Two ex-felons were convicted today of second-degree murder for exchanging shots at an East Oakland gas station last April that resulted in a stray bullet striking and killing former Oakland Tribune freelance photographer Lionel Fluker.
Prosecutor Stacie Pettigrew said Fluker, 54 was an innocent victim who was killed by a stray bullet when Joe McNeely, 38, who has nine prior felony convictions, and Donel Poston, 37, who has six prior convictions, engaged in a shootout at the Valero gas station at 5910 McArthur Blvd. at about 10:15 p.m. on April 5.
Pettigrew said McNeely fired the single bullet that hit Fluker, who was driving south in the 3300 block of Seminary Avenue near the gas station, once in the forehead and killed him.
But Pettigrew said she believes that Poston and McNeely are equally responsible for Fluker’s death because “they engaged in a gun battle and pulled out and fired their weapons at the same time.”
The prosecutor said the reason that Poston and McNeely, also known as Anthony Lister, got into a quarrel isn’t clear but the gas station’s videotape of the shooting indicates that they may have been engaged in a drug deal that went wrong.
Fluker had worked as a freelance photographer for the Tribune for more than a decade.
Defense attorneys for both McNeely and Poston argued that their clients acted in self-defense and should only be convicted of voluntary manslaughter.
Poston’s lawyer, David Bryden, alleged that McNeely was the aggressor because he acted belligerently and punched Poston before the shooting.
But Lister’s attorney, Drew Steckler, said he believes Poston was the aggressor in the gas station confrontation because he pulled out his gun first and fired first.
Steckler also noted that Lister was hit by at least five gunshots and was treated for his wounds at a local hospital while Poston wasn’t injured in the incident.
Bryden and Steckler couldn’t be reached for comment after the verdict today.
In addition to second-degree murder, Lister and Poston were both convicted of attempted murder with personal use of a firearm and being ex-felons in possession of a firearm.
Pettigrew said both men face a state prison term of at least 65 years to life when they are sentenced by Alameda County Superior Court Judge Michael Gaffey on March 21.
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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