OGDEN — Two Weber County men who accused each other of murder in a December court hearing will have separate trials, a judge ruled Tuesday.
Dalton James Aiken, 28, and Cory Michael Fitzwater, 35, were both present in court Tuesday and in custody as attorneys argued a number of motions in their cases.
The two were indicted following the shooting death of 28-year-old Brian Racine, who was found dead on Aug. 16, 2018 at a transient camp near Ogden’s 21st Street Pond. Each are charged with one count of murder, a first-degree felony, and possession of a firearm by a restricted person, a third-degree felony.
Prosecutors filed a motion in December asking for Aiken and Fitzwater’s cases to have dual jury trials — meaning two separate juries would attend the trial and provide separate rulings for each defendant — and argued a dual trial would be fair if done properly, would conserve judicial resources and would prevent the need for witnesses to testify at two separate trials.
Deputy Weber County Attorney Matthew Hansen said Tuesday during the hearing that a dual jury would be the most efficient way to have the trial, but said he understands not everyone was on board with the idea.
In February, defense counsel filed a motion to sever the two cases, arguing that a joint trial would deprive the other of their constitutional rights if the other would choose not to testify at trial.
During Tuesday’s hearing, Fitzwater’s attorney Randall Richards argued that the biggest problems with a dual jury would be that of confusion. He said Fitzwater and Aiken have conflicting defenses and he would be worried about the instructions for each jury.
In a December preliminary hearing, prosecutors played recorded phone calls made by each defendant to family members. The calls were made to family members while Aiken and Fitzwater were in the custody of the Weber County Jail.
The first call placed was from Aiken to his father.
“I got in trouble, dad,” he said. “Cory killed someone, and he said it was me.”
Aiken went on to tell his father that Fitzwater “shot a homeless guy for no reason,” and he had no idea the shooting would take place.
In a call to his wife, Fitzwater said he was in jail and that Aiken was blaming him for Racine’s death. “They got me in here for murder,” Fitzwater said in the recording. “Dalton shot a guy.”
Judge Camille Neider ruled in favor of the defense attorneys, and ordered to sever the cases into two separate trials. Neider also granted a motion to exclude the victim’s “prior bad acts” and a report on Racine’s toxicology at the time of his death from being used at trial.
With the decision made, the court later determined that Aiken will be tried first. Aiken’s trial is set to begin in June, and will occur during a time frame originally set aside to try them both. The court also determined that Fitzwater’s trial will begin later this year in October.
Richards joined Fitzwater’s defense team three weeks ago, he said, and was notified just days ago that his co-counsel, Jonathan Hanks, was no longer a part of Fitzwater’s case.
Aiken’s next court appearance is scheduled for May 14, and Fitzwater is set to be back in court on Aug. 13. The cutoff date for defense attorneys to file motions is set for June 1.
Both Aiken and Fitzwater are being held without bail at the Weber County Jail.