Friday, June 17, 2011

The role of evidence is looming over Gaxiola trial

Albert Gaxiola
(pool photo by Benjie Sanders/
Arizona Daily Star)
 During a trial at Pima County Superior Court the jury is asked to consider the evidence collected in the investigation of a crime in order to make their decision regarding the guilt or innocence of a defendant. The jury is only allowed to consider evidence that is presented as testimony from the witness stand.

The trial of alleged double-murderer Albert Robert Gaxiola reached the end of the second week of testimony, Friday, with the identification, collection, testing and presentation of evidence looming as the most significant issue. A misstatement by Det. Juan Carlos Navarro with the Pima County Sheriff’s Department resulted in the defense asking Judge John S. Leonardo to declare a mistrial, the second such request in two days. The mistrial motion was denied.


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 presentation of the prosecution case, each and every detective and technician who engaged in collection and processing of evidence has been questioned regarding their role and the actions they took. As lead detective for the investigation, Navarro was asked numerous questions Thursday afternoon.

A case in point has been the numerous swabs of interior surfaces of the teal-colored van, which may have been used during the home invasion. Detectives did not submit each and every swab taken in the van for DNA analysis. “In a case like this, where you have as much evidence as you did, do you send every piece of evidence to Sorenson Forensics?” Deputy County Attorney Kellie Johnson asked. “No,” Navarro answered.

Defense counsel Steven D. West asked if cost was a consideration in the decision as to which items were tested. “It could be,” Navarro responded, adding that he needed approval from his supervisor since the bill for the department paid testing.


The sheriff’s department reported the amount spent by the Pima County Sheriff’s Department for DNA work on the Gaxiola, Bush, and Forde homicide case is $22,035. “That is only our cost,” said Deputy Dawn Barkman, department spokesperson. “This does not include any costs that the Pima County Attorney’s Office might have incurred.”

Direct examination of Navarro resumed with questions from Johnson. “How do you go about making the decision about what items to test and what you are going to send? Johnson asked. “We sit down as a unit and decide which items are the most important items that need to be sent,” Navarro answered. “In this particular case, we wanted to find out who the intruders were so we concentrated more on the items we believed the intruders left behind.”

West was meticulous in his inquiry of Navarro. “Weren’t you the least bit curious about who was driving that vehicle?” West asked. “Based on information we had we believed we knew who was driving,” Navarro replied. “Shawna Forde?” West asked. At that point, Johnson requested a bench conference with the judge. “Your honor, I’m going to withdraw that question,” West stated after the bench conference.

On re-direct questioning by Johnson, Navarro was asked if the defense had tested any of the items of evidence collected during the investigation. “Although they don’t have an obligation, does the defense have the opportunity to borrow evidence to test themselves?” asked Johnson. “I’m going to object because of burden shifting,” West said. “Overruled,” said Judge John S. Leonardo. “Yes, they do have the opportunity,” Navarro answered.

“In this case, did the defense exercise that opportunity and ask you for specific items of evidence to send to their own laboratory?” Johnson asked. “Yes, Navarro answered.

“Was one of those things the DNA sample of Oin Oakstar and did their laboratory actually conduct testing and send those items back to you?” Johnson asked. “Yes,” Navarro answered.

“Did they actually give you a specific list of what they wanted and did you provide all of that to them?” Johnson asked. “Yes, I did,” Navarro replied.

Teal-colored van

Johnson asked Navarro about the teal-colored van brought up a few minutes earlier by West. “Did your investigation, in its entirety, suggest to you that Mr. Gaxiola was driving that van at the time of the murders?” Johnson asked. “Yes,” Navarro answered.

On Friday morning, after arguing the motion for a mistrial, Navarro was returned to the stand with Johnson asking questions designed to correct his testimony from the day before. “At the end of the day yesterday, I asked you whether you had evidence that showed that Mr. Gaxiola was driving the van and you had answered yes. Did you misunderstand my question to you yesterday?” Johnson asked. “Yes I did,” Navarro replied. “Had you understood what I was asking would you answer actually been no to that?” Johnson asked. “Correct,” Navarro replied. “Is it fair to say that you are aware of no evidence that Mr. Gaxiola was driving the van either in the afternoon of the 29th or on the morning of the 30th?” Johnson asked. “Correct,” Navarro replied.

Storm clouds

There was a foreshadowing of things to come at the afternoon session, as West raised issues regarding anticipated testimony. “They’re suggesting that some door would be opened by pointing out the fact that he didn’t send swabs for processing,” West told Leonardo. “Before we open any doors, before we do anything else we would like to have a proffer of just what devastating evidence they would bring in if we ask that question.”

“Does this relate to specific swabs?” Leonardo asked.

“I’m guessing that it is specifically with regard to the teal van because there were multiple swabs done on that van by a team of four detectives,” West replied. “The only swabs of that van that were sent were of the blood samples from the outside of the door or the carpet inside. I don’t know what the surprise answer is to why did you not submit those.”

Johnson suggested that West had misunderstood her earlier statements. “What I said was that I didn’t think he had thought through the implications of the answers that Det. Navarro would have to give in response to us asking why,” she told Leonardo. “There is also coming in the defense case testimony from Mr. Weaver Barkman who is going to offer up several opinions about what the sheriff’s department could have done differently or should have done differently in regard to certain items of evidence.”

“Some of those items of evidence were not submitted and Det. Navarro could say if asked that he knew based on his investigation and interviews and everything that he knew about the case that those items were not important,” Johnson continued. “Mr. Barkman is making much hay of the Mexican coins that were out in front of the scene. Det. Navarro knows that Mr. Rodriguez told him he dropped them when he was being placed into a police car. The defense asked specifically for a number of items of evidence that they were provided with and got to send to their own lab.”

Co-defendant statements

“It would be inappropriate to get into statements by co-defendant Bush as to who did what,” Leonardo said. “It depends on the nature of your examination, what you draw out of the detectives.”

“You can’t bring in a co-defendant’s statement in any way, shape or form,” West said.

“You can’t ask a witness why they didn’t do something and then preclude them from explaining why not,” Leonardo said.