Oakland Man Convicted in Murder of Teen

An Oakland man was convicted of second-degree murder today for fatally shooting an 18-year-old man in West Oakland three years ago.

Prosecutor Patrick Moriarty said Donnell McGilberry, who is 22 now but was only 19 at the time, shot Coty Luster in the 1100 block of 34th Street shortly after 8:30 p.m. on April 26, 2012, because Luster had made an insulting comment about his hairstyle.

Moriarty said Luster was known for uttering words that irritated people and said McGilberry didn’t like it when Luster “called him a bitch” after he had fashioned his hair into a red Mohawk. The prosecutor said McGilberry also told his girlfriend that he would have Luster killed.

McGilberry confronted Luster on the night of April 26, 2012, and killed him by shooting him five times, including three times in his groin area, Moriarty said. Video from a surveillance camera at a convenience store near the scene of the fatal shooting indicates that the confrontation took only about two and a half minutes, as it shows McGilberry walking past the store shortly before and shortly after the shooting, the prosecutor said.

Moriarty told jurors that he thinks the surveillance footage is significant because it shows that McGilberry was wearing a baseball hat before the shooting but wasn’t wearing a hat afterward, indicating that the hat came off while the two men struggled. Police found the hat at the shooting scene and DNA that was recovered from it matches McGilberry, Moriarty said.

McGilberry’s lawyer, Jo Ann Kingston, didn’t deny that McGilberry fatally shot Luster but said McGilberry acted in self-defense because he felt his life was being threatened by Luster. In addition to second-degree murder, McGilberry was convicted of causing Luster’s death by discharging a gun, a finding that will add 25 years to the 15-years-to-life state prison term he faces for killing Luster.

McGilberry also was convicted of attempted second-degree robbery and carrying a loaded firearm in a city for a separate incident eight months later. Moriarty said McGilberry used the same gun that he used to kill Luster to try to rob a man who was sitting in a car parked outside an apartment complex in the 2000 block of East 23rd Street in East Oakland at about 7:20 p.m. on Dec. 30, 2012. Moriarty said McGilberry and an accomplice tried to rob a man who was sitting in a car waiting for a friend, but said they chose the wrong victim because the man had just gotten out of the U.S. Army and was brave enough to fight back.

The victim managed to get the gun away from McGilberry and yell for help to a friend who lived at the apartment complex, Moriarty said. After the friend came outside with a gun and fired two warning shots into the air, the second suspect fled but McGilberry slipped and fell and couldn’t get away, according to Moriarty. McGilberry made a second attempt to flee a few moments later but police officers who were in the area and heard the gunshots arrested him, Moriarty said. Police recovered McGilberry’s gun and ballistics tests showed that it was the same gun used to kill Luster, Moriarty said. McGilberry wasn’t charged with murdering Luster until after those tests were completed, according to Moriarty.

After the jury announced its verdict and left the courtroom this morning, Kingston told Alameda County Superior Court Judge Vernon Nakahara, who presided over the case and will sentence McGilberry on Oct. 23, that she thought his rulings on defense motions throughout the case were “prejudicial” and denied McGilberry his rights to a fair trial and due process. Kingston alleged that it was “flat-out judicial error” by Nakahara not to explain to jurors, after they submitted a question to the judge on Monday, that the prosecution had the burden of proof to convince them that McGilberry didn’t act in the heat of passion or during a quarrel when he killed Luster.

Kingston, who asked jurors to find McGilberry not guilty of any charges for Luster’s death but said today that she could have accepted a manslaughter verdict, said Nakahara’s decision not to give that explanation to jurors meant “there was no way the jury could come back with a verdict other than murder.”

--Bay City News