Wednesday, June 15, 2011

Gaxiola motion for a mistrial based upon Oakstar testimony is denied

Oin Oakstar
(pool photo by Benjie Sanders/
Arizona Daily Star)
Pima County Superior Court Judge John S. Leonardo denied, Wednesday afternoon, a defense motion requesting a mistrial for alleged double-murderer Albert Robert Gaxiola.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009 deaths of Flores and his daughter. 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.

Mistrial motion

Prosecution witness Oin Oakstar spent all of Tuesday and Wednesday morning testifying to his role in the fatal home invasion. Prior to the start of the afternoon session on Wednesday, Lansdale offered the motion for a mistrial. “I feel compelled to point out that error has occurred and I request a mistrial,” Lansdale told Leonardo.

Lansdale cited Arizona Rule of Criminal Procedure 15.1: “any statement made by a defendant that the state intends to use against him is to be disclosed.”

Lansdale said Oakstar had testified for the first time that Gaxiola had briefed him on the morning of May 30 regarding the botched home invasion earlier that day. “Never ever did Mr. Oakstar ever say that on the morning of May 30 when my client called him on the phone that my client made any comment incriminating himself in the homicide that occurred in the early morning hours of May 30,” he said.

Lansdale told Leonardo that for the first time Oakstar said on direct examination that he asked Gaxiola what happened and he was told that thing didn’t go as planned. “It was a clear indication that he was either involved or knew what happened in the homicide,” he reiterated.

Judge John S. Leonardo
“That is a distinction, but it’s insignificant,” Leonardo said.

“The clear implication is that he knows something about what went on,” Lansdale replied. “That’s never been said judge. That’s my point. It’s never been said, ever, ever by Mr. Oakstar.”

Lansdale referred to Oakstar’s testimony in prior trials. “He attributed the statement to Shawna Forde in the Shawna Forde trial,” he said. “Then, in the Bush trial he attributes the statement to Mr. Bush.”

Prior to the noon recess, there was a jury question for Oakstar that the judge said could not be answered because it would not be appropriate under the rules of evidence. “I believe under the totality of evidence that an inference has been created that something was said about my client that they can’t hear about,” Lansdale said.

Lansdale said he was aware that witness testimony could be a challenge to control. “If they knew that he was going to say that then we have a real problem here,” he said. “I don’t believe for a minute that these prosecutors as experienced as they are would prep a witness to say something that he has never said before. I should have been given wide latitude to point out that was the first time he had ever said that.”

“What wider latitude could I have given you?” Leonardo asked.

Teal-colored van

Lansdale also pointed out that Oakstar had testified that the teal-colored mini-van used during the home invasion had been purchased by Gaxiola for use in hauling drugs. “The state had tried to prove who had purchased that teal mini-van, but there was really never any evidence,” he said.

Later, following the mid-after break, Unklesbay pointed out that the defense has a statement from Oakstar where he talked about the ownership of the van. “On page 47, there is discussion about Mr. Gaxiola’s previous ownership of the vehicle,” he said.

During testimony on Wednesday morning, Oakstar was asked if he had mentioned during a pretrial interview that Gaxiola had told him that he was involved in the fatal home invasion. “I never made a statement to that effect,” he testified. “He told me he was in Tucson.”

Oakstar was asked by Lansdale about a pretrial interview where he expressed animosity towards Junior and Victor Flores where he stated: “At different times I had the inclination to take them out, but that wasn’t my way,” he testified.

Later in the interview Oakstar admitted that if the opportunity arose that he would have killed Flores.  “If the opportunity had arose I would have,” Oakstar admitted.

Oakstar was asked during a pretrial interview if his understanding of the plan was no one was suppose to be harmed other than Flores. As a follow-up, Oakstar said he could not recall if Gaxiola had discussed a different version of the plan.

Oakstar was engaged to be married to a woman from Tucson at the time of the home invasion. At the same time, he was in a relationship with a woman in Arivaca whom he described as “a paramour” when found himself at a loss for words. Oakstar recalled discussing, with his fiancé, his fear that he had been setup to be blamed for the murders of Flores and his daughter. Lansdale quoted from a pretrial interview: “Eddie saw that you were getting high and drunk all of the time so they were going to use you as a scapegoat because of your weakened state.”

Hit list

Yesterday, Oakstar had testified about an alleged hit list of drug dealers and others in Arivaca. “We sat down, he, Albert and I and discussed who was competition in Arivaca in the drug trade,” he testified.

“The recognition of the need to kill Junior was a direct result of the rip off of the 400 lbs. and Junior’s recognition that you and Albert had done the rip off?” Lansdale asked. “Correct,” Oakstar answered.

“Up until that point, there was no plan to go around killing anyone?” Lansdale asked. “No,” Oakstar answered.

“You all, essentially, peacefully coexisted, did your business and stayed out of everybody else’s business,” Lansdale said. “I wouldn’t say peacefully, but yes,” Oakstar answered.

“No one had gotten killed yet, had they?” Lansdale asked. “No,” Oakstar replied.

“Are you indicating that you were going to go out and kill everybody on this list?” Lansdale asked. “It was a short list, but yes,” Oakstar replied.

Lansdale asked name-by-name if someone was on the list. He named Raul Flores, Victor Flores, Ernie (no last name) and the three Tucson guys doing business out of the 40s. Lansdale asked who else was on the list. “Possibly, Tony,” Oakstar replied.

On re-direct examination Deputy County Attorney Rick Unklesbay asked Oakstar about the alleged hit list. “He was going to use them to take out all of the competition in Arivaca starting with Junior,” Oakstar said. “He was going to take out Victor, Ernie, even Angel.”

No stranger

Unklesbay asked Oakstar about his life of crime. “I’m no stranger to violence,” he testified. “I wouldn’t involve somebody’s family.”

Unklesbay asked Oakstar about Gaxiola’s attitude regarding the hit list. “He was pushing for it,” he said.
Finally, Unklesbay asked Oakstar why he didn’t go with Gaxiola the evening of May 29. “It just felt wrong. What he had suggested or wanted to do felt wrong to me,” he said. “I used alcohol and drugs as an excuse not to go.”