PROVO — An Orem man acquitted of murder two months ago is now accused of lying under oath during his trial.
Elbert John Paule, 20, was charged Thursday in 4th District Court with two counts of making a false or inconsistent material statement, a second-degree felony.
In February 2019, Paule shot and killed Dominique Barnett, 26, with a shotgun at point-blank range, without saying a word, in the doorway of Paule’s apartment after Barnett had gone to the complex with his fiancé and their child to confront Paule about a drug deal, according to prosecutors.
Paule was charged with murder. But following a one week trial, a jury acquitted him of the murder charge, believing that the shooting was in self-defense. He was convicted, however, on a charge of obstructing justice, a second-degree felony.
On Thursday, Paule’s defense attorney Rudy Bautista called the charges “ridiculous.”
“This is inappropriate on so many levels,” Bautista said. “It’s definitely taking two bites of the apple in order to get him a prison sentence he doesn’t deserve.”
During the trial, Paule took the witness stand in his own defense. He stated that after retrieving his shotgun and while standing in the kitchen, “Paule claims Barnett opened the door, entered the apartment with a knife in his hand and advanced toward Paule. Paule testified that Barnett was inside his apartment when he shot Barnett. Paule testified that he did not open the door and although the door was locked, Paule claimed that Barnett somehow opened the door and entered the apartment,” according to charging documents filed Thursday.
However, two other witnesses who were present that night, including the fiancé, told police that it was Paule who opened the door and shot Barnett in the outside hallway, the charges state.
In addition, after Paule was acquitted, prosecutors “asked two blood spatter experts to review the photographs, scene videos and other physical evidence obtained in Barnett’s death. The expert witnesses indicate that the evidence in the case supports a finding that Barnett was not inside the apartment when Paule shot Barnett,” according to charging documents.
Prosecutors note that three witnesses who were present the night of the shooting and the two blood spatter experts did not testify during Paule’s trial.
“Paule made several false material statements under oath during the trial when he testified. These false statements include Paule’s claim that Barnett opened the door to the apartment and that Barnett entered the apartment when Paule shot Barnett,” the charges state. “The false statements that Paule made while testifying were material and capable of affecting the outcome of the trial as to whether Paule committed murder.”
Bautista said he was not ready to call the new charges double jeopardy or prosecutorial misconduct, “but it certainly stinks of that.”
“Here they’re trying to say a jury should believe their witnesses when a previous jury didn’t. It’s offensive,” Bautista said. His client’s testimony at trial did not conflict with his own earlier statements, he added. Rather, they go against the assertions of other witnesses.
“In 21 years and 196 jury trials, I’ve never seen someone acquitted be turned around and charged with perjury when it’s simply an issue of credibility,” Bautista said.
He questioned whether the timing of the new charges — a week before Paule is set to be sentenced in the earlier case — seeks to sway a judge to order prison time instead of a lesser penalty.
Bautista noted Republican Utah County Attorney David Leavitt is running for the state’s top law enforcement post and has campaigned on a platform that prosecutors currently have too much power and should offer fewer plea deals in favor of more trials, a move allowing fellow Utahns to decide a defendant’s fate.
“This is a slap across the face of such a platform,” said Bautista, a Libertarian who also has joined the attorney general race. “What it’s showing is prosecutors still have too much power. They can just decide, ‘We don’t believe him. We want a jury to believe these other people.’”