BARRE – The attorney for a man convicted of murder in the 2017 shooting death of a Montpelier man is asking a judge to throw out the jury’s verdict.
Dan Sedon, who represents Jayveon Caballero, is calling on the judge to “set aside” the jury verdict and enter a verdict of “acquittal.”
“It is a very big ask, to ask a trial court to do that,” Sedon said after a hearing in the case Thursday in Washington County criminal court in Barre.
Prosecutors argued against Sedon’s motion. Judge Mary Morrissey took the matter under advisement and is expected to issue a written decision.
The death of Markus Austin, a former player with the semi-pro Vermont Frost Heaves basketball team, in January 2017 was the first murder in Montpelier in a century.
Following a seven-day trial in November, a jury convicted Caballero of second-degree murder in Austin’s death.
In returning the conviction, the jury did not convict Caballero of the harsher charge of first-degree murder, which was among the choices it had. A charge of second-degree murder carries a sentence of 20 years to life in prison. A first-degree murder conviction carries a sentenced of 35 years to life in prison.
The central issue in the case came down to intent.
Prosecutors contended that Caballero targeted Austin out of revenge after a fight outside a bar in Barre earlier that night. They say Cabarallo ambushed Austin after he drove up to his Montpelier apartment.
Sedon, Caballero’s attorney, argued that although his client fired his gun that night, he didn’t mean to kill him. However, Sedon said, when Cabarallo fired in a direction away from Austin, the bullet hit the vehicle’s windshield, which caused it to curve, and strike Austin.
To show that Caballero didn’t intend to kill Austin, but rather scare him, Sedon contended that his client fired at the vehicle at a time when Austin was not inside it.
“Our theory at trial was that Mr. Austin was already outside of the vehicle,” Sedon said. “We argue that all of the physical evidence supports that — the absence of any glass on Mr. Austin, the fact that all the blood was outside the vehicle, the fact he was found outside the vehicle.”
Sedon said due to what he called the lack of evidence to support the murder charge the jury could have reached its verdict for any number of reasons, including because they may not have liked Caballero or what he said.
“Or they didn’t like his looks,” the defense attorney added.
Assistant Attorney General John Waszak, a prosecutor in the case, disputed that Austin had to be outside the vehicle at the time he was shot. The prosecutor said the shooting happened so soon after Austin drove up there wouldn’t have been time for him to get out of the vehicle.
Waszak argued there was more than enough evidence to support the jury’s verdict.
“In any event,” Waszak wrote in a filing in the case, “notwithstanding the substantial evidence in support of the State’s position at trial that Mr. Austin was generally situated in his car seat at the time of the shooting, it should be noted that where Mr. Austin was positioned is not an actual element of second-degree murder.”
If the motion to set aside the verdict is not granted, the case will proceed to sentencing. After that, Sedon said, he would appeal the conviction to the Vermont Supreme Court.
“We’re confident in time that this matter will be reversed,” Sedon said.
A sentencing hearing is currently set for May 15.
