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By DAVID WEISS dweiss@leader.net

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 said.
    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 murder.
    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 aggravating factors.
    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 aggravating factors.
    The verdict must be unanimous. If the jury cannot reach a unanimous decision, a life sentence will automatically be imposed.
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