(pool photo by Jill
A Pima County Superior Court jury has determined that former Arivaca resident Albert Robert Gaxiola is eligible to receive the death penalty for his role in the May 30, 2009, home invasion that left Raul “Junior” Flores and his daughter Brisenia dead from gunshot wounds.
Last Friday, Gaxiola, 44, was found guilty on two counts of first-degree murder and six other charges. Earlier this year, Jason Eugene Bush and Shawna Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.
Judge John S. Leonardo welcomed the jurors back to his courtroom, Wednesday morning, after a four-day break for the July 4th holiday weekend. “This phase of the trial that we are starting today has no additional evidence. You have already heard all of the evidence,” he told the jury.
During arguments to the jury, Deputy County Attorney Kellie Johnson said the degree of participation is an important consideration. “What you will have to decide is whether or not he intended that the killing took place or whether he was a major participant in the felonies of burglary and robbery and acted with reckless indifference to human life,” she said. “In addition to what he did on May 30th you can consider his planning, the things he did prior to May 30th. Obviously, the evidence presented to you in that first phase shows to you beyond any doubt that he was a major participant in what happened at the Flores home on May 30, 2009.”
Johnson suggested that Gaxiola’s intent was clear. “I would submit to you that when you go over to a family’s home at one o’clock in the morning with the intent to take out your competition and you arm yourself and your accomplices arm themselves with guns, you proceed to force your way into a home and rob these people and kill Gina Gonzalez and obviously it ended up in the deaths of Raul and Brisenia there can be no question that his actions demonstrated a reckless indifference to human life,” she said.
Defense counsel Jack L. Lansdale told the jury that they would have a hard time determining whether or not his client was a major participant. “You have to determine as to each victim whether Albert intended for the killing to take place or whether he was a major participant in the burglary, robbery or both and was recklessly indifferent,” Lansdale said. “He could have engaged in the plan and then Bush went over there and killed somebody, in which case he would have intended that the killing of Raul take place, but he wouldn’t have intended that the killing of Brisenia take place.”
Lansdale told the jury that his client had no idea whatsoever that the home invasion and murders would take place. “There is no evidence whatsoever that there ever was any plan or intent on Albert’s part that he ever intended that to happen,” he said. “It is clear at the close of business on May 29th, Oin, the state’s major witness, didn’t know anything about the home invasion. Somehow the plan changed, but there is no evidence of how the plan changed or why the plan changed or who came up with the idea to change the plan. There is no evidence that it became his idea to do that.”
Lansdale asked the jury to carefully consider the question before them. “I’m going to ask you to find that he was not a major participant in the burglary or the robbery or both and that he was not recklessly indifferent regarding a person’s life,” he said.
The verdicts read in court indicated that 11 members of the jury found that Gaxiola intended that a killing take place and 12 of the jurors found that Gaxiola was a major participant and recklessly indifferent with regard to the murders.
The jury was also asked to determine the existence of aggravating factors in regard to the murders. According to Arizona Revised Statute 13-751, a sentence of death may be imposed if just one of the aggravating circumstances that have been alleged is proven by evidence presented to the jury. In this case the state has alleged the following aggravating circumstances:
1. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. “In Arizona, when we say previously convicted that includes serious offenses on the same occasion as the homicides themselves,” Johnson said. “Here what we are talking about are the serious offenses that he has been convicted of, the armed robbery, first-degree burglary and attempted first-degree murder.”
2. The defendant has been convicted of one or more other homicides. “What you have to find is that these two homicides were related in time, space and motivation,” Johnson said. “There is no question that Raul and Brisenia Flores were murdered at the same time during this home invasion. They were murdered during the same series of events and that the motivation for those murders was the same.”
3. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under 15 years of age. “The law requires that you give separate consideration in this phase to that type of question about the age of the victim,” Johnson said.
Before the attorneys argued their perspectives to the jury Leonardo read a stipulation stating that Gaxiola was older than 18 years of age at the time the murders he was convicted of last week took place. That information is important when the jury considers the aggravating factor alleged by the state in connection with the murder of Brisenia Flores.
The jurors also found that each of the aggravating factors alleged by the state had been proven beyond a reasonable doubt.