|Judge John S. Leonardo|
During most criminal trials, the defense offers a motion at the end of the presentation of evidence by the prosecution requesting a judgment of acquittal based upon a lack of sufficient evidence to convict. The Pima County Superior Court trial for Albert Robert Gaxiola was no exception.
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.
Defense counsel Jack L. Lansdale made a lengthy presentation to Judge John S. Leonardo. “The court shall grant a judgment of acquittal of one or more offenses charged in the indictment if there is no substantial evidence to warrant a conviction,” he said.
Lansdale reminded Leonardo that the defense had offered a motion asking for the count involving the murder of Flores to be tried in a separate trial because the anticipated evidence might prejudice the jury regarding the counts involving the murder of Brisenia and the attempted murder of Gonzalez. “We urged the court to sever count two because the nature and the quality of the evidence on count two was going to be significantly different,” he said. “The evidence is quite clear and I believe that no one that has been in this courtroom doesn’t understand that Mr. Bush was the individual who fired the rounds that killed two individuals and seriously wounded a third.”
Lansdale also reminded Leonardo that Gaxiola is being prosecuted under the theory of felony murder. “Any theory on the liability on the part of Mr. Gaxiola is based upon him being present as an accomplice,” he said. “The court has to evaluate the nature and the quality of the evidence that’s been presented. In order to be liable for a criminal act you either have to be a principal or an accomplice.”
Lansdale raised issues regarding testimony by Gonzalez at the Forde trial on Jan. 25. “On direct and cross, she did not say that Albert Gaxiola was present,” he pointed out.
After questions about the voices Gonzalez heard she acknowledged that Gaxiola speaks Spanish and that was his voice she heard. “That was the first time, January 2011, that she ever said yep that was Albert,” Lansdale said. “Now, she is saying it was his voice.”
Lansdale pointed out to Leonardo that in considering a Rule 20 motion “everyone seems to think if it’s a question of credibility it has to go to the jury. Everyone seems to think that for some reason. That’s not the law.”
In making his argument Lansdale referred to the cross-examination on Thursday by defense counsel Steven D. West when he asked Det. Juan Carlos Navarro about his numerous interviews with the surviving victim. “When you contacted Ms. Gonzalez were you paying attention to what she was telling you, were you listening?” West asked. “Of course,” Navarro relied with a stunned look on his face.
The first time Navarro spoke with Gonzalez was a few days after the homicides at the wake for Flores and his daughter. He did not conduct a formal interview at that time.
Navarro testified that he spoke to Gonzalez three times in June 2009.
The next time Navarro spoke to Gonzalez was on Feb. 18, 2010, when he took statement about the AK-47 own by her husband, which had been recovered at Gaxiola’s residence.
Navarro had a non-recorded telephonic interview with Gonzalez regarding her previous attendance at court hearings and whether she had observed the defendants. “She told you she recognized Albert Gaxiola, correct?” West asked. “Yes,” Navarro replied. “And, she said that recognized Albert because she knew him from living in Arivaca?” West asked. “Yes,” Navarro replied. “At no time during that conversation did she tell you that Albert Gaxiola was in her residence the night of this incident?” West asked. “No,” Navarro replied.
Navarro met with Gonzalez on Jan. 5, 2011, about her recovered jewelry and had a call from her on Jan. 6, 2011 during which she did not mention that Gaxiola had been in her home the night of May 30, 2009.
Lansdale said the felony murder theory in regards to Gaxiola has not been established. “To allow this case to go forward on the theory that he’s there, that he’s committing one of the predicate felonies,” he said. “Her testimony cannot support a finding that a reasonable person could accept as adequate and sufficient evidence to support the conclusion of his guilt beyond a reasonable doubt.”
Leonardo denied the motion for a judgment of acquittal. “I believe there is substantial evidence that would warrant conviction on all of the counts,” he said.
After Leonardo’s ruling, the defense made its third motion for a mistrial in three days. “We believe that the evidence that was allowed to be admitted as to the plan on Junior Flores has unduly prejudiced this defendant,” Lansdale said.
That motion was denied, as well.