Thursday, June 16, 2011

Another day, another defense motion for a mistrial

Det. Juan Carlos Navarro

For the second day in a row, the defense in the double murder trial of Arivaca resident Albert Robert Gaxiola in Pima County Superior Court has requested a mistrial due to issues based upon the introduction of evidence.

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.

Thursday afternoon, Det. Juan Carlos Navarro with the Pima County Sheriff’s Department, was testifying in his role as the lead investigator for the case. As with all detectives called to testify Navarro was asked numerous questions regarding the identification, collection and processing of items of evidence in this matter.

During questioning by defense counsel Steven D. West, Navarro was asked why only selected items of evidence were sent to Sorenson Forensics in Salt Lake City for DNA testing. West asked if cost was a consideration in the decision as to which items were tested. “It could be,” Navarro responded, adding that he needed approval from his supervisor since the bill for the department paid testing.

On re-direct questioning by Deputy County Attorney Kellie Johnson Navarro was asked if the defense had tested any of the items of evidence collected during the investigation. “Although they don’t have an obligation, does the defense have the opportunity to borrow evidence to test themselves?” asked Johnson. “I’m going to object because of burden shifting,” West said. “Overruled,” said Judge John S. Leonardo. “Yes, they do have the opportunity,” Navarro answered.

“In this case, did the defense exercise that opportunity and ask you for specific items of evidence to send to their own laboratory?” Johnson asked. “Yes, Navarro answered.

“Was one of those things the DNA sample of Oin Oakstar and di their laboratory actually conduct testing and send those items back to you?” Johnson asked. “Yes,” Navarro answered.

“Did they actually give you a specific list of what they wanted and di you provide all of that to them?” Johnson asked. “Yes, I did,” Navarro replied.

Testimony then shifted to the teal-colored van allegedly used by the persons participating in the fatal home invasion. “Did your investigation, in its entirety, suggest to you that Mr. Gaxiola was driving that van at the time of the murders?” Johnson asked. “Yes,” Navarro answered.

At that point, the defense requested a bench conference shortly before 5 p.m. After the jury was sent home and asked to return at 9:30 a.m. Friday the defense offered its second motion requesting a mistrial in two days. “This new revelation in the courtroom is causing the defense to ask for a mistrial,” West said. “There is no information that we’re aware of as the defense team that the sate has file and they’re not aware of any information that anybody has indicated that Albert was the driver of that van.”

“You already made the motion for a mistrial at the bench and I’ve taken it under advisement until tomorrow morning,” Leonardo said, looking at Johnson to see if she wished to put forth any argument.

“I just asked Det. Navarro where did that come from and he misunderstood my question,” Johnson told Leonardo.

“So, when he takes the stand you would ask him yesterday I asked you this and you said this, was that a correct answer and he will correct himself,” Leonardo asked. “Correct,” Johnson responded.

Johnson stated that the evidence suggests that somebody else was the driver.

“Is that acceptable?” Leonardo asked. “We’ll tell you in the morning,” West responded.

That’s where it stands until court reconvenes at 9:30 a.m. on Friday.