Lazcano: Third jury hears state’s case

The third presentation of state’s evidence in the Dec. 27, 2011, shooting death of Marcus Schur at Malden continued into Wednesday in the second trial of Daniel Lazcano, 22. Lazcano has been in jail at Colfax since Feb. 21 when the jury in his first trial reported they were unable to reach a verdict on murder and kidnapping charges after a trial which lasted close to two weeks.

His older brother, Frank Lazcano, was subsequently convicted by another jury of first degree felony murder. They found him not guilty of a charge of kidnapping.

Frank Lazcano was sentenced April 12 to 25 years in the state prison system, but he has been held in the jail here in advance of his brother’s second trial.

One of the big differences in the second trial of Daniel Lazcano was an extended jury selection which lasted for two full days of court. Judge David Frazier initially called 92 potential jurors, selected off the county voter rolls, for the trial.

The call actually ended with 87 seated in the courtroom for the selection process extended through Wednesday, May 29. The large call for jurors evolved from a pre-trial motion by the defense to move the trial out of Whitman County because of possible pre-trial prejudice among jurors.

In denying the change of venue motion Wednesday, May 29, the judge noted the jury selection process was a painstaking process and it was evident a lot of people know about the Lazcano cases. Judge Frazier said the issue was not whether or not there has been a lot of publicity about the cases but whether it included inflammatory reports which could prejudice potential jury members. He said he didn’t see that in the reports listed in Spokane defense attorney Eric Christianson’s motion.

In the state’s opening argument last Thursday, county deputy prosecuting attorney Dan Le Beau projected a chart on a courtroom screen to show how people involved in the case knew one another and how the investigation unfolded. He started the argument by noting the state believes Daniel Lazcano and his brother, Frank, 25, initially set out that night on a mission to “kick some ass” because they were upset that Schur had stolen some of their property from a residence where Daniel Lazcano had been living in Rosalia.

Le Beau explained how the initial investigation of a forced entry, by Frank Lazcano, turned into a murder investigation when Schur, who could not be located after Dec. 27, 2011, was found dead March 25, 2012, in the Bonnie Lake creek at Hole-in-the-Ground northwest of Pine City.

Christianson, in his opening statement, again said the defense will present evidence that Daniel Lazcano was never present at the shooting scene. He said the defense intends to show after the brothers arrived at Malden that evening, Daniel Lazcano became upset and began crying and he was dropped off at the nearby residence of James Holdren, known as “Uncle Jimmy” to the Lazcanos.

Christianson portrayed the relationship of Frank and Daniel Lazcano as a dominant big brother controlling a little brother. He said Daniel became so upset as they drove from Pine City to Malden that night that Frank decided to leave Daniel at Holdren’s residence.

At one point in the opening argument, the defendant became upset and rotated his chair at the defense table away from the jury.

Frank Lazcano was brought from the county jail to the superior court room late Friday morning and refused to testify at the second trial of his brother.

Wearing inmate overalls, Frank Lazcano waited for a few minutes behind the attorney’s table until his attorney, Steve Martonick, could arrive at the courtroom. He stood a few feet away from his brother who was seated at the defense table.

After Martonick arrived, Frank Lazcano was sworn in by Judge Frazier, and Prosecutor Denis Tracy asked four questions related to the 2011 Malden case. Lazcano refused to answer each of the questions under his Fifth Amendment rights. He was asked if he had communicated with his brother, who was present in Malden on the night of the shooting, whether Daniel was in Malden and took part in events of that night.

Tracy then asked Frank Lazcano if he intended to respond to all questions in that manner, and after being prompted by Martonick, Lazcano said yes.

The refusal to testify took place outside the presence of the jury.

The first two witnesses to testify Friday at the Daniel Lazcano trial were Malden neighbors of the house on SW Bluebird Street in Malden where the state contends events began in the shooting death of Schur.

First witness Friday was James Wendt, who testified he heard two shots about 5 p.m. that night while he was working on motorcycles in his garage shop. Wendt testified he went from the garage to his house to call 911. He said he made his report as he walked back out of his house and looked down the alley.

A recording of Wendt’s report to 911 was played for the jury.

Wendt said that night he saw a white car back up at the intersection of the back alley and quickly depart down Rose Street which intersects with Bluebird.

Becky Varner, who lives in the 100 block of SW Bluebird, testified she was playing rock band with her children when she heard a banging sound. She said she thought it was her dog and went outside as far as the alley. She testified she saw people load something in the back of a small white car. She said she walked back toward her house, and the car started down the alley to a point opposite the back of her house.

The car then quickly backed up, stopped and she saw one of the occupants pick up “something long” and put it in the car. The car then backed around a corner and left via Rose Street.

Thursday, the last witness was Nick Backman who testified he was in the process of serving dinner to Marcus Schur and his former wife, and Marcus’ brother, David, when Frank Lazcano forced his way into the front of the house and hit David. He said Marcus Schur ran out the back door as soon as Frank barged through the front door.

The third day of testimony started Monday with an extended cross examination of Ben Evensen.

Defense Attorney Eric Christianson spent more than an hour cross examining Evensen about his testimony for the state late Friday.

Evensen Friday relayed an account of how Daniel Lazcano told him how he shot Marcus Schur in the alley behind the Backman residence.

Evensen Friday testified Daniel related the account of the shooting to him at Spokane where Daniel Lazcano was residing with his girlfriend. He said he went there with Frank Lazcano a few days after he had been released from the Whitman County jail on Jan. 25, 2012, where he had been held on a probation violation. Evensen testified Daniel Lazcano took him into a room at the residence and described how Schur was fatally shot.

“He said he didn’t mean to,” Evensen said. “He said he wanted to scare him and it just kind of happened.”

He said he knew the Lazcanos had been looking for Schur because they suspected Schur of taking their possessions two weeks earlier from Evensen’s house in Rosalia. The house in Rosalia was unoccupied at the time because Evensen was in the county jail at Colfax.

Evensen testified Daniel Lazcano told him he waited behind the Backman house Dec. 27 while his brother went to the front door and chased Schur out the back door.

“Daniel said he shot Marcus,” Evensen testified. “He said he yelled, raised up his arms and started firing.”

Asked by Prosecutor Denis Tracy, Evensen confirmed Daniel raised up his arms to simulate holding a rifle when he told Evensen about the shooting.

Evensen said Daniel made sounds to simulate gunshots.

Christianson late Friday received permission from the court to delay cross examination of Evensen until Monday. He said transcripts of earlier testimony had been delivered to him too late to allow time to prepare.

The defense attorney began the cross examination Monday by projecting a plea bargain letter in which the prosecutor offered to reduce charges for Evensen’s involvement in a liquor store break-in at Rosalia. The offer called for Evensen to cooperate with investigators in exchange for a reduction of the charges to trespassing.

Christianson then questioned Evensen about versions of the shooting he related to a former girlfriend and others in the months after the shooting. The questions related to July 2012 interviews with deputies during the investigations and statements made at the first two Lazcano trials. They also included transcripts of recorded calls to Evensen while he was in the jail.

Evensen acknowledged contractions in the transcripts, but he testified Monday that he still recalled what Daniel Lazcano told him when they were alone in a room in Spokane and that was the basis of his testimony for the state before the weekend.

Last witness to testify Friday was Travis Carlon, who is known as “Uncle Travis” by the Lazcanos. He again testified how Frank and Daniel Lazcano arrived at the Carlon residence outside of Pine City the afternoon of Dec. 27, later departed together for Malden in the white Ford Escort and returned that evening with Schur’s body in the trunk. Carlon said Frank Lazcano came into his house and told him they had “one in the trunk with two in the chest.”

Carlon then told how they left Pine City in separate cars and stopped at the John Wayne Trail crossing next to the Pine Creek bridge on Hole-in-the-Ground Road.

Carlon again testified that Daniel Lazcano never directly said he was the one who shot Schur earlier that day. He testified that Frank, when asked, replied “it wasn’t me.”

Daniel Lazcano repeatedly said “Uncle, I f—-ed up,” Carlon testified. He said it seemed like Daniel said it about 200 times during that night as they determined a course of action.

The roadside meeting ended with Carlon going back to Pine City with the suspected murder weapon, an AK-47 rifle, in the trunk of his car and the Lazcanos continuing to Hole-in-the-Ground where they dropped Schur’s body in the creek.

Carlon has been charged with rendering criminal assistance to the Lazcanos, but final resolution of his case has been delayed pending conclusion of the Lazcano charges.

Friday, Carlon testified he and Eli Lindsey of Washtucna, the Lazcanos’ stepfather, drove to Spokane after the Lazcano brothers left the rifle with him following the Dec. 27, 2011, shooting in Malden.

The AK-47 rifle returned to the superior court evidence table Tuesday morning for the sixth day of Daniel Lazcano’s trial. Other items of evidence presented for identification included a shirt deputies say was tied around Schur’s legs when his body was recovered and a web belt which was tied around his hands.

The evidence items were presented at the first two trials, and when they were presented Tuesday witnesses identified a chain of possession which traced the items from the point of discovery to crime labs for investigation and eventually to the court and back for Daniel Lazcano’s first trial in February and Frank Lazcano’s subsequent trial.

Last witness to testify Tuesday morning was Melissa Diamanti, a forensic specialist for the Spokane Sheriff’s office. She testified she was unable to find latent finger prints on the rifle when it was tested in their Spokane lab. She did identify the serial number on the rifle which was recovered last September from the Spokane River beneath the T.J. Meenach Bridge east of Spokane Falls Community College.

Members of the Spokane sheriff’s special operations team described how they recovered the rifle.

Tuesday morning’s witnesses included a clerk at the Spokane Army Surplus store who identified sales records he completed when he sold an AK-47 rifle with the same serial numbers on Sept. 8, 2009, to Frank Lazcano.

Late Tuesday, forensic pathologist Jeffrey Reynolds of Yakima again gave an account of the wounds sustained by Schur when he was shot. He said two bullets hit Schur. One struck his pelvis and that cause Schur to fall. The second bullet hit the top of Schur’s shoulder as he fell. That bullet hit an artery, a wound which led to Schur’s death.