Attorney tells jurors her client was framed for Bloomington killing

FONTANA -- Jurors began deliberating this afternoon in the murder trial of a Bloomington man accused of shooting and killing a man he'd known since childhood.

But in her closing argument, Brian Gary Cullens' attorney said Cullens is innocent, and implied that two eyewitnesses may have framed him for the June 2003 killing of Donald Marshall.

"This is an innocent man," said attorney Gina Kershaw. "There was not enough evidence in this case to come to this point."

According to prosecutors, Marshall, 41, was upset at Cullens because he believed Cullens was romantically involved with his wife, and Marshall went to Cullens home to fight him on June 7, 2003.

When Marshall cocked his fist to punch Cullens, Cullens pulled out a handgun and shot and killed Marshall as Marshall ran away, eyewitness Kenneth Fitzsimons testified this week in Fontana Superior Court.

In his closing argument this afternoon, Deputy District Attorney Doug Schaller called on the jury of eight men and four women to convict Cullens of first-degree murder.

Jurors have the option of convicting Cullens of first-degree murder, second-degree murder or voluntary manslaughter. They are scheduled to resume deliberations tomorrow morning.

Fitzsimons, who arrived at Cullens' Laurel Avenue home with Marshall, left the scene after shots were fired, and returned with Andrea Johnston hoping to locate Marshall, Fitzsimons testified Tuesday.

When they arrived, Cullens showed them the spot where Marshall had fallen -- he had been shot in the head and had no pulse, Johnston testified.

Fitzsimons again left after Cullens reportedly threatened to kill him. Cullens then forced Johnston to help him dispose of Marshall's body, Johnston testified.

Cullens drove to the Jurupa Mountains and dumped Marshall's body in a ravine, Johnston testified.

Marshall's body was discovered by authorities the next day when a brush fire broke out in the ravine -- prosecutors allege Cullens set it in an effort to destroy evidence.

In her closing argument, Kershaw said that Fitzsimons may have arranged the killing of Marshall, and enlisted the help of a second eyewitness -- Johnston -- to frame Cullens for the killing.

Fitzsimons may have been motivated to kill Marshall to take his drugs.

"Methamphetamines equal money in that neighborhood," Kershaw said.

Kershaw criticized the strength of the prosecution's case, saying they lacked physical evidence because of poor police work, and their two eyewitnesses were not credible.

"Is this shoddy police work, or is there simply no evidence? Either way it doesn't work," Kershaw said.

In his rebuttal of Kershaw's closing argument, Schaller told jurors not to fall for what he termed "common defense tricks" in her criticisms of the investigation into Marshall's death.

"Don't let Ms. Kershaw tell you what to think," Schaller said.

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