BARRE – Jayveon Caballero’s attorney wants a judge to toss out the guilty verdict a jury reached in his murder trial in November.

Caballero was found guilty of second-degree murder in the killing of Markus Austin in Montpelier in January 2017.

According to court records, a witness told police Austin was shot around 4:30 a.m., Jan. 22, 2017, in the parking lot outside his 191 Barre St. apartment in Montpelier. Austin died from a 9 mm gunshot wound to the chest, according to police and court records.

Police said the shooting followed a fight hours prior near a bar in Barre, when witnesses said Austin hit Caballero’s then-girlfriend, Desiree Cary, who required medical treatment as a result. Officials said Caballero waited outside Austin’s apartment before Austin was shot.

Police said Caballero then fled to Florida, where he was arrested in May 2017 and brought back to Vermont.

Officials said it was Montpelier’s first murder in 100 years.

The trial lasted seven days. Caballero had been charged with first-degree murder, but the jury found him guilty of the lesser charge.

The state attorney general’s office had argued Caballero shot Austin while Austin was sitting in his car. Defense attorney Dan Sedon had argued Austin was out of the car when Caballero shot and the bullet ricocheted off Austin’s vehicle, hitting Austin in the chest. He said Caballero did not intend to kill Austin.

Sedon filed a motion in December asking Judge Mary Morrissey to set the guilty verdict aside and acquit his client. Sedon said the state had failed to provide sufficient evidence proving Caballero’s actions occurred with “conscious disregard” of the risk those actions could present, as in causing Austin’s death by shooting at the vehicle.

Sedon wrote during the trial the state did not produce any evidence showing Austin was sitting in his car at the time of the shooting, what the angle of trajectory was of the bullet, that the bullet hit Austin without deflection or that the bullet, which went through the bottom of the car’s windshield, would have hit Austin in the chest where it did given Austin was six feet, six inches tall.

“The foregoing criticisms of the State’s evidence at trial are not insignificant,” Sedon wrote. “They do not amount to lawyerly nitpicking or a demand for evidentiary exactitude at odds with the real world limitations of what can and cannot be proven. Marcus Austin was either inside his car or out. Mr. Caballero either aimed his gun at Mr. Austin or the empty passenger compartment of his vehicle. The bullet that struck Mr. Austin either traveled a straight path as aimed, or significantly deflected.”

A hearing was held in Washington County criminal court Thursday on Sedon’s motion. He said it is “a weighty request” to ask a judge to set aside a verdict reached by a jury. He said it’s rare when a court finds it necessary to overturn a jury verdict, but this is one of those cases.

Sedon said there are rules in place where a judge could overturn a verdict because juries are not without error or prejudice which could supplant evidence in reaching a verdict. Caballero is Latin American and Sedon said because the evidence from the state was lacking “this jury delivered a verdict, perhaps, because they didn’t like Mr. Caballero. Or they were offended by some of the things he said. Or they didn’t like the influence he represented in the community. Or they didn’t like his looks.”

The jury was composed of eight men and four women, all of them appeared to be white.

In his response to Sedon’s motion, Assistant Attorney General Jon Waszak wrote there was sufficient evidence for the jury to reach a verdict. Waszak said Caballero doesn’t dispute he was at the scene and fired the gun that caused Austin’s death. Caballero denies he intended to shoot Austin.

He pointed out witnesses testified at trial it wouldn’t be possible to reconstruct the trajectory of the bullet because you need two fixed points to do so. There was only one in this case, the windshield, while Austin’s body was not a fixed point so it’s impossible to know where his body was exactly when he was shot.

During Thursday’s hearing Waszak said Sedon’s argument completely ignores surveillance footage at the scene showing Austin was shot seconds after he pulled into the parking lot. The footage is from a camera inside a laundry room pointed at a window in Austin’s building where Austin’s car is observed pulling into the parking lot, stopping suddenly and a small cloud, believed to be glass from the windshield, is seen shortly after the car stops.

“Given that he stopped that car and five seconds later he was shot. He didn’t have a chance to crouch behind the car or anything like that,” Waszak said.

He said it doesn’t matter, despite Sedon’s claims, whether Austin was sitting in the car or not. Waszak said Caballero’s actions showed “wanton disregard” for Austin’s life.

Judge Morrissey said she will issue a written decision at a later date.

Caballero is scheduled to be sentenced in May where he faces a life sentence. He is currently being held without bail at Northeast Correctional Complex in St. Johnsbury.

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