State v. Caballero, 2020-262

Docket Nº2020-262
Citation2022 VT 25
Case DateMay 20, 2022
CourtUnited States State Supreme Court of Vermont

On Appeal from Superior Court, Washington Unit, Criminal Division Mary L. Morrissey, J.

Thomas J. Donovan, Jr., Attorney General, and John D.G. Waszak Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Seibert Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Johnson, J. (Ret.), Specially Assigned


¶ 1. Defendant Jayveon Caballero was convicted by a jury of second-degree murder. On appeal, he argues that the State presented insufficient evidence to prove that he acted intentionally or in knowing disregard of a deadly risk to the victim when he fired a gun into the victim's car. He also claims that the trial court deprived him of a fair trial by excluding a statement of remorse that he made to his cousin three hours after the shooting. Finally, he contends that the verdict must be reversed because the State showed three graphic crime scene photographs to the jury that were not admitted into evidence. We conclude that there was adequate evidence of intent to support the verdict and that the alleged evidentiary errors do not require reversal. We therefore affirm.

I. Facts

¶ 2. The following evidence was presented at trial. On the evening of January 21, 2017, defendant was with friends at a bar in Barre, Vermont. The victim, Markus Austin, was also at the bar with a group of friends. After the bar closed around 2:00 a.m., a fight broke out in the parking lot between the two groups. Defendant and the victim got into a heated verbal interaction. Defendant's girlfriend attempted to intervene. The victim swore at defendant's girlfriend and called her a derogatory name, so she hit him. The victim punched her in the face, fracturing her jaw, and she fell to the ground. Someone in the group began waving a gun, and everyone scattered.

¶ 3. Defendant and another couple went with defendant's girlfriend to the hospital to obtain treatment for her injuries. Her mouth was bleeding and she could not speak or move her jaw. While in the car, defendant repeatedly vowed revenge, stating, "I can't believe he just hit you, I really hope he didn't break your jaw; if he did, I'm going to fucking kill him. I can't believe this happened." After they arrived at the hospital, defendant texted and called one of the victim's friends, who had been present at the bar. Defendant asked where the victim was, warned the friend that "it wasn't over," and told him to "[s]trap up."

¶ 4. Shortly before 4:00 a.m., defendant and the other couple left the hospital and went back to the couple's apartment in Barre. Around this time, defendant texted another friend to notify the friend how to find defendant's bail money. After dropping off his friends, defendant drove to his apartment and obtained a handgun. He then drove to the parking lot of the apartment complex in Montpelier where the victim lived.

¶ 5. A security camera in the laundry room of the victim's apartment complex was pointed toward a window through which part of the parking lot could be seen. The video recording from the camera showed that at 4:25 a.m., a car entered the parking lot.[1] A second car entered the lot a few minutes after the first car. The second car came to an abrupt stop in front of the window. Seconds later, something resembling a puff of smoke appeared near the front passenger side of the second car, and seconds after that, the left turn signal on the car activated. Less than a minute later, a person approached the front of the car, then retreated. A car then drove past the second car toward the parking lot exit.

¶ 6. A neighbor in the apartment complex testified that he was in bed trying to sleep when he heard a voice yelling outside his window, "what the hell, n -----, what the hell, n ----- ." After the second yell, he heard a shot. He looked out his window and saw a person, whom he later identified as defendant, standing by the driver's side of a car holding a gun. Defendant lowered the gun and began walking toward the victim's car. Defendant asked the victim if he was all right, then ran back to his car and drove away fast. The neighbor called 911 and went down to check on the victim, whom he recognized as the victim. The victim had blood coming out of his mouth.

¶ 7. A Montpelier Police Department officer was the first to respond to the scene. He spoke briefly with the neighbor, then went to the parking lot. He observed a dark-colored sedan. The car's engine was running, the rear taillights were on, and the left turn signal was activated. The driver's-side door was open, and the victim was lying face down near the door. The officer observed blood around the victim's head and feet. He felt the victim's pulse and realized that the victim was dead.

¶ 8. While waiting for paramedics and other law enforcement to arrive, the officer took a video and photographs of the scene, then began to look for evidence. Walking around the car, he observed a black plastic lighter and a nine-millimeter bullet casing. He noticed what appeared to be a bullet hole in the windshield near the A-pillar on the passenger side of the car. He also observed a bullet fragment on the driver's-side passenger floorboard. There were fragments of glass and glass powder on the exterior of the car under the windshield wipers and on the dashboard and interior of the car.

¶ 9. The Vermont State Police (VSP) Crime Scene Search Team subsequently arrived and continued the investigation. In addition to the items observed by the first police officer, the VSP team retrieved a partially smoked cigarette butt near the victim's car, which DNA testing later showed to have been smoked by defendant.

¶ 10. The VSP investigation determined that the hole in the victim's windshield was approximately forty-two inches from the ground. The roof of the car was fifty-two inches from the ground. The VSP lieutenant who led the crime scene investigation concluded, based on the oblong shape of the defect created in the windshield by the bullet, that the bullet had entered at an angle. He further opined that the bullet had traveled in a fairly level trajectory.

¶ 11. Based on the shape of the bullet hole, the V-shaped space on the driver's seat that had no glass fragments, and the pattern of blood found inside and outside the car, the VSP lieutenant concluded that the victim had been sitting in the driver's seat when he was shot. He then attempted to get out of the car, collapsed, and died. The lieutenant opined that the shooter was positioned diagonally to the front passenger side of the victim's vehicle. The lieutenant testified that his conclusion was consistent with the autopsy report, which showed that the bullet entered the right side of the victim's chest and traveled slightly downward and to the left.

¶ 12. A medical examiner testified that the bullet entered the victim's chest slightly to the right of center and just below his collarbone, perforated his aorta, and lodged against his spine. The wound indicated that the bullet traveled almost horizontally through the victim's chest. A ballistics analyst who examined the bullet and casing testified that when a bullet hits a windshield at an angle there will be some deflection, but it will remain on the same general trajectory.

¶ 13. After the shooting, defendant went to a friend's house in Barre, where his girlfriend joined him. Defendant was upset and crying and kept saying, "I fucked up." He told his girlfriend that he had not aimed at the victim. Later that day, defendant fled Vermont. In May 2017, he was apprehended by federal marshals in Florida.

¶ 14. The State initially charged defendant with second-degree murder and later amended the charge to first-degree murder. A seven-day jury trial was held in November 2019. After the State finished presenting evidence, defendant moved for judgment of acquittal, but asked the court to reserve its ruling until after the jury entered a verdict. Defendant did not present any evidence. The jury found defendant guilty of the lesser charge of second-degree murder.

¶ 15. Defendant renewed his motion for judgment of acquittal after trial, arguing that there was insufficient evidence that he had the requisite intent for second-degree murder. The court denied the motion, concluding that it was undisputed that defendant fired the bullet that killed the victim and was not acting in self-defense or defense of others, and that there was sufficient evidence for the jury to find beyond a reasonable doubt that defendant either intended to kill the victim or acted with a wanton disregard of the likelihood that death or great bodily harm would result from his actions. It subsequently sentenced defendant to serve twenty-five years to life. This automatic appeal followed. See V.R.A.P. 3(b)(2).

II. Denial of Motion for Judgment of Acquittal

¶ 16. Defendant's primary argument on appeal is that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to prove beyond a reasonable doubt that defendant had the requisite intent for second-degree murder. We conclude that the record contained ample evidence to support the conviction.

¶ 17. We review the denial of a motion for judgment of acquittal without deference to the decision below. State v. Berard, 2019 VT 65, ¶ 7, 211 Vt. 39, 220 A.3d 759. We consider whether the evidence presented, taken in the light most favorable to the State and without considering any modifying evidence, is sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty. State...

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2 cases
  • State v. Murphy, 2019-029
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 17, 2023 not required to exclude every reasonable hypothesis of innocence in proving a case with circumstantial evidence." State v. Caballero, 2022 VT 25, ¶ 19, ___Vt. ___, 279 A.3d 676 (quotations omitted). "The evidence and inferences, however, must add up to more than mere suspicion; the jury ......
  • State v. Murphy, 2019-029
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 17, 2023 not required to exclude every reasonable hypothesis of innocence in proving a case with circumstantial evidence." State v. Caballero, 2022 VT 25, ¶ 19, ___Vt. ___, 279 A.3d 676 (quotations omitted). "The evidence and inferences, however, must add up to more than mere suspicion; the jury ......

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