Murder trial begins in 2010 shooting north of Modesto

A prosecutor on Thursday told a jury that Brian Morris was lighting a cigarette when he was shot in the back of the head and left to die along a rural road north of Modesto.

“Brian never saw it coming. ... The defendant fled to San Jose to sleep on his bed, while he left Brian on the side of the road to sleep on a bed of dirt,” said Deputy District Attorney Jeff Mangar.

Defense attorney Tai Bogan said his client, James Anthony Foster, did not fire the bullet that killed Morris. Bogan told the jurors that this is really about the “dirty little secret” on how cases are prosecuted. He argued that investigators have ignored another man who threatened to kill Morris not long before the shooting.

Bogan said his client is charged with Morris’ murder only because Foster’s nephew lied to investigators to avoid his own prosecution on charges of rape and domestic violence.

“This is the dirty little secret the prosecution is dealing with,” the defense attorney explained to the jury.

Foster’s trial began Thursday morning with opening statements. Morris’ body was discovered shortly after sunrise June 11, 2010, along Costner Road near orchards.

The prosecution has said in court that Morris was caught off guard as he was lighting a cigarette, and that the defendant approached him from behind, placed the gun’s muzzle against the back of Morris’ neck and fired the fatal shot.

The attorneys each described a series of random occurrences that led up to the shooting that night. It started about two weeks before the shooting at a gas station along Sisk Road in north Modesto.

Morris spotted a vehicle that looked a lot like a car belonging to one of his friends, but his friend wasn’t in the car. Foster had the vehicle, and he tried to explain that to Morris. But Morris was aggressive while questioning Foster about the car, asking to see the vehicle identification number.

The defense attorney said the car had belonged to Morris’ friend, but a failure to make payments led to the vehicle’s repossession. And Morris had been mistaken, Bogan explained, because it wasn’t the same car. One car had an automatic transmission; the other was manual. Morris eventually understood the situation, and the two men went their separate ways.

On the evening of June 10, 2010, Morris had just bought a Chevrolet pickup and had about $1,700 left over after the vehicle purchase. So he went out for dinner with a friend before stopping at a few bars.

The prosecutor said that Morris at some point decided he wanted to walk home but stopped at the nearby Walmart store, where he encountered a friend. The friend had stopped at the store before he went fishing. Mangar said Morris felt uncomfortable walking around with so much cash, so he handed the money to the friend for safekeeping.

Bogan said Morris walked through north Modesto in a methamphetamine-fueled stupor, pointing out that a toxicology test found high levels of meth in his body. He told the jury that some time between 2 and 2:30 a.m. Morris wound up at Stop ’N Save Groceries & Liquor at Carver Road and Standiford Avenue.

Morris spotted Foster again apparently sleeping inside the car he thought belonged to his friend. The defense attorney said Morris banged on the car’s window, again asking Foster about the vehicle’s ownership. The prosecutor said Morris agreed to leave with Foster to prove the car’s ownership.

Bogan told the jurors that Morris was angry and went into the store, telling the clerk that Foster better drive him to where he says he’s going “or else I’m going to rip his f------ throat out.”

Mangar said they left and went to a Ceres home to buy some meth before heading back to Modesto. In the car was Foster, his girlfriend Bethany Smith and Morris. The prosecutor said Foster became agitated about Morris and called his nephew, Gregory Fisher. Mangar said Fisher told his uncle where he could find a gun.

The defendant retrieved the gun at a relative’s home before driving out to the rural area along Costner Road. The prosecutor told jurors that Morris was lighting a cigarette when Foster approached him from behind, grabbed the front of Morris’ neck with one hand and used the other to fire the gun into the back of Morris’ head.

Foster’s description to investigators indicated he was trying to get Morris out of the car before a scuffle ensued along the side of the road. The defendant said another car pulled up and a shot was fired. He said Morris’ body went limp, so he pushed the man off. Bogan argued that gunfire or a bullet fragment struck Foster’s hand in the process, providing the jury with an explanation for Foster’s hand injury.

The defendant’s nephew was arrested in June 2012 and was in jail for more than a year as the only person charged in Morris’ death. The murder charge against Fisher was dropped in August 2013 after investigators gathered information that pointed to his uncle as the suspected shooter. Fisher was charged with being an accessory in exchange for testimony against his uncle.

Mangar said the focus of the investigation changed when Fisher decided to tell investigators everything that happened that night. In a 2014 preliminary hearing, 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, so that’s why he told him where to find the gun.

There’s no indication that Fisher pulled the trigger. The defense attorney argued that Fisher is simply lying to avoid his own prosecution. In exchange for his cooperation, prosecutors agreed to drop the rape and domestic violence charges against Fisher in an unrelated case, according to Bogan.

Fisher was released from custody after making the agreement with the prosecution, but he was arrested recently and charged with kidnapping.

“He didn’t stop his rampage of violence,” Bogan told the jury.

The defense attorney said he doesn’t know how Fisher’s plea deal will affect his latest charges. Bogan called Fisher a “thug,” a member of a San Jose Crips criminal street gang. Bogan challenged Fisher’s credibility by pointing out that other people told investigators that Fisher confessed to shooting Morris.

A sample of Foster’s DNA matched what was taken from a used condom found at the crime scene. Morris did not suffer a sexual assault; the condom was most likely used by Foster with Smith, who Bogan described as “a temporary girlfriend of the night.” He argued that the DNA match only puts his client at the crime scene; it doesn’t mean he fired the gun.

Bogan argued that his client gave all these details in a lengthy interview, but investigators let him go home and arrested Fisher instead. He told the jurors that Fisher is now giving investigators whatever they want to get a conviction.

The prosecutor argued that Foster lied about the woman who was with him that night, saying he didn’t know her name. When Smith was convicted of a felony last year, she was ordered to provide a DNA sample. Investigators who were searching a DNA criminal database now had a second match with the used condom found at the scene. She is expected to testify.

“That’s why we’re here. ... You’ll see what Brian never saw coming,” Mangar told the jury.

The defense attorney said Morris was involved in a love triangle, and another man threatened to sexually assault and kill Morris days before the shooting. Bogan told the jurors that they will learn how that man went searching for Morris on the night of the shooting.

This story was originally published February 4, 2016 at 5:00 PM with the headline "Murder trial begins in 2010 shooting north of Modesto."