Jury begins deliberations in 13-year-old killing

By Matt Pordum

Tuesday, Aug. 17, 2004 | 8:51 a.m.

A Clark County jury Monday began to deliberate whether a man was wrongly accused of a murder 13 years ago because of police investigators' incompetence or whether the memories of four eyewitnesses are enough to prove his guilt.

Erasmo Pena, 38, is charged with murder with use of a deadly weapon in the November 1991 slaying of Marcos Valenzuela. A warrant for Pena's arrest was issued days after the crime, but he wasn't brought into custody until the end of 2002 after a run-in with the law in California.

Chief Deputy District Attorney Ed Kane argued that four witnesses saw the slaying outside a birthday party after Pena and Valenzuela exchanged words.

Emma Garcia and Manuel Valenzuela, who said they drove away with Marcos Valenzuela after the confrontation, testified that Pena fired the fatal gunshots. Two others, Veronica Garcia, who was driving with a friend Maria Sotello, also testified they heard the shots, turned around and saw Pena, whom they identified as the shooter.

The problem with those eyewitnesses, Deputy Public Defender Dan Silverstein argued, was that they are the brother, girlfriend and friends of the victim. Police investigators dropped the ball in not finding independent witnesses, he told the jury.

"The only people who saw the gun in the house just happen to be the same people who saw who shot the gun outside the house," Silverstein said. "The government has had 13 years to find anyone else to back up the fact a gun was pulled in that house out of the 50 people that were at the party, and they (prosecutors) couldn't find one."

Silverstein said the four eyewitnesses, Emma Garcia, Manuel Valenzuela, Veronica Garcia and Maria Sotello, were not lying but simply wrong. He said in their grieving they made themselves believe Pena was the shooter.

Silverstein reasoned that because there were no streetlights, it was midnight and a crowd was driving away from the party on a dirt road, which caused clouds of dust, it would have been more than difficult for the eyewitnesses to identify the shooter.

Silverstein also wondered how Emma Garcia and Manuel Valenzuela could identify Pena as the shooter when both testified they were ducking during the shooting.

Silverstein said all of these elements coupled with indicators that all of the witnesses were drunk when they left the party made it hard to believe their testimony.

Silverstein said the eyewitness accounts failed to match up with the police theory of how the shooting occurred. Investigators said none of the six shots came from the front of the vehicle, but Emma Garcia testified she saw Pena jump in front of the car and "started shooting at us."

Additionally Silverstein said although investigators said the shooting happened while Marcos Valenzuela was backing out of the driveway, Emma Garcia and Manuel Valenzuela said it happened as the car was about a half a block down the road.

Silverstein noted investigators failed to conduct gun residue tests or reconstruct the crime scene.

"The police investigation here was abysmal, a joke," Silverstein said.

Kane said all of the attorneys involved were guilty of making a simple case complex. He said although it took more than two hours for closing arguments it should only take the jury "five minutes" to figure out Pena is guilty.

Kane said police officers tried to get other people at the crime scene to tell them what happened, but they hid when the police came.

Kane reminded the jury of eyewitness testimony saying the crowd screamed "Eddie has a gun, Eddie has a gun," which is a name Pena regularly went by. Kane also reminded the jury that Pena admitted to having a confrontation with Marcos Valenzuela, and the four eyewitnesses identified him as both the man who pulled the gun at the party and the man who shot Marcos Valenzuela.

Pena in testimony recalled the confrontation with Marcos Valenzuela differently.

"I walked by him (Marcos Valenzuela) and I sort of touched him and turned and went after me." Pena said through an interpreter. "He (Marcos Valenzuela) tried to hit me, but the other girls and guys wouldn't let him. It looked like he was a little drunk."

Pena said he was inside the house saying goodbye when he heard gun shots coming from outside. He said he left the party once he knew the cops were coming and left the country after seeing his picture on the television news.