Saturday, June 18, 2011

Three motions for mistrial and one for judgment of acquittal all denied

Albert Gaxiola
(pool photo by Benjie
Sanders/Arizona Daily

The Pima County Superior Court trial for alleged double-murder Albert Robert Gaxiola survived three defense motions requesting mistrials and a defense motion for a judgment of acquittal this week.

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.

First mistrial

Prosecution witness Oin Oakstar spent all of Tuesday and Wednesday morning testifying to his role in the fatal home invasion. At the completion of Oakstar’s testimony Defense counsel Jack L. Lansdale offered a motion to Judge John S. Leonardo requesting a mistrial based upon testimony provided by Oakstar. “I feel compelled to point out that error has occurred and I request a mistrial,” Lansdale said.

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.

“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.”

Second mistrial

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, Det. Juan Carlos Navarro was asked numerous questions Thursday afternoon, about why only certain items of evidence were submitted for DNA testing.

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 Pima County Sheriff’s Department reported the amount spent 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.”

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, Deputy County Attorney Kellie 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 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.

Correcting testimony

On Friday morning, after arguing the motion for a mistrial, which was denied by Leonardo, 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.

In arguing a Rule 20 motion, requesting a judgment of acquittal, 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.

Navarro confirmed that at no time leading up to the Forde trial did Gonzales mention to him in investigative interviews that Gaxiola was present in her home during the murders of her husband and daughter.

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.

Third mistrial

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.