Vt. Supreme Court hears Caballero appeal

According to court records, a witness told police Markus Austin was shot around 4:30 a.m., Jan. 22, 2017, in the parking lot outside his Barre Street apartment in Montpelier. Police said Austin, 33, died from a 9 mm gunshot wound to the chest.

The killing is believed to be the Capital City’s first murder in 100 years.

The shooting followed a fight hours prior near a bar in Barre, when witnesses said Austin hit Caballero’s then-girlfriend who required medical treatment as a result, according to court records. 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.

Because Caballero was given a life sentence, his conviction was automatically appealed to the state Supreme Court. The court heard oral argument virtually on Jan. 26.

Caballero was represented by attorney Dawn Seibert of the defender general’s office.

“‘I really don’t know what happened. I feel horrible.’ The jury never heard these words uttered by an upset and crying Jayveon Caballero a few hours after the incident,” Seibert said.

She said the trial court ruled Caballero’s comments inadmissible. The comments were made over the phone to a family member hours after the shooting and a witness overheard the call. The judge in the lower court decided too much time had passed from the shooting to the call, so the defense could not present his comments from the call to the jury as an “excited utterance.” That’s a form of hearsay that is allowed as evidence if someone makes an unplanned statement believed to have come from stress from a startling event.

“That ruling violated Mr. Caballero’s fundamental due process right to present a defense,” Seibert said.

She said the entire defense was based on the killing being unintentional.

Justice Denise Johnson asked even if Caballero said he didn’t mean to kill Austin, how could he escape the “wanton disregard” piece of the murder conviction.

In order to prove beyond a reasonable doubt someone committed second-degree murder, the state must show the person intended to kill another, intended to do great bodily harm or showed wanton disregard for their actions, essentially acting extremely recklessly.

Seibert said the state has conceded a jury could have found Caballero didn’t aim his gun at Austin, but shot the gun in close proximity. She said the state also conceded the jury could have found Austin was outside his vehicle when he was shot.

Whether Austin was in the vehicle was in dispute during the trial. Attorney Dan Sedon, who represented Caballero during the trial, argued the evidence showed Austin was standing up arguing with Caballero when Caballero fired down into the vehicle’s windshield, causing the bullet to change trajectory after it went through the windshield, killing Austin.

Seibert said to prove wanton disregard, the state would have to show Austin’s death was probable as a result of Caballero’s actions, not just possible. She said the jury would have to find Caballero knew his shot would ricochet and probably kill Austin.

Justice William Cohen said he didn’t see any evidence presented showing the gun was fired by mistake.

“It wasn’t like he dropped the gun and the gun went off,” Cohen said.

Seibert said the defense argument was that the gunshot was a warning shot that “went awry” and deflected in a way that couldn’t have been predicted.

Justice Johnson asked Seibert why pointing a loaded gun in someone’s direction and shooting it didn’t meet the standard of what a reasonable person would expect the risk of such an action could be for wanton disregard. The attorney said the knowledge of the certainty of those consequences, a specific intent, is needed for the state to prove second-degree murder instead of a lesser charge such as involuntary manslaughter where someone can be convicted based on negligence.

Seibert said the phone call the jury wasn’t allowed to know about was important for the intent piece because a witness had testified he saw Caballero walk over to Austin after the shooting asking if Austin was OK. She said the call would corroborate the witness testimony that Caballero was surprised he had shot Austin.

Justice Harold Eaton said the jury did hear from Caballero’s former girlfriend who testified Caballero was crying after the shooting and told her he wasn’t sure whether he hit Austin and didn’t aim for him. Seibert said the girlfriend was the state’s witness. She said the girlfriend also testified that she thought Caballero said those things to try to justify his actions.

Assistant Attorney General John Waszak said when Caballero had made the statements during the call he had already taken other actions, including turning off his cellphone and fleeing the scene. Waszak said Caballero destroyed the SIM card for his cellphone and threw it in the sewer, got rid of the gun and changed his jacket.

“These are acts of self-preservation. These are adjacent obstruction of justice acts by the defendant and this is why the statements are not reliable three and half hours after the shooting,” the prosecutor said.

Seibert noted Caballero had been charged with first-degree murder, but the jury found him guilty of the lesser murder charge which showed it struggled with intent in the case.

The court will issue a decision on the appeal at a later date.

eric.blaisdell @timesargus.com