TOOLEY GUILTY OF MURDER
By DAVID WEISS email@example.com
Friday, September 12, 2003 Page: 1A
WILKES-BARRE - ``He is now.''
The words, uttered by Larry Tooley seconds after he pumped a bullet into
16-year-old Casey Zalenski's head in ensuring the boy's death, should have
been a key ingredient in convicting Tooley of first-degree murder, an attorney
Jurors who heard testimony in Larry Tooley's murder trial in Zalenski's
death were faced with determining if he committed first- or second-degree
The difference is whether a person intended to kill someone, constituting
first-degree murder. If the killing was done during a commission of another
felony, such as a burglary or robbery, it would be second-degree murder.
Luzerne County Assistant District Attorney William Finnegan told jurors
Thursday that Tooley's blatant remarks show he intended to kill Zalenski.
Before deliberations Thursday, Court of Common Pleas Judge Peter Paul
Olszewski Jr. told jurors they can find Tooley guilty of only one of the
murder charges, or not guilty of both.
In explaining the difference, Olszewski said jurors must find several
elements to convict Tooley of first-degree murder:
They had to find Tooley's shooting of Zalenski was willful, deliberate and
intentional. They also had to determine it was done with malice, a legal term
that shows the intent to kill and inflict serious bodily injury with
wickedness of disposition, hardness of heart, or cruelty.
The intent or premeditation to kill does not have to plotted for a long
time, the judge said.
``It can occur quickly,'' he said.
For a second-degree murder conviction, the jury would have had to find
Tooley killed Zalenski without anticipation during a robbery or burglary.
And even though Tooley was not charged with third-degree murder, the judge
told the jury it could convict Tooley of the charge if it believed he was
intoxicated on drugs enough to ``overpower'' any intent to kill.
It was stated in testimony that Tooley often used heroin, and was up until
4 a.m. the morning of the killing doing drugs.
A second-degree murder conviction calls for life in prison. A third-degree
conviction does not carry a life jail term.
Because the jury found Tooley guilty of first-degree murder, it will now
have to decide if he should be put to death or serve life in prison.
That decision is made during the penalty phase of the case, which will
begin Monday. The phase is like a mini-trial, in which prosecutors present
testimony to show why they believe Tooley should be killed. The reasons
presented are called aggravating circumstances.
In this case, prosecutors say Tooley deserves the death penalty because he
killed Zalenski while committing a felony and because of his criminal past.
Tooley's attorneys will present evidence to show why a life jail term is
more appropriate. They will try to show mitigating circumstances to offset the
The defense usually presents evidence about a defendant's background and
rough upbringing to offset the death penalty.
If the mitigating circumstances is equal to or greater than the aggravating
evidence, the jury should impose a life sentence. If the aggravating evidence
outweighs the mitigating circumstances, the death penalty should be imposed.
In some cases, a single a mitigating circumstance could outweigh all
The verdict must be unanimous. If the jury cannot reach a unanimous
decision, a life sentence will automatically be imposed.