The Vermont Supreme Court has unanimously upheld the murder conviction for Jayveon Caballero in the ambush-style shooting death of a Montpelier man in January 2017.
Caballero, 35, was sentenced in October 2020 by Judge Mary Morrissey in Washington County criminal court to 25 years to life in prison after a jury convicted him of second-degree murder in the fatal shooting of Markus Austin.
It was the first murder case in Vermont’s capital city in nearly 100 years.
“Defendant acknowledges that he repeatedly threatened to kill the victim, borrowed a gun, waited for the victim at his home, and fired a shot at the victim’s windshield that ultimately killed the victim,” wrote Chief Justice Paul Reiber in the 5-0 decision issued Friday.
“Defendant claims, however, that the evidence tends to show that he was merely firing a warning shot and did not aim directly at the victim, and therefore did not knowingly disregard a deadly risk,” Reiber wrote. “We disagree.”
Prosecutors held that Caballero acted out of revenge, ambushing Austin after he drove up to his Montpelier apartment. They said Caballero targeted Austin after a fight outside a Barre bar hours earlier.
Austin was a former player with the semi-pro Vermont Frost Heaves basketball team, which folded in 2011. He was employed at the Vermont Psychiatric Care Hospital in Berlin as a mental health specialist at the time of his death.
Caballero, through his attorney at trial, did not contest that he fired his gun but maintained that he did not actually intend to shoot Austin.
His attorney argued that Caballero aimed away from Austin, but the bullet hit the windshield, causing the path of the projectile to curve and strike the victim.
In convicting Caballero of second-degree murder, the jury acquitted him of a charge of first-degree premeditated murder.
While appealing Caballero’s conviction, public defender Dawn Seibert argued that the trial court judge incorrectly excluded a statement Caballero made to his cousin about three hours after the shooting that he “felt horrible and didn’t really know what happened.”
That statement, Seibert contended, showed that Caballero did not intend to shoot Austin.
The high court, however, ruled that the exclusion of that comment did not deprive Caballero of a fair trial. “The statement was not probative of whether defendant knowingly disregarded a deadly risk to the victim, the minimum intent required for second-degree murder,” its decison stated.
The Vermont Attorney General’s Office, which prosecuted the case, issued a statement Monday after the ruling. “It is our hope that the Court’s ruling will give Markus Austin’s family some measure of peace,” it read.
Seibert, Caballero’s attorney, could not be reached Monday for comment.
Caballero is currently incarcerated at the Northern State Correctional Facility in Newport.
