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Jurors deciding fate of Army veteran charged with fatally shooting homeless man

By Mark Shenefelt - | Feb 16, 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 jury began deliberations Wednesday afternoon in the murder trial of Cory Fitzwater, accused of shooting a homeless man as he lay sleeping in a wooded camp over three years ago.

In closing arguments, prosecutors described Fitzwater, a 6-foot-2, 38-year-old Afghanistan combat veteran, as the leader when he and Dalton Aiken, 27, approached Brain Racine as they allegedly sought out homeless people to harass or kill.

Defense attorney Randall Richards pointed out to jurors that Aiken had three .45 caliber bullets in his pocket when searched by police after he and Fitzwater drove out of the 21st Street Pond parking lot in the early morning hours of Aug. 16, 2018. He also noted that Fitzwater was wearing basketball shorts that night, not conducive to carrying a gun.

Aiken, of North Ogden, testified in his own trial in 2019 that he watched Fitzwater shoot Racine. Aiken is serving a prison sentence of 16 years to life.

In instructions read to jurors, 2nd District Judge Camille Neider said the jury could convict Fitzwater either if he pulled the trigger or if he aided and abetted the crime.

Fitzwater, of Ogden, originally said he did not see or hear any shooting that night, but he later changed his story, saying he walked up to talk to Racine but that Aiken reached around him and fired the shot.

During the trial, Fitzwater’s attorneys called witnesses to bolster their argument that Fitzwater’s post-traumatic stress condition from his war service was re-activated by the surprise gunshot and that the episode caused him temporary memory loss.

Richards said Aiken was the only one who talked about harming homeless people. A former fellow soldier testified Tuesday that he once saw Fitzwater buy two hamburgers for a homeless man he saw outside a store.

Prosecutor Branden Miles of the Weber County Attorney’s Office told jurors that Aiken is “not bright,” contending that’s why Aiken changed his story about the incident several times as police interrogations continued.

“Who does it make more sense leading them through the woods?” Miles asked. “The dimwitted electrician or the Army combat veteran? Who’s been scheming to try to get out of this case from the beginning? Cory Fitzwater. He’s the man with the plan here.”

Miles referred to the two defendants’ history of going out to “drive around, drink and shoot things.” On the night of Racine’s shooting, he said the pair “quietly crept through the trees to approach Brian Racine without waking him.”

He said Fitzwater “picked the victim, at 2:30 in the morning to have a life-affirming conversation with a sleeping homeless man on the ground.”

Miles also pointed to the testimony of three Weber County Jail inmates who testified that Fitzwater tried to bribe them to tell police they heard Aiken bragging about killing Racine. Richards in turn derided that testimony of “jailhouse snitches, convicted felons,” who he claimed changed their stories after a police investigator “threatened” them.

The prosecutor also said the evidence at the murder scene suggested that Fitzwater and Aiken “stopped to admire the scene, flipped the body over to admire their handiwork.”

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