State v. Paule

• Decision Date: 12 November 2021
• Docket Number: 20200555-CA
• Parties: STATE of Utah, Appellee, v. Elbert John PAULE, Appellant.
• Court: Utah Court of Appeals

502 P.3d 1217

STATE of Utah, Appellee,

v.Elbert John PAULE, Appellant.

No. 20200555-CA

Court of Appeals of Utah.

Filed November 12, 2021

Douglas J. Thompson and Margaret P. Lindsay, Attorneys for Appellant

Sean D. Reyes and Nathan Jack, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

HARRIS, Judge:

¶1 Elbert John Paule shot and killed his friend (Friend), and police later discovered the weapon used in the shooting—a shotgun—lying in the grass below the balcony of Paule's apartment. Paule was charged with, among other things, murder (for shooting Friend) and obstruction of justice (for allegedly throwing the shotgun off the balcony). After a nine-day trial, a jury credited Paule's account that he shot Friend in self-defense and acquitted him of murder, but nevertheless convicted him of obstruction of justice. Paule now appeals that conviction, asserting that the trial court erred by denying his motion to arrest judgment and that his trial attorneys rendered ineffective assistance. We affirm.

BACKGROUND¹

¶2 Paule and Friend became acquainted a month or two prior to the shooting. While the depth of their friendship was not entirely clear from trial testimony, witnesses testified that Paule and Friend often spent time together hanging out, eating dinner, and playing video games, and that Paule had stayed the night at Friend's residence several times. However, in the days leading up to the shooting, their relationship began to deteriorate, and the two of them exchanged heated words, largely through digital messages. At one point, Paule suggested that the two of them settle their dispute with a fight; Friend, for his part, told Paule that he was going to come over to Paule's apartment so the two could "fight it out," that it was not "going to end good for [Paule]," and that he was going to "take [Paule] out." Paule later testified that he took these threats seriously and was concerned for his safety.

¶3 On the day of the shooting, Friend—with his fiancée (Fiancée) and infant child in tow—went over to Paule's apartment, ostensibly to "squash the beef" between himself and Paule. Accompanied by Fiancée and their infant, Friend climbed the three flights of stairs to Paule's apartment and knocked on the door. Paule was home at the time and, fearing it was Friend at the door, went into his bedroom to retrieve his shotgun. Accounts differ as to whether Friend or Paule opened the door first, and as to whether Friend had a knife in his hand, but one thing is certain: as soon as Paule realized that Friend was standing in his doorway, and before any meaningful dialogue occurred, Paule pulled the shotgun's trigger and fatally shot Friend.

¶4 After the shooting, Paule fled the scene, allegedly assaulting Fiancée in his attempt to escape the apartment. Somehow, the shotgun made its way down onto the grass below the balcony of Paule's apartment, and Paule's phone was lost—and never found—during his departure from the apartment complex. Paule then traveled to California, where he eventually turned himself in to the local authorities and was extradited back to Utah. The officer who booked Paule into jail in California asked Paule if he knew why he was being taken into custody, and Paule responded: "I'm here for murder" and "I used a shotgun."

¶5 After investigation, the State charged Paule with four crimes: (1) murder, a first-degree felony; (2) obstruction of justice, a second-degree felony; (3) reckless endangerment, a class A misdemeanor; and (4) assault, a class B misdemeanor. The case eventually proceeded to a jury trial, which lasted nine days. During his opening statement at trial, the prosecutor explained to the jury that the murder charge was "for shooting and killing" Friend; the obstruction of justice charge was for throwing the shotgun "off the balcony in order to hinder, delay, or prevent the investigation"; the reckless endangerment charge was for endangering Fiancée and the infant by "just randomly fir[ing]" a shotgun in their vicinity; and the assault charge was for "punch[ing]" and "push[ing]" past Fiancée after the shooting.

¶6 At trial, the State presented testimony from many witnesses, including Fiancée—who testified about what she saw at the time of the shooting—and several law enforcement officers. One of the officers testified that, while searching the apartment's balcony, he could see a "long rifle" or "shotgun" in the grass "almost directly below the balcony." Another officer testified that he retrieved that gun—which he determined to be a shotgun—from the grass below the balcony, and he stated that the position in which the gun was found was consistent with it having been thrown to the ground. That same officer also testified that a live round was found in the chamber of the shotgun, and that the round inside the gun was "the same brand" as the spent shell casing discovered inside the apartment. And yet another officer testified that the only prints recovered from the shotgun were Paule's finger and palm prints.

¶7 At the close of the State's case, Paule moved for a directed verdict as to the obstruction of justice count. In support of that motion, Paule made one argument: that the State had presented insufficient evidence indicating that it had been Paule—as opposed to someone else—who had thrown the shotgun off the balcony. During argument on the motion, which took place outside the jury's presence, all participants (including the court) appeared to assume that the obstruction of justice count concerned only the allegation that Paule had attempted to dispose of the shotgun; indeed, inherent in Paule's request—which asked the court to order an acquittal on the obstruction count—was the notion that the only thing Paule had been accused of doing that could constitute obstruction of justice was throwing the gun off the balcony. The State opposed the motion on the sole ground that there existed "sufficient circumstantial evidence" that Paule had been the person who threw the gun off the balcony. That is, the State did not assert any other factual bases on which the jury could convict Paule of obstruction of justice. The court denied the motion, concluding that, based on the circumstantial evidence, "the jury could make a determination" that Paule had been the one who threw the gun off the balcony.

¶8 Paule testified in his own defense, and gave a much different account of the shooting than Fiancée, claiming that he shot Friend in self-defense. He also testified that he did not do anything with the shotgun after the shooting, and instead claimed that one of his roommates took the shotgun from his hands and "ran out to the balcony."

¶9 After Paule rested his case, the trial court instructed the jury. The instruction for the obstruction of justice charge stated that the jury could not convict Paule unless it was able to find, beyond a reasonable doubt, that Paule had "conceal[ed] or remove[d] any item or other thing" with the "intent to hinder, delay, or prevent the investigation ... of any person regarding conduct that constitutes a criminal offense." The court also instructed the jury that, "[i]n all criminal cases, including this case, the unanimous agreement of all jurors is required before a verdict can be reached." No further instruction regarding jury unanimity was given.

¶10 During closing argument, the prosecutor discussed the obstruction of justice charge and—as he had during his opening statement—made clear to the jury that this charge was for "when [Paule] threw the gun over the balcony." He pointed out that "only [Paule's] prints [were] on that" gun, and urged the jury to convict Paule on the obstruction charge because the evidence indicated that Paule had been the one who threw the gun off the balcony. At no point did the prosecutor identify any other act as being the basis for the obstruction of justice charge, nor did he ask the jury to convict Paule on that count for any other act.

¶11 At certain points in his closing argument, the prosecutor mentioned that Paule had "got rid of" his phone while fleeing the scene and that Paule had traveled to California immediately thereafter. But these comments were made much earlier in the argument than the prosecutor's discussion of the obstruction charge, and were made in the context of discussing Paule's guilt on the murder charge. The prosecutor prefaced the discussion by saying, "[n]ow, as to Paule's guilt" on the murder charge, and argued that a person who was truly scared of Friend and who had acted in self-defense would not have "got rid of his phone" and "fled to" California.

¶12 The jury ultimately acquitted Paule of murder, reckless endangerment, and assault, but convicted him of obstruction of justice. Paule subsequently filed a motion to arrest judgment, arguing that the jury's verdict was legally inconsistent because "the jury found [Paule] was legally justified" in shooting Friend and that there had been "no crime for [Paule] to obstruct." Paule therefore asked the court to either enter an acquittal on the obstruction of justice charge or, in the alternative, to reduce Paule's conviction from a second-degree felony to a class A misdemeanor. In its written opposition to Paule's motion, the State continued to take the position that the obstruction of justice count had been about Paule throwing the shotgun off the balcony. But at oral argument on the motion, the State for the first time asserted that there might have been other factual bases upon which the jury might have convicted Paule of obstruction of justice, including disposing of his phone and fleeing to California. After argument, the trial court denied Paule's motion.

¶13 A few weeks later, at Paule's sentencing hearing, the State asked the court to deviate from the sentencing guidelines—which indicated that probation would be appropriate—and sentence Paule to prison. As part of its argument, the State...