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.
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.”
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?”
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 2nd 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.