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Fitzwater murder trial opens; defense denies plan to harm homeless people

By Mark Shenefelt - | Feb 7, 2022

MATT HERP, Standard-Examiner file photo

Cory Fitzwater makes his way into the courtroom for a preliminary hearing for himself and Dalton Aiken on Wednesday, Dec. 12, 2018, at Ogden's 2nd District Court.

OGDEN — A prosecutor said Monday that Cory Fitzwater and his co-defendant carried out a plan to kill a homeless person, but a defense attorney argued that Fitzwater, a combat veteran, was surprised by the shooting and ran away, suffering an episode of post traumatic stress disorder.

A 2nd District Court jury heard opening arguments in the expected two-week murder trial of Fitzwater, 38, of Ogden. He is charged with first-degree felony murder in the Aug. 16, 2018, death of Brain Racine, 28, who was shot in the head as he lay in a sleeping bag in a homeless camp near the 21st Street Pond.

A jury convicted the other suspect, Dalton Aiken, in July 2019 and he’s serving a prison sentence of 16 years to life.

In separate police interviews, Fitzwater and Aiken, now 31, blamed one another, each saying the other fired the shot and it was a surprise.

But prosecutor Branden Miles of the Weber County Attorney’s Office told jurors the evidence will show that both participated in the murder and by law they share guilt, regardless of who pulled the trigger.

“They acted together, they armed themselves and executed a coordinated plan to kill a homeless person, and then both tried to cover up their acts,” Miles told the jury.

He said the pair had a negative attitude toward homeless people and those who “live off the government,” and they went to the pond, a known location of homeless camps in surrounding wooded areas, with intent to harass and harm. Defense attorney Peter Goodall, though, disputed that, saying Fitzwater had no animus for homeless people.

Miles told jurors that Fitzwater changed his story about the pond events, first telling Ogden police detectives on the night of the shooting that he did go off the pond trail and into the woods but that he did not hear a gunshot. In December 2018, Fiztwater and his attorney approached police, wanting to expand on his recollection of that night.

Miles said Fitzwater told detectives that “Dalton took me off the trail” after they noticed a campfire glow in the woods. Miles said Fitzwater reported that they saw a man sleeping. Fitzwater said he decided he “just wanted to talk to the guy” because he’s “overly social,” Miles said.

Miles said Fitzwater told detectives he nudged the sleeping man, who mumbled something, “and Dalton reached around and shot him.” Asked by police why he had not said these things in August, Fitzwater said he was “scared and didn’t know what to do.”

The prosecutor said they would introduce evidence showing that Fitzwater owned the murder weapon, a .45 caliber Sig Sauer handgun, and the ammo for it. The gun was found in Aiken’s pickup truck when Weber County sheriff’s deputies pulled them over shortly after the shooting, Miles said, adding that a forensics analysis showed that the shell casing found at the murder scene matched ammunition found in the pickup.

Miles also said the prosecution would show that Fitzwater, also charged with witness tampering, later arranged to have two Weber County Jail inmates come forward with information blaming Aiken for the murder.

Goodall contended that the “jailhouse snitches” who blamed Aiken for the crime were later pressured by police investigators to change their stories and accuse Fitzwater of bribing them to implicate Aiken.

Goodall also asserted that police failed to follow up on evidence that demonstrated that Aiken on the day before the shooting had acquired the Sig Sauer in a gun trade with Fitzwater.

Goodall in addition pointed out that police found three .45 shells in Aiken’s pocket after the shooting. He also said that when Aiken was asked by police to lift his shirt, the imprint of the Sig Sauer grip was visible on his skin at the waistband.

The attorney said expert witnesses will testify that the shooting likely caused a combat post traumatic response and Fitzwater ran away from the woods.

“All the experts agree that if that gunfire surprised Cory he would immediately evade, escape and run away as fast as he could,” Goodall said. “If he was expecting to hear that shot he would not have reacted like that. That means there was no plan.”

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