Fitzwater & Aiken Prelim Hearing  12

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 — An attorney for a Hooper man accused of murder in 2018 is trying to have the Weber County Attorney’s Office disqualified from prosecuting the case or, at least, sever the charges into two cases.

In a motion filed Tuesday, an attorney for Cory Michael Fitzwater, 36, is seeking to remove the County Attorney’s office, and specifically Deputy Weber County Attorney Dee Smith, from prosecuting the case. The allegations made in the motion are focused in regards to recent obstruction of justice charges filed in April, which are the charges the attorney would be willing to have severed from the current case.

Fitzwater and another man, Dalton Aiken, were both charged with murder shortly after 28-year-old Brian Racine’s body was found on Aug. 16, 2018, with a single gunshot wound to the head. While being held without bail, Fitzwater allegedly tried to bribe others in the Weber County Jail to tell investigators that they heard Aiken admitting to the murder of Racine. The allegations led to two additional felonies being filed against Fitzwater.

Randall Richards, Fitzwater’s attorney, argued in a motion that prosecutors crossed a line when interviewing people in jail claiming to have heard Aiken confessing to the crime. The motion also gives an expanded timeline of events leading to Fitzwater’s additional charges.

The April motion

In April, prosecutors responded to a motion to grant Fitzwater bail that introduced his alleged actions while in jail. The earliest date listed on that motion is Feb. 6, 2019, when investigators met with Miller Costello in jail who claimed he heard Aiken admitting to the murder. After the interview with Costello, police went on to interview additional people who said they too heard Aiken confessing to the killing while in jail.

In that same motion, investigators say they traveled to a state prison on March 19, 2019, to interview Bradley Eppley, who told them that Fitzwater allegedly approached him to testify on his behalf, saying he would give Eppley $500 on his jail account and “whatever Defendant (Fitzwater) saved in attorney fees,” if he told investigators that he heard Aiken confess to the crime, according to the motion. Eppley went on to say that Fitzwater allegedly did the same to others in jail.

A day after the motion was filed that detailed Fitzwater’s alleged activity in jail, prosecutors filed additional charges — two counts of obstructing justice, both second-degree felonies.

Tuesday’s motions

On Tuesday, Richards filed a motion alleging that prosecutors and investigators crossed a line when investigating Fitzwater’s alleged bribes while in jail. The timeline in Richard’s motion begins months before the state’s motion.

Richards indicates that on Oct. 31, 2018, Eppley was first interviewed by a private investigator working for Fitzwater’s previous attorney when Eppley reportedly said that he heard Aiken confess to the murder. The attorney then disclosed to prosecutors that information, prompting them to interview Eppley as well.

During the interview, which was recorded, Smith and police “insinuated that they might be able to help Bradley with his case if he were to change his testimony to inculpate Cory Fitzwater,” according to Richard’s motion filed Tuesday.

“By placing an unrecorded telephone call to Bradley Eppley – a witness who, up to that point, testified that he heard Dalton Aiken confess to the murder of Brian Racine – Dee Smith made himself a necessary witness in this case,” Richards wrote in the motion.

Richards goes on to argue that Eppley changed his testimony only after the phone call with Smith. By Smith being the only investigator who could testify as to what was said on the call, Smith has made himself a “necessary witness” in the case.

He argues that Smith, a former Weber County attorney, cannot be both a witness and prosecutor in the case, and thus, Smith and the County Attorney’s office should not be able to prosecute Fitzwater’s case. He also argued that prosecution and police cannot compel testimony from a witness under a false pretense that they will receive immunity if they testify.

However, Richards did offer a possible solution to the issues raised. He said that the court may sever the obstruction of justice charges to make them a different case altogether. He added that the possibility of separating the two matters could be beneficial to prosecutors as they prepare for Fitzwater’s upcoming jury trial, which is scheduled to begin in November.

In a separate motion filed Tuesday, Richards argues that the state did not provide sufficient evidence to bind over a charge against Fitzwater. He argued that the state did not support the charge of possession of a firearm by a restricted person, a second-degree felony, with the evidence provided during a preliminary hearing months prior.

When Fitzwater and Aiken were arrested on Aug. 16, 2018, police found a baggie of marijuana sticking out of Aiken’s pocket. Aiken later told police after his arrest that the two were in the area of the murder to smoke marijuana. A handgun, the suspected murder weapon, was also found in the vehicle during the arrest.

Richards argued that any admission by Fitzwater of smoking marijuana and the baggie found in Aiken’s pocket would not directly make Fitzwater a “category II restricted person,” as the court had ruled. Because of that ruling and the finding of a handgun in Aiken’s vehicle, the court charged Fitzwater with possessing a gun illegally. Richards argued there was not sufficient evidence for the charge, and it should be thrown out.

The two motions will likely be discussed during an upcoming evidence hearing, scheduled to take place on Oct. 23 in Ogden’s 2nd District Court. Fitzwater’s trial is scheduled to begin on Nov. 5.

A jury found Aiken guilty of the murder charge in June, and he was sentenced in July to serve 16 years in a Utah state prison.

Jacob Scholl is the Cops and Courts Reporter for the Standard-Examiner. Email him at jscholl@standard.net and follow him on Twitter at @Jacob_Scholl.

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