As amended by order of the Court of Appeals August 20, 2015.
[Copyrighted Material Omitted]
Appeal from Whitman Superior Court. Docket No: 12-1-00053-5. Judge signing: Honorable John David Frazier. Judgment or order under review. Date filed: 04/12/2013.
David L. Donnan and Nancy P. Collins (of Washington Appellate Project ), for appellant.
Denis P. Tracy, Prosecuting Attorney, for respondent.
Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Robert E. Lawrence-Berrey.
[188 Wn.App. 344] George B. Fearing,
[¶1] -- After Frank Lazcano pled guilty to criminal trespass, the State, supported by new evidence, charged and convicted Lazcano with first degree felony murder based on the same events giving rise to the trespass
conviction. On appeal, Lazcano argues this second prosecution placed him in double jeopardy. We address whether Lazcano asserted a double jeopardy argument below and, if not, whether he can raise the defense for the first time on appeal. We find that Frank Lazcano did not raise the issue before the trial court, and we decline to address the double jeopardy argument because of a lack of manifest error. The record lacks sufficient facts to review whether double jeopardy applies, and thus Lazcano fails to show manifest error. We reject on their merits the other arguments of Frank Lazcano and affirm his conviction.
[¶2] This prosecution arises from the shooting death of Marcus Schur, on December 27, 2011, by Frank Lazcano's brother, Daniel Lazcano. Schur previously stole guns owned by Daniel.
[¶3] In December 2011, Marcus Schur and his brother, David Cramer, burgled Ben Evensen's home in Rosalia and stole personal property, including two rifles belonging to Evensen's roommate, Daniel Lazcano. Rosalia, in the heart of fertile, pastoral Palouse country, is an agricultural community of 500 people lying in Whitman County just south of the border with Spokane County. Evensen resided at the Whitman County Jail at the time of the theft. Frank Lazcano occasionally stayed at Evensen's house, and he stored belongings there.
[¶4] On December 16, 2011, Frank Lazcano visited Ben Evensen's house and discovered personal property missing. [188 Wn.App. 345] After Frank confirmed, with his brother Daniel, his suspicions that someone burgled Evensen's house, the siblings visited Evensen's mother, Susan Consiglio, and told her about the theft. Frank suspected that Marcus Schur stole the chattels because, " Marcus is a thief." Report of Proceedings (RP) at 780. Frank entreated Consiglio to broadcast that the thief must return the filched guns.
[¶5] After meeting with Susan Consiglio, Frank and Daniel Lazcano searched for Marcus Schur at the Malden house of Schur's ex-wife, Ambrosia Jones. Malden is a town of 200 people five miles west of Rosalia. Frank warned Jones that he would kill Schur if he learned that Schur participated in the Evensen burglary. As his brother threatened Schur, Daniel cried because of his missing guns.
[¶6] Once the brothers Lazcano departed Ambrosia Jones' abode, Jones traveled to a house down the street where Marcus Schur and David Cramer hid. Jones warned Schur and Cramer of the anger of the Lazcanos. In turn, Schur and Cramer returned Daniel Lazcano's guns. The next day, Susan Consiglio revisited Ben Evensen's home and found Daniel's stolen guns in Evensen's backyard. Consiglio phoned Marcus Schur later that day, and Schur confessed to the theft.
[¶7] On December 27, 2011, Susan Consiglio informed Daniel Lazcano that Marcus Schur was at Nick Backman's house in Malden. Daniel asked Frank to travel with him to Backman's house to repossess possessions from Schur, and Frank agreed. The brothers drove to Backman's house in a white Ford Escort sedan, owned by the brothers' stepfather, Eli Lindsey. Frank later testified that he observed no weapon in the Escort while they drove. Upon arriving at Backman's residence, Frank exited the car in front of Backman's house, and Daniel drove to the back of the home. Daniel's actions surprised Frank since Frank earlier told Daniel to " [h]ang tight." RP at 790.
[¶8] As the Lazcano brothers arrived at the Backman abode, Nick Backman, Marcus Schur, David Cramer, and [188 Wn.App. 346] Ambrosia Jones prepared for dinner inside the residence. Frank Lazcano knocked on the door, and Cramer answered the knock. At trial, Frank testified that, upon the front door's opening, he saw Backman inside and Backman nodded to him to enter. Frank and Backman knew each other, and Frank had visited Backman at his home before. Nick Backman testified that he stood in the kitchen when Frank entered and gave no nod. Frank asked Cramer, " Are you David?" RP at 791. According to Cramer, he responded in the affirmative, after which Frank swung the porch door open and punched him two to three times in the face. Frank testified that
Cramer reached in his pocket for a knife, and Frank struck Cramer once in the face in self-defense. Marcus Schur scurried out the back door of the Backman house into the dark and wet evening, and Frank sprinted after him.
[¶9] Frank Lazcano saw Marcus Schur run around a garage and into the alley behind Nick Backman's house. As Frank entered the alley, he heard shots. Two bullets sprayed the ground in front of Frank, and he turned to see his brother Daniel holding an AK-47 and shooting in the direction that Schur ran. Nick Backman's neighbor, James Wendt, heard the shots and called 911. David Cramer, who followed Frank outside, saw flares from the shots, raced back inside the house, and told Backman to call 911. Cramer did not see a gun in Frank's hand.
[¶10] Frank Lazcano ran further down the alley. He heard " thrashing" and found Marcus Schur writhing in pain in shrubbery within the alley. Frank lingered with Schur while the latter gasped for air. Schur died within minutes of being shot.
[¶11] Daniel Lazcano retrieved the Ford Escort. The brothers Lazcano lifted Marcus Schur's corpse into the car's trunk. Frank drove from the scene with Daniel as a passenger in the Escort. Daniel said " gun" and Frank realized Daniel left the gun on the street. RP at 806. Frank reversed the car, and Daniel retrieved the gun. Frank drove to the [188 Wn.App. 347] Pine City home of his uncle, Travis Carlon, and asked Carlon for advice. Pine City is a diminutive community three miles southwest of Malden. Frank told Carlon he had " Marcus in the trunk of the car with a hole in him." " What?" inquired Carlon. Frank replied: " Don't make me say it again." RP at 809. Carlon declared: " Let me put some boots on." RP at 412.
[¶12] Travis Carlon told Frank and Daniel Lazcano to meet him outside town. Carlon drove his Cadillac with Frank and Daniel following in the white sedan. The two vehicles journeyed west beyond Pine City to a rural area known as " Hole-In-The-Ground." Carlon directed his nephews to competently dispose of the cadaver because, according to the amateur attorney, " [w]ithout a body, there wasn't a homicide." RP at 417. Frank placed the AK-47 in the trunk of Carlon's Cadillac, and Carlon returned to Pine City. Frank and Daniel drug Marcus Schur's body and sunk it into a creek adjacent to Hole-In-The-Ground Road. The two bound Schur's limbs to his torso with his clothes and piled rocks on the corpse to keep it from floating to the surface of the stream. After depositing Schur's body, the brothers Lazcano maneuvered back roads in the Ford Escort to McKyndree Rogers' residence in Spokane. Rogers was Daniel Lazcano's girlfriend. Spokane is a major city in Spokane County 33 miles north of Rosalia.
[¶13] Travis Carlon returned to his Pine City house, but stopped along the route to set the AK-47 against a fence post. Upon arriving home, Carlon asked Frank Lazcano's girlfriend, Jamie Whitney, to drive him to a cigarette store. During the drive, Carlon told Whitney that Daniel shot Marcus Schur and Whitney must drive McKyndree Rogers home to Spokane. Carlon also told Whitney to instruct Frank and Daniel Lazcano, upon her arrival at Rogers' home, to destroy the Ford Escort.
[¶14] After returning from the store, Travis Carlon called Frank and Daniel Lazcano's stepfather, Eli Lindsey, and told him the police were searching for Frank because he [188 Wn.App. 348] punched someone. Carlon asked Lindsey to retrieve him from his house. Lindsey arrived at Carlon's residence around 11:30 p.m. Carlon entered Lindsey's truck and directed him to the fence post where the AK-47 rested. Carlon retrieved the assault rifle and the two men journeyed to McKyndree Rogers' house in Spokane. During the trip, Carlon threw the rifle into the Spokane River as the two drove across a bridge near Spokane Falls Community College.
[¶15] Jamie Whitney and McKyndree Rogers arrived at Rogers' Spokane house before Frank and Daniel Lazcano appeared. When the Lazcano brothers arrived, Jamie Whitney told Frank that Travis Carlon wanted him to destroy the white Ford Escort. Frank agreed. Whitney and he drove in separate cars to Nine Mile Falls, a scenic community straddling Stevens and Spokane Counties ten miles north of Spokane. Frank piloted the
Escort into the woods and ignited the car. Whitney and Frank then returned to Pine City. Frank instructed Whitney to claim she picked him up on Route 195 if anyone asked her about the Ford Escort.
[¶16] Anita Schmidt, a resident of Nine Mile Falls, noticed the fire at 12:30 a.m., December 28, and called 911. Firefighters arrived ten minutes later and doused the Escort. On January 3, 2012, Washington State Patrol Trooper Brad Osmonovich ascertained, through the car's vehicle identification number, that Eli Lindsey owned the charred car.
[¶17] Meanwhile during the evening hours on December 27, Whitman County Sheriff Sergeant Rick McNannay, Deputy Tim Cox, and Deputy Brown arrived at Nick Backman's home. David Cramer told Deputy Cox that Marcus Schur ran away and he did not know his location. After the three law enforcement officers spoke with Nick Backman, Ambrosia Jones, and Cramer, they hunted for Marcus Schur. The deputies searched the area where witnesses heard rifle shots, but they found no blood or shell casings.
[188 Wn.App. 349] [¶18] Deputy Cox spoke with James Wendt and Becky Varner, Backman's neighbors, who disclosed seeing a white car in the alley leave after they heard gunshots. Wendt advised that he saw a driver and a passenger in the white car, and he observed the two deposit a long object in the back seat. Varner claimed that she saw people running around the white car, and the people loaded " something big" into the trunk before driving away. Varner also watched the car reverse fast, a person exit from the car, grab a long device, and hurriedly return to the car. After speaking to Wendt and Varner, Sheriff Deputies Cox and Brown traveled to Pine City and spoke with Travis Carlon, who said he did not know where Frank Lazcano was.
[¶19] At 3:35 on the morning of December 28, 2011, Frank Lazcano reported to the Whitman County Sheriff's office in Colfax twenty-seven miles south of Rosalia. Colfax is the county seat. Deputy Tim Cox traveled to Colfax to interview Frank. Deputy Cox recorded an interview of Frank, during which Frank remarked that he went to Nick Backman's home alone on an anonymous tip that the gentleman who stole from his friends and him could be found there. Frank insisted he was unarmed and he chased Marcus Schur from Backman's house, but left the area after he heard shots fired, in the alley, at Schur. Frank commented that he left Backman's property in the white Ford Escort, the Escort failed in Cheney, and his girlfriend retrieved him after he called her from the Tidyman's store in Cheney. Tim Cox told Frank he disbelieved Frank's story. Cox arrested Frank at the end of the interview.
[¶20] Whitman County Sheriff Deputy Tim Cox spoke with Daniel Lazcano during the evening of December 29, 2011. Daniel denied being present at Nick Backman's house on December 27. Daniel insisted that he took Frank to Frank's girlfriend's house in Spokane on the afternoon of December 27 and that Frank traveled alone to Backman's residence. Daniel denied participating in any shooting of Marcus Schur, but admitted to driving a white car.
[188 Wn.App. 350] [¶21] Between December 29, 2011, and January 2, 2012, Deputy Tim Cox spoke with many witnesses. McKyndree Rogers provided an alibi for Daniel Lazcano. Rhonda Ruff, Marcus Schur's ex-girlfriend, stated she had no contact from Schur. Grace Schur, Marcus's mother, also commented that she had not heard from Marcus. Jamie Whitney corroborated Frank's story about the white Ford Escort malfunctioning in Cheney. After a week of investigation, Deputy Cox closed the case " pending any additional information obtained from Marcus Schur once he is located." CP at 36. Cox also noted that Schur had an active Department of Correction's warrant.
[¶22] On January 3, 2012, the State of Washington charged Frank Lazcano with residential burglary and fourth degree assault for his entry into Nick Backman's home on December 27. On March 9, 2012, pursuant to a plea agreement, Frank pled guilty to a reduced charge of criminal trespass in the first degree in violation of RCW 9A.52.070(1). On March 9, the trial court sentenced Frank to 90 days in jail, with 89 days suspended and credit for one day served on his initial arrest.
[¶23] On March 25, 2012, a bystander found Marcus Schur's corpse floating in the creek
at Hole-In-The-Ground. Law enforcement officers found bullet holes in Schur's left shoulder and his lower abdomen.
[¶24] On March 31, 2012, three weeks after Frank Lazcano's sentencing for trespass, law enforcement arrested Lazcano for the murder of Marcus Schur. On January 11, 2013, after two amendments to the information, the State of Washington charged Frank with first degree murder with a firearm enhancement, unlawful disposal of human remains, and kidnapping in the first degree with a firearm enhancement. The State also charged Daniel Lazcano with first degree murder. The State alleged Frank [188 Wn.App. 351] committed first degree murder under the alternative theories of (1) premediated murder, or (2) felony murder based on the predicate offenses of (a) robbery in the first or second degree, (b) burglary in the first degree, or (c) kidnapping in the first or second degree.
[¶25] Before trial, Frank Lazcano moved in limine to exclude all testimony and argument that he committed first degree burglary on December 27, 2011 in the home of Nicholas Backman, and all testimony and argument that he assaulted David Schur or Ambrosia Jones in the home of Nicholas Backman on December 27, 2011. Frank argued that the doctrine of collateral estoppel and the terms of his March 9, 2012 plea agreement precluded the State from asserting that his actions on December 27, 2011 constituted first degree burglary, because he pled to, and had been convicted of, first degree criminal trespass based on the same incident. In his written motion and memorandum, Frank did not assert a double jeopardy defense. During oral argument in support of the motion in limine, Frank contended that a claim of double jeopardy was not yet ripe because a jury had yet to be empaneled for the murder trial, but that a double jeopardy defense was relevant and related to his collateral estoppel argument.
[¶26] The trial court denied Frank Lazcano's motion in limine and allowed the State to allege burglary as a predicate offense to felony murder. The trial court ruled that the State did not breach the plea agreement, since the State had not promised to refrain from bringing unknown charges. The trial court also ruled that collateral estoppel did not apply. The trial court commented:
From the instant I became aware ... [of] the fact that Mr. Lazcano was facing first-degree murder based on premeditated murder, first-degree murder based upon felony murder with the predicate offense of burglary, having known ... about the facts from his previous arrest and guilty plea, the thing that jumped out at me was how is the felony murder allegation not barred by double jeopardy?
[188 Wn.App. 352] Now, today the argument is not totally double jeopardy, it's a subset of that, collateral estoppel. What the defense is trying to do is preclude the admission of evidence relating to a burglary at Mr. Backman's house on the 27th of December 2011 and to preclude evidence of an assault.
Report of Proceedings (RP) (Feb. 22, 2013) at 37-38.
[¶27] The trial court analyzed the four elements of collateral estoppel before denying Frank Lazcano's motion. The trial court found elements one, two, and three of collateral estoppel present. The previous prosecution involved a privity of parties, identical issues, and a final judgment. With the knowledge possessed by the State at the time of the earlier plea, the State had evidence to charge Frank Lazcano with burglary, the crime on which felony murder was now based in part. The trial court found element four of collateral estoppel lacking, since application of the doctrine of collateral estoppel would work an injustice against the State. Although the State could have earlier charged burglary, the State did not have grounds to charge murder because of the lack of a dead body, the absence of blood and casings in the alley, and the belief that ...