Thursday, June 30, 2011

Closing arguments in the Gaxiola double murder trial

Albert Gaxiola
(pool photo by Mampta
Popat/Arizona Daily

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.


Raul and Brisenia
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.