A jury heard opening testimony Tuesday in the stunning murder retrial of Robie Drake, the North Tonawanda man first convicted in 1982 on two counts of second-degree murder for shooting two fellow high school classmates.

State Supreme Court Judge Richard Kloch helped attorney’s agree on a final juror and two alternates who were selected before opening statements were made. What materialized were two starkly different versions of what happened overnight Dec. 5, 1981, in a quiet corner of North Tonawanda’s remote industrial waterfront off River Road.

Assistant District Attorney Peter Wydysh and defense attorney Andrew LoTempio painted the double fatal shooting and stabbing of Amy Smith, then 16, and Steven Rosenthal, 18, in very different lights.

The painful details, many of them well established after 28 years, have not lost their impact in the time since.

But much about the case was apparently not so well established, included pages of statements made in the original trial to support claims that Drake had a sexual motive for the killings, and for that matter, that he knew the pair was inside Rosenthal’s rusty gold-colored Chevy Nova late at night near what is now Confer Plastics.

Wydysh told the jury the case revolves around a then 17-year-old Drake who intentionally shot and killed Smith and Rosenthal as they sat in the young man’s rusty Chevrolet Nova after a date and a trip to the movies.

He portrayed a case of an angry young man who had fought with Rosenthal before. A man who saw his chance to end two lives and did so before also stabbing Rosenthal and sexually violating Smith, who he shot twice in the head.

“He stood at the passenger side and fired his .22 cal. (rifle) through the passenger side and shot Amy Smith twice ...,” Wydysh told the court. “He shot Steven Rosenthal more than a dozen times ... He took out the Buck knife and plunged it into (his) back ...”

Wydysh said Drake then climbed into the car, pushed the lifeless bodies aside and drove across Witmer Road a ways to a dump site. There he stuffed Rosenthal’s body into the trunk. While he was attempting to also put Smith’s half-naked body into the same trunk, police lights from a routine patrol car washed over the gruesome scene.

“You are going to hear that the defendant say he did not mean to hurt anyone and that he said he wanted to destroy that Chevy Nova and that he did not mean to kill Amy Smith and Steven Rosenthal — the girl he shot twice in the head and that boy he shot over a dozen times,” Wydysh said.

He told the court they would hear about the way Smith’s pants were found on top of Drake’s rifles, which he had thrown in the back seat after the deed was done. He told them they will hear medical testimony that the body showed evidence of post mortem sodomy when it was exhumed in the months following the investigation.

“I’m glad you caught me,” he told the jury were Drake’s first words to police officers at the scene.

Defense Attorney Andrew LoTempio next addressed the panel, some of whom appeared shaken by the statements. Urging them to apply common sense to their emotions he painted a very different picture: one of two young lovers parked in an area known for affectionate encounters of the high school variety. He described the dim light of a desolate place where Drake went to shoot at old, abandoned cars, where his client did just that when he spotted Rosenthal’s rusty, darkened car situated among high piles of leaves.

“I understand what was just said was not only painful stuff but also the kind of things that pull on your emotions,” LoTempio said. “... Most of what Mr. Wydysh just said I don’t necessarily disagree,” LoTempio said. “ ... The stuff that might be tearing at your emotions and getting you upset is highly in contest.”

Intent is the central question jurors are being asked to decide. Not whether Drake shot into the car, killing its occupants. Not whether he then stabbed Rosenthal. Not that he attempted to cover up for the crime by driving two lifeless bodies to a nearby dump.

“He goes around the leaf pile, looks into a car — two people shot,” LoTempio told jurors with emphasis. “A 17-year-old kid who thinks he just shot into an empty car sees he’s just plugged two people making out in a car.”

“I’m glad you caught me,” he repeated, were Drake’s words to police, though this time with a different ring. This time, it had the ring of “a 17-year-old kid who just shot two people in a car, in a panic.”

The statements he gave to police, LoTempio said, were all consistent with the locations where blood, bullet casings and other physical evidence were found at the scene. They will all be advanced as circumstantial proof that Drake was scared and cooperative with authorities.

“Unfortunately, this is where the story goes horribly awry,” he said.

What LoTempio told jurors next is that subsequent authorities were less concerned with the truth.

“Somebody comes up with this theory that this kid, because he’s stuffing someone in a trunk, had to have sodomized her dead body,” he said.

Heavily disputed is the post-burial examination of Smith’s body, indicating sexual abuse including alleged semen, bite marks and trauma found after it was exhumed.

The defense pre-empted the testimony to come from a dentist who said the bite marks were inflicted after death, but never matched them to Drake’s teeth. Nor were they matched against Rosenthal’s.

Another expert said sperm cells were found in Smith’s throat. No further scientific scrutiny was conducted as to their origin, LoTempio said.

“They don’t do that. No saliva tests,” LoTempio said. “The autopsy wasn’t good enough so they bring in this expert to review the autopsy. We can’t prove intent so we’re going to start talking about sexually abusing a body.”

LoTempio said such evidence wasn’t found in either a rape test or autopsy originally conducted. That is the same argument former District Attorney Peter Broderick may have attempted to support through testimony by a fraudulent medical witness whose recent fall from grace formed the basis of the stunning new trial.

The Second-Circuit Court of Appeals found the former California laboratory janitor, Richard Walter, had falsely represented himself as an expert in the original 1982 trial. Walter testified that Drake had a fake syndrome he called “piquerism,” and that he derived sexual gratification from shooting or stabbing things.

“I’m going to argue to you that this was misdirection, a ploy, an end around, a smoke screen,” LoTempio said.

Tissue samples originally taken regarding the bite marks have since vanished from the Erie County lab, adding a frustrating handicap to the retrial. No explanation has been proven for their disappearance.

LoTempio painted a picture of Drake leaving his house after 11 p.m. on the night of the shootings the way he often did: dressed in military-style garb with two small caliber rifles and several knives intended for shooting up abandoned cars.

Gun nut, loner and vandal were words he said may have fit his client as a 17-year-old all those years ago, but intentional killer doesn’t fit the defense’s side of the story.

Contact reporter Neale Gulley at 693-1000, ext. 114.