The Alameda County District Attorney’s Office today charged a second suspect with murder for the shooting death of former Oakland Tribune freelance photographer Lionel Fluker near an East Oakland gas station in April. District attorney’s spokeswoman Teresa Drenick declined to comment on the murder charge against Donel Poston, 37, who has six prior felony convictions. But Poston’s attorney, David Bryden, said he thinks prosecutors “had to change course” because they were pursuing “contradictory theories” in their cases against Poston and Anthony Lister, 38, of San Leandro, who was previously charged with the shooting death of Fluker near Seminary Avenue and MacArthur Boulevard at about 10:15 p.m. on April 5. Fluker had worked as a freelance photographer for the Tribune for more than a decade.
Oakland police said Fluker was an innocent victim who was killed by a stray bullet when Lister, who has nine prior felony convictions, and Poston engaged in a shootout at the Valero gas station at 5910 McArthur Blvd. on Friday night. Fluker, who was driving south in the 3300 block of Seminary Avenue, was shot in the forehead as he passed by, police said. Bryden said the evidence in the case indicates that one of the bullets fired by Lister killed Fluker. Poston was scheduled to go on trial this week on an attempted murder charge for allegedly shooting Lister, who was hit by at least five gunshots and was treated for his wounds at a local hospital. Poston wasn’t injured in the incident. Bryden said he planned to argue that Poston should be acquitted because he acted in self-defense since Lister “was the aggressor” by acting “belligerently” and punching Poston. Poston “was eager to go to trial and vindicate himself,” Bryden said.
The defense attorney said prosecutors were in a difficult legal position because they would have had to argue that Poston was trying to kill Lister, which in turn would have given Lister a valid self-defense claim at his separate murder trial. Such an argument could have “backfired” and caused problems for the prosecution in both cases, Bryden said. However, Lister’s attorney, Drew Steckler, said today that he thinks Poston was the aggressor in the gas station confrontation because he pulled out his gun first and fired first. Steckler alleged that Poston escalated the situation, saying, “You don’t bring a gun to a fistfight.”
In fact, Steckler said that when both men stand trial for murder he will argue that Lister is the one who acted in self-defense. “You have a right to stand your ground and defend yourself,” Steckler said. In addition to murder, Lister and Poston are both charged with possession of a firearm by a felon, carrying a concealed firearm in a vehicle and carrying a loaded firearm in a city. The prior convictions for Lister and Poston could add to their state prison terms if they are convicted.
Lister has three convictions for possession for sale of a controlled substance, and one each for dissuading a witness by force or threat; possession of an assault weapon; evading a police officer; possession of a firearm by a felon; unlawfully driving or taking a vehicle; and escaping by force or violence. Poston has two prior convictions for forgery, three for drug-related offenses and one for evading a police officer.
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