OAKLAND -- A gunfight that resulted in a stray bullet killing a former Oakland Tribune freelance photographer was sparked by a verbal joust more prevalent between boys on a schoolyard than grown men at a gas station, evidence at a court hearing revealed.
The battle between Donel Poston, 37, and Joe McNeely, 38, began after McNeely called Poston's girlfriend by the embarrassing nickname "blood" that she earned when she bled while sleeping on a friend's couch years ago, a police detective said.
McNeely saw the girlfriend at the Valero gas station on the corner of MacArthur Boulevard and Seminary Avenue. McNeely was filling his car with gas and Poston arrived with his girlfriend to purchase cigars.
Poston was upset that McNeely used the nickname and began to verbally joust with McNeely. The posturing resulted in McNeely punching Poston in the head and Poston responded by brandishing a .40 caliber handgun and firing it toward McNeely, who also goes by the name of Anthony Lister.
Less than a second after McNeely falls to the ground, after being shot at least three times, video from surveillance cameras shows him jumping up and chasing after Poston, firing what later was found to be a 9 mm handgun.
One of the bullets from that handgun hit freelance photographer Lionel Fluker, 54, in the forehead as he sat in his car which, police say, he probably had just stopped when he heard the gunfire and saw one of the suspects running across the road.
Fluker was driving along Seminary Avenue and was found dead in his car near where witnesses said they saw Poston running from the gas station. A witness said that McNeely fired at least twice at Poston as Poston ran across Seminary Avenue.
The Alameda County District Attorney's Office filed murder charges against both McNeely and Poston under the theory that both acted in a manner that showed a disregard for human life.
Poston is responsible for the death of Fluker because Poston started the gunfight by firing at McNeely, Deputy district attorney Scott Ford argued. Meanwhile, McNeely is responsible because he fired the shot that killed Fluker as Poston was running away, Ford argued.
Defense attorneys both claimed their clients acted in self-defense, and McNeely's attorney said his client also acted in a heat of passion.
Assistant public defender Drew Steckler argued that if his client does not have a self-defense claim, then he should be considered acting in the heat of passion because he was acting in response to being shot.
Meanwhile, Poston's attorney, David Bryden said Poston was acting in self-defense because McNeely flashed his gun at Poston before he punched Poston in the head.
Alameda County Superior Court Judge Jon Rolefson said that he could not, during a preliminary hearing, make a finding that either defendant acted in self-defense, saying it was a decision he must make in a trial.
As a result, Rolefson ordered that both men be held and tried before a jury on charges of murder. Poston is also charged with attempted murder for allegedly trying to kill McNeely.
Rolefson, however, acknowledged that any future jury will have a difficult case to decide.
"There are a lot of legal issues here," Rolefson said. "These are issues that are going to be very interesting for a jury to have to grapple with."