### FILED JUNE 16,2015 In the Office oftheClerk ofCourt WA StateCourtofAppeals, Division III

i I ! I . I IN THE COURT OF APPEALS OF THE STArn OF WASHINGTON DIVISIONTHREE STArnOF WASHINGTON, ) ) No. 31601-7-III Respondent, ) ) v. ) ) FRANK GABRIELLAZCANO, ) PUBLISHED OPINION ) Appellant. ) FEARING, 1.

- AfterFrankLazcanopledguiltyto criminaltrespass, the State, supportedbynew evidence, charged and convictedLazcanowith first degree felony murderbased onthe sameevents givingrisetothetrespass conviction. On appeal, Lazcano argues this secondprosecutionplacedhim in doublejeopardy. Weaddress whetherLazcano asserted a doublejeopardy argumentbelow, and, ifnot, whetherhe can raise the defense for the first time on appeaL We find thatFrankLazcano did notraise the issue beforethetrial court, and wedeclineto address the doublejeopardy argument because ofa lack ofmanifest error. The record lacks sufficient facts to review whether doublejeopardy applies, and thus Lazcano fails to showmanifest error. Wereject onNo. 31601-7-III State v. Lazcano

their merits other arguments ofFrank Lazcano and affirm his conviction. FACTS This prosecution arises from the shooting death ofMarcus Schur, on December 27,2011, by Frank Lazcano'sbrother, Daniel Lazcano. Schurpreviously 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 offertile, pastoral Palouse country, is an agricultural community of500 people lying in Whitman Countyjust south ofthe border with Spokane County. Evensenresided at the Whitman Countyjail at the time ofthe theft. Frank Lazcano occasionally stayed at Evensen's house, and he stored belongings there. On December 16,2011,FrankLazcano visited BenEvensen'shouse and discovered personalproperty missing. After Frank confirmed, with his brother Daniel, his suspicions that someone burgled Evensen'shouse, the siblings visited Evensen's mother, Susan Consiglio, and told her about the theft. Frank suspectedthat Marcus Schur stole the chattels because, "Marcus is a thief." Report ofProceedings (RP) at 780. Frank entreated Consiglio to broadcast that the thiefmust return the filched guns. After meeting with Susan Consiglio, Frank and Daniel Lazcano searched for Marcus Schur at the Malden house ofSchur's ex-wife, Ambrosia Jones. Malden is a 2No. 31601-7-111 

### State v. 

### Lazcano

town of200 people five miles west ofRosalia. Frank warned Jones thathe would kill Schur ifhe learned that Schurparticipated in the Evensen burglary. As his brother threatened Schur, Daniel criedbecause ofhis missing guns. Oncethe 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 ofthe Lazcanos. In tum, Schur and Cramer returned Daniel Lazcano's guns. The next day, Susan Consiglio revisited BenEvensen's home and found Daniel's stolen guns in Evensen'sbackyard. Consigliophoned Marcus Schur later that day, and Schurconfessed to the theft. OnDecember 27, 2011, Susan Consiglio informed Daniel Lazcano thatMarcus Schur was at Nick Backman'shouse 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 latertestified that he observed no weapon in the Escort while they drove. Upon arriving at Backman'sresidence, Frank exited the car in front of Backman'shouse; and Daniel drove to the back ofthe home. Daniel's actions surprised Frank since Frankearliertold Daniel to "[h]angtight." 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. FrankLazcanoknocked on the door, and Cramer answeredthe knock. Attrial, Frank 3No. 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. Franktestified that Cramer reached in his pocket for a knife, and Frank struck Cramer once in the face in selfdefense. Marcus Schur scurried outthe back door ofthe Backman house into the dark and wet evening, and Frank sprinted after him. FrankLazcano 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 ofFrank, and he turned to see his brotherDaniel holding an AK-47 and shooting in the direction that Schurran. NickBackman'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 Schurwrithing in pain in shrubbery within the alley. Frank lingered with Schur while the latter gasped for air. Schur died within minutes ofbeing shot. Daniel Lazcano retrieved the Ford Escort. The brothers Lazcano lifted Marcus 4No.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 Frankrealized 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 ofhis uncle, Travis Carlon, and asked Carlon for advice. Pine City is

a diminutive community three miles southwest ofMalden. Frank told Carlon he had "Marcus in the trunk ofthe carwith a hole in him." "What?" inquired Carlon. Frank replied: "Don'tmake 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 ofthe 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 ofCarlon'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 withhis clothes and piled rocks on the corpse to keep it from floating to the surface ofthe stream. After depositing Schur's body, the brothers Lazcano maneuvered back roads in the Ford Escortto McKyndree Rogers' residence in Spokane. Rogers was Daniel Lazcano's girlfriend. Spokane is a major city in Spokane County 33 miles north ofRosalia. 

### 5No. 31601-7-II1 State v. Lazcano

Travis Carlonreturned 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 shotMarcus 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 Frankbecause he punched someone. Carlon asked Lindsey to retrieve him from his house. Lindsey arrived at Carlon'sresidence around 11:30 p.m. Carlon entered Lindsey's truck and directed him to the fence postwhere the AK-47 rested. Carlon retrieved the assault rifle and the two menjourneyed to McKyndree Rogers' house in Spokane. Duringthe trip, Carlon threw therifle 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 Lazcanobrothers arrived, Jamie Whitney told Frank that Travis Carlon wanted him to destroy the white FordEscort. Frank agreed. Whitney and he drove in separate cars to Nine Mile Falls, a scenic community straddling Stevens and Spokane Countiesten miles north ofSpokane. Frankpilotedthe Escort into the woods and ignited the car. Whitney and Frankthen returned to Pine City. Frank 6No.31601-7-III State v. Lazcano

instructed Whitney to claim shepicked him up on Route 195 ifanyone asked her about the Ford Escort. Anita Schmidt, a resident ofNine 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'svehicle 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 Cramertold Deputy Coxthat Marcus Schur ran away and he did not know his location. Afterthe three law enforcement officers spoke with Nick Backman, AmbrosiaJones, 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 withJames Wendt and Becky Varner, Backman'sneighbors, 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 sawpeople running around the white car, and the people loaded "somethingbig" into the trunk before driving away. Varner also watched the car reverse fast, a person exit from the car, grab a long 7

# I i I 

# I No. 31601-7-III 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 ofDecember 28,2011, Frank Lazcanoreported to the Whitman County Sheriffs office in Colfaxtwenty-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 thathe 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 insistedhe was unarmed and he chased Marcus Schur from Backman's house, but left the area afterhe heard shots fired, in the alley, at Schur. Frank commented that he left Backman'sproperty in the white Ford Escort; the Escort failed in Cheney; and his girlfriendretrieved 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 ofthe interview. Whitman County SheriffDeputy Tim Cox spoke with Daniel Lazcano during the evening ofDecember 29,2011. Daniel denied beingpresent at Nick Backman's house

on December27. Daniel insisted thathe took Frankto Frank's girlfriend's house in Spokane onthe afternoon ofDecember 27 and that Franktraveled alone to Backman's residence. Daniel denied participating in any shooting ofMarcus Schur, but admitted to driving a white car. 

### 8No.3I60I-7-II1 State v. Lazcano

BetweenDecember 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 notheard from Marcus. Jamie Whitney corroborated Frank's story about thewhite Ford Escort malfunctioning in Cheney. After

a week ofinvestigation, Deputy Coxclosed 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 ofCorrection's warrant. OnJanuary 3, 2012, the State ofWashington charged FrankLazcano with residential burglary and fourth degree assault for his entry into Nick Backman'shome on December 27. On March 9, 2012, pursuantto a pleaagreement, Frankpled guilty to a reduced charge ofcriminal trespass in the first degree in violation ofRCW9A.52.070(l). OnMarch 9, the trial court sentenced Frankto 90 days injail, 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 ofMarcus Schur. On January 11, 9No. 31601-7-III State 

### v. Lazcano 2013, after two amendments to the information, the State ofWashington charged Frank with first degree murderwith a firearm enhancement, unlawful disposal ofhuman 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 argumentthat he committed first degree burglary on December 27,2011 in the home of Nicholas Backman, and all testimony and argumentthat he assaulted David Schur or Ambrosia Jones in the home ofNicholas Backman on December 27, 2011. Frank argued that the doctrine ofcollateral estoppel and the terms ofhis March 9,2012plea 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 doublejeopardy defense. During oral argument in support ofthe motion in limine, Frank contended that a claim ofdoublejeopardywas notyet ripe because ajury had yetto be empaneled for the murder trial, butthat a doublejeopardy defense was relevant and related to his collateral estoppel argument. The trial court denied FrankLazcano's motion in limine and allowed the State to 10No. 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 promisedto refrain from bringing unknown charges. The trial court also ruled that collateral estoppel did not apply. The trial court commented: Fromthe instant I became aware ... [of] the fact thatMr. Lazcano was facing first-degree murder based on premeditated murder, first-degree murderbased upon felony murder with the predicate offense ofburglary, havingknown

... about the facts from his previous arrest and guilty plea, the thing thatjumpedout at me was how is the felony murder allegation not barred by doublejeopardy? Now, today the argument is not totally doublejeopardy, it's a subset ofthat, collateral estoppel. What the defense is trying to do is preclude the admission ofevidence relating to a burglary at Mr. Backman's house onthe 27th ofDecember 2011 and to preclude evidence ofan assault. Report ofProceedings 

### (RP) (Feb. 22, 2013) at 37-38. The trial court analyzed the four elements ofcollateral estoppel before denying FrankLazcano's motion. The trial court found elements one, two, and three ofcollateral estoppel present. The previous prosecution involved a privity ofparties, identical issues, and a finaljudgment. With the knowledge possessed by the State at the time ofthe earlierplea, the State had evidence to charge FrankLazcano with burglary, the crime on which felony murderwas nowbased in part. The trial court found element four of collateral estoppel lacking, since application ofthe doctrine ofcollateral estoppel would work an injustice againstthe State. Although the State could have earliercharged burglary, the State did not have grounds to charge murder because ofthe lack ofa dead

11No.31601-7-II1 State v. Lazcano body, the absence ofblood and casings in the alley, and the beliefthat Marcus Schurmay be hiding or on a methamphetamine binge. The court did not address the applicability of doublejeopardy. FrankLazcano did notraise a defense ofdoublejeopardy after empanelingthejury. Attrial, 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 ofthe criminal investigation. The testimony is the subject ofa confrontation clause challenge from FrankLazcano. Q. Did you ask him ifheknew why Frankwentto the house? A. Yes. Q. What was his response? MR. MARTONICK: Objection. Hearsay. MR. LEBEAU: It's not goingto thetruth ofthe matter asserted, Your Honor. THE COURT: Okay. Members ofthejury, I am going to overrule the objection, allowthe answerto this question. But I'm only allowing it so it can be considered by you for a limitedpurpose. That purpose is to showthe knowledge ofFrank andDan Lazcano, and intent thatthey mighthave had. SO. Q. (By Mr. LeBeau) Did Dan tell you that he knew why Frankwent to Malden? A. Yes. Q. And what was his-whatdid he tell you? A. I believe it was to retrieve his belongings. Q. Dan's belongings, orFrank's? A. Frank's. Q. Okay. Did you ask him ifheknew who was there with Frank? A. Yes. Q. Andwhatwas his response? A. He was not there. Q. Thathe wasn'tin Malden at all? 12No. 31601-7-111 State 

### v. Lazcano

A. Right. RP at 375-76. During trial, the State called Daniel Lazcano as a witness, and Daniel invokedhis 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 wentthere for the purpose ofretrieving the goods stolen from Daniel and him. After a five-day trial, the trial court instructedthejury on Frank Lazcano's felony murder charge. An instruction permitted burglary as the only predicate offense upon which felony murder couldbe found. Thejury found FrankLazcano guilty offirst degree murder while armed with a firearm, guilty ofunlawful disposal ofhuman remains, and not guilty ofkidnapping. In a special verdict, thejury disclosed that it found guilt offirst degree murderbased on a felony murder, but not on premeditated murder. The trial court convicted and sentenced Frankto 300 months ofconfinement. Frank appeals his conviction for felony murder. LAW AND ANALYSIS Issue 1: DidFrankLazcano raise the argumentof doublejeopardy before the trial court? Answer 1: No. Frank Lazcano contends that his conviction for felony murderplacedhim twice in jeopardy for the same offense. Thejury could have used robbery as the predicate crime 13

# I I 

# I No. 31601-7-III State 

### v. Lazcano 

# I

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

## 1 I 

# I I 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 offirst 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 ofMarcus Schur andpotential charges against him, andtherefore the Diazexceptionto 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 notraise the contentionthat collateral estoppel barred a prosecution for felony murderbased on burglary. Generally, this court refuses to address arguments on appeal not asserted by the appellantbeforethe trial court. RAP 2.5(a). Before determining whetherto apply this rule ofreview, we first scan the trial court record to ascertain whether FrankLazcano asserted doublejeopardy as a defense atthe trial court level. We conclude Lazcano did not raise the issue below, orat least did not sufficiently raise the issue. Frank Lazcanomentioned doublejeopardy in his argumentto preventthe State from introducing evidence ofa burglary in support ofthe felony murder charge. Buthe informed the trial court that the doublejeopardybar did not apply until empanelment of thejury. He neverraised the contention after empanelment. In arguing a barto evidence ofburgiary, herelied only on collateral estoppel. 14No. 31601-7-111 State 

### v. Lazcano

A party may not generally raise a new argument on appeal thatthe party did not presentto thetrial 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 oflaw itwishes the courtto 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'IAss 'n of Fire Fighters, Local

### 46

### v. City of Everett, 146 Wn.2d 29,36-37,42 P.3d 1265 (2002); MidMountain Contractors, Inc. 

### v. Dep'tof Labor & Indus., 136 Wn. App. 1, 8, 146 P.3d 1212 (2006). Tobe adequate for appellate review, the argument should be more than fleeting. This court will notconsider an issue in the absence of"adequate argument." Amalgamated Transit Union Local587 v. State, 142 Wn.2d 183,203, 11 P.3d 762 (2000),27 P.3d 608 (2001). Issue 

### 2: Shouldwe reviewFrankLazcano's doublejeopardyargumenton the groundofmanifesterror affectinga constitutionalright underRAP

### 2.5(a)

### (3)? Answer

### 2: No. The recorddoes notpermitadequate review to determine if the Diaz exception applies. RAP 2.5(a) formalizes a fundamental principle ofappellate review. The first sentence oftherule reads: 

### (a) Errors 

### Raised for First

### Time on 

### Review. The appellate court may refuse to review any claim oferror which was not raised in thetrial court. 15No. 31601-7-III State v. Lazcano

Noproceduralprinciple is more familiar than that a constitutional right, or a right ofany other sort, may be forfeited in criminal cases by the failure to make timely assertion of the right before a tribunal havingjurisdictionto determine it. UnitedStates v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 

### L. Ed. 2d 508 (1993); Yakus v. UnitedStates, 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 matterbefore it can bepresented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 PJd 1177 (2013). There is greatpotential for abuse when a party does notraise 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 ofpreservation by timely objection also addresses several other concerns. The rule serves the goal of judicial economy by enablingtrial courts to correct mistakes and thereby obviate the needless expense ofappellate review and further trials, facilitates appellate review by ensuringthat a complete record ofthe issues will be available, and prevents adversarial unfairness by ensuringthat the prevailingparty is not deprived ofvictory 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

16No. 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 ofexceptions. 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 affectpublicperceptions ofthe fairness and integrity of judicialproceedings. 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 otherhand, "permitting everypossible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful ofthe limited resources ofprosecutors, public defenders and courts" State v. Lynn, 67 Wn. App. at 344 (1992). FrankLazcano's doublejeopardy assertion implicates a constitutional right. We must decide ifthe argument addresses "manifesterror." Washington courts and even decisions internally have announced differing formulations for "manifest error." First, a manifest error is one "truly ofconstitutional magnitude." State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term "manifest," some decisions emphasizeprejudice, not obviousness. The defendant must 17No. 31601-7-111 State 

### v. Lazcano identify a constitutional error and show how, in the context ofthe trial, the alleged error actually affected the defendant's rights. It is this showing ofactual 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 ofthis 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 ofincriminating statements violated his Fourth Amendment rights becausethe statements were the fruit of

an illegal search ofhis home. The statehigh court refused to entertain the argument because the record lacked clarity as to whether Riley uttered the statements before being told the investigating officerpossessed a search warrant. We consider whether the record on appeal is sufficientto review FrankLazcano's doublejeopardy contention. In particular, we ponder whetherthe record permits intelligentreview oftheDiazexception to the doublejeopardy clause. Both the United States and the Washington Constitution protect one from being placedtwice in doublejeopardy for the same offense. The federal and stateprovisions 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. Restrainto/Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000). 18No. 31601-7-III State v. Lazcano

Frank Lazcano argues that the State may not avoid doublejeopardy by claiming a
narrow exception articulated by the U.S. Supreme Court. Even ifthe doublejeopardy 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 orwas not discoverable by the State in the exercise ofdue diligence. Diaz v. UnitedStates, 223 U.S. 442,448-49,32 S. Ct. 250,251,56 L. Ed. 500 (1912); Illinois v. Vitale, 447 U.S. 410, 420n.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 theDiaz exception. State v. Higley, 78 Wn. App. 172,180-81,902P.2d 659 (1995). In State v. Higley, this court refused to bar, under the doublejeopardy clause, prosecution for vehicular assault when the defendant had previously been charged with driving while underthe influence and reckless driving for the same car collision. John Higley, while driving drunk, was involved in a two-car accident. Medical staffinformed the investigating officerthat the driver ofthe other carwas not seriously injured. After completion ofthe 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 officerheld no duty to contactthe 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 19

### 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 theDiaz exception, we would need to determine if law enforcement could have earlier discovered the body or other evidence ofmurder with the exercise ofdue diligence. In otherwords, under the exception, a court would need to decide ifa thorough investigationwould have disclosed the crucial evidence. The trial court, when analyzing FrankLazcano's collateral estoppel contention, commentedthat law enforcement officers did not earlierhave grounds to charge murder because ofthe lack ofa dead body, the absence ofblood and casings in the Malden alley, and the beliefthat Marcus Schurmay be hiding. Daniel and FrankLazcano misled law enforcement officers into believingthey had no knowledge ofthe whereabouts ofSchur, when the two knew Schurwas surely dead. They hid the corpse. One could conclude from these facts that theDiaz exception should apply. One could also conclude that theDiaz exception should not apply because law enforcement might have discovered the body with additional efforts. The record only vaguely shows the extent ofthe efforts law enforcement officerunderwent to attempt to locate Schur during a three-month window oftime. The record shows that officers spoke to some relatives and friends ofSchur, but the record fails to detail or rule out any other

measures exercisedby law enforcement. Law enforcement relied on the word ofthe Lazcanobrothers, who Deputy Cox admitted he did not find credible, and on rumors that Marcus Schur used methamphetamine and might have disappeared on a binge. 

### 20No. 31601-7-111 State v. Lazcano

In short, the record deserves further development. Also, the determination ofwhat constitutes due diligence or a thorough investigation, in this context, is generally left to the discretion ofthe trial court and so should first be addressed by the lower court. Prlia

v. UnitedStates, 279 F.2d 407, 408 (9th Cir. 1960); UnitedStates v. Walker, 546 F. Supp. 805, 811 (D.C. Haw. 1982). We recognize that Washington appellate courts have allowed an accused to assert

a doublejeopardy 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 ofthe 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 doublejeopardy argument only after declaring the argument implicated the defendant's "manifestconstitutionalright to be free from doublejeopardy." The Supreme Court did not analyze why it concludedthe defendant asserted a "manifest error" and did not expresslyrule that all doublejeopardy claims present manifest error. We refuse to imply from such decisions that an appellant need not show manifest

error in doublejeopardy appeals. Doublejeopardy arguments are no different from other 21No.3l60l-7-III State v. Lazcano

constitutional arguments for purposes ofthe need to preserve error below and for purposes ofallowing an exception for manifest error. No Washington decision has held that the accused need not show manifest constitutional error on doublejeopardy claims not asserted below. The general rule remains that a criminal defendant may not obtain a
newtrial wheneverhe or she can identify a constitutional errornot 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 doublejeopardy argument to automatically be manifest error in the circumstances when the record lacks specificity for review. Ourrefusal to address Frank Lazcano's doublejeopardy claim may workto his favor. Ifhe files a personal restraint petition, he will have the right to present new evidence ofany alleged failure oflaw enforcementto diligently pursue the whereabouts and safety ofMarcus Schur. State v. Sandoval, 171 Wn.2d 163, 168-69,249P.3d lOIS (2011); State v. McFarland, 127 Wn.2d at 335 (1995). A trial court sits in a better positionto conduct a full evidentiary hearing onthe due diligence oflaw enforcement. ISSUE 

### 3: Despite the absence ofmanifesterror, shouldwe review the double jeopardyargument anyway? ANSWER 

### 3: No. Ifan issue raised for the first time on appeal is "arguably related" to issues raised in the trial court, a court may exercise its discretionto consider newly articulated theories 22No. 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 courthas the discretion to address the issue, we are not boundto do so and usually refuse. Smith v. Shannon, 100 Wn.2d at 38 (1983); City of Spokane 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 ofdoublejeopardy is collateral estoppel. The doctrine ofcollateral estoppel is embodied in the constitutional guarantee against doublejeopardy. Ashe 

### v. Swenson, 397 U.S. 436, 442-43, 90 S. Ct. 1189,25 L. Ed. 2d469 (1970). We decline to address whether the two doctrines are sufficiently related to otherwise review Frank Lazcano's doublejeopardy claim on appeal. Assuming such a relationship, we exercise

our discretion in declining review because ofan insufficient record ofthe due diligence oflaw enforcement officers. Issue 

### 4: Whether sufficientevidence supports FrankLazcano's convictionfor first degreefelonymurder while armedwith afirearm? Answer

### 4: Yes. FrankLazcano contends that this court should reverse his conviction for first degree felony murder with a firearm enhancement becausethe evidence against him is insufficient. Lazcano's conviction for felony murderrests on eitherparticipating in a burglary orbeing an accomplice tothe shooting ofMarcus Schur. He maintains that the 23No. 31601-7-111 State 

### v. Lazcano

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

as required byState v. Carter, 154 Wn.2d 71, 77, 109 P.3d 823 (2005). When a defendant challenges the sufficiency ofthe 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 192,201,829P.2d 1068 (1992). This court views the evidence in the light most favorable to the State and asks whether any rational trier offact could find the essential elements ofthe 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 offact and cannotbereviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71,794P.2d 850 (1990). Under an accomplice liability theory, the State must provethe substantive crime

was committed and the accused acted with knowledge that he or she was aiding in the commission ofthe offense. State v. Peterson, 54 Wn. App. 75, 78-79, 772 P.2d 513 (1989). UnderRCW 9A.08.020(3)(a), a person is guilty as an accomplice ofanother 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 otherperson to 24No.3l60l-7-II1 State v. Lazcano

commit [the crime]; or (ii) Aids or agrees to aid such otherperson 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 ofmurder in the first degree when

.. . (c) He or she commits or attempts to committhe crime of

... (3) burglary in the first degree

... and in the course ofor in furtherance ofsuch crime or in immediate flight therefrom, he or she, or anotherparticipant, causes the death ofaperson otherthan one ofthe participants: Exceptthat in any prosecution underthis subdivision (1)(c) in which the defendant was notthe only participant in the underlying crime, ifestablished by the defendant by apreponderance ofthe evidence, it is a defense that the defendant: (i) Didnot 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 ofcausing death or serious physical injury; and (iii) Hadnoreasonable grounds to believe that any otherparticipant was armed with such a weapon, instrument, article, or substance; and (iv) Hadnoreasonable grounds to believe that any otherparticipant intendedto engage in conduct likely toresult 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 ofmurderwheneverthe accused is notthe shooter. The felony murderprovision ofthe first degree murder statute establishes a separate mechanism by which onewho commits a predicate felony may be criminally liable for a homicide committed in the

course ofthat felony by a coparticipant in the commission ofthe underlying felony. State 25No. 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 otherparticipant 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 thatthe 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 believehis brother, Daniel, had anAK-47 in the carwhen they wentto Nick Backman'shouse; that Frank's actions in Backman's house constituted first degree burglary; and that Daniel acted as an accompliceto the burglary. The State explained to thejurythat it could find Frank guilty offelony murder, "[e]ven ifitwas an accident" because Daniel, a participant in the underlying felony, had causedthe death ofMarcus Schur in the course oftheburglary. RP at 911-12. Drawing all reasonable inferences in favor ofthe State, the evidence here was sufficient for ajuryto reasonably infer that Daniel Lazcano was an accompliceto Frank Lazcano'sburglary ofNick Backman's house or guilty by reason ofparticipating in another felony. Attrial, BenEvensen's mothertestified that she had conversations with 26No.31601-7-III State v, Lazcano

Frank and Daniel about confronting Marcus Schur and David Cramer, before Schur was killed. In addition, thejuryheard testimony that Frank and Daniel traveled to Backman's house together; that Daniel drove his carto the scene and later circled around to the back ofBackman'shouse; andthat he was very upset and wanted to confront Schur. This circumstantial evidence is enough to allow thejuryto inferthat 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" ofaccomplice liability in orderto 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 Courtupheld afelony murder conviction ofa woman who helpedplan, butdid not ultimately participate in, a burglary that resulted in the shooting death ofa man. Carter, 154 Wn.2d at 83-84. Substantial evidence supports FrankLazcano's conviction for felony murder. Issue 

### 5: Whether the trial court improperlyadmittedDanielLazcano's outof courtstatements in violation of the 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 ofDaniel. He maintains Daniel's statements were testimonial; that Daniel was unavailable to testify at trial due to 27No. 31601-7-111 State v. Lazcano

his invocation ofthe Fifth Amendment; and that Frank was unable to cross-examine Daniel priorto the admission ofhis statements at trial. Frankraised 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 thatDaniel's statements were admissible hearsay for the limitedpurpose ofshowing Frank and Daniel Lazcano's knowledge and intentpriorto entering Nick Backman's house. The Sixth Amendmenttothe United States Constitution guarantees a defendant the rightto confront witnesses against him orher. 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 ornot a statement was hearsay. State 

### v. Neal, 144 Wn.2d 600,607,30P.3d 1255 (2001). In general, the confrontation clauseprohibitsthe admission ofan unavailable declarant's out-of-court statementthat might otherwise meet one ofthe exceptions to the general prohibition againsthearsay, 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). 28No.**3160I~7·II1** 

### State v. 

### Lazcano

A witness'**out~of~court** statement is testimonial if, in the absence ofan ongoing emergency, the primary purpose ofthe interrogation is to establishorprovepast events potentially relevant to later criminal prosecution. 

### Davis, 547 U.S. at 822. The admission oftestimonial hearsay statements ofa witness who does not appear at a criminal trial violates the confrontation clause ofthe Sixth Amendment unless (1) the witness is unavailable to testify and (2) the defendant had aprior 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 consideredtestimonial. 

### Crawford, 541 U.S. at 53­ 54. During trial, Deputy Tim Coxtestified to an interview ofDaniel Lazcano during the criminal investigation. Cox declared that Daniel stated his brotherFrank wentto Nick Backman's home to retrieve his belongings. The admission ofDaniel Lazcano's statements violated Frank Lazcano's rights under the confrontation clause. Daniel's statements qualify as hearsay because they were made out ofcourt, and offered to prove the truth ofthe matter asserted

- Frank's intent in visiting NickBackman'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 ofprovingpast events relevantto the State'sprosecution ofFrank. 547 U.S. at 822. During Frank's trial, the State called Daniel as a witness, and Daniel immediately 29No. 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'strial. Therefore, the trial court's admission ofDaniel's testimonial hearsay violated Frank's right to confront witnesses against him underthe Sixth Amendment. Issue 6: Whether the improper admission of DanielLazcano's extrajudicial statementwas harmless error? Answer 6: Yes. The trial court's admission ofotherwise inadmissible evidence does not warrant reversal per se. This court must also decide ifthe error in admitting the testimony was harmless orprejudicial. A constitutional error is harmless ifthe appellate court is assured beyond a reasonable doubt thatthejuryverdict is unattributable to the error. State v. Anderson, 171 Wn.2d 764, 770, 254 P.3d 815 (2011). This court employs the overwhelminguntainted evidence test and looks to the untainted evidenceto determine if it is so overwhelming that it necessarily leads to a finding ofguilt. Anderson, 171 Wn.2d at 770.Here, an abundance ofuntainted evidence could have led thejuryto find Frank Lazcano guilty offelony murder. Frank himselftestified and admitted the same information Danielprovided to Deputy Cox-thathe was atNick Backman's house, and that he went there for the purpose ofretrieving the goods stolen from him and Daniel. 30NO.31601-7-III State 

### v. Lazcano

His admission alone renders Cox'stestimony harmless. In addition, Frank Lazcano conceded during his trial testimony that he witnessed his brother shootMarcus Schur and that he participated in covering up Schur's death. Issue 7: Whether the State improperlyelicited testimony from its witnesses that theyhadentered into formal agreements to tell the truth in exchangefor reduced charges? Answer 7: Yes. FrankLazcano argues that the State improperly vouched for its own witnesses during trial by repeatedly referencingpromises 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 theirpromises to tell the truth, constitute prosecutorial misconduct. InIsh, our Supreme Court addressed a similar situation, wherein a prosecutor called Nathaniel Ish's cellmateto testify against him, and referenced on direct examination a plea agreementreached with the cellmate in which he received a reduced sentence in exchange for testifyingtruthfully. The Supreme Courtheld that the trial court abused its discretion in denying the defendant'spretrial motion to exclude all reference to the plea agreement from the State's case in chief. State v. Ish controls. As FrankLazcano argues, the State madeplea agreements with several ofits witnesses against him and improperly vouched for theirtruthfulness 31No.31601-7-III State 

### v. Lazcano during trial by referencing those agreements' requirement that the witness tell the truth. Accordingly, underIsh, 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 errorwas harmless. The high courtnoted that there were several other witnesses attrial 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 oferrorunless the comment is so flagrant and ill-intentioned that it causes an enduring and resultingprejudice that could not have been neutralized by a curative instruction to thejury. 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 thejury. As explained above, the State presented multiple witnesses that provided fairly consistent accounts ofthe events surrounding Marcus Schur's death, and FrankLazcano himselfcorroborated much oftheirtestimony. Under these circumstances, Frank's failure to object to the prosecutor's misconduct at trial amounts to a waiver ofthe issue 32No. 31601-7-III State v. Lazcano

on appeal. And even ifthis 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. Underthe 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 of Lord, 123 Wn.2d 296,332,868 P.2d 835 (1994). The defendantbears the burden ofproving an accumulation oferror ofsufficient 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. UnitedStates, 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 ofa fair trial. Overwhelming evidence supports his conviction. Cumulative error does not apply here, as FrankLazcano has not shown sufficient prejudice warranting reversal, based on the combined effect ofthese two errors. CONCLUSION We affirm FrankLazcano's conviction for first degree murder.

33No. 

### 31601-7

-III State v. Lazcano

Fearing I WE CONCUR:

### Korsmo~.

34