Trial finally begins in 12-year-old killing

Wednesday, Aug. 11, 2004 | 9:42 a.m.

More than 12 years after Erasmo Pena allegedly killed a 21-year-old man outside a birthday party, a Clark County jury on Tuesday heard opening arguments for Pena's trial.

Pena, 38, is charged with murder with use of a deadly weapon for the November 1991 slaying of Marcos Valenzuela. A warrant for Pena's arrest was issued only days after the crime, but he was only brought into custody at the end of 2002 after a run-in with the law in California.

Chief Deputy District Attorney Ed Kane said the killing happened outside of a party for Maria Neurater's 21st birthday, where Pena had an altercation with Valenzuela and his brother Manuel Valenzuela.

Kane said Emma Garcia and Manuel Valenzuela would testify that after the altercation at the party Pena emerged on the street with a gun and fired the fatal gunshots at Marcos Valenzuela. After hearing the shots, Kane said Veronica Garcia, who was driving with a friend, Maria Sotello, turned the car around and also identified Pena as the shooter.

Kane said other than the altercation at the party, which mainly consisted of some pushing and arguing, the prosecution had no other known motive for Pena's actions.

The prosecution's case apparently rests almost entirely on the testimony of Emma Garcia, Veronica Garcia, Manuel Valenzuela and Maria Sotello, which the defense contends is not enough to convict Pena.

Deputy Public Defender Nancy Lemke said the witnesses's testimony simply "doesn't match-up with the physical evidence" -- and there isn't much of that, she added.

Lemke said police investigators failed to conduct a thorough investigation and as a result Pena "is being wrongfully accused of a crime he did not commit,"

Lemke said by failing to test for gun residue and failing to thoroughly examine the two bullets recovered, investigators missed opportunities to discover who the shooter was, saying such evidence could have helped 'reconstruct the scene."

Lemke also asked why close-up photographs of the car Marcos Valenzuela was shot in were not taken, and why bullet and glass fragments weren't collected.

Lemke said police relied solely on the statements of witnesses who were focused on the gun, not the shooter. Those witnesses were predisposed to say Pena was the gunman because of the fight at the party. The shooting took place in a poorly lit area, Lemke said.

Lemke also said the defense would show the statements of the prosecution's witnesses would fail to coincide with the police's theory as to where the shooter was positioned at the time of the killing.

For a few moments on Tuesday it became unclear whether two members of the jury would remain after they had informed the court through the bailiff they each recognized witnesses in the case.

One man on the jury saw Emma Garcia in the hallway during a break and realized he was her boss at the Sahara hotel five years ago when she worked there as a housekeeper.

Later a woman on the jury informed the court that after seeing Mary Neurater in the hallway she realized she used to work with her at the Silver Nugget.

Both jurors will remain on the case after it was determined their respective relationships with the witnesses were not personal and would not make them partial when issuing a verdict in the case.