Fourth motion for a mistrial is denied

Judge John S. Leonardo

While the Pima County Superior Court jury was in the deliberation room selecting a foreman and deciding their deliberation schedule, Judge John S. Leonardo was listening to a fourth defense motion for a mistrial in the case of former Arivaca resident Albert Robert Gaxiola.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. Additional charges include: the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.

Both Forde and co-defendant Jason Eugene Bush have been tried and convicted on the same charges. Forde received two death sentences plus 65 years in the Arizona Department of Corrections and Bush received two death sentences and 78 years in prison.

The basis for this mistrial motion was that Deputy County Attorney Rick Unklesbay vouched for the credibility of victim Gina Gonzalez during rebuttal closing arguments. Unklesbay told the jury that Gonzalez did the best she could to recall the bloody home invasion considering she had witnessed her daughter and husband being shot to death and she had suffered two bullet wounds herself.

Second, the defense claimed Unklesbay had burden-shifted when he told the jury the defense could have had the notebook found at Gaxiola’s house scrutinized by a handwriting expert. Leonardo pointed out that the defense had suggested in their closing argument that the state failed to have the notebook analyzed and that they should have done so if it was that important.

Finally, the defense was critical of Unklesbay suggesting to the jury that Gaxiola had been the one giving the orders to Forde and Bush instead of the other way around. The defense called that a mis-characterization as there was no testimony regarding that allegation.

The motion was denied by Leonardo.

Closing arguments in the Gaxiola double murder trial

Albert Gaxiola
(pool photo by Mampta
Popat/Arizona Daily
Star)

The Pima County Superior Court jury hearing the double murder trial for former Arivaca resident Albert Robert Gaxiola was reminded, Thursday, of a text message sent on May 30, 2009, by the defendant just hours after the a deadly home invasion in Arivaca.

That message sent by Gaxiola read “Sweet dreams.” Deputy County Attorney Rick Unklesbay paused for a moment. “They had just killed a 9-year-old. They had just killed her father. They had just wounded Gina,” he said. “And, Albert Gaxiola’s text message back to Shawna Forde was ‘Sweet dreams.’ Shawna Forde’s reply was: ‘You’re one of my minutemen.’”

For a moment, Unklesbay found himself at a loss for words. “I’m not sure what words can adequately characterize the actions of these people,” he said. “This is beyond outrageous. This is just downright scary.”

The case is now in the hands of the jury as they have been asked to consider if Gaxiola, 43, is guilty of two counts of first-degree murder in the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. Additional charges to be considered by the jury include: the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.

Both Forde and co-defendant Jason Eugene Bush have been tried and convicted on the same charges. Forde received two death sentences plus 65 years in the Arizona Department of Corrections and Bush received two death sentences and 78 years in prison.

Incomprehensible

Raul and Brisenia
Flores

Defense counsel Jack L. Lansdale suggested to the jury that his client was incapable of harming Brisenia or her sister. He asked the jury to recall testimony by the medical examiner complete with detailed pictures of the injuries suffered by Brisenia and her father. “Did anyone of you hearing the testimony during the presentation of the photographs of Brisenia Flores happen to notice Albert and his reaction?” he asked, rhetorically. “For him to participate in any action to hurt those children is incomprehensible.”

Lansdale also reminded the jury that opening statements and closing arguments in a trial are not evidence. “The state stood up and said to you: ‘We’re going to prove to you that Albert Gaxiola was present and that he was involved in the break-in of this home,’” he said. “It’s absolutely inconsistent with the facts.”

Unklesbay told the jury that while the surviving victim in the deadly home invasion never identified the defendant when questioned by detectives the day after the murders. “Gina was not able to identify Mr. Gaxiola as being a person in her house, but what she told the detectives that day was ‘I was thinking that Albert was in the house,’” he said.

Later in that interview with detectives, Unklesbay pointed out that Gonzalez told detectives that she was thinking that it was Albert who peaked his head around the corner into the kitchen. “That’s not an identification. That’s not Gina Gonzalez telling you that Albert Gaxiola was in her house,” he added. “She had no way of knowing that the gun that was sitting on the stove in her house was going to have Albert Gaxiola’s DNA all over it.”

Lansdale pointed out that the DNA sample on the AK-47 found on the stove in the Flores home had contributions from Forde and Bush, as well. “There were three contributors to that DNA,” he said.

Fruitless planning

Unklesbay argued to the jury that the defendant and a fellow drug dealer, Oin Oakstar, had been planning the death of Flores for months. “Albert Gaxiola had been planning the death of Junior Flores,” he said. “If it weren’t so serious it would almost be funny in some ways that they have these plans that they can’t carry out. It was not until Albert Gaxiola brings in Shawna Forde and Jason Bush that things begin to come together.”

Unklesbay suggested that it took the help of a so-called minuteman organization in order to accomplish those plans. Also, the goals that Forde and Bush have are not the same as those shared by Gaxiola and Oakstar. “It was not until the defendant brings in these two outsiders who have no idea or concept of what’s going on in Arivaca. They don’t know who the drug dealers are. They don’t know where these drug dealers live,” he said.

Text messages

Rick Unklesbay

Unklesbay suggested to the jury that the text messages between Forde and Gaxiola speak for themselves. The first he mentioned to the jury was: “O has to give Red an early tour” referring to Oakstar providing a driving tour past the Flores home. “This defendant is telling Shawna Forde that O, Oin, will be there to give them a tour,” he said.

The next text message Unklesbay called to the attention of the jury is: “Me and O will be there after nightfall, hook up with you after nightfall,” he said.

Unklesbay suggested that when Gaxiola stopped by Oakstar’s home the evening of May 29, 2009, that problems started Oakstar told him would not be participating in the planned home invasion. “It’s at that point things started unraveling even they get to Gina Gonzalez’ house,” he suggested.

Unklesbay recalled the testimony by Gaxiola neighbor Inga Hartman about the disturbance involving Gaxiola’s car. “She said she wakes up at 1:15 and I know it’s 1:15 because I look at the clock,” he related.

Unklesbay pointed out that the defense made the point that Gaxiola couldn’t have been in Arivaca at the time of the murders because he sent a text message from Arivaca Junction at 1:33 a.m. “The evidence just doesn’t support that,” he said.

Unklesbay recalled the testimony of retired Tucson Police Officer Lewis Adams that cellphone service in Arivaca is spotty at best. “There’s this place called cellphone hill. You get a little ways past Universal Ranch Road and you pick up Green Valley and you pick up the Amado one,” he said.

Unklesbay told the jury that Gaxiola was still in Arivaca when the first units from the Pima County Sheriff’s Department and the U.S. Border Patrol arrived at the Flores home. “It is not coincidence that at 1:30 in the morning this defendant is texting Shawna Forde: ‘Cops on scene. Lay low,’” he said. “He doesn’t know if the cops are on scene if he’s in Amado. He knows the cops are on scene because when he is leaving his home and he goes back down the Arivaca Road and he gets to Universal Ranch Road can you imagine the sight that he saw? He’s texting his buddies who are at his house with a wounded leg being treated.”

Unklesbay reminded the jury that the call from Gonzalez to the 9-1-1 call center was received at 12:49 a.m. and the first deputy to reach the scene was reported to have arrived at 1:13 a.m.  “He was still trying to get his car started to get the heck out of Dodge,” he added.

How did he know that?

Unklesbay referred back to the plot by Gaxiola and Oakstar to eliminate competition, Junior Flores. “Their plan was to take care of the competition,” he said. “After Albert Gaxiola texts Shawna Forde: ‘Lay low. Cops on scene.’ The text message back to Albert Gaxiola: “No worries. All good. Just relax. Competition gone.’”

Unklesbay pointed out that another complication for the home invaders was the fact that Gonzalez survived two bullet wounds. “In the midst of all this shooting, Gina lives and they leave a gun inside that has Albert Gaxiola’s DNA all over it,” he said.

Unklesbay then reminded the jury about Gaxiola’s enthusiasm to move on with his plans as depicted in a 7 p.m. text message on May 30, just 18 hours after the deadly home invasion. “A text message to Shawna Forde: ‘How are u all hanging? Get rest. Red on med leave,’” he said. “The blood hasn’t dried in Gina Gonzalez’ house and Albert Gaxiola is texting that he has the next target in mind. The day of the murders at 7 p.m. he’s texting Shawna Forde: ‘Have next target intel. Need 4 man crew’ He’s got vindictive Victor (Flores) still to take care of and Tony Smith.”

 Should the jury find Gaxiola guilty of the two counts of first-degree murder the trial will move to the aggravation phase. If the jury finds one of the alleged aggravators, multiple murders and a victim under the age of 15, to have been proven then the trial will move to the penalty phase where the burden lies with the defense to persuade the jury to grant the defendant leniency. 

Expert testimony regarding Gaxiola’s cellphone usage

At the start of jury selection in the Pima County Superior Court double murder trial for former Arivaca resident Albert Robert Gaxiola the prospective jurors were told they would be asked to pay close attention to timelines.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. Additional charges include: the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.

Both Forde and co-defendant Jason Eugene Bush have been tried and convicted on the same charges. Forde received two death sentences plus 65 years in the Arizona Department of Corrections and Bush received two death sentences and 78 years in prison.

Timelines

During mini-opening statements, defense counsel Jack L. Lansdale told the prospective jury that they would be presented evidence that will prove that his client was not present during the commission of the murders of Flores and his daughter. “Unlike the state’s theory of the case we’re going to ask you to pay close attention to timelines,” he said. “The 9-1-1 call occurred at 12:49 a.m., probably, somewhere between 12:30 and 12:45 a.m. is when these individuals went into the home,” he said.

Lansdale suggested that law enforcement officers were dispatched to Arivaca shortly after the 9-1-1 call reporting the murders was received in Tucson. “Deputies responded from the Green Valley area and arrived at the scene at 1:13 a.m.,” he said.

Lansdale said that Gaxiola was making calls or texting during the drive south. “At 9:57 p.m., he made a cellphone call or text message,” he said. “The cellphone tower he bounced off of was the Elephant Head cellphone tower.” Elephant Head is east of I-19 at Arivaca Junction (Amado).

The next cellphone activity was at approximately 1:33 a.m. using the Elephant Head cellphone tower. Lansdale said they would have an expert witness to explain how cellphones work. “You will also hear evidence that there is a cellphone tower in Arivaca,” he told the jury. “Our expert will tell you that had his call been made in Arivaca that cellphone tower would have been available for his call for his call to bounce off of.”

The drive

Lansdale said his client could not have been in two places at the same time. “The evidence will be that it takes 43-45 minutes at normal speed to travel from Amado (Arivaca Junction) to Arivaca,” he explained. An investigator for the defense testified Tuesday that it took her 36:07 and Det. Juan Carlos Navarro testified he had driven the distance in 33 minutes.

The expert witness Lansdale referred to four weeks ago testified on Wednesday. Lonnie Dworkin is a computer forensics manager for CompuFor LLC Computer Forensics. Dworkin was asked by the defense to analyze records for the cellphone used by Gaxiola on May 29-30, 2009. “Earlier in the evening, I identified the cellphone being in the Tucson area,” he said. “The log only shows what transactions were conducted from that phone to specific towers.”

Dworkin testified that he consulted databases compiled by the Federal Communications Commission (FCC) and then verified the records he found in those databases. “I contacted the owners of the towers because they could tell me what service providers actually use the towers and what capabilities they have,” he said. “I spoke to the service provider and verified that it was functional and can handle this cellphone traffic.”

The science of cellphones

Dworkin explained to the jury how cellphones communicate with cell towers and how records of those contacts are compiled. “When a phone call is made or a message is sent the time is logged, but the phone has to be within a certain range of the tower for that tower to handle the call,” he said. “The cell tower, at its maximum range, could be up to 22 miles of coverage as the crow flies.”

Dworkin testified that the cell tower on Elephant Head is approximately 15-18 miles east of I-19. During cross-examination Dworkin corrected his testimony from earlier in the day. “It’s approximately eight miles,” he testified.

As mentioned by Lansdale during jury selection, Gaxiola either placed a call or sent a text message at 21:56:55 or nearly 9:57 p.m. on May 29 that utilized the Elephant Head cell tower. The next cellphone usage was at 01:32:54 (nearly 1:33 a.m.)  hours: Gaxiola to Forde—“Cops on scene. Lay low.” Dworkin testified that message also went through the Elephant Head tower.

The next message was transmitted through the through cell tower near Sahuarita at 01:58:17 (1:58 a.m.) hours: Forde to Gaxiola—“No worries. All good. Just relax. Competition gone.”

The final message Dworkin was asked to check was transmitted at 02:08:20 (2:08 a.m.) hours: Forde to Gaxiola—“How do we turn camera on in bedroom?”

Variables

During cross-examination, Dworkin was asked if cell towers in rural areas provide service to a larger area. “The strength of the signal would be one. The other would be the height of the antenna is another due to better line of sight and fewer obstructions,” he said.

“The phone call at 01:32 that pings off that tower and what we know from that is that phone is within 20 or so miles of that tower,” Johnson said. “Correct,” Dworkin replied. Testimony earlier in the trial indicated that that the distance between 2^nd Street in Arivaca to the Arivaca Junction measures 23.3 miles.

The jury submitted several questions for Dworkin to answer. “An earlier witness referred to a wildcat tower near Arivaca. Do you know if there is a tower in the Arivaca area referenced as a wildcat tower?” the jury asked. “It’s possible that there is an unofficial tower that is not reflected in the FCC records,” Dworkin answered.

A second jury question was: “How far west on the Arivaca Road can a cellphone communicate with the Elephant Head tower?” the jury asked. “I couldn’t say definitively, theoretically up to about 22 miles from the Elephant Head antenna,” Dworkin answered. “Given there is an antenna in Arivaca they may not want them to overlap so the antenna from Elephant Head not extend a full 22 miles out. It may only extend 15 miles out.”

Motion for directed verdict

After the jury was dismissed Wednesday the defense renewed its earlier motion requesting a directed verdict of acquittal. That motion was denied.

Closing arguments in this phase of the trial are set to begin at 10:30 a.m. on Thursday morning. 

Defense case resumes in the Gaxiola murder trial

Albert Gaxiola
(pool photo by Benjie
Sanders/Arizona Daily
Star)

The Pima County Superior Court jury hearing the double-murder trial for former Arivaca resident Albert Robert Gaxiola heard, Tuesday, from two former patrol deputies with the Pima County Sheriff’s Department and two private investigators working on behalf of the defendant.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. Additional charges include: the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.

Both Forde and co-defendant Jason Eugene Bush have been tried and convicted on the same charges. Forde received two death sentences plus 65 years in the Arizona Department of Corrections and Bush received two death sentences and 78 years in prison.

Birthday party

Last week, the reputed leader of drug smuggling in Arivaca, Edward Anson “Eddie” Valdez, denied any knowledge of the planned home invasion on May 30, 2009. In fact, he testified that Brisenia Flores and her sister were invited to attend a birthday party for his daughter that day.  “I had seen him a week earlier and I was having my daughter’s birthday that day and I asked him to bring the girls over,” he testified.

Valdez, 35, testified that he lives on a ranch near Arivaca Lake with his mother, brother, girlfriend and children.

During a visit to the Flores home on May 12, 2011, private investigator Weaver Barkman photographed a calendar in the kitchen. “It was hanging on the side of the refrigerator,” he testified. “It’s a calendar showing the month of May 2009. It looks like Kyler’s birthday party at the lake, 10 a.m.”

Expert testimony

Much of Barkman’s testimony was limited by his lack of expert status in the eyes of the court. Barkman is a former sergeant with the sheriff’s department who retired from law enforcement service in 1995. Deputy County Attorney Rick Unklesbay pressed Barkman about his skills and training as an expert. “Would you agree with me that the last time you personally processed a crime scene was the late 1970s or early 1980s?” he asked. “No sir,” Barkman replied.

“When was the last time you processed a crime scene?” Unklesbay asked. “I supervised…” Barkman started to reply.

“Not supervised, but actually processed it yourself, made decisions about what to photograph, what to collect,” Unklesbay clarified. “In 1995,” Barkman replied.

“You actually processed a scene yourself in 1995?” Unklesbay asked. “I directed that it be processed,” Barkman replied.

“Let me ask the question again one more time. You, personally sir, as a detective processing a scene yourself not following someone else, but processing it yourself?” Unklesbay asked. “1995,” Barkman replied. “Are you asking if I actually picked up an item of evidence?”

“In 1995, as a sergeant I was still involved in active participation in processing a scene,” Barkman added.

Monday morning quarterback

Unklesbay asked Barkman if precise reporting is important in crime investigation, pointing out numerous errors in reports Barkman submitted and testimony from the witness stand earlier on Tuesday. “Mr. Barkman, one of the things you do is Monday morning quarterback what other detectives do?” he asked. “Objection, argumentative,” said defense counsel Jack L. Lansdale. “Overruled,” said Judge John S. Leonardo.

Before recessing for the day, the defense called another private investigator to testify. Lois Grushka has been a licensed private investigator for 22 years. “I’ve had my own agency for the last six,” she said.

On June 16, 2011 at 11:30 a.m., Grushka recorded a video of the drive between Arivaca Junction and the Gaxiola residence and the route from Gaxiola’s residence to the Flores residence. “I own a video camera. I mounted it to the dash of my vehicle,” she testified.

The jury watched the entire video recording in real time, 36:07, with sporadic commentary from defense counsel Steven D. West and Grushka. “The speed is clearly marked on the road,” she testified.

Grushka also testified that the drive from Gaxiola’s residence to the Flores residence took 8:06.

On June 4, 2011, 12:30 a.m., Det. Juan Carlos Navarro and Det. Mark O’Dell, another member of the Homicide Unit went to Arivaca to make the same drive with a video recording. “We wanted to time the distance from the Flores residence to Albert Gaxiola’s residence and the distance from Albert Gaxiola’s residence to the Amado/Arivaca Junction,” Navarro said. “I wanted to drive the speed limit and find out exactly how long it takes from his house to Amado. The speed limit is 45. I drove from 45-50. From Mesquite to 2^nd took me six minutes, seven seconds, 3.3 miles. From 2^nd to the Amado Junction took 31 minutes, 23.3 miles. I never went over 50.”

Wednesday, it is anticipated that the defense will call an expert to testify regarding cellphone usage.