State v. Lazcano

188 Wash.App. 338

354 P.3d 233

STATE of Washington, Respondent

v.Frank Gabriel LAZCANO, Appellant.

No. 31601–7–III.

Court of Appeals of Washington, Division 3.

June 16, 2015.

As Amended on Reconsideration in Part Aug. 20, 2015.

David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Denis Paul Tracy, Whitman Co. Prosecutor, Colfax, WA, for Respondent.

Opinion

FEARING, J.

¶ 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 other arguments of Frank Lazcano and affirm his conviction.

FACTS

¶ 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.

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 the 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' step-father, 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 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 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 step-father, Eli Lindsey, and told him the police were searching for Frank because he 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.

¶ 18 Deputy Cox spoke with James Wendt and Becky Varner, Backman's neighbors, who...