Defendant ordered to stand trial in “execution-style” shooting near Modesto

08/01/2014 5:47 PM

08/01/2014 5:48 PM

A judge on Friday ordered a defendant to stand trial charged with murder in the shooting of a 30-year-old man found dead four years ago along a rural road just north of Modesto.

The judge said the prosecutor provided the court with sufficient evidence to order a trial for James Foster, who is accused of shooting to death Brian Morris. But the judge also said it’s still not clear to her how the shooting took place or why.

Stanislaus Superior Court Judge Marie Silveira said in court that the case seems to be “still unfolding. I don’t think I know exactly what happened.” She also said the motive might have something to do with drugs based on the evidence presented in court.

Deputy District Attorney John Goulart argued that Morris was shot “execution-style.” He told the judge Morris was caught off-guard as he was lighting a cigarette, when the defendant approached him from behind, placed the gun’s muzzle against the back of Morris’ neck and fired the fatal shot.

Tai Bogan, Foster’s defense attorney, said there’s plenty of uncertainty in the prosecution’s case. “There’s a lot of missing pieces, a lot of holes in the story,” he told the judge.

Morris’ body was discovered shortly after sunrise June 11, 2010, along Costner Road. The two-lane country road runs west from Carver Road. The area is filled mainly by orchards.

Morris last was seen alive at Stop ’N’ Go Groceries & Liquor at Carver Road and Standiford Avenue in north Modesto. The judge said a store clerk told investigators Morris was upset at Foster. Silveira also said Morris was spotted with $1,700 in cash at a bar that night, and it was unclear to her whether that money was intended for the sale of a car or drugs.

In June 2012, Stanislaus County sheriff’s detectives said they believed Morris’ slaying was in part the result of a dispute over a car.

On Friday, the defense attorney argued that Morris was behaving very oddly that night and threatened to rip out Foster’s throat.

Foster’s nephew, Gregory Fisher, testified that his uncle spoke with him by 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 sample of Foster’s DNA matched what was taken from a used condom found at the crime scene. The judge said it appears the condom was used when Foster had sex with a prostitute who was with Foster when Morris was shot.

Bogan challenged Fisher’s credibility by pointing out that three people told investigators that Fisher confessed to shooting Morris. The attorney argued that Fisher, in a time of desperation, cut a deal with prosecutors. “Desperate men do desperate things,” Bogan said in court.

Fisher was held at the jail for more than a year, at the time the only person charged with Morris’ murder. His murder charge was dropped when he gave investigators information that led to his uncle’s arrest. Prosecutors charged Fisher with being an accessory after he agreed to testify against his uncle.

The prosecutor argued that Fisher’s story is corroborated by the evidence and the store clerk. Goulart said there is no physical evidence that links Fisher to the crime scene.

Foster told investigators he was involved in a struggle that night with Morris when an unknown person shot Morris, according to Silveira. She said investigators didn’t find any signs of a struggle at the crime scene.

She also told the attorneys that Foster told investigators he didn’t know the woman who was with him that night or how to find her. The judge said the woman would have been an important witness to Foster’s defense.

Hours after Fisher told his uncle where to find his gun, Foster arrived at Fisher’s grandmother’s home. Fisher testified there was a woman, who appeared scared, sitting in the back seat. He said he had seen her a few times before with his uncle, but he didn’t know her name. His uncle’s left hand, apparently injured, was wrapped in a bloody towel, Fisher testified.

Silveira scheduled Foster to return to court Aug. 15 for an arraignment hearing. The defendant remains in custody at the jail, with bail set at $5 million.

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