Victim apparently caught off-guard when shot to death near Modesto, testimony suggests

07/31/2014 7:32 PM

07/31/2014 7:34 PM

It appears Brian Morris was trying to light a cigarette when he was shot in the back of his neck, according to testimony in a preliminary hearing Thursday.

The 30-year-old man was found dead, face down on the dirt shoulder of a rural road just north of Modesto. Investigators found an opened pack of Marlboro Lights, one of the cigarettes and a lighter near his body.

“The cigarette lighter looked like he was clinching on it, almost as he was holding it (when he was shot),” said Stanislaus County sheriff’s deputy Darwin Hatfield.

James Foster is accused of murder in Morris’ shooting. Foster’s preliminary hearing continued Thursday morning with testimony from Hatfield, who was then a homicide detective. He marked evidence found at the crime scene.

Morris’ body was discovered shortly after sunrise June 11, 2010, along Costner Road. The two-lane country road runs west from Carver Road before coming to a dead-end after a few thousand feet.

The area is filled mainly by orchards. Investigators found Morris’ body on the south side of the road a few feet away from a chain-link, 7-foot-high fence that encircles an agriculture business.

Hatfield testified that they found a 9 mm shell casing about six feet from the victim. He said they also found tire marks on the dirt shoulder that started near Morris’ body and headed east before disappearing on the asphalt road.

Along with bloodstains found on the chain-link fence, all the evidence found at the crime scene indicates Morris was shot along Costner Road, Hatfield said on the witness stand.

Nothing at the crime scene indicated that the motive behind the shooting was robbery, according to Hatfield. Investigators found Morris’ wallet there with $7 in cash and his driver’s license.

“There was only one shot, and it was a well-placed shot (to kill Morris),” the deputy testified.

Hatfield said there did not appear to be any other injuries on Morris’ body, and there were no signs of a scuffle. Morris’ clothing did not have any tears and was fairly clean.

Sheriff’s Detective Frank Soria, the lead investigator in the case, testified that their theory on what happened to Morris is based on what Foster’s nephew, Gregory Fisher, told investigators. The detective said Fisher’s story is consistent with the evidence found at the scene.

Fisher has testified that his uncle spoke with him on the phone hours before Morris was found dead. He said his uncle sounded scared, claiming a guy was threatening to kill him. Fisher said he then told his uncle where to find his handgun.

A few hours later, Foster told his nephew, “It went bad,” which indicated Morris was shot to death, according to Fisher’s testimony. After more than a year in custody, prosecutors dropped a murder charge against Fisher in exchange for his testimony against his uncle.

Soria testified that three people claimed Fisher confessed to them not long after the shooting that he had shot Morris. Fisher denied those allegations on the witness stand. The detective said those people told investigators that Fisher had said he fired multiple shots, two of them hitting Morris. Investigators found evidence of only one shot fired.

A sample of Foster’s DNA matched what was taken from a used condom found at the crime scene, Soria said on the witness stand. He said the condom had nothing to do with the shooting, and there was no physical evidence that links Fisher to the crime scene.

Morris last was seen alive at Stop ‘N’ Go Groceries & Liquor at Carver Road and Standiford Avenue in north Modesto, where his image was captured on a store security camera while buying gas at 2:52 a.m. June 11, 2010, according to sheriff’s officials. Soria testified that Morris was spotted at the convenience store with Foster, not Fisher.

Testimony concluded Thursday afternoon in Foster’s preliminary hearing. Stanislaus Superior Court Judge Marie Silveira was going to review the video recording of police questioning Foster.

The judge was expected to return this morning with a decision on whether there’s enough evidence for Foster to stand trial.

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