Defence lawyer presses witness on inconsistencies at murder trial
In the fall of 2021, a night of celebration turned to mayhem at Kawacatoose First Nation.
While the resulting loss is clear, lawyers have been seeking to uncover what transpired before and after a shotgun blast fatally wounded Thomas Dustyhorn on Nov. 26 of that year.
Eric Charles Favel, 35, stands accused of second-degree murder. He pleaded not guilty to the charge when the jury trial began in Regina's Court of King's Bench on April 29.
On Thursday, court heard from Prairie Asapace, who was Dustyhorn's partner at the relevant time. She struggled through emotions that were on clear display, and also through some apparent challenges with memory.
Asapace outlined how she and Dustyhorn were celebrating after he'd got a new job, and they ended up drinking with her brother, Terry Asapace, at a home on the First Nation. Favel, who is Terry's stepson, was also there. She recalled being in an altercation with Favel and being pushed off her chair. She testified Favel had a gun.
“He was trying to put the clip into the gun,” she testified. “He was trying to come after me first.”
Prairie told prosecutor Arjun Shankar that Favel had fallen on top of her with the gun, and that she'd seen the “clip” on the floor (a cartridge magazine is sometimes informally called a clip).
This, she said, preceded a struggle for the gun, then yelling, followed by the sound of a gunshot.
Under cross-examination by Favel's lawyer, Lisa Smart, Prairie was asked to rate her level of intoxication at the time on a scale of one to 10, with 10 being completely intoxicated.
She told the defence lawyer she would have been at an eight.
Prairie had previously told police she only heard people saying there was a clip on the floor and, at the preliminary inquiry, Prairie said she didn't see a clip at all, Smart put to her.
The incident was previously unclear in her mind, she said, maintaining on Thursday that she had seen the clip.
“Did you see any gun at any point in time?” she was asked.
“I didn't see a gun at the time,” Prairie responded. “Like I said, I just seen the clip.”
Smart pressed the issue.
“You didn't ever actually see Eric holding the gun,” the defence lawyer put to her.
No, she responded.
Then she hadn't seen his hand on the trigger of a gun?
“No. If I did, I'd let you know,” Prairie responded.
Smart also challenged her about the involvement of another individual, who court has heard is Terry's son. Prairie's testimony on that too differed from previous statements, Smart highlighted.
The audio of a 911 call played for court had helped with her memory, she told the defence lawyer.
On Friday, court heard testimony from Terry Asapace. While he also said he was intoxicated (six out of 10 on the aforementioned scale, by his estimation), the recollection he provided was more fulsome than that of his sister.
Early in the night, Favel wound up fighting with Prairie on the kitchen floor, he testified. Terry said he struck Favel three times with a bar, which stopped the fight. Then he left along with Prairie and Dustyhorn, he said.
When they returned, it was the next morning. He said they'd just sat down when Favel came rushing at them with a .22-calibre rifle.
“I'm going to shoot you guys,” he recalled Favel saying.
Favel pushed Prairie over and pointed the gun at her head, but the clip fell out of the rifle, Terry told Shankar. The accused man then went back to his room and returned with another gun — a shotgun, the witness said.
Terry testified that he got between Favel and the others.
“Why are you doing this?” he recalled asking Favel, saying he received no response.
Eventually, Favel backed into his room and tripped, Terry said, adding he then got on top of his stepson, holding him down and controlling the gun.
But he heard Dustyhorn tell him to stop.
“My biggest mistake was listening,” Terry testified.
The witness said when Favel was allowed to get up, he raised the shotgun. Terry said he again grabbed the barrel and pushed it upward before it went off.
He looked and saw Dustyhorn fall to the floor.
“That's when I said, `What did you do?' ”
When Favel's 911 call was played for him in court, Terry shook and wept.
He had not yet been cross-examined by time of publication. The trial is set to continue Monday.