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Drake testifies on 1981 shootings <br> In second trial, defends his actions

Through 4 1/2 hours of testimony Thursday, Robie J. Drake insisted he didn't mean to kill two fellow North Tonawanda High School students on Dec. 5, 1981.

Drake, 45, took the stand in his own defense, a change from his first trial in 1982, when he remained silent -- except for his tape-recorded confession.

Monday, a State Supreme Court jury will have the same choice as the jury a generation ago: whether to convict Drake of two counts of intentional murder, or to believe his story and convict him of second-degree manslaughter for recklessly killing Amy Smith, 16, and Steven Rosenthal, 18.

They were shot just before midnight while sitting in Rosenthal's parked car in a factory parking lot off River Road in North Tonawanda.

Drake testified that he did not know either victim and simply happened on their car while tramping through some fields with two rifles en route to Demler's Cider Mill and the Niagara County landfill to shoot at debris, something he said he'd done many times before.

"I thought it was just an old unoccupied car," Drake testified Thursday. "I shot at it. I pointed my .22 and I fired it. . . . I put it up to my shoulder and squeezed [the trigger] rapidly."

He mimed the action of firing a rifle as he sat on the witness stand, but his voice was choked and his demeanor was downcast. He never cried on the stand, but he seemed to be close to tears several times.

Drake said he couldn't remember exchanging obscene taunts with Rosenthal outside a cafeteria. The prosecution's source for that is the testimony at the first trial of Theresa Wesolowski, who had the same lunch period as Drake and Smith. She is now deceased.

In 1982, the jury voted unanimously to convict Drake of murder, and he was sentenced to two terms of 25 years to life in prison.

But his conviction was overturned after 27 years of appeals, when the U.S. Second Court of Appeals ruled that the use of a bogus expert witness tainted the verdict.

The federal court said Richard D. Walter, who claimed Drake suffered from a psychological syndrome that brought him sexual pleasure from shooting or stabbing people, committed perjury with the knowledge of then-Niagara County District Attorney Peter L. Broderick Sr.

Seemingly at the last minute, Drake decided to speak for himself. Half an hour before court convened Thursday, defense attorney Andrew C. LoTempio said Drake hadn't decided whether to testify.

Assistant District Attorney Thomas H. Brandt tried to make Drake regret the decision, grilling him in three hours of relentless cross-examination.

Brandt tried to show that Drake, who admitted he was no more than 10 to 15 feet from the passenger side of Rosenthal's 1969 Chevrolet Nova, should have been able to see there were people inside.

Brandishing Smith's light blue down jacket, Brandt said, "Nice and light, the kind of color you can see."

He noted that there were no bullet holes in the side of the car, only the shattered window.

Drake had to acknowledge that a defense expert, Binghamton pathologist Dr. James A. Terzian, testified that the first two shots struck Smith in the back of the head, while 14 shots struck Rosenthal, including two rounds right under the nose.

Drake's Marlin .22-caliber rifle held only 19 rounds. "Sixteen out of 19 found their home that night, didn't they? Pretty good shooting, right?" Brandt asked.

"It was an accident," Drake insisted. But Brandt pointed to Terzian's testimony that for someone to be shot under the nose, they'd have to be looking at the gun.

"You saw him looking right at you and you didn't want to leave an eyewitness behind, so you shot him under the nose," Brandt charged.

Drake denied that, but he did admit hearing Rosenthal groaning and making gurgling noises after he ran out of ammunition.

"I thought I heard a sound or something," Drake said. "I walked up to the car and I saw somebody in it. I could see somebody lying face down. I saw a lot of blood and broken glass. . . . I freaked out."

He said of Rosenthal's gurgling, "I wanted to make it stop. I pulled out my knife."

He stabbed Rosenthal in the back with a 7 1/2 -inch hunting knife; the autopsy showed the blade severed the victim's aorta, the main artery to the heart.

At one point, Brandt asked, "Would it be fair to say that this double shooting was the biggest night of your life?"

"Hardly. It was the biggest disaster of my life," Drake said.


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