store in Spokane.
Law enforcement arrested Daniel Lazcano on March 30, 2012. At the sheriffs
station, Lazcano was advised of his Miranda rights, and Lazcano replied that he did not
wish to answer any questions. UndersheriffRonald Rockness then asked fifteen
questions to Lazcano outlining what the undersheriffbelieved occurred. Undersheriff
Rockness asked Lazcano if Lazcano went to the Backman house, if Frank ran in the front
door, if Marcus Schur ran out the back door, if Lazcano shot Schur, and if Lazcano
loaded Schur's body into his car. After asking each question, Rockness paused and
looked at Lazcano for a response. Lazcano nodded in response to a number of
incriminating questions.
In a separate prosecution, a jury found Frank Lazcano guilty of first degree felony
murder. The State granted Eli Lindsey, Jamie Whitney, Ben Evensen, and McKyndree
Rogers favorable plea or immunity agreements in exchange for cooperation in the
prosecution of Daniel Lazcano.
PROCEDURE
The State of Washington charged Daniel Lazcano with first degree murder and
unlawful disposal of human remains. The State alleged Lazcano to be guilty of first
degree murder by the alternate means of premeditation and felony murder.
8
No. 32228-9-III
State v. Lazcano
At the end of Daniel Lazcano's first trial, a Whitman County jury convicted him
of unlawful disposal of human remains, but could not reach a verdict as to the first degree
murder charge. Lazcano does not appeal his conviction for unlawful disposal. The State
tried the first degree murder charge again, but a second Whitman County jury could also
not reach a verdict.
Following the second mistrial, the State and Daniel Lazcano reached a plea
agreement, under which Lazcano would plead guilty to second degree manslaughter with
no weapons enhancement and the State would recommend a standard range sentence of
between twenty-one and twenty-seven months. At the entry of the plea hearing, July 19,
2013, Lazcano handed the trial court a statement of plea on guilty to second degree
manslaughter signed by all the parties, and the State presented an amended information
charging second degree manslaughter. Grace Schur, Marcus Schur's mother, attended
the plea hearing and voiced opposition to the plea agreement. Grace Schur emphasized
Frank Lazcano's testimony that Daniel shot her son, and she criticized two years'
incarceration as sufficiently meting punishment for the crime.
At the conclusion of the plea hearing, the trial court rejected the plea agreement
and the proposed amended information charging Daniel Lazcano with second degree
manslaughter. The court acknowledged that the first two trials inconvenienced twenty to
thirty witnesses and hundreds of veniremen and women. The court anticipated and
9
No. 32228-9-111
State v. Lazcano
lamented a lengthy, expensive third trial. The trial court also valued finality and closure
in the prosecution. Nevertheless, the trial court refused to accept the plea agreement on
the basis alone of the weariness of attorneys, witnesses, and family members of the
victim. The court desired a plea agreement to be consistent with prosecutorial standards
and the interests of justice. The trial court emphasized the deceit, prevarication, and
interference with the administration of justice by Daniel Lazcano and his family
members. The court noted that the State's evidentiary difficulties surrounding a
conviction resulted from the dishonesty and manipulation by Lazcano, family members,
and friends. Any acceptance of a plea on lesser charges would reward perjured testimony
and manipulation.
When rejecting the plea agreement, the trial court also noted that Frank Lazcano,
who was not the shooter, received a twenty-five year sentence. Daniel Lazcano's plea
agreement afforded the shooter a twenty-seven month sentence. The court commented
that he might accept another plea agreement, but the agreement before him impugned the
integrity of the legal system.
The State of Washington filed a third amended information charging Daniel
Lazcano with first degree murder and adding a firearm enhancement. The Whitman
County trial court granted a motion to change venue. Trial proceeded in Spokane County
Superior Court before a Spokane County judge. Before jury selection started, Daniel
10
No. 32228-9-111
State v. Lazcano
Lazcano moved to enforce the prior plea agreement or allow the amended information
charging second degree manslaughter. The new trial court denied Lazcano's motion.
Before trial, Daniel Lazcano astutely moved to suppress all of his nonverbal
responses to Undersheriff Ronald Rockness's questions about the circumstances of the
homicide. The trial court ruled that, with the exception of the first question, the
questioning violated the Fifth Amendment and ruled that Lazcano's nonverbal responses
to Undersheriff Rockness's questions were inadmissible in the State's case in chief. The
trial court qualified its ruling by stating that nods were admissible for the limited purpose
of impeachment if Lazcano testified.
During voir dire in the third trial, the trial court asked the venire jurors if serving
on the jury for three weeks would create a significant hardship. Juror 29 answered in the
affirmative because he needed to work and pay bills. The juror added that he could not
pay current debts on juror remuneration of $12 per day. The trial court did not then
address juror 29's concern.
After the trial court impaneled the jury but before opening statements, the trial
court addressed a concern raised by juror 2. Juror 2 stated that his employer asked for
him to be excused. The trial court summoned juror 2 into the courtroom and conducted a
colloquy. Juror 2 declared that his employer did not pay him for jury duty, he was
moving, he had a vehicle payment, and he could not miss three weeks of pay around
11
No. 32228-9-111
State v. Lazcano
Christmas. Daniel Lazcano objected to excusing juror 2 because excusal would preclude
working class people from jury duty. Lazcano suggested paying juror 2 a reasonable
daily wage. The trial court excused juror 2 on the ground of hardship. The trial court
replaced juror 2 with the first alternate juror.
During opening arguments, defense counsel argued that Ben Evensen, a witness
for the State, was not credible:
Ben Evensen, their jailhouse snitch who made a deal to get out of
jail who agreed to testify to what they told him he has to testify to in order
to get his deal, made a statement. And their whole case revolves around
this, because there's nobody puts Daniel at that-at that scene. There's
nobody puts him there .
. . . The problem is, is he also says Daniel confessed to a bunch of
things that we're going to show you didn't happen. And we're going to
show you all kinds of independent witnesses giving you information that
absolutely contradicts that, absolutely contradicts that.
First off, we're going to prove to you beyond a scientific certainty
that the murder weapon wasn't the AK-47 .... And yet the state bases their
whole case on this. Why? Because that's what they got Ben Evensen to
say Daniel confessed to. They have no choice.
RP (Dec. 3, 2013) at 319-20.
During a recess early in the trial, the prosecutor informed the trial court, in the
presence of defense counsel and Daniel Lazcano, that, while in the hallway chatting with
a witness, the replacement juror 2 approached him and asked, "' Could I ask you a
question?"' RP (Dec. 3, 2013) at 335. The prosecutor replied no to the juror and walked
from the juror. The bailiff then informed the trial court, in the presence of counsel and
12
No. 32228-9-111
State v. Lazcano
Daniel Lazcano, that juror 2, who the bailiff identified by name, started discussing the
case in the jury room with two other jurors present and asked the bailiff ifhe could ask
counsel a question. The bailiff stated he admonished the juror to not discuss the case in
the jury room and to wait until deliberations.
After the prosecutor and the bailiff disclosed the conduct of juror 2, the trial court
asked counsel if either wanted any steps taken. Defense counsel stated, "I think we
should probably inquire as to-I don't know, Judge." Clerk's Papers (CP) at 338. The
trial court announced it would repeat its instructions to the jury not to talk to counsel or
witnesses and not to loiter in the hall. Defense counsel agreed that the trial court's
proposed action was an appropriate solution. The jury returned, and the trial court
reminded the jurors not to talk to or approach the lawyers, the witnesses, or the court.
The trial court also reminded the jurors not to linger in the hallway and not to discuss the
case amongst themselves until deliberations. The trial court asked the jurors if they
understood, and the jurors nodded their heads.
During trial, the prosecutor elicited testimony from Eli Lindsey, Jamie Whitney,
Ben Evensen, and McKyndree Rogers. The testimony included their respective promises
to testify truthfully at trial in exchange for a plea or immunity agreement.
During direct examination, the State proffered exhibit 88, a letter from the
prosecutor to Ben Evensen's attorney that summarized Evensen's plea agreement. The
13
No. 32228-9-111
State v. Lazcano
trial court admitted the letter as an exhibit. The letter stated that, in exchange for a
favorable plea agreement, Evensen agreed to "testify truthfully in any case related to the
murder of Marcus Schur." Br. of Appellant at 30. The prosecutor asked Evensen several
times whether the agreement required him to be truthful in his testimony, and Evensen
agreed. The prosecutor also directly asked Evensen if he told the truth, and Evensen said
he did.
During direct examination, the State proffered exhibit 89, a letter from the
prosecutor to Eli Lindsey's attorney that summarized Lindsey's plea agreement. The trial
court admitted the letter as an exhibit. The letter read that the State extended Lindsey a
favorable plea agreement in exchange for Lindsey "testifying truthfully if subpoenaed to
do so at any hearing or trial." Br. of Appellant, Appx. F. During the State's case in
chief, the prosecutor asked Lindsey if he had agreed to give "a full complete, and truthful
statement about what [he] knew," in exchange for a favorable plea offer, and Lindsey
agreed he had. RP (Dec. 4, 2013) at 609. Lazcano did not object.
During direct examination, the State proffered exhibit 86, a letter from the
prosecutor to McKyndree Rogers's attorney granting Rogers immunity. The prosecutor
asked Rogers if the exhibit contained an agreement that she would not be prosecuted "in
exchange for [her] truthful testimony." RP (Dec. 5, 2013) at 812. Rogers agreed. The
prosecutor then asked: "the first condition here is that that statement had been truthful?"
14
No. 32228-9-III
State v. Lazcano
and Rogers again agreed. RP (Dec. 5, 2013) at 812. The trial court admitted the letter as
an exhibit. A portion of the letter read that Rogers agreed to "testify truthfully in any and
all trials related to the murder of Mr. Schur." Br. of Appellant, Appx. H. Lazcano did
not object.
During direct, the State also proffered exhibit 87, a letter from the prosecutor to
Jamie Whitney's attorney granting Whitney immunity. The prosecutor asked Whitney if
she understood that she received immunity in exchange for her truthful statement and her
agreement to "appear in response to a subpoena and testify truthfully." RP (Dec. 5, 2013)
at 869. Whitney agreed. The trial court admitted the letter, which stated that Whitney
agreed to "testify truthfully in any and all trials related to the murder of Mr. Schur." Br.
of Appellant, Appx. G. Lazcano did not object.
On direct examination, uncle Travis Carlon testified that Frank Lazcano lay the
AK-4 7 in his trunk, but then Carlon denied that either brother told him that they used the
AK-4 7 to shoot Marcus Schur. The prosecution then asked Carlon about a statement he
previously gave Undersheriff Ronald Rockness, in which he told Rockness that the
Lazcano brothers told him they used an AK-47.
Before Travis Carton's testimony, Daniel Lazcano asked the trial court to preclude
testimony from Carlon that he believed Lazcano committed the murder and that Carlon
told his wife and Jamie Whitney that Lazcano committed the murder. The trial court
15
No. 32228-9-111
State v. Lazcano
granted Lazcano's motion in limine. During direct examination, the prosecutor asked
Travis Carlon if he told his wife that Lazcano shot Marcus Schur and ifhe had told Eli
Lindsey that Lazcano shot Schur. Lazcano objected both times on grounds of relevance,
and the trial court sustained the objections. During trial testimony, Travis Carlon
described how he drove with the brothers into the country to hide Marcus Schur's body,
how Daniel repeatedly uttered in the car, "' Uncle, I fucked up,'" and how Carlon
assumed Lazcano killed Schur. RP (Dec. 4, 2013) at 524, 538.
During trial, Nicole Carlon testified that Daniel Lazcano told her that, after the
shooting, he looked for bullet shells from the AK-47. According to Carlon, Lazcano told
her he could not find the shell casings, that the casings had flung "pretty far, like they
were gone." RP (Dec. 16, 2013) at 1876.
The State called as a witness, James Holdren, the Lazcano brothers' uncle. Before
Holdren's testimony, the State brought a motion in limine to preclude Daniel Lazcano
from questioning Holdren about mental health problems and a previous commitment to
Eastern State Hospital. The State argued that James Holdren's mental problems were
irrelevant and unduly prejudicial. Lazcano resisted the motion. The trial court ruled that
Daniel Lazcano could not examine Holdren about his psychiatric episodes because of the
lack of relevance. The trial court expressed concern that Lazcano wanted to make
Holdren appear incompetent so the jury would think Holdren committed the murder. The
16
No. 32228-9-111
State v. Lazcano
court, however, allowed Lazcano to ask Holdren about relevant acts, such as his phone
call to a police officer in which he expressed a belief of planted ammunition in his
vehicle. Lazcano cross-examined Holdren extensively about this call.
During direct examination, James Holdren testified that he saw his nephews on
Christmas 2011, four days before the murder, and then did not see them again until
March 2012. Daniel Lazcano testified in the first two trials that he exited the white car
before the murder and Holdren took his place in the car. The State used Holdren's
testimony to rebut Lazcano, in the event Lazcano testified as he did in earlier trials.
The State called expert witness Dr. Jeffrey Reynolds to testify regarding the
autopsy he performed on Marcus Schur's body after its recovery from the lake. The State
extensively questioned Reynolds regarding his education, training, and experience in
engineering and medicine. The State then asked questions concerning the details of the
autopsy. Reynolds' testimony covered conclusions on the size of the bullet that caused
Schur's wounds, bullet velocity, and the ballistics of a bullet as it travels through the
body. Reynolds concluded that a supersonic round caused the wounds in Schur's body.
A supersonic bullet travels faster than the speed of sound. A rifle, but not a handgun,
shoots supersonic rounds. Reynolds further testified that an AK-47 fires supersonic
rounds. Lazcano did not object during any of the testimony.
Daniel Lazcano also called as a witness a ballistics expert who testified that the
17
No. 32228-9-111
State v. Lazcano
wounds in Marcus Schur's body could not have been caused by an AK-47. After the
defense rested, the State requested to recall Jeffrey Reynolds to rebut the defense expert's
testimony. Lazcano objected on the ground that Reynolds's testimony would repeat his
earlier testimony, and, therefore, any testimony would be cumulative. The trial court
reserved ruling and stated it would listen to Lazcano's objection if Reynolds's testimony
was unnecessarily repetitive.
During his autopsy of Marcus Schur's corpse, Jeffrey Reynolds recovered some
bullet fragments, but decided not to look for the remainder of the original bullet because
the remaining fragmentation would not be testable. The State called a second ballistics
expert, Glen Davis, an employee of the state crime laboratory, who examined bullet
fragments recovered by Reynolds from the corpse during the autopsy. Davis opined that
the bullet bits were consistent with the size rounds fired by the AK-4 7.
The State did not proffer any evidence, during its case in chief, concerning Daniel
Lazcano' s sheriff interview. Lazcano opted to testify. During cross-examination, the
prosecutor asked Lazcano the majority of the questions UndersheriffRonald Rockness
asked Lazcano during his postarrest interview. The prosecutor did not mention that
Rockness asked the same questions during the interview. After the defense rested, the
State called Rockness and had him recite all of the questions he had asked Lazcano in the
station interview, along with Lazcano's reaction.
18
No. 32228-9-111
State v. Lazcano
The trial court instructed the jury on two alternative means of first degree murder.
The trial court instructed that the jury could find that Daniel Lazcano committed
premeditated murder or find that he shot Marcus Schur "in the course of or in furtherance
of such crime of' first degree burglary "or in immediate flight from" the burglary. CP at
311. In a jury instruction, the court declared that a person commits the crime of first
degree burglary when he enters or remains unlawfully in a building with the intent to
commit a crime against a person or property, and if, in entering or while in the building
or in immediate flight therefrom, he or an accomplice is armed with a deadly weapon or
assaults any person. The court further instructed the jury that it need not be unanimous as
to which of the alternatives the State proved as long as each juror found that the State
proved at least one of the alternatives beyond a reasonable doubt. Finally, the trial court
delivered a general accomplice liability instruction.
During the jury instruction conference, the prosecutor inquired about a limiting
instruction that would instruct the jury to only consider Undersheriff Ronald Rockness'
descriptions of Daniel Lazcano's postarrest head nods for purposes of impeachment and
not as substantive evidence. The court responded that a limiting instruction would draw
excessive attention to the testimony, and defense counsel agreed.
In closing argument, the prosecutor remarked:
19
No. 32228-9-III
State v. Lazcano
Why is it that when the defendant nods, that that is after the
statements that are true, that we know now are true, and he doesn't nod
when the officer said something that we know is not true? Let's talk about
those statements.
RP (Dec. 17, 2013) at 1982. The prosecutor then listed all fifteen questions that
Undersheriff Ronald Rockness asked Daniel Lazcano in the interview and described
Lazcano's response. After finishing the list of questions, the prosecutor stated:
Why does he nod only on the things that we know to be true and
does not nod on the things that we know are not true? Coincidence? Mm.
RP (Dec. 17, 2013) at 1984. Lazcano did not object to the prosecutor's remarks.
During closing argument, the prosecutor declared:
And we have the testimony of Ben Evensen on February the 12th
and 13th.... [W]e have the testimony of Ben Evensen on February the
27th .... [W]e have the testimony of Ben Evensen on May 31st and June
the 3rd . . . And every single time, he has told the truth. I forgot: a
recorded interview of Ben Evensen ... on July the 30th of 2012.
Every single time, he's told the truth. Every single time, he said,
"Marcus told me"-excuse me. He said, "Dan told me he waited out back.
'Marcus ran out and Marcus was running, and I said, Marcus, stop, stop.
And Marcus wouldn't stop. And so I raised up and I went 'bop-bop-bop.'"
RP (Dec. 17, 2013) at 1980. Lazcano did not object to this argument.
During closing argument, the prosecutor asked the jury to infer that Daniel
Lazcano told Travis Carlon he killed Marcus Schur. Carlon repeatedly testified that he
"assumed" the brothers killed Schur, based on their statements and actions, even though
Carlon declared that the brothers never explicitly confessed. In closing, the prosecutor
20
No. 32228-9-111
State v. Lazcano
argued Carlon's denial of an express concession was unbelievable and that Lazcano
probably told Carlon of the details of the murder.
In closing argument, the prosecutor characterized "premeditated" as follows:
Premeditation, as the Judge told you-and it's in another
instruction-premeditation means just more than a moment in time, that's
all. It doesn't mean they thought about it for a day or two. It just means
more than a moment in time.
RP (Dec. 17, 2013) at 1991.
During closing argument, the prosecutor remarked:
Defense says the government hasn't proved anything in this case.
Like Alice Through the Looking Glass, the defense would like to take you
to Wonderland, ladies and gentlemen, where down is up and black is white,
where the government hasn't proven anything and, my goodness, we don't
know what happened. Come back through the looking glass into reality,
ladies and gentlemen. Come back. Do not go down that rabbit hole. Come
back into the cold, clear light of a December day and examine this
evidence.
RP (Dec. 17, 2013) at 2055.
The jury convicted Daniel Lazcano of first degree murder. The jury also returned
a special verdict finding that Lazcano was armed with a firearm when he committed the
crime. In the judgment and sentence, the trial court ordered Lazcano to register as a
felony firearm offender.
21
No. 32228-9-111
State v. Lazcano
LAW AND ANALYSIS
Rejection of Plea Agreement
We begin with Daniel Lazcano's assignment of error that addresses the procedure
before his third trial. Lazcano claims the trial court abused its discretion when it refused
il to accept his plea and the State's proposed amended information reducing charges to
i second degree manslaughter. The trial court refused to accept the plea because of the
I!
best interests of justice. The trial court viewed Lazcano, his family, and friends to be
!
I dishonest and manipulative and concluded that approving the plea agreement would
I
i promote perjury and manipulation. The trial court did not recall a case with such an
II
'
extent of deceit. The trial court observed that Lazcano's friends cheered in the courtroom
I and disrespected the victim's mother.
I RCW 9.94A.431 governs the procedure for the State and criminal defendants to
lI submit a plea agreement to the court. The statute declares:
l ( 1) If a plea agreement has been reached by the prosecutor and the
I
i
defendant ... , they shall at the time of the defendant's plea state to the
I court, on the record, the nature of the agreement and the reasons for the
! agreement. The prosecutor shall inform the court on the record whether the
I
I
I victim or victims of all crimes against persons, as defined in RCW
! 9.94A.4I l, covered by the plea agreement have expressed any objections to
I or comments on the nature of and reasons for the plea agreement. The
court, at the time of the plea, shall determine if the agreement is consistent
with the interests of justice and with the prosecuting standards. If the court
22
No. 32228-9-111
State v. Lazcano
determines it is not consistent with the interests of justice and with the
prosecuting standards, the court shall, on the record, inform the defendant
and the prosecutor that they are not bound by the agreement and that the
defendant may withdraw the defendant's plea of guilty, if one has been
made, and enter a plea of not guilty.
(2) The sentencing judge is not bound by any recommendations
contained in an allowed plea agreement and the defendant shall be so
informed at the time of plea.
This statute and CrR 4.2 give the trial court discretion to reject a plea agreement
inconsistent with the interests of justice or prosecutorial standards. State v. Conwell, 141
Wash. 2d 901, 909, 10 P.3d 1056 (2000).
CrR 2.l(d) addresses when the State may amend an information. The rule
provides:
The court may permit any information or bill of particulars to be
amended at any time before verdict or finding if substantial rights of the
defendant are not prejudiced.
(Emphasis added.) The court's authority to approve or deny a plea bargain also includes
the right to refuse the dismissal or amendment of the charges. State v. Haner, 95 Wash. 2d
858,864,631 P.2d 381 (1981). This court reviews a trial court's ruling on this issue for
an abuse of discretion. State v. Haner, 95 Wash. 2d at 861.
State v. Haner, 95 Wash. 2d 858, illustrates the discretion afforded the trial court.
Gregory Haner, while on probation for a felony offense, engaged in a drunken argument,
23
No. 32228-9-III
State v. Lazcano
grabbed a pistol, pointed the gun toward the victim, and fired. The victim was not
seriously injured. The State charged Haner with second degree assault with a deadly
weapon and with firearm enhancements. Four days before trial, as part of a plea
agreement, the State moved to file an amended information lowering charges to third
degree assault and striking the deadly weapon enhancement. During the plea hearing,
Haner told the trial court that he accidentally fired the pistol. The State acknowledged
difficulties proving the second degree assault charge. The trial court denied the motion to
amend the information. The trial court reasoned that, under the facts of the case, Haner
either intentionally shot someone while on probation, in which case he deserved a lengthy
prison sentence, or Haner accidentally shot the pistol, in which case Haner warranted no
prison time. The trial court disapproved of the "in between." State v. Haner, 95 Wash. 2d
at 861.
In State v. Haner, our state Supreme Court held that the trial court did not abuse its
discretion in concluding that reduction of the charge and dropping of the deadly weapon
enhancement would not serve the public interest. The high court observed that Gregory
Haner was on probation, was prohibited from carrying a firearm, imbibed large quantities
of alcohol, pointed a gun at someone, and fired.
In the case on appeal, the trial court, similar to the trial court in Haner,
acknowledged its duty to ensure the plea agreement followed prosecutorial standards and
24
No. 32228-9-III
State v. Lazcano
furthered the interests of justice. The trial court rejected the plea agreement and the
amendment on the basis that the dishonesty and manipulation of Daniel Lazcano, his
family members, and friends caused the State's evidentiary problems. The trial court also
observed that approving the plea agreement would result in Frank, who was not the
shooter, receiving a twenty-five year sentence and Daniel, the shooter, receiving a
twenty-seven month sentence. We enthusiastically agree with the trial court's conclusion
that justice is not served when a party is rewarded for dishonesty and manipulation. We
also ardently concur that justice is not served when an accomplice receives an
exponentially higher sentence compared to the shooter. Therefore, the trial court did not
abuse its discretion when rejecting the plea agreement and information amendment
lowering the charges.
Daniel Lazcano argues that the trial court's extensive knowledge of the earlier
trials and pretrial proceedings jaundiced its perception. Nevertheless, Lazcano cites no
authority for the proposition that a trial court's extensive knowledge of a case is an
illegitimate basis on which to base a decision. The trial court in Haner rejected the plea
agreement based on its knowledge of the case. Haner, 95 Wash. 2d at 860-61.
Daniel Lazcano also argues that the trial court's personal beliefs and opinions
impermissibly impacted its decision. We question Lazcano's ability to forward this
argument. The argument's necessary extension is that the trial court should have recused
25
.J
I
1
i
i
j
1 No. 32228-9-111
i
J State v. Lazcano
I itself. Nevertheless, Lazcano did not seek removal of the judge at the trial court level
! before the trial court's ruling. He first forwarded the argument after a change of venue
II and assignment of the trial to a Spokane County judge. We do not address arguments not
I timely raised below. RAP 2.5(a). One cannot wait until after a judge's decision to claim
II bias against the judge. In any event, the trial court articulated its reasoning based on the
!
facts of the case. The record shows no bias, prejudice, or animus on a personal level
I against Daniel Lazcano.
i
I Excuse of Juror for Financial Hardship
I! On appeal, Daniel Lazcano assigns error to the trial court's exclusion of juror 2 on
the ground of financial hardship. Lazcano objected to the exclusion below. He laments
the legislature's failure to recognize the financial impact of jury service on wage earners.
He observes that many counties lack the tax base to provide for adequate payment of
jurors particularly when a trial last weeks.
Daniel Lazcano raises statutory and constitutional arguments on appeal. He
claims the dismissal of juror 2 violated RCW 2.36.080(3). He contends the exclusion
breached his right, under Washington Constitution article I, section 22, to an impartial
jury that represents his community. According to Lazcano, excluding working class
people deprived him of the opportunity of jurors who understand the daily stresses of
living on a marginal income. He presents no case law or literature that establishes that
26
No. 32228-9-III
State v. Lazcano
low income jurors will more likely sympathize with criminal defendants. We are
unaware of any decision or literature. Daniel Lazcano does not explain how a low wage
earner would be more sympathetic to his case. He presents no evidence as to his wealth
or lack thereof.
The State answers that Daniel Lazcano cannot show prejudice by the trial court's
excluding juror 2. According to the State, the voir dire transcript shows a wide cross
section of the community on the jury. Lazcano fails to establish unfitness of the first
alternate juror who replaced juror 2. The State contends that a defendant has no
constitutional right to a trial by a particular juror and the legislature holds the prerogative
to define juror qualifications.
A. Statutory right
We first address Daniel Lazcano's contention that exclusion of juror 2 violated his
rights under Washington statute. Jury service is both a duty and a privilege of
citizenship. Thiel v. Southern Pac. Co., 328 U.S. 217,224, 66 S. Ct. 984, 90 L. Ed. 1181
(1946). Broad participation in the justice system is desirable because it reinforces public
confidence in the system's fairness. Balzac v. Porto Rico, 258 U.S. 298, 310, 42 S. Ct.
343, 66 L. Ed. 627 (1922). Jury service provides individuals with an opportunity to
participate in the civic life of our nation. Powers v. Ohio, 499 U.S. 400, 407, 111 S. Ct.
1364, 113 L. Ed. 2d 411 (1991). With the exception of voting, for most citizens the
27
No. 32228-9-111
State v. Lazcano
honor and privilege of jury duty is their most significant opportunity to participate in the
democratic process. Powers v. Ohio, 499 U.S. at 407. Discrimination during jury
selection undermines these important values. Moreover, discrimination deprives
individual defendants of a central right in our system of justice, the right to be judged by
a jury of their peers. Strauder v. West Virginia, 100 U.S. 303, 308, 25 L. Ed. 664 (1880),
abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522, 536 n.19, 95 S. Ct.
692, 42 L. Ed. 2d 690 (1975).
Washington State implements these policies. RCW 2.36.100 governs the process
for excusing jurors from service. Subsection one of the statute declares:
[N]o person may be excused from jury service by the court except
upon a showing of undue hardship, extreme inconvenience, public
necessity, or any reason deemed sufficient by the court for a period of time
the court deems necessary.
Note that the statute does not limit a hardship to a "financial hardship." RCW
2.36.080(3), upon which Daniel Lazcano relies, provides:
A citizen shall not be excluded from jury service in this state on
account of race, color, religion, sex, national origin, or economic status.
(Emphasis added.)
No Washington case addresses the meaning or application of the term "economic
status" within RCW 2.36.080(3). No Washington decision addresses the import of the
term in any context. Daniel Lazcano presents no foreign decision that holds the
28
No. 32228-9-111
State v. Lazcano
exclusion of one juror for financial hardship violates a similar statute.
Cerrone v. People, 900 P.2d 45 (Colo. 1995) has an opposite outcome but
illustrates the shortcomings of Daniel Lazcano' s legal position. Defendants, on
indictment for racketeering, moved to quash the indictment on the ground of
discrimination in selection of grand jurors. The court staff employed hourly wage earner
status as one factor when impaneling grand jurors because of wage earners' difficulty in
consistently attending the grand jury's scheduled sessions. The staff also considered the
education level of potential grand jurors so that the jury could understand complex legal
cases. The trial court denied the motion and the petit jury convicted the defendants on
the charges. The Colorado Supreme Court held that use of the one factor inherently
discriminated and violated the mandate of a Colorado statute. The Supreme Court
nonetheless affirmed the convictions of the appealing defendants since a separate petit
jury convicted the defendants of the crime.
RCW 2.36.080 is based on a state uniform act. The Colorado statute at issue in
Cerrone v. People read similarly to RCW 2.36.080(3). The Colorado statute declared:
A citizen shall not be excluded from jury service in this state on
account of race, color, religion, sex, national origin, or economic status.
Cerrone v. People, 900 P.2d at 51 (quoting former section 13-71-103 6A C.R.S. (1987)).
Like the Washington statute, the Colorado statute did not define the term "economic
29
No. 32228-9-III
State v. Lazcano
status" nor provide guidance on the standard to be used. The court held, however, that
the defendants must prove purposeful discrimination because of the statute's use of the
words "on account of ... economic status." This phrasing required affirmative conduct.
The Colorado high court employed an analysis used in constitutional claims in
determining whether jury selection violated the Colorado statute. The elements of a
prima facie case of purposeful discrimination in jury selection requires the defendant
show that ( 1) the venire in question was selected under a practice providing the
opportunity for discrimination, and (2) members of a cognizable group were substantially
underrepresented on the venire. Under constitutional analysis, the defendant need not
show membership in the same group that is underrepresented on the venire. But the
Colorado court rejected this additional requirement for relief under the statute. In
determining whether the defendant has established a prima facie case of purposeful
discrimination, the trial court must determine whether the totality of the relevant facts
gives rise to an inference of discriminatory purpose. Once a defendant has made a prima
facie case of discrimination, the state must articulate a nondiscriminatory or neutral
reason for its jury selection. At this second step in the inquiry, the issue is the facial
validity of the state's explanation. The state may not rebut a prima facie case of
discrimination through mere denials of a discriminatory motive or protestations of good
faith. Nevertheless, unless a discriminatory intent is inherent in the state's explanation,
30
No. 32228-9-111
State v. Lazcano
the reason offered will satisfy the state's burden of production.
The Colorado court determined that low income individuals constituted a
cognizable class. The exclusion from the grand jury was systematic, not random. The
system allowed the State to discriminate on economic status. Thus, the defendants stated
a prima facie violation of the statute. The State did not meet its burden of proffering a
legitimate reason of exclusion based on a factor other than economic status. Instead, the
State summarily dismissed potential jurors because of a fear that hourly wage earners
would not appear for jury duty. A generalized assumption was insufficient.
The Cerrone court particularly qualified its opinion by noting that courts may
excuse a potential juror fromjury service on a finding of undue hardship. A finding of
undue financial burden may constitute an undue hardship. The court, however, would not
permit the State of Colorado to render a generalized assumption that all hourly wage
earners would undergo too great an economic hardship to be able to serve on a grand
JUry.
Daniel Lazcano's case on appeal differs in important respects. Spokane County
court staff did not systematically select for exclusion from the jury wage earners. Our
trial court did not engage in systematic exclusion. The trial court excused only one juror
for undue hardship because of his peculiar circumstances after that particular juror
explained his situation. Other wage earners may have sat on the jury.
31
No. 32228-9-III
State v. Lazcano
State v. Ayer, 150 N.H. 14, 834 A.2d 277 (2003) proposes a looser standard for
purposes of excluding low income venire people. The Ayer court reviewed New
Hampshire's version of the statutory prohibition from jury service "on account of race,
color, religion, sex, national origin or economic status." State v. Ayer, 150 N.H. at 33
(quoting N.H. Rev. Stat. Ann. 500-A:4 (1997)). New Hampshire also had a statute
allowing excuse of a juror upon a showing of undue hardship. The trial court excused
thirty-two prospective jurors for financial hardship. The state high court, however, did
not consider the exclusions as discriminating against or automatically excluding on the
basis of their economic class. There was no evidence regarding the economic status of
the selected jurors.
Daniel Lazcano argues that the trial court violated RCW 2.36.080(3) because the
court excluded juror 2 on account his economic status. Nevertheless, the trial court
excluded juror 2 because he would not receive pay for three weeks, the trial surrounded
Christmas, and service on the jury would be an extreme hardship; Although the juror's
economic status may have motivated juror 2 to seek removal, the trial court did not
expressly or intentionally excuse the juror for this reason.
Daniel Lazcano incidentally argues that excusing juror 2 for financial hardship
violated the juror's civil rights under RCW 49.60.030(1). The statute reads, in pertinent
part:
32
No. 32228-9-111
State v. Lazcano
The right to be free from discrimination because of race, creed,
color, national origin, sex, honorably discharged veteran or military status,
sexual orientation, or the presence of any sensory, mental, or physical
disability or the use of a trained dog guide or service animal by a person
with a disability is recognized as and declared to be a civil right.
"Economic status" is not a protected class under RCW 49.60.030(1).
B. Constitutional right
We now address Daniel Lazcano's constitutional challenge. A challenge of
discriminatory selection of grand juries in state courts may be brought under the Equal
Protection Clause of the Fourteenth Amendment. Castaneda v. Partida, 430 U.S. 482,
492, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). A traverse or petitjury challenge may be
brought under the Fourteenth Amendment for purposeful class-based discrimination or
under the fatr cross-section requirement of the Sixth Amendment. Batson v. Kentucky,
476 U.S. 79, 93, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Taylor v. Louisiana, 419 U.S.
at 525-26 ( 197 5). "Discriminatory purpose" implies more than intent as volition or intent
as awareness of consequences. It implies that the decisionmaker selected a particular
course of action at least in part because of, not merely in spite of, its adverse effects on an
identifiable group. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.
Ct. 2282, 60 L. Ed. 2d 870 (1979).
Lazcano relies only on the fair cross-section doctrine. To prevail on a fair cross-
section claim, a litigant must prove: ( 1) that the group alleged to be excluded is a
33
No. 32228-9-111
State v. Lazcano
distinctive group in the community, (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation to the number of such
persons in the community, and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357,
364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
The purpose of the jury is to guard against the exercise of arbitrary power. The
requirement that a jury represent a fair cross-section of the community is a fundamental
part of the Sixth Amendment guarantee to a jury trial. Taylor v. Louisiana, 419 U.S. at
529 (1975). This guarantee is made binding on the states by virtue of the Fourteenth
Amendment. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491
(1968). Nevertheless, a defendant is not entitled to a jury of any particular composition
nor is there a requirement that petit juries actually chosen be representative of the various
distinct, economic, political, social or racial groups in the community. Taylor v.
Louisiana, 419 U.S. at 538; Thiel v. Southern Pacific Company, 328 U.S. at 220 (1945).
The defendant has the burden of establishing intentional discrimination or systematic
exclusion of a certain social group or economic class from the jury. People v. Gibbs, 12
Cal. App. 3d 526, 539, 90 Cal. Rptr. 866 (1970).
States are free to grant exemptions from jury service to individuals in cases of
special hardship or incapacity. Taylor v. Louisiana, 419 U.S. at 534 (1975). What
34
No. 32228-9-111
State v. Lazcano
constitutes undue hardship lies within the discretion of the trial court, and includes one
for whom jury service would impose an undue financial burden. Thiel v. Southern
Pacific Co., 328 U.S. at 224. Such exemptions do not pose substantial threats to the
remaining pool of jurors being representative of the community. Taylor v. Louisiana,
419 U.S. at 534. Neither the jury nor the venire need be a perfect mirror of the
community or accurately reflect the proportionate strength of every identifiable group.
Taylor v. Louisiana, 419 U.S. at 53 8.
The court may not exclude all daily wage earners regardless of discrete wage
earners' hardship. Thiel v. Southern Pacific Co., 328 U.S. at 224. Nevertheless, the
exclusion of a single person for financial hardship does not show a systematic or
complete exclusion of low wage earners. St. Clair v. Commonwealth, 451 S.W.3d 597,
623 (Ky. 2014)
An appellate decision involving Charles Manson may not be a sound basis on
which to promulgate law because of Manson's unique crimes. Nevertheless, Manson
challenged his convictions on the ground that the trial court excused a large number of
prospective trial jurors because of financial hardship. People v. Manson, 71 Cal. App. 3d
1, 139 Cal. Rptr. 275 (Cal. Ct. App. 1977). Manson contended that the jury was
composed primarily of upper-middle-class persons who had their salaries paid while on
jury duty. He claimed that the exclusion of the veniremen and women deprived him of
35
No. 32228-9-III
State v. Lazcano
the services of persons whose outlook toward the Manson ogre myth might have been
entirely different than that of the jurors actually chosen.
In People v. Manson, the California Supreme Court answered that Charles
Manson's argument misconceives the function of the jury in our judicial system. A jury
does not exist to serve either party, but to serve society and the cause of justice. A
defendant of one economic status is not entitled to be tried by only jurors of the same
economic status. The court noted that Manson made no showing that either an economic
class was underrepresented in the jury pool or that such underrepresentation was due to
purposeful state action.
In State v. Ayer, 150 N.H. 14, 834 A.2d 277 (2003), already discussed because of
New Hampshire's similar statute, the court also addressed a constitutional challenge to
the jury panel. The court noted that jurors excused for financial hardship do not
necessarily hold similar attitudes with regard to the legal system. The only characteristic
in common among the group was the raising of a concern regarding the economic impact
to themselves or their families of serving on a jury for three weeks. No logical inference
could even be drawn regarding each group member's economic status. A person who is
self-employed or works on a commission may earn a substantial income, the absence of
which would impose a hardship upon that individual's ability to maintain his or her
standard of living.
36
No. 32228-9-111
State v. Lazcano
In other cases, the courts also dismissed arguments that the defendant's
constitutional rights were violated because of dismissal of jurors on the basis of financial
hardship. Atwood v. Schriro, 489 F. Supp. 2d 982 (D. Ariz. 2007); People v. Carpenter,
21 Cal. 4th 1016, 988 P.2d 531, 90 Cal. Rptr. 2d 607 (1999); People v. Davis, 137 Misc.
2d 958, 522 N.Y.S.2d 1017 (N.Y. Sup. Ct. 1987); People v. Reese, 670 P.2d 11 (Colo.
App. 1983 ). In Atwood v. Schriro, and People v. Carpenter, the court further denied the
defendant's claim that excusing jurors for financial hardship also led to a racially
discriminatory panel.
Prosecutorial Vouching
Jamie Whitney and Ben Evensen testified to the detriment of Daniel Lazcano.
Whitney testified that Lazcano said, "' I can't believe I did this,'" and also testified that
the Lazcano brothers plotted to each take the blame to spare the other. RP (Dec. 5, 2013)
at 849. Ben Evensen also testified how Daniel essentially confessed to him. In tum, the
State entered as exhibits plea agreements from Whitney and Evensen, as well as Eli
Lindsey and McKyndree Rogers, all of which agreements contained language that the
party agreed to "testify truthfully" at trial. The prosecutor also asked Travis Carlon on
two occasions whether he testified truthfully. From this testimony, Daniel Lazcano
contends the prosecutor expressly vouched for the four witnesses' credibility during
closing argument.
37
No. 32228-9-III
State v. Lazcano
Trial counsel for Daniel Lazcano never objected to the testimony of Jamie
Whitney, Ben Evensen, and Travis Carlon. On appeal, Lazcano contends his trial
counsel's omission constituted ineffective assistance of counsel. Rather than analyze
Lazcano's assignment of error as one involving ineffective assistance of counsel, we
address directly the subject of vouching.
Daniel Lazcano' s assignment of error raises prosecutorial misconduct. A
prosecutorial misconduct inquiry consists of two prongs: whether the prosecutor's
conduct was improper, and if so, whether the improper conduct caused prejudice. State v.
Lindsay, 180 Wn.2d 423,431,326 P.3d 125 (2014). When the defendant fails to object
to the prosecutor's conduct or request a curative instruction at trial, the misconduct is
reversible error only if the defendant shows the misconduct was so flagrant and ill-
intentioned that an instruction could not have cured the resulting prejudice. State v.
Lindsay, 180 Wash. 2d at 430.
A prosecutor cannot express a personal opinion as to a defendant's guilt or a
witness's credibility independent of the evidence in the case. State v. Lindsay, 180
Wash. 2d at 437; In re Personal Restraint ofGlasmann, 175 Wn.2d 696,706,286 P.3d 673
(2012). The personal opinion is prohibited because the question of whether a witness has
testified truthfully is entirely for the jury to determine. State v. !sh, 170 Wash. 2d 189, 196,
241 P.3d 389 (2010) (plurality opinion). A prosecutor commits misconduct by vouching
38
No. 32228-9-111
State v. Lazcano
for a witness's credibility. State v. Robinson, 189 Wn. App. 877,892,359 P.3d 874
(2015). Vouching may occur in two ways: the prosecution places the prestige of the
government behind the witness or indicates that information not presented to the jury
supports the witness's testimony. State v. Robinson, 189 Wash. App. at 892-93; State v.
Coleman, 155 Wn. App. 951,957,231 P.3d 212 (2010). Even going beyond comments
by the prosecution, a witness's testimony that he or she spoke the truth and abides by the
terms of a plea agreement may amount to a mild form of vouching. State v. !sh, 170
Wash. 2d at 197.
Daniel Lazcano principally relies on State v. !sh, 170 Wash. 2d 189. Nathaniel Ish
claimed the prosecutor committed misconduct by vouching for his jail cellmate's
credibility when referencing the cellmate's agreement to testify truthfully. Before the
cellmate testified, lsh objected to any question regarding the cellmate's agreement to
testify truthfully. The trial court allowed the State to establish the agreement terms,
including the truthful testimony requirement. During direct examination in its case in
chief, the prosecutor asked the cellmate about the type of testimony he agreed to provide,
to which he responded "truthful testimony." During redirect, the prosecutor asked the
cellmate if his plea agreement included a term for truthful testimony, and he replied yes.
At the end of redirect, the prosecutor asked the cellmate ifhe had testified truthfully, and
he replied that he had.
39
No. 32228-9-III
State v. Lazcano
The Supreme Court, in State v. !sh, affirmed Ish's conviction. A majority of the
justices agreed that the trial court erred by allowing the prosecutor to introduce evidence
during the State's case in chief that the plea agreement required the cellmate to testify
truthfully. Four justices reasoned that, when the credibility of the witness had not
previously been attacked, referencing the cellmate's out-of-court promise to testify
truthfully was irrelevant and had the potential to prejudice the defendant by placing the
prestige of the State behind the cellmate's testimony. Nevertheless, these four justices
concluded that the trial court's error was harmless.
In State v. !sh, four other justices concurred in the result in a separate opinion.
The concurring justices would have decided the case on a different basis by using the
balancing test of ER 403. They concluded, on the basis of several Court of Appeals
decisions, that the questioning about the plea agreement was proper. These justices
reasoned:
[U]nder ER 403, we should weigh the prejudice engendered by the
"testify truthfully" language in a plea agreement against the State's
legitimate purposes for questioning a witness about a plea agreement.
When the State offers a witness who has agreed to testify as part of a plea
agreement, the existence of a "deal" is an obvious ground for impeachment.
It shows potential bias and motivation to lie. . . . In the face of obvious
(and damning) lines of questioning on cross-examination, the prosecutor in
this case wished to present [the cellmate's] testimony in its true context-as
part of a plea deal in exchange for truthful testimony. By questioning [the
cellmate] on direct examination about this issue, the prosecutor intended to
"pull the sting" from the anticipated cross-examination.
40
No. 32228-9-III
State v. Lazcano
State v. !sh, 170 Wash. 2d at 202. Significantly, despite the difference in views over the
admissibility of the evidence, both the lead and concurring opinions agreed that some
circumstances may warrant the State to preemptively "pull the sting" from an anticipated
attack on the credibility of a witness during the State's case in chief. State v. !sh, 170
Wash. 2d at 199 n.10, 203-04.
A. Ben Evensen
We now address the appropriateness of questioning with regard to each of the four
witnesses. During opening arguments, defense counsel aggressively attacked the
credibility of State's witness, Ben Evensen. Counsel referred to Evensen as ajailhouse
snitch, who agreed to testify for a deal with the prosecution. During the State's direct
examination of Evensen, the trial court admitted as an exhibit a letter from the
prosecution to Ben Evensen' s attorney. The letter stated that Evensen agreed to testify
truthfully. The prosecutor asked Evensen several times whetherthe agreement required
him to be truthful in his testimony, and Evensen agreed. The prosecutor also directly
asked Evensen if he told the truth, and Evensen said he did.
We conclude the prosecutor did not commit misconduct when it proffered Ben
Evensen's plea agreement on direct examination or when questioning Evensen on direct
examination because defense counsel, during opening statements, attacked Evensen' s
41
No. 32228-9-111
State v. Lazcano
credibility. Counsel introduced Evensen's lack of credibility as a central defense theory.
Under !sh, the prosecutor, during the State's case in chief, properly preemptively
"pull[ ed] the sting" from this anticipated attack. Daniel Lazcano's prosecutor addressed
Evensen's credibility after Lazcano pulled a string.
B. Eli Lindsey, Jamie Whitney, and McKyndree Rogers
During direct examination of Eli Lindsey, Jamie Whitney, and McKyndree
Rogers, the trial court, at the State's request, admitted letters to the three witnesses'
respective attorneys. In each letter, the witness agreed to testify truthfully in exchange
for immunity or a plea agreement. During direct examination of each witness, the
prosecutor asked each witness if he or she told the truth.
On appeal, the State concedes that it improperly introduced the terms of Eli
Lindsey's, Jamie Whitney's, and McKyndree Rogers's plea or immunity agreements
during direct examination without the defense first attacking the witnesses' credibility.
Nevertheless, Daniel Lazcano did not object to any of the questioning, whereas the
defense in !sh objected to the questions regarding the cellmate's agreement to testify
truthfully. Lazcano never moved to strike the answer or request a curative instruction.
Daniel Lazcano must demonstrate that the prosecutor's conduct was so flagrant
and ill-intentioned that no instruction could have cured the prejudice. Here, if the court
had been asked to give a proper curative instruction, it would have cured a problem by
42
No. 32228-9-III
State v. Lazcano
directing the jury to disregard the part of the answer that refers to "truthfully." See State
v. Frank Lazcano, 188 Wash. App. at 369 (2015) (finding defendant did not object to
witnesses' testimony about how they agreed to testify truthfully and a curative instruction
would have neutralized the prejudice).
Remember that Daniel Lazcano also argues that defense counsel rendered
ineffective assistance in failing to object to the testimony regarding and the admission of
the plea and immunity agreements. Nevertheless, a defendant cannot claim ineffective
assistance if defense counsel's trial conduct can be characterized as legitimate trial
strategy or tactic. State v. Benn, 120 Wash. 2d 631, 665, 845 P.2d 289 (1993). The decision
whether to object is a classic example of trial tactics and, only in egregious
circumstances, will the failure to object constitute ineffective assistance of counsel. State
v. Kolesnik, 146 Wash. App. 790, 801, 192 P.3d 937 (2008).
The State properly admitted the plea agreement of Ben Evensen. The jury could
reasonably have concluded that other State witnesses, who were former friends and
colleagues of Daniel and Frank Lazcano, entered similar agreements with the State.
Given the presumption that counsel rendered adequate assistance and made significant
decisions in the exercise of reasonable professional judgment, we can infer that defense
counsel's decision not to object to the exhibits and testimony concerning McKyndree
43
No. 32228-9-111
State v. Lazcano
Roger's, Eli Lindsey's, and Jamie Whitney's agreements was strategic. An objection
could have highlighted the jury's attention to this testimony.
C. Travis Carlon
Daniel Lazcano also argues that the prosecutor committed misconduct when he
asked Travis Carlon on two occasions whether he was being truthful. The State responds
that its counsel never posed this question to Carlon. The State is correct. Carlon was
questioned extensively about the favorable plea agreement he received in exchange for
his continued cooperation, but the prosecutor never asked him whether the plea
agreement requires him to testify truthfully. Moreover, unlike the other plea agreements,
the prosecutor never sought to admit Mr. Carlon's agreement as an exhibit.
D. Closing argument
Daniel Lazcano argues that the prosecutor expressly vouched for Ben Evensen's
credibility during closing argument. Lazcano relies on the following passage:
And we have the testimony of Ben Evensen on February the 12th
and 13th ... [W]e have the testimony of Ben Evensen on February the
27th ... [W]e have the testimony of Ben Evensen on May 31st and June
the 3rd . . . And every single time, he has told the truth. I forgot: a
recorded interview of Ben Evensen ... on July the 30th of 2012. Every
single time, he's told the truth.
Every single time, he said, "Marcus told me"-excuse me. He said,
"Dan told me he waited out back. 'Marcus ran out and Marcus was
running, and I said, Marcus, stop, stop. And Marcus wouldn't stop. And
so I raised up and I went 'bop-bop-bop."'
44
No. 32228-9-III
State v. Lazcano
RP (Dec. 17, 2013) at 1980. Lazcano did not object to this argument. Note that the
prosecution did not couch his argument in a personal belief or the belief of the State.
Instead, he bolstered the testimony of Ben Evensen by noting his story's consistency
through time. Therefore, we reject Lazcano's contention.
In the context of closing arguments, the prosecutor has wide latitude in making
arguments to the jury and prosecutors are allowed to draw reasonable inferences from the
evidence. State v. Fisher, 165 Wash. 2d 727, 747, 202 P.3d 937 (2009). Instead of
examining improper conduct in isolation, this court considers the prosecutor's alleged
improper conduct in the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the jury instructions. State v. Monday, 171 Wash. 2d 667,
675,257 P.3d 551 (2011).
State v. Warren, 165 Wash. 2d 17, 30, 195 P.3d 940 (2008) is an important decision
on the subject of vouching. The prosecutor argued during closing argument that details
in the victim's testimony gave her testimony a "badge of truth" and the "ring of truth."
State v. Warren, 165 Wash. 2d at 30. The prosecutor commented on specific parts of the
victim's testimony that "rang out clearly with truth in it" and argued that the victim
would not know that level of detail if the crime had not occurred. State v. Warren, 165
Wash. 2d at 30. The Warren court held that this argument was not improper vouching for
the credibility of a witness. The court reasoned that defense counsel attacked the victim's
45
No. 32228-9-III
State v. Lazcano
credibility during opening statements and cross-examination and then observed that the
prosecutor responded by arguing that the detail in the victim's testimony raised a
reasonable inference that she told the truth.
Like in State v. Warren, defense counsel attacked Ben Evensen' s credibility in
opening argument and on cross-examination. The parties contentiously disputed
Evensen's credibility throughout the trial. In closing, the prosecution sought to establish
that Evensen rendered consistent statements every time he described the murder. Like
the prosecutor's argument in Warren that the details in the victim's testimony gave her
testimony a "badge of truth," this argument was not improper in the context of the total
argument and the issues in the case.
Sufficiency of Evidence
Daniel Lazcano challenges the sufficiency of evidence to convict him of first
degree murder. The challenge requires a review of evidence to determine if sufficient
evidence supported a conviction for the alternate means of first degree murder alleged by
the State. The State contended that Lazcano committed first degree murder by
premeditation and by participating in a first degree burglary.
Washington's first degree murder statute, RCW 9A.32.030, provides, in relevant
part:
(1) A person is guilty of murder in the first degree when:
46
No. 32228-9-III
State v. Lazcano
(a) With a premeditated intent to cause the death of another person,
he or she causes the death of such person or of a third person; or
(c) He or she commits or attempts to commit the crime of ...
burglary in the first degree ... and in the course of or in furtherance of such
crime or in immediate flight therefrom, he or she, or another participant,
causes the death of a person other than one of the participants.
RCW 9A.08.020(3)(a), the general accomplice statute, and RCW 9A.32.030, the
felony murder statute, supply alternative grounds under which an accused, who did not
shoot the victim, may be found guilty of murder. The felony murder provision of the first
degree murder statute establishes a separate mechanism by which one who commits a
predicate felony may be criminally liable for a homicide committed in the course of that
felony by a coparticipant in the commission of the underlying felony. State v. Carter,
154 Wash. 2d 71, 78, 109 P.3d 823 (2005). The participant liability clause of the felony
murder provision serves as a built-in vicarious liability provision that provides a
mechanism by which liability for a homicide may be imputed to a coparticipant who does
not commit a homicide. State v. Carter, 154 Wash. 2d at 79. Thus, though one participant
in a predicate felony, alone, commits a homicide during the commission of, or flight
from, such felony, the other participant in the predicate felony has, by definition,
committed felony murder. State v. Carter, 154 Wash. 2d at 79. In such cases, the State
need not prove that the nonkiller participant was an accomplice to the homicide. State v.
Bolar, 118 Wash. App. 490, 504-05, 78 P.3d 1012 (2003).
47
No. 32228-9-III
State v. Lazcano
Daniel Lazcano argues that insufficient evidence supports his conviction for first
degree murder under each of the alternative means of first degree murder contained in the
jury instruction. An alternative means case involves a single offense that may be
committed in more than one manner. A jury must always be unanimous in declaring the
accused guilty ofthe crime charged. State v. Crane, 116 Wn.2d 315,325,804 P.2d 10
(1991 ). Nevertheless, the jury need not unanimously agree to the means by which the
accused committed the crime so long as substantial evidence supports each alternative
means. State v. Crane, 116 Wash. 2d at 325-26. In Washington, premeditated murder and
felony murder are alternative means of committing first degree murder. State v. Fortune,
128 Wn.2d 464,468, 909 P.2d 930 (1996).
The trial court impliedly instructed the jury that it may convict Lazcano of first
degree murder if: (1) Lazcano shot Marcus Schur with premeditation, or (2) Lazcano shot
Schur during the course of Frank Lazcano burglarizing Nick Backman's home. The trial
court also gave a general accomplice liability instruction. Because the court instructed
the jury that it need not be unanimous as to which alternate the State proved, this court
must determine whether sufficient evidence upheld all alternatives.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979). When a defendant challenges the
48
No. 32228-9-III
State v. Lazcano
sufficiency of the evidence, the proper inquiry is whether, after viewing the evidence in
the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992).
All reasonable inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant. State v. Salinas, 119 Wash. 2d at 201. A
claim of insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn therefrom. State v. Salinas, 119 Wash. 2d at 201.
In a challenge to the sufficiency of the evidence, circumstantial evidence and
direct evidence carry equal weight. State v. Goodman, 150 Wash. 2d 774, 781, 83 P.3d 410
(2004). This court's role is not to reweigh the evidence and substitute its judgment for
that of the jury. State v. McCreven, 170 Wn. App. 444,477,284 P.3d 793 (2012).
Instead, because the jurors observed the witnesses testify firsthand, this court defers to
the jury's resolution of conflicting testimony, evaluation of witness credibility, and
decision regarding the persuasiveness and the appropriate weight to be given the
evidence. State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004).
A. Sufficiency of evidence for felony murder
The State employed first degree burglary as the predicate crime for felony murder.
The statute creating the crime of first degree burglary declares:
49
No. 32228-9-III
State v. Lazcano
A person is guilty of burglary in the first degree if, with intent to
commit a crime against a person or property therein, he or she enters or
remains unlawfully in a building and if, in entering or while in the building
or in immediate flight therefrom, the actor or another participant in the
crime (a) is armed with a deadly weapon, or (b) assaults any person.
RCW 9A.52.020(1). Frank Lazcano assaulted Marcus Schur and Amber Jones in Nick
Backman's house. Evidence showed that Frank entered the house with the purpose of
assaulting at least Schur.
We have already quoted the first degree murder statute. A person commits first
degree felony murder if the person "commits or attempts to commit ... burglary in the
first degree ... and in the course of or in furtherance of such crime or in immediate flight
therefrom, he or she, or another participant, causes the death of a person other than one of
the participants." RCW 9A.32.030(1)(c).
Daniel Lazcano argues that first degree burglary, based on assault, can never
substantiate a first degree felony murder charge because the assault and the murder
constitute the same act. Lazcano relies on In re Personal Restraint ofAndress, 147
Wn.2d 602,610, 56 P.3d 981 (2002). Andress held that assault could not serve as the
predicate felony for second degree felony murder under former RCW 9A.32.050(l)(b)
because the "in furtherance of' language would be meaningless as to that predicate
felony. In other words, the underlying assault is not independent from the homicide,
because homicide cannot result without an assault. The Andress court distinguished
50
No. 32228-9-111
State v. Lazcano
assault from valid predicate felonies like arson, which were distinct from but related to
the homicide. Of course, in Andress, the assault and the homicide constituted the same
act.
Personal Restraint ofAndress does not control this appeal for several reasons.
First, Andress entailed charges for second degree felony murder. The State charged
Daniel Lazcano with first degree, not second degree, felony murder. Assault is not a
qualifying felony for first degree felony murder. First degree burglary qualifies instead
as a predicate for first degree murder. Assault is simply an element of first degree
burglary. Andress's reasoning does not apply because first degree burglary is distinct
from but related to the homicide, and can occur independently of the homicide.
Second, following Personal Restraint ofAndress, the legislature amended the
second degree felony murder statute and expressly declared assault as a predicate crime
to second degree felony murder. LA ws OF 2003, ch. 3, § 1. The legislature wrote: "The
legislature does not agree with or accept the court's findings of legislative intent in State
v. Andress, ... and reasserts that assault has always been and still remains a predicate
offense for felony murder in the second degree." LA ws OF 2003, ch. 3, § 1.
Third, Daniel Lazcano fails to note that his brother assaulted Marcus Schur inside
the house as part of a scheme to flush Schur outside the house, where Lazcano awaited
51
No. 32228-9-111
State v. Lazcano
him. Frank Lazcano's assault of Schur was a distinct act from Daniel's shooting or
second assault on Schur.
Daniel Lazcano argues insufficient evidence supports a determination that he
knew Frank would assault Marcus Schur or Ambrosia Jones. The felony murder statute
does not require such a determination. Anyway, evidence showed that Daniel and Frank
planned for Frank to frighten Schur into fleeing out the back door of the residence.
Frightening Schur could include assaulting him.
B. Sufficiency of evidence for accomplice liability
Daniel Lazcano also argues there was no evidence that he knew he was promoting
the commission of a crime because he did not know that Frank was going to assault
Marcus Schur or push Ms. Jones. Citing State v. Roberts, the State argues that an
accomplice need not have specific knowledge of every element of the crime committed
by the principal, provided he or she has general knowledge of that specific crime. State
v. Roberts, 142 Wn.2d 471,512, 14 P.3d 713 (2000).
We need not apply the fine distinction asserted by the State. Taking all reasonable
inferences in favor of the State and drawing them strongly against Daniel Lazcano,
sufficient evidence supported a jury determination that Lazcano knew Frank would
commit first degree burglary based on assault. Ben Evensen' s mother testified that she
had conversations with the brothers about confronting Marcus Schur. She testified she
52
No. 32228-9-111
State v. Lazcano
tried to persuade them not to do it. Daniel Lazcano told his friend, Kyle Evans, that he
wished to find Schur and "beat [his] ass." RP (Dec. 3, 2013) at 412. Frank became an
integral part of this plan. He agreed with Daniel to assist in the thumping. Daniel
Lazcano knew Schur lingered inside the Backman house when Frank entered. Daniel
must have known that Frank's entry of the home would invite violence. Frank had
warned Amber Jones, in the presence of Daniel, that, if Frank found Schur to be
implicated in the robbery, he would kill him.
Ben Evensen testified that the brothers planned for Frank to enter the house to
"flush" Schur. Daniel waited outside to attack Schur once Frank cleared Schur from the
home. An assault could readily accompany the flush. Drawing all reasonable inferences
in favor of the State, the evidence here was sufficient for a jury to reasonably infer that
Daniel Lazcano was an accomplice to Frank Lazcano's burglary of Nick Backman's
house.
C. Sufficiency of evidence for premeditation
Finally, Daniel Lazcano contends the State also failed to prove premeditation
beyond a reasonable doubt. Lazcano emphasized that he told Ben Evensen that he did
not travel to Nick Backman's house to kill Marcus, but only to frighten him. He then
argues that he panicked when Marcus appeared in the alley and reacted involuntarily
when shooting. He later expressed remorse over Marcus Schur's death. According to
53
No. 32228-9-111
State v. Lazcano
Lazcano, all of these facts and circumstances indicate that Daniel did not premeditate
killing Marcus. In so arguing, Lazcano construes the evidence in a light most favorable
to him. When we review the sufficiency of evidence for a conviction, we view the
evidence in the opposite light. State v. Salinas, 119 Wash. 2d at 201 (1992).
"Premeditation," for purposes of first degree murder, is the deliberate formation of
and reflection on the intent to take a human life and involves the mental process of
thinking beforehand, deliberating on, or weighing the contemplated act for a period of
time, however short. State v. Ra, 144 Wash. App. 688, 703, 175 P.3d 609 (2008).
Premeditation requires more than a moment in time. RCW 9A.32.020(1). The State may
prove premeditation by circumstantial eviden.ce when the inferences argued are
reasonable and the evidence supporting them is substantial. State v. Ra, 144 Wash. App. at
703. Examples include: motive, prior threats, multiple wounds inflicted or multiple
shots, striking the victim from behind, assault with multiple means or a weapon not
readily available, and the planned presence of a weapon at the scene. State v. Ra, 144
Wash. App. at 703.
Assuming the truth of the State's evidence, nearly all factors weigh in favor of
finding premeditation. Daniel Lazcano possessed a motive to kill Marcus Schur based on
the burglary. Lazcano sought to locate Schur for over a week. Lazcano also threatened
to confront Schur during multiple discussions with multiple people. The State presented
54
No. 32228-9-111
State v. Lazcano
no evidence that Lazcano threatened to kill Schur, but Frank uttered such a threat in the
presence of Daniel. Lazcano brought his AK-47 to Nick Backman's house. He took the
firearm with him as he ran to the back of the house while Frank tried to flush Schur from
the home. Lazcano stood in wait. Lazcano fired multiple shots after taking time to raise
the rifle and yell,'" Stop, Marcus."' RP (Dec. 9, 2013) at 980.
In short, sufficient evidence supports Lazcano's conviction for first degree murder
on each of the alternate means of felony murder and premeditation.
Felony Firearm Offender Registration
Daniel Lazcano contends the trial court erred ·when it determined he must register
as a felony firearm offender. The relevant statute, and version of the statute in
application at the time of Lazcano's sentence, read:
(1) On or after July 28, 2013, whenever a defendant in this state is
convicted of a felony firearm offense ... the court must consider whether to
impose a requirement that the person comply with the registration
requirements ofRCW 9.41.333 and may, in its discretion, impose such a
requirement.
(2) In determining whether to require the person to register, the court
shall consider all relevant factors including, but not limited to:
(a) The person's criminal history;
(b) Whether the person has previously been found not guilty by
reason of insanity of any offense in this state or elsewhere; and
(c) Evidence of the person's propensity for violence that would
likely endanger persons.
55
No. 32228-9-111
State v. Lazcano
Former RCW 9.41.330 (2014). Note that the statute references a "felony firearm
offense," but does not mention a "felony firearm offender."
RCW 9.4I.010(8)(e) defines "felony firearm offense" as:
Any felony offense if the offender was armed with a firearm in the
commission of the offense.
RCW 9.41.010(7) defines "felony firearm offender" as a person:
who has previously been convicted ... of any felony firearm
offense.
(Emphasis added.)
Daniel Lazcano's crime meets the definition of "felony firearm offense." The jury
found Lazcano to be armed with a firearm when he shot Marcus Schur. Nevertheless,
before the trial on appeal, Lazcano had never been convicted of a felony. Therefore, he
argues that he does not qualify as a "felony firearm offender," because he had not
previously been convicted of any felony firearm crime.
Daniel Lazcano's argument fails because the controlling statute, RCW 9.41.330,
does not require that he be a felony firearm offender as defined in RCW 9.41.010(7) or
any other statute. Instead, RCW 9.41.330 affords the trial court discretion to order
registration on any conviction for a felony firearm offense after reviewing certain factors.
RCW 9.41.330 does not require two firearm offenses before registration.
56
No. 32228-9-111
State v. Lazcano
Cumulative Error
Daniel Lazcano contends that the prosecutorial vouching, the jury unanimity error,
and the insufficient evidence to support each alternative means of first degree murder,
when aggregated, violated his rights to due process and a fair trial. The cumulative error
doctrine applies when several trial errors, none of which alone suffices to warrant
reversal, but when combined may have denied the defendant a fair trial. State v. Greif!,
141 Wash. 2d 910, 929, 10 P.3d 390 (2000).
We find error only in the admission of plea agreements containing language
wherein witnesses agreed to testify truthfully. We previously held the errors to be
harmless.
Statement of Additional Grounds
We now address Daniel Lazcano's statement of additional grounds.
Daniel Lazcano argues we should reverse his conviction because the prosecutor
knowingly presented false evidence from Amber Jones, contrary to the Mooney-Napue
line of cases. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959);
Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935). Under those
cases, a conviction will be reversed if the prosecution knowingly presented false evidence
or testimony at trial and there is a reasonable likelihood that the false evidence or
testimony could have affected the jury's decision. Morris v. Ylst, 447 F.3d 735, 743 (9th
57
No. 32228-9-III
State v. Lazcano
Cir. 2006). To prevail on a claim based on Mooney-Napue, the defendant must show that
( 1) the testimony or evidence was false, (2) the prosecution knew or should have known
that the testimony was false, and (3) that the false testimony was material. United States
v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Daniel Lazcano alleges that Amber Jones testified falsely when she described,
during the third trial, peering through the window of Nick Backman's house immediately
following the murder:
Q. Did you think you recognized anybody inside the car?
A. I thought I seen maybe Daniel. I wasn't for sure. It looked like
somebody that-it looked familiar.
Q. Okay. So you're not 100 percent sure but-
A. No.
Q. -but you thought it was Dan?
A. Yes.
Q. And you're not 100 percent sure because-was it because it was
very dark that night?
A. Yes. And it was raining.
RP (Dec. 3, 2013) at 432. Lazcano claims Jones' third trial testimony differed from her
first trial testimony, when she testified that she "didn't get a very good look at exactly
who it was." RP (Feb. 12, 2013) at 182. He further contends that Jones' third trial
testimony also conflicted with testimony in his second trial, when she testified she
"thought it had been Daniel" because she recognized his car. RP (May 30, 2013) at 1416.
58
No. 32228-9-111
State v. Lazcano
Daniel Lazcano does not establish false testimony by Amber Jones. Her testimony
during the three trials remained consistent. She always averred that she could not for sure
identify Lazcano.
Daniel Lazcano next assigns error to the introduction of testimony by Jeffrey
Reynolds, the prosecution's expert witness, regarding ballistics. Lazcano characterizes
the testimony as unreliable and speculative in nature. He contends that Reynolds lacked
qualifications to testify about ballistics.
Daniel Lazcano never objected to Jeffrey Reynolds' qualifications at trial and thus
did not preserve the issue for appeal. RAP 2.5(a). Daniel Lazcano complains about the
speculative nature of Reynolds' testimony. Nevertheless, Lazcano objected only to
Reynolds' rebuttal testimony on the grounds of repetition. He therefore also waived
appellate review of this issue. An objection on different grounds to expert scientific
testimony does not preserve the issue for appeal. State v. Newbern, 95 Wash. App. 277,
291, 975 P.2d 1041 (1999).
Daniel Lazcano argues that the State failed to preserve bullet fragments in Marcus
Schur's body, and the spoliation violated his due process rights. Jeffrey Reynolds
recovered some bullet fragments, but decided not to look for the remainder of the original
bullet. because the remaining fragmentation would not be testable. The State called a
second ballistics expert, Glen Davis, an employee of the state crime laboratory, who
59
No. 32228-9-111
State v. Lazcano
examined the bullet fragments recovered by Reynolds from the corpse during the
autopsy. Davis opined that the bullet bits were consistent with the size rounds fired by
the AK-47.
Under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281
(1988) and State v. Wittenbarger, 124 Wash. 2d 467, 880 P.2d 517 (1994), whether
destruction of evidence constitutes a due process violation depends on the nature of the
evidence and the motivation of law enforcement. State v. Groth, 163 Wash. App. 548, 557,
261 P.3d 183 (2011). If the State fails to preserve "material exculpatory evidence,"
criminal charges must be dismissed. Wittenbarger, 124 Wash. 2d at 475. In order to be
considered "material exculpatory evidence," the evidence must possess an exculpatory
value apparent before its destruction and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.
Wittenbarger, 124 Wash. 2d at 475. The State's failure to preserve evidence merely
"potentially useful" does not violate due process unless the defendant shows bad faith on
the part of law enforcement. "Potentially useful" evidence is "evidentiary material of
which no more can be said than that it could have been subjected to tests, the results of
which might have exonerated the defendant." State v. Groth, 163 Wash. App. at 557.
Jeffrey Reynolds testified that whatever fragment remained of the original bullet
could not be tested. Daniel Lazcano presented no contrary testimony. The evidence
60
No. 32228-9-III
State v. Lazcano
could not have exonerated Lazcano.
Daniel Lazcano argues that the State elicited hearsay statements from Travis
Carlon about the AK-4 7 rifle being used in the murder. On direct examination, Carlon
testified that Frank Lazcano lay the AK-47 in his trunk, but then denied that either
brother told him that the AK-47 was used to shoot Marcus Schur. The State then asked
Carlon about a statement he previously gave UndersheriffRockness, in which he told
Rockness that the Lazcano brothers told him they used an AK-47. The State asked Travis
Carlon about his prior statement in order to impeach him. Thus, Carlon's answers were
not admitted for their truth and were not hearsay. ER 801 (c). Lazcano argues that the
State used Carlon's earlier statements as substantive evidence of Lazcano's guilt during
closing argument, but Lazcano never objected or asked the trial court to limit their use to
impeachment purposes.
Daniel Lazcano also argues that the prosecutor's closing argument assumed facts
not in evidence because he asked the jury to infer that Lazcano told Travis Carlon he
killed Marcus Schur. Carlon repeatedly testified that he "assumed" the brothers killed
Schur, based on their statements and actions, even though Carlon declared that the
brothers never explicitly confessed. In closing, the prosecutor argued Carlon's denial of
an express concession was unbelievable and that Lazcano probably told Carlon of the
details of the murder.
61
No. 32228-9-111
State v. Lazcano
The prosecutor's closing argument did not assume facts not in evidence. The
prosecution acknowledged that Travis Carlon never testified that the brothers expressly
told him what happened. The prosecution encouraged, based on other evidence, the jury
to draw a reasonable inference of the brothers telling Carlon they killed Marcus Schur. In
closing argument, the prosecutor has wide latitude in arguments fo the jury and may ask
the jury to draw reasonable inferences from the evidence. State v. Fisher, 165 Wash. 2d at
747 (2009).
Daniel Lazcano argues the trial court's ruling in limine to prevent him from cross-
examining James Holdren about mental health issues limited his ability to confront
Holdren. Lazcano argues that Holdren' s mental incompetency was relevant to show
possible error in how the witness perceived events or recalled them. As authority, he
cites State v. Darden, 145 Wash. 2d 612, 41 P.3d 1189 (2002) and State v. Froehlich, 96
Wn.2d 301,635 P.2d 127 (1981).
The federal and state constitution's guarantee the right to confront and cross-
examine adverse witnesses. U.S. CONST. amend VI; CONST. art. I,§ 22. This right
includes the right to conduct a meaningful cross-examination of adverse witnesses. State
v. Darden, 145 Wash. 2d at 620 (2002). The defendant should be free to test the perception,
memory, and credibility of witnesses. State v. Darden, 145 Wash. 2d at 620. Confrontation
helps assure the accuracy of the fact-finding process. State v. Darden, 145 Wash. 2d at 620.
62
No. 32228-9-111
State v. Lazcano
Cross-examination as to a mental state or condition, to impeach a witness, is
permissible. State v. Froehlich, 96 Wash. 2d at 306 (1981 ). Cross-examination is one of
several recognized means of attempting to demonstrate that a witness has erred because
of his mental state or condition.· State v. Froehlich, 96 Wash. 2d at 306.
Like all constitutional rights, the right to confront witnesses faces limits. The right
to cross-examine adverse witnesses is not absolute. State v. Darden, 145 Wash. 2d at 620.
The trial court, within its sound discretion, may deny cross-examination if the evidence
sought is vague, argumentative, or speculative. State v. Darden, 145 Wash. 2d at 620-21.
Evidence rules may limit the right of cross-examination. State v. Darden, 145 Wash. 2d at
620-21.
The trial court ruled that Daniel Lazcano could not examine James Holdren about
his psychiatric episodes because of the lack of relevance. The trial court expressed
concern that Lazcano wanted to make Holdren appear incompetent so the jury would
think Holdren committed the murder. The court, however, allowed Lazcano to ask
Holdren about relevant acts, such as his phone call to a police officer in which he
expressed a belief of planted ammunition in his vehicle. We hold the trial court did not
abuse its discretion in balancing Lazcano' s rights to confrontation with the limiting
considerations of relevance and undue prejudice. The trial court reasonably limited
questioning to mental health problems near in time to the shooting of Marcus Schur.
63
No. 32228-9-III
State v. Lazcano
Daniel Lazcano next contends the prosecution engaged in misconduct when the
prosecution questioned Travis Carlon about statements he made to Carlon's wife and
Jamie Whitney about Carlon's belief that Lazcano committed the murder. The trial court
granted a motion in limine to preclude this questioning of Carlon. Nonetheless, during
direct examination, the prosecutor asked Travis Carlon if he told his wife that Lazcano
shot Marcus Schur and ifhe had told Eli Lindsey that Lazcano shot Schur. Lazcano
objected both times on grounds of relevance, and the trial court sustained the objections.
On appeal, Lazcano argues that these repeated questions elicited testimony similar to that
the trial court excluded and that the prosecution's tactics constituted trial by innuendo.
A criminal defendant must only be convicted by evidence, not innuendo. State v.
Ruiz, 176 Wash. App. 623, 641, 309 P.3d 700 (2013). When a prosecutor's questions refer
to extrinsic evidence never introduced, deciding if the questions are inappropriate
requires examining whether the focus of the questioning imparts evidence within the
prosecutor's personal knowledge without the prosecutor formally testifying. State v.
Miles, 139 Wash. App. 879, 887, 162 P.3d 1169 (2007); State v. Lopez, 95 Wash. App. 842,
855, 980 P.2d 224 (1999).
In the case on appeal, the prosecutor did not seek to place unavailable evidence
before the jury. The prosecutor already established that, at least according to Travis
Carlon, Daniel Lazcano committed the murder. Carlon earlier described how he drove
64
No. 32228-9-111
State v. Lazcano
with the brothers into the country to hide the body, how Daniel repeatedly uttered in the
car, '"Uncle, I fucked up,"' and how Carlon assumed Lazcano killed Schur. RP (Dec. 4,
2013) at 524. In asking Carlon ifhe told his wife or Eli Lindsey that Lazcano shot Mr.
Schur, the prosecutor did not imply the existence of any evidence the jury did not already
have. The prosecutor probably violated the trial court's evidentiary ruling, but the
conduct was not equivalent to a trial by innuendo.
Daniel Lazcano argues that the prosecutor mischaracterized the standard for
"premeditation" in his closing argument. RCW 9A.32.020 defines "premeditation," for
purposes of murder in the first degree, as involving "more than a moment in point of
time." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 26.01.01, at 360 (3d ed. 2008) incorporates this same language. In closing
argument, the prosecutor characterized "premeditated" as "just more than a moment in
time, that's all. It doesn't mean they thought about it for a day or two." RP (Dec. 17,
2013) at 1991. The prosecution's argument accurately stated the law.
Daniel Lazcano argues that the prosecutor argued facts not in evidence during
closing argument when he argued that Lazcano stated to Nicole Carlon that he looked for
the shells from the AK-47. Nevertheless, the record contains this evidence. Nicole
Carlon testified that Lazcano stated he could not find the shell casings, that the casings
had flung "pretty far, like they were gone." RP (Dec. 16, 2013) at 1875-76.
65
No. 32228-9-III
State v. Lazcano
Daniel Lazcano next argues that the prosecutor impermissibly impugned defense
counsel when stating the defense wishes the jury to travel to Wonderland. A prosecutor
may argue that the evidence does not support the defense theory. State v. Lindsay, 180
Wash. 2d at 431 (2014). Nevertheless, a prosecutor must not impugn defense counsel's role
or integrity. State v. Lindsay, 180 Wash. 2d at 431-32. Impugning defense counsel severely
damages an accused's opportunity to present his or her case. State v. Lindsay, 180 Wash. 2d
at 432.
Daniel Lazcano cites State v. Thorgerson, 172 Wash. 2d 43 8, 258 P .3d 43 (2011 ). In
that case, the prosecutor argued during closing argument that:
The entire defense is sl[e]ight of hand. Look over here, but don't
pay attention to there. Pay attention to relatives that didn't testify that have
nothing to do with the case ... Don't pay attention to the evidence.
State v. Thorgerson, 172 Wash. 2d at 451 (alteration in original). The court held the
prosecutor's comments improper but did not reverse because the comments likely did not
alter the outcome of the case and an instruction could have cured the prejudice.
In this appeal, even assuming the prosecutor's Alice in Wonderland argument was
improper, the argument likely did not impact the outcome. An instruction could have
cured the prejudice, and the comments were not flagrant or ill-intentioned.
Daniel Lazcano argues, for the first time on appeal, that the trial court improperly
admitted statements made by Frank Lazcano to Deputy Tim Cox during Deputy Cox's
66
No. 32228-9-III
State v. Lazcano
questioning of Frank. We reject this claimed error because a defendant must raise a Sixth
Amendment confrontation clause claim at or before trial or lose the benefit of the right.
State v. O'Cain, 169 Wash. App. 228, 247-48, 279 P.3d 926 (2012). We also note that
Sheriff Deputy Cook testified that Frank told him he went to confront Marcus Schur
alone, he left when he heard gunshots, and Daniel was at his girlfriend's house in
Spokane that evening. Thus, the statement did not implicate Lazcano.
Daniel Lazcano argues the trial court violated his right to plead guilty when it
rejected the proposed plea agreement and the State's amendment charging him with
second degree manslaughter. This assignment of error relates to our earlier holding that
the trial court did not abuse its discretion when rejecting a plea agreement. This court
reviews whether the trial court deprived a defendant of his or her rule-based right to plead
guilty to the original charges de novo. State v. Conwell, 141 Wash. 2d at 906 (2000).
Months before the plea hearing, Daniel Lazcano had pled not guilty and
undergone two trials. The right to plead guilty only exists when the defendant has not yet
entered any kind of plea. State v. James, 108 Wn.2d 483,487, 739 P.2d 699 (1987).
Once the defendant enters a legally sufficient plea of not guilty the defendant's right to
plead guilty is no longer unconditional. State v. James, 108 Wash. 2d at 488; State v.
Duhaime, 29 Wash. App. 842, 852-55, 631 P.2d 964 (1981).
Daniel Lazcano also argues the plea agreement hearing violated the appearance of
67
No. 32228-9-111
State v. Lazcano
fairness doctrine and his due process rights because the trial court referred to Frank
Lazcano's testimony from Frank's own trial, which was not in the record in his case.
Lazcano argues that Frank's testimony from Frank's trial was part of the reason why the
trial court rejected the plea agreement.
The Code of Judicial Conduct (CJC) provides that a judge must disqualify himself
or herself "in any proceeding in which the judge's impartiality might reasonably be
questioned." CJC 2.1 l(A). This includes when a judge has "a personal bias or prejudice
concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute
in the proceeding." CJC 2.1 l(A)(l). In determining whether recusal is warranted, actual
prejudice need not be proven. A mere suspicion of partiality may be enough. Sherman v.
State, 128 Wash. 2d 164, 205, 905 P.2d 355 (1995). The question under the appearance of
fairness doctrine is whether a reasonably prudent, disinterested observer would conclude
that the parties received a fair, impartial, and neutral hearing. State v. Gamble, 168
Wash. 2d 161, 187, 225 P.3d 973 (2010). To succeed in an appearance of fairness claim, a
party must show evidence of a judge's actual or potential bias. State v. Gamble, 168
Wash. 2d at 187-88.
The trial court is presumed to have properly discharged its official duties without
bias or prejudice. In re Personal Restraint of Davis, 152 Wash. 2d 647, 692, 101 P.3d 1
(2004). The party seeking to overcome that presumption must provide specific facts
68
No. 32228-9-III
State v. Lazcano
establishing bias. In re Personal Restraint of Davis, 152 Wash. 2d at 692. Judicial rulings
alone almost never constitute a valid showing of bias. In re Personal Restraint ofDavis,
152 Wash. 2d at 692.
Daniel Lazcano observes that the trial court, during the plea hearing, noted Frank's
testimony in Frank's trial, and the trial court concluded that Frank was not the shooter.
Lazcano argues these statements show bias or partiality. Lazcano argues the trial court
should have recused itself. We refuse to address the argument, however, because
Lazcano did not raise the claim below. RAP 2.5(a). We note that the trial court denied
the plea agreement principally for other reasons. Lazcano cites no authority for the
proposition that a trial court's prior knowledge of a case is an illegitimate basis on which
to base a decision. Lazcano cites CJC 2.6 cmt. 3, but this comment only encourages
judges to recuse when they obtain information during settlement discussions that could
influence their decision making during trial.
Daniel Lazcano argues that juror 2 engaged in misconduct when he attempted to
speak to the prosecutor and when he discussed the case with other jurors even after the
jury was instructed not to discuss the case. He contends the verdict was tainted by this
juror who refused to follow the court's instructions. This court reviews a trial court's
determination of whether to remove a juror for abuse of discretion. State v. Hopkins, 156
Wash. App. 468, 474, 232 P.3d 597 (2010).
69
No. 32228-9-111
State v. Lazcano
Daniel Lazcano complains of juror 2's conduct in seeking to ask the prosecutor
and bailiff a question and discussing the case with jurors before deliberations. We do not
know what specific comments juror 2 uttered. The trial court took immediate action by
reminding the jury panel at large not to discuss the case with anyone else. Defense
counsel agreed the trial court's proposed action was an appropriate solution. Because
Lazcano did not complain during trial, he may not raise this issue on appeal. RAP 2.S(a).
He also invited any error by conceding to the trial court's suggestion.
Daniel Lazcano argues that the prosecutor relied on Lazcano' s head nods during
the station interview during the prosecution's closing argument obtained in violation of
the Fifth Amendment. The trial court did not allow testimony of the head nods during the
State's case in chief, but permitted the testimony as impeachment after Lazcano testified.
The prosecution proposed an instruction limiting the jury's use of the head nods for
impeachment purposes. Defense counsel agreed with the trial court that a limiting
instruction would draw undue attention to the nods. Counsel did not object to the
prosecution's comments, during closing argument, regarding Lazcano's head nods.
Admittedly the difference between use of Daniel Lazcano's nods in response to
police questioning as impeachment evidence and substantive evidence of guilt is razor
thin. Nevertheless, when a defendant does not object to prosecutorial misconduct, he
must demonstrate that an instruction could not have cured the prejudice. The prosecutor
70
No. 32228-9-111
State v. Lazcano
proposed a limiting instruction. Daniel Lazcano refused one. He did not object to the
prosecutor's comments during closing argument.
Daniel Lazcano also contends that his trial court counsel was ineffective for not
agreeing to a limiting instruction. We reject this argument because his counsel's decision
was a legitimate trial tactic.
Finally, Daniel Lazcano argues that cumulative error deprived him of the right to a
fair trial. Because Lazcano's appellate counsel already addressed this issue in his
opening brief and because Lazcano' s statement of additional grounds unearths no further
error, this court need not address the argument again.
CONCLUSION
We affirm Daniel Lazcano's conviction for first degree murder.
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.
··1
'-·~S
t
Fe1uing,
WE CONCUR:
j
71