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Convict seeks to overturn murder verdict

A man in prison for shooting his unarmed housemate in the back in a fight over a sandwich returned to court Friday, trying to have his 2011 murder conviction vacated.

Marcus Gottsche, 33, was found guilty of second-degree murder for killing Jasmine Armour, 28, at their Breckenridge Street home on Feb. 10, 2011. Armour was shot once in the back as she fled the house after Gottsche threatened her with a rifle.

Gottsche is contending that attorney Michael L. D’Amico, who represented him during the murder trial, was legally obligated to request that the jury consider lesser offenses, including first- or second-degree manslaughter – even though Gottsche told D’Amico at the time that he wanted the jury to consider only whether he was guilty of second-degree murder.

Gottsche currently is serving 25 years to life; a manslaughter conviction could have resulted in a shorter sentence. He is now represented by J. Michael Marion.

D’Amico testified Friday that he was following his client’s wishes during the trial, despite his own opinion that the evidence supported a case for manslaughter.

The question before State Supreme Court Justice Russell P. Buscaglia is whether, by acceding to Gottsche’s decision, D’Amico deprived his client of “the effective assistance of counsel.”

The guilty verdict already was upheld by the Appellate Division of State Supreme in June 2014, in a ruling that also considered the matter of lesser charges, along with Gottsche’s contention that the evidence did not support the murder charge.

The appeals court noted that nothing in the court record suggested that “the decision to forgo the submission of lesser-included offenses was made solely in deference to defendant, that it was against the advice of defendant’s counsel, or that it was inconsistent with defense counsel’s trial strategy.” It also ruled that the evidence was sufficient to prove murder.

On Friday, however, D’Amico testified that he had crafted his defense with the intention of seeking a verdict on the lesser charge and that he believed he was required to follow his client’s wishes. He never told the judge of his reservations about the charge during the trial.

Taking the stand himself on Friday, Gottsche told the court why he went for the all-or-nothing verdict. He said that, before the case was given to the jury 3½ years ago, “I prayed. I asked for a sign.”

He said he wanted God to signal him with a bird if he should only go with the murder charge or with a horse if he should have D’Amico ask that lesser charges be considered.

“I noticed, out of the corner of my eye, it said ‘eagle’ in the graffiti on the wall of the court hold (where defendants are held). E-A-G-L-E,” he said. “And I interpreted that as the answer to the prayer, that I should ask for murder or acquittal.”

Prosecutor Colleen Curtin Gable acknowledged D’Amico’s unique position Friday – that by taking blame for the more serious conviction, he might also see it overturned.

“Did you realized you would be admitting you didn’t know the law, and that could help Mr. Gottsche?,” she asked. She suggested it was possible D’Amico intentionally failed to tell the judge at trial that his client was acting against his advice, but the defense attorney said he never had such a plan. He also said, had he realized the outcome, he would have done things differently.