Thursday, June 30, 2011

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.