Tonawanda News

Local News

March 19, 2010

Defense rests after Drake takes stand

LOCKPORT — Robie Drake, 45, took the stand as the final witness in his defense Thursday, the last of many in the decades-old murder retrial now in its second week.

Twenty-eight years after he was first convicted and jailed for killing two fellow North Tonawanda teens in 1981, questions of intent and a sexual motive are now the basis of the central arguments. They will help a jury determine — likely beginning Monday — whether or not to reduce Drake’s 50 years to life sentence to second-degree manslaughter.

At least four hours of cross examination by Assistant District Attorney Thomas Brandt followed. Drake was asked to recall almost every detail from a night 28 years ago when he shot the teens in a parked car near Witmer and River roads.

He repeated again and again his main defense: that he shot at a car — thinking it to be abandoned — and did not realize young lovers Amy Smith, then 16, and Steven Rosenthal, 18, were absorbing 16 of the 19 .22-caliber rounds he fired off as fast as he could pull the trigger.

“I’m telling this jury that all I did was point my gun at the side of that car and fire as fast as I could,” he said.

“What was your intention when you walked out that night with those knives and also those guns?” Brandt asked, maintaining an accusatory tone, referring to the two .22-caliber rifles, a hunting knife and folding knife Drake had with him when he put on camouflage clothing and left his home around 11 p.m. Dec. 5, 1981.

“I was going to go to the dump and also Delmar’s,” Drake said, referring to the dump where he was found less than two hours later loading Smith’s nude body into the trunk of Rosenthal’s car.

But before that, as Drake reached the scene of the shooting though an abandoned train route on foot, to a bend in the road near what is now Confer Plastics, he said he came upon a 6 to 10 foot tall pile of leaves.

Drake testified he climbed up the pile, briefly noticed Rosenthal’s rusty gold Chevy Nova before walking down the other side of the pile, 10 to 15 feet from the car. He turned, he said, aimed and fired 19 bullets in five seconds into the car. None hit the vehicle’s body, however, 16 went through the passenger window. All of the initial shots hit the teens in the head or face, with an expert saying the first shot shattered the window and continued into the back of Smith’s head.

“Once I started shooting I couldn’t really see,” he said, citing muzzle flashes Brandt asserted would have had the opposite effect.

Drake said the engine of the car was not running despite 29 degree weather. Brandt pressed him, indicating that was unusual given Smith sat inside, partially nude, alongside Rosenthal. Nor, Drake said, were there lights or sounds coming from the vehicle. He could not recall whether the windows were fogged. He used the word “frosted.”

“Mr. Drake is it fair to say this night was the biggest night of your life,” Brandt said, frustrated with Drake’s apparent inability to recall.

“Hardly,” Drake said. “It was the biggest disaster in my life.”

Drake, who never cried but appeared close on more than one occasion, then repeated that statement as though acknowledging it himself.

Brandt produced photographs of street lights on River Road and more at St. Mary’s Manufacturing — now Confer Plastics, where the shooting took place. He implied the lights would have illuminated the crime scene, rebuffing defense claims of darkness as a factor permitting Drake to miss the fact that the car was occupied.

Numerous lines of questioning asserted the theory that Drake only intended to hit the teens ... that he did not shoot through anything but the one window (though he caimed to have intended to shoot it up). Brandt evoked testimony claiming the shots to Rosenthal’s face hit him squarely, meaning the two would have been looking directly at one another.

“You didn’t destroy that car, Mr. Drake, you destroyed those kids didn’t you?” Brandt said.

Brandt cited a ballistics expert’s testimony that unburned powder was found on the young man’s vest, meaning he was within 8 to 10 feet of the victim.

Drake then testified to stabbing Rosenthal with his six-inch hunting knife after discovering the body.

A gurgling sound was coming from Rosenthal, but Drake said he was sure both victims were dead.

The stabbing, he said, was due to panic, an impulsive desire to end the sickly noise.

“You don’t think he’s alive at this point when he’s making gurgling sounds?” Brandt asked.

“No,” Drake replied. “If I’d realized I’d shot him in the head, there’d be no need to stab anybody.”

He then described the way he threw his weapons into the back seat, drove the car several hundred feet across Witmer Road and pried open the broken trunk with the folding knife — in the pitch black night. He described hauling Rosenthal’s body through the mud and eventually into the trunk, once open. A 4x4 truck drove past, apparently unaware of what was going on. Drake got back in the car, shaken, and drove farther into the dump where he then repeated the laborious process to put Smith’s body into the same trunk. It was there he would soon be discovered by police checking out an unrelated stolen vehicle report.

Brandt didn’t ask much regarding allegations Drake sodomized Smith in any way. During cross-examination on the time that passes after he removed her body from the car to the time he got the trunk open for the second time (roughly 15 minutes), Brandt at one point asked: “You’re 17 and you’re not paying any attention to a naked female body?”

“She was dead,” Drake said. “It’s pitch dark out there you can’t see anything.”

A charge conference was held after the jury was dismissed. Drake will seek second-degree manslaughter in lieu of the current two counts of second-degree murder. Summary arguments from both sides will take place before the jury deliberates Monday.

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