Guilty verdict returned in murder case dating to ‘91

By Matt Pordum

Thursday, Aug. 19, 2004 | 9:25 a.m.

After a day and a half of deliberations, a Clark County jury found a man guilty of second-degree murder Wednesday in the shooting of a 21 year-old man outside a birthday party more than 12 years ago.

Although a warrant for Erasmo Pena's arrest was issued days after the November 1991 slaying of Marcos Valenzuela, Pena fled to his native El Salvador after seeing his picture on the television news.

Pena, 38, returned to the United States in 2001 but wasn't taken into custody for his long standing Las Vegas warrant until the end of 2002 after a run-in with the law in California.

On Wednesday, District Judge Michael Cherry thanked the "hard working jury," which he said obviously took the matter seriously as it deliberated for more than 10 hours to reach a verdict.

Cherry will sentence Pena on Oct. 12. Due to the fact the crime was committed in 1991, Pena faces 10 years to life in prison according to sentencing guidelines at that time.

After Pena was taken out of the courtroom in handcuffs, Cherry asked the jury how they came to a decision.

The jury's foreman said after a 9-3 vote in favor of a guilty verdict was given on Tuesday morning, they returned on Wednesday morning with an 11-1 guilty vote. Roughly a half hour later the foreman said they were unanimous at 12-0.

Chief Deputy District Attorney Ed Kane, who at closing arguments said it was not a "complex case," said he was pleased with the verdict.

"We're satisfied with it," Kane said. "They (the jury) found he was responsible for this."

Deputy Public Defender Dan Silverstein had little to say after the verdict, other than what he and Deputy Public Defender Nancy Lemke had said for the last week and half -- "I believe he's (Pena's) innocent," Silverstein said.

With no gun ever recovered and no forensic evidence linking Pena to the crime, the prosecution's case against Pena rested almost entirely on the testimony of four witnesses who were with Marcos Valenzuela as he drove away from Maria Neurater's 21st birthday party in the 6100 block of Westwind Road, which 13 years ago was a rural area with no paved roads or streetlights.

Marcos Valenzuela's girlfriend Emma Garcia and his brother Manuel Valenzuela testified Pena confronted Marcos Valenzuela inside the party and put a gun to his forehead. After the party broke up, they testified Pena ran out the back door and as they drove away from the party Pena was waiting for them and fired six shots at Marcos Valenzuela's car.

Although Silverstein and Lemke wouldn't comment any further, Cherry told the jury the case would be appealed.

During the trial the defense challenged the validity of the eyewitness accounts of the murder and whether investigators did their due diligence in handling the case.

The defense argued the eyewitness accounts of what happened the night of the shooting didn't match-up with the theory investigators set forth to explain how Marcos Valenzuela was shot. Investigators said the crime occurred as Marcos Valenzuela backed his car out of the driveway, while Garcia and Manuel Valenzuela said it didn't happen until they were a half a block away from the house.

Additionally the defense pointed out that although Garcia testified Pena jumped in front of the car and opened fire, no bullets went through the windshield of the vehicle.

Lemke and Silverstein both argued 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. Such evidence could have helped the "reconstruction of the scene."