A Tucson man alleged to have taken part in an armed robbery in 2017 that left his purported accomplice dead could stand trial for murder if the Arizona Court of Appeals allows cell phone evidence initially obtained without a warrant to be admitted at trial.
The Pima County Attorney’s Office contends cell phone evidence which prosecutors believe shows Paul Larry Gasbarri was one of two men involved in an October 2017 armed robbery outside Desert Sports and Fitness should be admissible at trial. The evidence was suppressed in February 2019 by Judge Teresa Godoy of the Pima County Superior Court who ruled it was obtained “without lawful authority.”
On March 18, the county attorney’s office argued to a three-judge appellate panel that Godoy abused her judicial discretion in suppressing the evidence. At issue is the trial court judge’s decision to issue the suppression ruling without conducting an evidentiary hearing at which the prosecutor, Mike T. Diebolt, intended to present testimony in support of the seizure of the cell phone.
The stakes are high for Gasbarri, 49, because the other suspect in the armed robbery, Daniel Spear, was shot and killed by responding officers. This exposes Gasbarri to life in prison if convicted of first-degree murder for committing a felony offense resulting in death.
Court records show multiple officers responded to an armed robbery and attempted carjacking on Oct. 18. 2017 near Pantano and Wrightstown Roads. Two men were reportedly involved, one of whom was identified as Spear, 35, who died nearby after firing on police as they arrived on-scene.
The other man left the area in a pickup truck which was located a few hours later outside a residence on East First Street. Gasbarri, who was sitting inside the truck, told investigators he borrowed the truck from a friend and was driving to visit his girlfriend. He was detained for nearly two hours before being allowed to leave.
Police, however, kept a cell phone found in Gasbarri’s possession. Investigators later obtained two search warrants allowing them to download the phone’s data and collect cell tower information which Diebolt argued connected Gasbarri to the armed robbery.
In February 2018, Gasbarri was indicted by a county grand jury on multiple felonies stemming from the October 2017 incident, including armed robbery, aggravated assault, kidnapping, and first-degree murder based on Spear’s death. The indictment also included two felony counts for possession of a deadly weapon by a felon.
Gasbarri was taken into custody by the U.S. Marshals Fugitive Taskforce and held in the Pima County jail on $1,000,000 bail. His defense attorney filed a motion to suppress the cell phone and related evidence, arguing the phone was unlawfully seized by police.
Under court rules, a motion to suppress evidence shifts the burden onto the prosecutor to prove all evidence was lawfully obtained.
However, Diebolt never filed a timely response to the defense motion. Godoy granted Diebolt’s request for an extension, but the new deadline came and went without any response being filed with the judge.
In January 2019, Godoy advised the attorneys that she intended to rule on the suppression motion based on what pleadings had been filed with the court. But at a Feb. 11, 2019 hearing, Diebolt asked to present witness testimony on why the suppression motion should be denied.
The judge refused Diebolt’s request and issued the suppression order.
“Because the phone was seized without seeming probable cause, it’s the order of the Court that the cell phone and any information seized from the phone are suppressed” Godoy ruled, noting the order also applied to any cell tower data.
Having lost the state’s key evidence, Diebolt asked Godoy in April 2019 to dismiss the charges connected to the armed robbery and Spear’s death just days before the trial was to start. Pima County Attorney Barbara LaWall then filed an appeal of the suppression hearing.
During the March 18 court of appeals proceeding, Deputy County Attorney Jacob Lines noted Godoy “was justifiably concerned” by Diebolt’s failure to file a response. He also agreed Godoy had authority to do something “to penalize that failure.”
But according to Lines, the judge should have heard testimony from the witnesses Diebolt brought to the evidentiary hearing in order to decide the motion to suppress on its merits. Godoy could have then addressed the prosecutor’s actions in some other way “without determining the outcome of the case,” Lines argued.
Last week’s hearing at the Court of Appeals was closed to the public due to COVID-19 precautions which also required the attorneys to make their arguments by phone instead of appearing before the judges in the courtroom.
A decision by the appellate panel is expected in early April. The losing side will likely petition the Arizona Supreme Court for review due to the potential statewide impact of the case.
Although Gasbarri didn’t stand trial last year for Spear’s death or the armed robbery, he was tried on two Class 4 felonies for prohibited possession of a deadly weapon. A jury found him guilty of one count but not guilty of the second.
Gasbarri was sentenced to eight years in state prison sentence with credit for 486 days spent in jail prior to trial. The ADC website shows he has been sentenced to prison for 13 felony offenses dating back to 1988.