About half of the remaining jury pool for the death penalty case for Albert Robert Gaxiola in Pima County Superior Court was told, Wednesday morning, that they will hear evidence proving that Gaxiola was not present at the time of the home invasion that took the lives of Raul “Junior” Flores and his 9-year-old daughter Brisenia on May 30, 2009.
“We believe at the end of the day we’re going to prove that Albert wasn’t even there,” said defense counsel Jack L. Lansdale, during mini-opening statements to 47 prospective jurors.
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.
In an effort to assist the prospective jurors, attorneys for the state and the defense provided short statements summarizing the evidence they will hear during the course of the case. “Some people armed with guns went into the home of Junior Flores, his wife Gina Gonzalez and their 9-year-old daughter Brisenia,” said Deputy Pima County Attorney Rick Unklesbay. “The family was asleep”
Forde was convicted under the felony murder theory earlier this year and Bush was convicted under both the premeditated and felony theories. In order to be convicted under the felony murder theory a person must be present during the commission of a felony where someone dies. “This trial is about Albert Gaxiola and his alleged involvement,” said Unklesbay. “We have to prove beyond a reasonable doubt that Albert Gaxiola that was part of this home invasion crew that went into the Flores-Gonzalez household.”
Lansdale told the 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.”
Lansdale told the jury that they would also hear evidence of the involvement of Gaxiola’s co-defendants. “You’re going to hear that a short blonde woman and a tall white man that were dressed in camouflage that gained entry by indicating that they were law enforcement,” 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 the first responding deputy would testify regarding his actions. “He will testify that he was very acutely aware of looking for oncoming traffic leaving Arivaca eastbound on the Arivaca Road,” he said. “He will tell you he saw no oncoming traffic.”
Lansdale said the lone surviving victim would also provide key testimony. “Gina Gonzalez will tell you that when she was on the phone with 9-1-1 she saw an Hispanic male stick his head in the door while she was in the kitchen and say a few words, I believe the quote is ‘Ah shit,’ apparently when she saw that he was still alive,” he said, apologizing for the tone of the language used. “That happened while she was on the phone with 9-1-1. That happened after 12:49 a.m. She will tell you that she didn’t get a good look at him. She will tell you that when she was on the floor she thought that she recognized one of the voices but couldn’t put a name to it.”
Lansdale told the jurors that Gonzalez would be asked to describe her relationship with Gaxiola. “Gina Gonzalez had known Albert Gaxiola for years. She will tell you that Albert’s aunt is her god mother, that Albert Gaxiola has picked her children up from the community center and brought them to her home, that Albert Gaxiola has been to her home for dinner,” he said. “She knows him well.”
Lansdale said that another reason Gaxiola was not present at the murder scene was his love life. “Albert Gaxiola was with a young woman by the name of Gina Moraga,” he said. “On the evening of May 29th, he left Tucson and traveled southbound on I-19.”
Lansdale said that Gaxiola was making calls or texting during the drive south. “At 9:57 p.m., he made a cellphone call of 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 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.
Lansdale said the state’s evidence will be that Gaxiola visited with Oin Oakstar and that Moraga was with him. Car trouble plagued Gaxiola outside of Oakstar’s home and at his home in Arivaca where Inga Hartmann observed him trying to start his car at 1:15 a.m. “She told another witness that it was 12:15-12:30,” he said. “Had he been driving from the crime scene or anywhere near there he wouldn’t have made it to Amado by 1:30.”
The second half of the prospective jury panel is scheduled for voir dire on Thursday with the anticipated seating of a 16-juror panel by Friday afternoon. The jury panel has been told the trial could last until July 8 should all three phases become necessary. Opening statements in the case are anticipated on Tuesday, June 7, at 10:30 a.m. before Judge John S. Leonardo.