Cape man guilty on all counts in ’05 shooting death; Jurors deliberate for nearly 4 hours

by CONNOR HOLMES
published in the Cape Coral Daily Breeze 4/17/09

Dave Gaphoor embraced his mother, removed his coat and let the bailiff take his fingerprints after a 12-person Lee County jury found him guilty Thursday of first-degree felony murder, two counts of attempted second-degree murder with a firearm and aggravated battery with a deadly weapon.

Gaphoor has been convicted as a principle in the 2005 shooting death of Jose Gomez, 25, which occurred during an armed robbery in which Gaphoor took part.

Several others were injured, including Rigoberto Vasquez, who state attorneys argued was shot in the stomach by Gaphoor, and later in the arm by co-defendant Anibal Morales; Jose Reyes-Garcia, who was shot in the arm by Morales; and Salatiel Vasquez, who was beaten with a tire iron.

The jury returned from approximately three hours and 45 minutes of deliberations at 8 p.m. with the verdict finding Gaphoor guilty on all counts.

At the tail end of a three-day trial and years of preparation by state and defense attorneys, Assistant State Attorney Andrew Marcus said he believed the jury made the right decision.

"I'm very pleased with the verdict," he said Thursday. "This is a tough case. It was very emotional for the jurors, but I think it was the right decision given the evidence and the facts of the case."

Defense council declined to comment, though assistant public defenders Kathleen Fitzgeorge and Connie Kelly were visibly upset after the reading of the verdict, attempting to comfort family members and friends of Gaphoor.

Tracy Barrett, whose twin sister Stacy Francis is the mother of Gaphoor's young son, said she does not believe Gaphoor is capable of the violent acts depicted by witnesses and the state during the trial.

"I feel like it was the wrong verdict," she said, citing a lack of physical evidence placing Gaphoor at the scene of the robbery. "They couldn't even put him at the crime scene at all. The Lee County Sheriff's department did not do a good job in processing evidence. I really do feel like he was framed."

Due to a lack of what Marcus called "scientific evidence" linking Gaphoor directly to the robbery, jurors were asked to cautiously regard the testimony of co-defendant Elizabeth Reed, who placed Gaphoor at the crime scene, along with that of eyewitness Eduardo Pardo-Martinez and other evidence presented during trial.

"There is no DNA evidence or fingerprint evidence connecting anyone to this crime," he said during his closing arguments. "Does that mean no one did it? Of course not. You cannot turn a blind eye on the facts of this case."

Kelly argued the description Pardo-Martinez gave to detectives better fit co-defendant Miguel Pedraza, who is serving a life prison sentence in Gomez's slaying.

Additionally, she argued, Reed is untrustworthy because she cut a deal with state prosecutors for 10 years in prison and 15 years probation in exchange for a guilty plea and her testimony.

"Elizabeth Reed ... is a liar, but she is not an idiot," Kelly said. "She knew exactly what she had to say, how she had to spin it, when she needed to embellish ... to ensure she kept her deal. The state and law enforcement officers utterly failed in their duty to prove this case beyond and to the exclusion of every reasonable doubt."

Though jurors disagreed with Kelly as to the state being unable to prove its case, Barrett and Francis said they think Reed's testimony cannot be trusted.

"She would say whatever it is they wanted her to say to get her plea deal," Francis said.

She added that she is upset Gaphoor can no longer be there for his son and other children.

"He has a 2-year-old son he's never met until yesterday," Francis said. "(Gaphoor's children) had to hear this awful thing, that their father is gone for life."

Gaphoor was the last of five defendants in the case to stand trial.

In February, Morales was convicted of first-degree murder, two counts of attempted second-degree murder and aggravated battery. The state dropped an attempted home invasion robbery charge against him.

Morales is scheduled to be sentenced Monday along with Reed.

Christopher Neuberger was acquitted of first-degree murder, two counts of attempted second-degree murder and aggravated battery in a February jury trial.

Gaphoor will be sentenced June 21 before Lee Circuit Judge Mark Steinbeck. He faces life in prison.