FILED 


JUNE 16,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


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IN THE COURT OF APPEALS OF THE STArn OF WASHINGTON 


DIVISION THREE 


STArn OF WASHINGTON, ) 

) No. 31601-7-III 

Respondent, ) 

) 

v. ) 

) 

FRANK GABRIEL LAZCANO, ) PUBLISHED OPINION 

) 

Appellant. ) 

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, ifnot, 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 ofmanifest error. The record lacks sufficient facts to review whether 

double jeopardy applies, and thus Lazcano fails to show manifest error. We reject on 
No. 31601-7-III 

State v. Lazcano 

their merits other arguments ofFrank Lazcano and affirm his conviction. 

FACTS 

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. 

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 

ofthe border with Spokane County. Evensen resided at the Whitman County jail at the 

time ofthe theft. Frank Lazcano occasionally stayed at Evensen's house, and he stored 

belongings there. 

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. 

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 

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No. 31601-7-111 

State v. Lazcano 

town of200 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. 

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 ofthe anger of the Lazcanos. In tum, 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. 

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. 

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 

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No. 31601-7-II1 

State v. Lazcano 

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 selfdefense. Marcus Schur scurried out the back door of the Backman house into the dark 

and wet evening, and Frank sprinted after him. 

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. 

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. 

Daniel Lazcano retrieved the Ford Escort. The brothers Lazcano lifted Marcus 

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No.31601-7-III 

State v. Lazcano 

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. 

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-Inthe-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. 

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No. 31601-7-II1 

State v. Lazcano 

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. 

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 menjourneyed 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. 

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 

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No.31601-7-III 

State v. Lazcano 

instructed Whitney to claim she picked him up on Route 195 if anyone asked her about 

the Ford Escort. 

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. 

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. 

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 

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State v. Lazcano 

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. 

At 3:35 on the morning of December 28,2011, Frank Lazcano reported to the 

Whitman County Sheriffs office in Colfax twenty-seven miles south ofRosalia. Colfax 

is the county seat. Deputy Tim Cox traveled to Colfax to interview Frank. Deputy Cox 

recorded an interview ofFrank, 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. 

Whitman County Sheriff Deputy Tim Cox spoke with Daniel Lazcano during the 

evening ofDecember 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 ofMarcus Schur, but admitted to 

driving a white car. 

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No.3I60I-7-II1 

State v. Lazcano 

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. 

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 ofRCW 9A.52.070(l). 

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. 

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. 

PROCEDURE 

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, 

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No. 3160 1-7-III 

State v. Lazcano 

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 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. 

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. 

The trial court denied Frank Lazcano's motion in limine and allowed the State to 

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No. 31601-7-111 

State v. Lazcano 

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? 

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. 

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 ofthe 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 

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No.31601-7-II1 

State v. Lazcano 

body, the absence of blood and casings in the alley, and the belief that Marcus Schur may 

be hiding or on a methamphetamine binge. The court did not address the applicability of 

double jeopardy. Frank Lazcano did not raise a defense of double jeopardy after 

empaneling the jury. 

At trial, the prosecution elicited the following testimony from Deputy Tim Cox 

about Daniel Lazcano's statements to him during Cox's questioning ofLazcano in the 

course of the criminal investigation. The testimony is the subject of a confrontation 

clause challenge from Frank Lazcano. 

Q. Did you ask him ifhe knew why Frank went to the house? 

A. Yes. 

Q. What was his response? 

MR. MARTONICK: Objection. Hearsay. 

MR. LEBEAU: It's not going to the truth of the matter 

asserted, Your Honor. 

THE COURT: Okay. Members of the jury, I am going to 

overrule the objection, allow the answer to this question. But I'm only 

allowing it so it can be considered by you for a limited purpose. That 

purpose is to show the knowledge of Frank and Dan Lazcano, and intent 

that they might have had. SO. 

Q. (By Mr. LeBeau) Did Dan tell you that he knew why Frank went 

to Malden? 

A. Yes. 

Q. And what was his-what did he tell you? 

A. I believe it was to retrieve his belongings. 

Q. Dan's belongings, or Frank's? 

A. Frank's. 

Q. Okay. Did you ask him ifhe knew who was there with Frank? 

A. Yes. 

Q. And what was his response? 

A. He was not there. 

Q. That he wasn't in Malden at all? 

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No. 31601-7-111 

State v. Lazcano 

A. Right. 

RP at 375-76. 

During trial, the State called Daniel Lazcano as a witness, and Daniel invoked his 

right to remain silent, leading the court to rule him an unavailable witness. Frank 

Lazcano testified that he was at Nick Backman's house, and that he went there for the 

purpose of retrieving the goods stolen from Daniel and him. 

After a five-day trial, the trial court instructed the jury on Frank Lazcano's felony 

murder charge. An instruction permitted burglary as the only predicate offense upon 

which felony murder could be found. 

The jury found Frank Lazcano guilty of first degree murder while armed with a 

firearm, guilty of unlawful disposal of human remains, and not guilty of kidnapping. In a 

special verdict, the jury disclosed that it found guilt of first degree murder based on a 

felony murder, but not on premeditated murder. The trial court convicted and sentenced 

Frank to 300 months of confinement. Frank appeals his conviction for felony murder. 

LAW AND ANALYSIS 

Issue 1: Did Frank Lazcano raise the argument ofdouble jeopardy before the 

trial court? 

Answer 1: No. 

Frank Lazcano contends that his conviction for felony murder placed him twice in 

jeopardy for the same offense. The jury could have used robbery as the predicate crime 

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State v. Lazcano 

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1 on which to base the conviction. Therefore, he asks this court to reverse his conviction 

I 

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I for first degree felony murder as barred by the constitutional protection against double 

jeopardy. Lazcano argues that criminal trespass in the first degree is a lesser included 

offense of first degree burglary, and therefore the State should have been barred from 

alleging first degree burglary as a predicate for felony murder. In addition, Lazcano 

argues that the State did not exercise due diligence in investigating the death of Marcus 

Schur and potential charges against him, and therefore the Diaz exception to double 

jeopardy articulated in Brown v. Ohio, 432 U.S. 161,97 S. Ct. 2221, 53 L. Ed. 2d 187 

(1977), does not apply. Lazcano does not raise the contention that collateral estoppel 

barred a prosecution for felony murder based on burglary. 

Generally, this court refuses to address arguments on appeal not asserted by the 

appellant before the trial court. RAP 2.5(a). Before determining whether to apply this 

rule ofreview, we first scan the trial court record to ascertain whether Frank Lazcano 

asserted double jeopardy as a defense at the trial court level. We conclude Lazcano did 

not raise the issue below, or at least did not sufficiently raise the issue. 

Frank Lazcano mentioned double jeopardy in his argument to prevent the State 

from introducing evidence of a burglary in support ofthe felony murder charge. But he 

informed the trial court that the double jeopardy bar did not apply until empanelment of 

the jury. He never raised the contention after empanelment. In arguing a bar to evidence 

ofburgiary, he relied only on collateral estoppel. 

14 

No. 31601-7-111 

State v. Lazcano 

A party may not generally raise a new argument on appeal that the party did not 

present to the trial court. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 

(1995); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009). A party must 

inform the court ofthe rules of law it wishes the court to apply and afford the trial court 

an opportunity to correct any error. Smith v. Shannon, 100 Wn.2d 26,37,666 P.2d 351 

(1983); State v. O'Hara, 167 Wn.2d at 98. We may decline to consider an issue that was 

inadequately argued below. Int'I Ass 'n ofFire Fighters, Local 46 v. City ofEverett, 146 

Wn.2d 29,36-37,42 P.3d 1265 (2002); Mid Mountain Contractors, Inc. v. Dep't of 

Labor & Indus., 136 Wn. App. 1, 8, 146 P.3d 1212 (2006). To be adequate for appellate 

review, the argument should be more than fleeting. This court will not consider an issue 

in the absence of "adequate argument." Amalgamated Transit Union Local 587 v. State, 

142 Wn.2d 183,203, 11 P.3d 762 (2000),27 P.3d 608 (2001). 

Issue 2: Should we review Frank Lazcano's double jeopardy argument on the 

ground ofmanifest error affecting a constitutional right under RAP 2. 5(a)(3) ? 

Answer 2: No. The record does not permit adequate review to determine ifthe 

Diaz exception applies. 

RAP 2.5(a) formalizes a fundamental principle of appellate review. The first 

sentence of the rule reads: 

(a) Errors Raised for First Time on Review. The appellate court 

may refuse to review any claim of error which was not raised in the trial 

court. 

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No. 31601-7-III 

State v. Lazcano 

No procedural principle is more familiar than that a constitutional right, or a right of any 

other sort, may be forfeited in criminal cases by the failure to make timely assertion of 

the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507 

U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321 

U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944). 

Good sense lies behind the requirement that arguments be first asserted at trial. 

The prerequisite affords the trial court an opportunity to rule correctly on a matter before 

it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 PJd 1177 

(2013). There is great potential for abuse when a party does not raise an issue below 

because a party so situated could simply lie back, not allowing the trial court to avoid the 

potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v. 

Weber, 159 Wn.2d 252, 271-72, 149 PJd 646 (2006); State v. Emery, 174 Wn.2d 741, 

762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses 

several other concerns. The rule serves the goal ofjudicial economy by enabling trial 

courts to correct mistakes and thereby obviate the needless expense of appellate review 

and further trials, facilitates appellate review by ensuring that a complete record ofthe 

issues will be available, and prevents adversarial unfairness by ensuring that the 

prevailing party is not deprived of victory by claimed errors that he had no opportunity to 

address. State v. Strine, 176 Wn.2d at 749-50; State v. Scott, 110 Wn.2d 682, 688,757 

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No. 31601-7-111 

State v. Lazcano 

P .2d 492 (1998). 

Countervailing policies support allowing an argument to be raised for the first time 

on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a) 

allows an appellant to raise for the first time a "manifest error affecting a constitutional 

right," an exception on which a criminal appellant commonly relies. Constitutional errors 

are treated specially under RAP 2.5(a) because they often result in serious injustice to the 

accused and may adversely affect public perceptions of the fairness and integrity of 

judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional 

errors from being raised for the first time on appeal would result in unjust imprisonment. 

State v. Lynn, 67 Wn. App. 339, 344,835 P.2d 251 (1992). On the other hand, 

"permitting every possible constitutional error to be raised for the first time on appeal 

undermines the trial process, generates unnecessary appeals, creates undesirable retrials 

and is wasteful of the limited resources of prosecutors, public defenders and courts" 

State v. Lynn, 67 Wn. App. at 344 (1992). 

Frank Lazcano's double jeopardy assertion implicates a constitutional right. We 

must decide if the argument addresses "manifest error." 

Washington courts and even decisions internally have announced differing 

formulations for "manifest error." First, a manifest error is one "truly of constitutional 

magnitude." State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term 

"manifest," some decisions emphasize prejudice, not obviousness. The defendant must 

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No. 31601-7-111 

State v. Lazcano 

identify a constitutional error and show how, in the context of the trial, the alleged error 

actually affected the defendant's rights. It is this showing of actual prejudice that makes 

the error "manifest," allowing appellate review. State v. O'Hara, 167 Wn.2d at 99 

(2010); Scott, 110 Wn.2d at 688; Lynn, 67 Wn. App. at 346. A third and important 

formulation for purposes of this appeal is the facts necessary to adjudicate the claimed 

error must be in the record on appeal. State v. McFarland, 127 Wn.2d at 333 (1995); 

State v. Riley, 121 Wn.2d 22,31,846 P.2d 1365 (1993). 

In State v. Riley, Joseph Riley argued that the admission of incriminating 

statements violated his Fourth Amendment rights because the statements were the fruit of 

an illegal search ofhis home. The state high court refused to entertain the argument 

because the record lacked clarity as to whether Riley uttered the statements before being 

told the investigating officer possessed a search warrant. 

We consider whether the record on appeal is sufficient to review Frank Lazcano's 

double jeopardy contention. In particular, we ponder whether the record permits 

intelligent review of the Diaz exception to the double jeopardy clause. 

Both the United States and the Washington Constitution protect one from being 

placed twice in double jeopardy for the same offense. The federal and state provisions 

afford the same protections and are identical in thought, substance, and purpose. State v. 

Ervin, 158 Wn.2d 746, 752, 147 P.3d 567 (2006); In re Pers. Restraint o/Davis, 142 

Wn.2d 165, 171, 12 P.3d 603 (2000). 

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No. 31601-7-III 

State v. Lazcano 

Frank Lazcano argues that the State may not avoid double jeopardy by claiming a 

narrow exception articulated by the U.S. Supreme Court. Even if the double jeopardy 

clause would otherwise apply, it does not bar prosecution for a greater charge if, when 

jeopardy attached to a lesser charge, a fact essential to support the greater charge was not 

in existence or was not discoverable by the State in the exercise of due diligence. Diaz v. 

United States, 223 U.S. 442,448-49,32 S. Ct. 250,251,56 L. Ed. 500 (1912); Illinois v. 

Vitale, 447 U.S. 410, 420 n.8, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980); Brown v. Ohio, 

432 U.S. 161, 169 n.7, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Washington courts call 

the exception the Diaz exception. State v. Higley, 78 Wn. App. 172,180-81,902 P.2d 

659 (1995). 

In State v. Higley, this court refused to bar, under the double jeopardy clause, 

prosecution for vehicular assault when the defendant had previously been charged with 

driving while under the influence and reckless driving for the same car collision. John 

Higley, while driving drunk, was involved in a two-car accident. Medical staff informed 

the investigating officer that the driver ofthe other car was not seriously injured. After 

completion of the first prosecution, the State learned that the other driver suffered a brain 

injury and broken neck that warranted a felony charge. This court reasoned that the 

investigating officer held no duty to contact the victim again to update information on her 

injuries. Therefore, the Diaz exception applied. 

In our case, the murder occurred before the first charges brought against Frank 

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No. 31601-7-111 

State v. Lazcano 

Lazcano. Thus all facts existed to charge Lazcano with homicide at the time the State 

charged him with trespass. To resolve the Diaz exception, we would need to determine if 

law enforcement could have earlier discovered the body or other evidence of murder with 

the exercise of due diligence. In other words, under the exception, a court would need to 

decide if a thorough investigation would have disclosed the crucial evidence. 

The trial court, when analyzing Frank Lazcano's collateral estoppel contention, 

commented that law enforcement officers did not earlier have grounds to charge murder 

because of the lack of a dead body, the absence of blood and casings in the Malden alley, 

and the belief that Marcus Schur may be hiding. Daniel and Frank Lazcano misled law 

enforcement officers into believing they had no knowledge of the whereabouts of Schur, 

when the two knew Schur was surely dead. They hid the corpse. One could conclude 

from these facts that the Diaz exception should apply. 

One could also conclude that the Diaz exception should not apply because law 

enforcement might have discovered the body with additional efforts. The record only 

vaguely shows the extent of the efforts law enforcement officer underwent to attempt to 

locate Schur during a three-month window of time. The record shows that officers spoke 

to some relatives and friends of Schur, but the record fails to detail or rule out any other 

measures exercised by law enforcement. Law enforcement relied on the word of the 

Lazcano brothers, who Deputy Cox admitted he did not find credible, and on rumors that 

Marcus Schur used methamphetamine and might have disappeared on a binge. 

20 
No. 31601-7-111 

State v. Lazcano 

In short, the record deserves further development. Also, the determination of what 

constitutes due diligence or a thorough investigation, in this context, is generally left to 

the discretion of the trial court and so should first be addressed by the lower court. Prlia 

v. United States, 279 F.2d 407, 408 (9th Cir. 1960); United States v. Walker, 546 F. Supp. 

805, 811 (D.C. Haw. 1982). 

We recognize that Washington appellate courts have allowed an accused to assert 

a double jeopardy claim for the first time on appeal because the argument asserted a 

constitutional error. State v. Strine, 176 Wn.2d at 751 (2013); State v. Mutch, 171 Wn.2d 

646,661,254 P.3d 803 (2011); State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 

(2006); State v. Tvedt, 153 Wn.2d 705, 709, n.l, 107 P.3d 728 (2005); State v. Johnson, 

92 Wn.2d 671, 673-74, 600 P.2d 1249 (1979). Some of the decisions did not address 

whether the constitutional error was "manifest." State v. Mutch, 171 Wn.2d 646; State v. 

Jackman, 156 Wn.2d 736; State v. Tvedt, 153 Wn.2d 705; State v. Johnson, 92 Wn.2d 

671. In State v. Strine, 176 Wn.2d at 751, the Supreme Court accepted review ofa 

double jeopardy argument only after declaring the argument implicated the defendant's 

"manifest constitutional right to be free from double jeopardy." The Supreme Court did 

not analyze why it concluded the defendant asserted a "manifest error" and did not 

expressly rule that all double jeopardy claims present manifest error. 

We refuse to imply from such decisions that an appellant need not show manifest 

error in double jeopardy appeals. Double jeopardy arguments are no different from other 

21 

No.3l60l-7-III 

State v. Lazcano 

constitutional arguments for purposes of the need to preserve error below and for 

purposes of allowing an exception for manifest error. No Washington decision has held 

that the accused need not show manifest constitutional error on double jeopardy claims 

not asserted below. The general rule remains that a criminal defendant may not obtain a 

new trial whenever he or she can identify a constitutional error not litigated below. State 

v. Scott, 110 Wn.2d at 687 (1988). The manifest error exception is a narrow one. State v. 

Scott, 110 Wn.2d at 687. We particularly decline to consider a double jeopardy argument 

to automatically be manifest error in the circumstances when the record lacks specificity 

for review. 

Our refusal to address Frank Lazcano's double jeopardy claim may work to his 

favor. If he files a personal restraint petition, he will have the right to present new 

evidence of any alleged failure of law enforcement to diligently pursue the whereabouts 

and safety ofMarcus Schur. State v. Sandoval, 171 Wn.2d 163, 168-69,249 P.3d lOIS 

(2011); State v. McFarland, 127 Wn.2d at 335 (1995). A trial court sits in a better 

position to conduct a full evidentiary hearing on the due diligence of law enforcement. 

ISSUE 3: Despite the absence ofmanifest error, should we review the double 

jeopardy argument anyway? 

ANSWER 3: No. 

If an issue raised for the first time on appeal is "arguably related" to issues raised 

in the trial court, a court may exercise its discretion to consider newly articulated theories 

22 

No. 31601-7-111 

State v. Lazcano 

for the first time on appeal. Lunsfordv. Saberhagen Holdings, Inc., 139 Wn. App. 334, 

338, 160 P.3d 1089 (2007), ajJ'd, 166 Wn.2d 264 (2009). While the reviewing court has 

the discretion to address the issue, we are not bound to do so and usually refuse. Smith v. 

Shannon, 100 Wn.2d at 38 (1983); City ofSpokane v. Whitehead, 128 Wn. App. 145, 

149, 115 P.3d 336 (2005); State v. Houvener, 145 Wn. App. 408, 420, 186 P.3d 370 

(2008). 

One category of double jeopardy is collateral estoppel. The doctrine of collateral 

estoppel is embodied in the constitutional guarantee against double jeopardy. Ashe v. 

Swenson, 397 U.S. 436, 442-43, 90 S. Ct. 1189,25 L. Ed. 2d 469 (1970). We decline to 

address whether the two doctrines are sufficiently related to otherwise review Frank 

Lazcano's double jeopardy claim on appeal. Assuming such a relationship, we exercise 

our discretion in declining review because of an insufficient record of the due diligence 

of law enforcement officers. 

Issue 4: Whether sufficient evidence supports Frank Lazcano's convictionfor first 

degreefelony murder while armed with afirearm? 

Answer 4: Yes. 

Frank Lazcano contends that this court should reverse his conviction for first 

degree felony murder with a firearm enhancement because the evidence against him is 

insufficient. Lazcano's conviction for felony murder rests on either participating in a 

burglary or being an accomplice to the shooting ofMarcus Schur. He maintains that the 

23 

No. 31601-7-111 

State v. Lazcano 

evidence presented by the State at trial is insufficient to prove either ground of liability, 

as required by State v. Carter, 154 Wn.2d 71, 77, 109 P.3d 823 (2005). 

When a defendant challenges the sufficiency of the evidence underlying his 

conviction, he admits the truth ofthe State's evidence and all inferences that reasonably 

may be drawn from the evidence. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 

(1992). This court views the evidence in the light most favorable to the State and asks 

whether any rational trier of fact could find the essential elements of the crime beyond a 

reasonable doubt. State v. Green, 94 Wn.2d 216,220-21,616 P.2d 628 (1980). The 

reviewing court considers circumstantial evidence equally reliable as direct evidence. 

State v. Myers, 133 Wn.2d 26,38,941 P.2d 1102 (1997); State v. Delmarter, 94 Wn.2d 

634,638,618 P.2d 99 (1980). Credibility determinations are for the trier of fact and 

cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71,794 P.2d 850 

(1990). 

Under an accomplice liability theory, the State must prove the substantive crime 

was committed and the accused acted with knowledge that he or she was aiding in the 

commission of the offense. State v. Peterson, 54 Wn. App. 75, 78-79, 772 P.2d 513 

(1989). Under RCW 9A.08.020(3)(a), a person is guilty as an accomplice of another 

person in the commission ofthe crime if, with knowledge that it will promote or facilitate 

the crime he or she: 

(i) Solicits, commands, encourages, or requests such other person to 

24 

No.3l60l-7-II1 

State v. Lazcano 

commit [the crime]; or 

(ii) Aids or agrees to aid such other person in planning or 


committing [the crime]. 


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 .. . 

(c) He or she commits or attempts to commit the crime of ... (3) 

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 ofthe participants: Except that 

in any prosecution under this subdivision (1)( c) in which the defendant was 

not the only participant in the underlying crime, if established by the 

defendant by a preponderance ofthe evidence, it is a defense that the 

defendant: 

(i) Did not commit the homicidal act or in any way solicit, request, 

command, importune, cause, or aid the commission thereof; and 

(ii) Was not armed with a deadly weapon, or any instrument, article, 

or substance readily capable of causing death or serious physical injury; 

and 

(iii) Had no reasonable grounds to believe that any other participant 

was armed with such a weapon, instrument, article, or substance; and 

(iv) Had no reasonable grounds to believe that any other participant 

intended to engage in conduct likely to result in death or serious physical 

injury. 

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 may be found 

guilty of murder whenever the accused is not the shooter. The felony murder provision 

ofthe 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 ofthat felony by a coparticipant in the commission of the underlying felony. State 

25 

No. 31601-7-111 

State v. Lazcano 

v. Carter, 154 Wn.2d at 78 (2005). The participant liability clause ofthe felony murder 

provision ofthe first degree murder statute is essentially 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 Wn.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 Wn.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 Wn. App. 490, 504-05, 78 P.3d 1012 (2003). 

In its closing argument, the State argued that Frank Lazcano had credible grounds 

to believe his brother, Daniel, had an AK-47 in the car when they went to Nick 

Backman's house; that Frank's actions in Backman's house constituted first degree 

burglary; and that Daniel acted as an accomplice to the burglary. The State explained to 

the jury that it could find Frank guilty of felony murder, "[e]ven ifit was an accident" 

because Daniel, a participant in the underlying felony, had caused the death ofMarcus 

Schur in the course ofthe burglary. RP at 911-12. 

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 or guilty by reason ofparticipating in 

another felony. At trial, Ben Evensen's mother testified that she had conversations with 

26 

No.31601-7-III 

State v, Lazcano 

Frank and Daniel about confronting Marcus Schur and David Cramer, before Schur was 

killed. In addition, the jury heard testimony that Frank and Daniel traveled to Backman's 

house together; that Daniel drove his car to the scene and later circled around to the back 

of Backman's house; and that he was very upset and wanted to confront Schur. This 

circumstantial evidence is enough to allow the jury to infer that Daniel was an 

accomplice to the burglary that Frank committed on December 27,2011. 

Frank Lazcano argues that the State must, and has failed to, prove an additional 

"layer" of accomplice liability in order to obtain a conviction for felony murder; that is, 

Frank was an accomplice to the shooting committed by Daniel Lazcano. RCW 

9A.32.030, Washington's felony murder statute, reads to the contrary. In Carter, our 

Supreme Court upheld a felony murder conviction of a woman who helped plan, but did 

not ultimately participate in, a burglary that resulted in the shooting death of a man. 

Carter, 154 Wn.2d at 83-84. Substantial evidence supports Frank Lazcano's conviction 

for felony murder. 

Issue 5: Whether the trial court improperly admitted Daniel Lazcano's out of 

court statements in violation ofthe Confrontation Clause? 

Answer 5: Yes. 

Frank Lazcano argues that the trial court improperly admitted statements made by 

Daniel Lazcano to Deputy Tim Cox during Cox's questioning of Daniel. He maintains 

Daniel's statements were testimonial; that Daniel was unavailable to testify at trial due to 

27 

No. 31601-7-111 

State v. Lazcano 

his invocation of the Fifth Amendment; and that Frank was unable to cross-examine 

Daniel prior to the admission of his statements at trial. Frank raised this objection during 

trial when the prosecution questioned Deputy Cox about his conversation with Daniel 

immediately following Frank's arrest. The trial court overruled the objection, reasoning 

that Daniel's statements were admissible hearsay for the limited purpose of showing 

Frank and Daniel Lazcano's knowledge and intent prior to entering Nick Backman's 

house. 

The Sixth Amendment to the United States Constitution guarantees a defendant 

the right to confront witnesses against him or her. U.S. CONST. amend. VI. 

Washington's Constitution also grants an accused, in a criminal prosecution, the right "to 

meet the witnesses against him face to face." CONST. art. 1, § 22. Washington 

protections are coextensive with their federal counterpart. State v. Lui, 179 Wn.2d 457, 

468-69,315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014). This court reviews de novo 

an alleged violation ofthe confrontation clause, State v. Jasper, 174 Wn.2d 96, 108, 271 

P.3d 876 (2012), and whether or not a statement was hearsay. State v. Neal, 144 Wn.2d 

600,607,30 P.3d 1255 (2001). 

In general, the confrontation clause prohibits the admission of an unavailable 

declarant's out-of-court statement that might otherwise meet one ofthe exceptions to the 

general prohibition against hearsay, ifthe hearsay qualifies as testimonial. Davis v. 

Washington, 547 U.S. 813, 821,126 S. Ct. 2266,165 L. Ed. 2d 224 (2006); ER 801(c). 

28 

No. 3160I~7·II1 

State v. Lazcano 

A witness' out~of~court statement is testimonial if, in the absence of an ongoing 

emergency, the primary purpose of the interrogation is to establish or prove past events 

potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822. The admission 

of testimonial hearsay statements of a witness who does not appear at a criminal trial 

violates the confrontation clause of the Sixth Amendment unless (1) the witness is 

unavailable to testify and (2) the defendant had a prior opportunity for cross-examination. 

Crawfordv. Washington, 541 U.S. 36, 53-54,124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); 

State v. Beadle, 173 Wn.2d 97, 107,265 P.3d 863 (2011). Statements made during an 

interrogation by law enforcement are considered testimonial. Crawford, 541 U.S. at 53­

54. 

During trial, Deputy Tim Cox testified to an interview of Daniel Lazcano during 

the criminal investigation. Cox declared that Daniel stated his brother Frank went to 

Nick Backman's home to retrieve his belongings. 

The admission of Daniel Lazcano's statements violated Frank Lazcano's rights 

under the confrontation clause. Daniel's statements qualify as hearsay because they were 

made out of court, and offered to prove the truth of the matter asserted - Frank's intent in 

visiting Nick Backman's house. See ER 80I(c). Under Davis, the statements are 

testimonial because they were made to law enforcement during an interrogation, for the 

purpose ofproving past events relevant to the State's prosecution of Frank. 547 U.S. at 

822. During Frank's trial, the State called Daniel as a witness, and Daniel immediately 

29 

No. 31601-7-II1 

State v. Lazcano 

invoked his right to remain silent, leading the court to rule him an unavailable witness. 

There is no evidence in the record showing that Frank had a prior opportunity to crossexamine Daniel before Frank's trial. Therefore, the trial court's admission of Daniel's 

testimonial hearsay violated Frank's right to confront witnesses against him under the 

Sixth Amendment. 

Issue 6: Whether the improper admission ofDaniel Lazcano's extrajudicial 

statement was harmless error? 

Answer 6: Yes. 

The trial court's admission of otherwise inadmissible evidence does not warrant 

reversal per se. This court must also decide if the error in admitting the testimony was 

harmless or prejudicial. A constitutional error is harmless if the appellate court is assured 

beyond a reasonable doubt that the jury verdict is unattributable to the error. State v. 

Anderson, 171 Wn.2d 764, 770, 254 P.3d 815 (2011). This court employs the 

overwhelming untainted evidence test and looks to the untainted evidence to determine if 

it is so overwhelming that it necessarily leads to a finding of guilt. Anderson, 171 Wn.2d 

at 770. 

Here, an abundance of untainted evidence could have led the jury to find Frank 

Lazcano guilty of felony murder. Frank himself testified and admitted the same 

information Daniel provided to Deputy Cox-that he was at Nick Backman's house, and 

that he went there for the purpose of retrieving the goods stolen from him and Daniel. 

30 

NO.31601-7-III 

State v. Lazcano 

His admission alone renders Cox's testimony harmless. In addition, Frank Lazcano 

conceded during his trial testimony that he witnessed his brother shoot Marcus Schur and 

that he participated in covering up Schur's death. 

Issue 7: Whether the State improperly elicited testimony from its witnesses that 

they had entered into formal agreements to tell the truth in exchange for reduced 

charges? 

Answer 7: Yes. 

Frank Lazcano argues that the State improperly vouched for its own witnesses 

during trial by repeatedly referencing promises they made with the State to provide 

truthful testimony in exchange for a reduced charge. Lazcano relies on State v. Ish, 170 

Wn.2d 189, 199,241 P.3d 389 (2010), in arguing that the statements elicited by the State 

from its witnesses regarding their promises to tell the truth, constitute prosecutorial 

misconduct. In Ish, our Supreme Court addressed a similar situation, wherein a 

prosecutor called Nathaniel Ish's cellmate to testify against him, and referenced on direct 

examination a plea agreement reached with the cellmate in which he received a reduced 

sentence in exchange for testifying truthfully. The Supreme Court held that the trial court 

abused its discretion in denying the defendant's pretrial motion to exclude all reference to 

the plea agreement from the State's case in chief. 

State v. Ish controls. As Frank Lazcano argues, the State made plea agreements 

with several of its witnesses against him and improperly vouched for their truthfulness 

31 

No.31601-7-III 

State v. Lazcano 

during trial by referencing those agreements' requirement that the witness tell the truth. 

Accordingly, under Ish, the State's actions here amounted to misconduct. 

Issue 8: Whether reference to State witnesses' promise to tell the truth was 

harmless error? 

Answer 8: Yes. 

The Supreme Court, in State v. Ish, 170 Wn.2d at 200 (2010), ultimately 

concluded that the error was harmless. The high court noted that there were several other 

witnesses at trial who testified to the same information provided by the cellmate and that 

the State "did not dwell on the issue." Ish, 170 Wn.2d at 201. 

Frank Lazcano did not object to the State's misconduct at trial. Failure to object to 

an improper comment constitutes waiver of error unless the comment is so flagrant and 

ill-intentioned that it causes an enduring and resulting prejudice that could not have been 

neutralized by a curative instruction to the jury. State v. Brown, 132 Wn.2d 529,561, 

940 P.2d 546 (1997). 

The State's repeated vouching for its own witnesses, while qualifYing as 

prosecutorial misconduct, could have likely been neutralized by a curative instruction to 

the jury. As explained above, the State presented multiple witnesses that provided fairly 

consistent accounts of the events surrounding Marcus Schur's death, and Frank Lazcano 

himself corroborated much of their testimony. Under these circumstances, Frank's 

failure to object to the prosecutor's misconduct at trial amounts to a waiver of the issue 

32 

No. 3160 1-7-III 

State v. Lazcano 

on appeal. And even if this court found that Frank did not waive the issue, the other 

witnesses testifYing to the same or similar evidence as the witnesses who made plea deals 

makes the misconduct harmless in Frank's case. 

Issue 9: Whether cumulative error requires a new trial? 

Answer 9: No. 

Under the cumulative error doctrine, a defendant may be entitled to a new trial 

when the trial court's multiple errors combine to deny the defendant a fair trial. In re 

Pers. Restraint ofLord, 123 Wn.2d 296,332,868 P.2d 835 (1994). The defendant bears 

the burden of proving an accumulation of error of sufficient magnitude to warrant a new 

trial. Lord, 123 Wn.2d at 332; see, e.g., State v. Perrett, 86 Wn. App. 312, 322-23, 936 

P.2d 426 (1997). A defendant is entitled to a fair trial but not a perfect one, for there are 

no perfect trials. Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565,36 L. Ed. 

2d 208 (1973). As explained above, the errors alleged by Frank Lazcano, while errors, 

did not deny him of a fair trial. Overwhelming evidence supports his conviction. 

Cumulative error does not apply here, as Frank Lazcano has not shown sufficient 

prejudice warranting reversal, based on the combined effect of these two errors. 

CONCLUSION 

We affirm Frank Lazcano's conviction for first degree murder. 

33 

No. 31601-7-III 


State v. Lazcano 


Fearing I 

WE CONCUR: 


Korsmo~. 

34