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BENNINGTON — A Superior Court judge wasn’t swayed Thursday by a defense attorney’s urging for a dismissal in his client’s attempted murder case, which stemmed from a shooting in downtown Bennington in December.

Judge Kerry McDonald-Cady ordered Gilberto Jiminez-Santiago, 25, of Holyoke, Mass., held without bail until at least April, for his alleged involvement in the daylight shooting-up of a residential building at 108 Lafayette St. Jiminez-Santiago was allegedly one of three individuals inside a white Subaru that fired several rounds into the building in retaliation for being ripped off after a drug deal went south earlier that morning.

Defense attorney Joshua Stern informed the judge that he was challenging the court’s initial finding of probable cause in the case, based on his assertion that there wasn’t any evidence in the affidavit speaking to his client’s intent to harm someone and that there was not no victim inside the room where the bullets landed.

“Your honor,” Stern said, “even if the court does decide that there is sufficient evidence Mr. Santiago was involved in shooting at the residence, there is no evidence that he intended to murder anyone. There is no evidence that anyone was present in that room, and there is no evidence that Mr. Jimenez-Santiago or any of his co-defendants believed that anyone was present when they allegedly opened fire.”

Stern was basing his challenge on that, for someone to be charged by the state with attempted murder, there needs to be an intent to harm someone. In other words, there needs to be the knowledge that he was aiming for someone and that there was a “victim” present.

“The state cannot, with the evidence put forward, prove that Mr. Jimenez-Santiago was even involved in the shooting,” Stern told the judge. “Even if it can prove that he was involved in the shooting, it cannot prove that there was a victim in a position to be threatened with the possibility of death by the discharge of those firearms. Without a victim that the state can point to that Mr. Jimenez-Santiago allegedly attempted to kill by discharging a firearm on that day, [the] state cannot prove a case of attempted murder.”

State prosecutor Jared Bianchi countered that argument by meticulously piecing together several pieces of circumstantial evidence linking Jimenez-Santiago to the gun evidence found through eye-witness accounts, video footage and shell casings found in the white Subaru. He then told the story of Jimenez-Santiago’s alleged drug dealings with an individual who lived in the same room the bullets entered. He also detailed a dispute after an alleged drug deal went south, and Jimenez-Santiago and his cohorts were “ripped off.”

“There is probable cause to believe that this defendant committed that act intending to cause death. The probable cause affidavit sets forth all the necessary elements,” Bianchi said. “Intent in cases like this almost always needs to be inferred from other facts. This shooting occurred because this defendant and his friends were upset about being ripped off on a drug deal. This defendant was seen there, and was known to have been angry at a drug deal gone bad. He was known to have had a gun at the time and to have knowledge about goings on at the house because of his role in that drug deal. He also knew there were people present.”

After a brief recess, the judge came back with her decision.

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“The court is charged with determining probable cause,” she said. “First, whether a crime was committed, and whether the defendant probably committed it. The law here does not require direct evidence but can be determined by circumstantial evidence. Here, the state meets that bar. There is a probability that Mr. Jimenez-Santiago did intend to harm by firing his weapon. He was part of three individuals dealing drugs, living inside the residence. His fingerprints are on numerous items there. Other individuals identified him as being there and owning a gun. That [Jimenez-Santiago] was upset after a dispute over getting ripped off. The same individual that allegedly ripped him off lived in that same room where the bullets landed.”

Jimenez-Santiago could be seen wriggling in his seat on video from the Southern State Correctional Facility as the judge spoke.

McDonald-Cady finished by saying, “Intent is inferred from the actions of Mr. Jimenez-Santiago leading up to the shooting. The court does find probable cause.”

The arraignment was postponed for 24 hours after Stern invoked Jimenez-Santiago’s right of 24 hours after being charged to decide on a plea. It was further delayed as the court requested a Spanish interpreter, who needed to relay the English in the courtroom to Jimenez-Santiago in Spanish.

Bianchi requested and received a hold without bail in the case. Jimenez-Santiago will be held without bail until a weight of evidence hearing can be scheduled for some time in April.

According to the court affidavit, Bennington Police responded shortly after 10 a.m. on Dec. 14 to a call of numerous shots fired into an occupied residence at 108 Lafayette St. Witnesses told police then that the white Subaru wagon with Vermont plates was seen leaving the shooting area. That Subaru, a 2002 Legacy wagon with gray trim along the bottom, was reported stolen early that morning by its owners.

Bennington Police recovered the stolen Subaru after it turned up in Springfield, Mass. Evidence from the eventual search of the Subaru, public tips, and an intense investigation by the Bennington Police and Department of Homeland Security members culminated in the warrant issued for Jiminez-Santiago in February. He was picked up by the Holyoke (Mass.) Police Department two weeks later and taken to Bennington this week.

Nobody was hurt in the shooting, although many residents were home during the gunfire.

After the judge’s decision, Jimenez-Santiago pleaded not guilty to the sole count of attempted murder and was led back into his cell. The single count of attempted murder in Vermont carries a possible life sentence with a presumptive minimum of 20 years behind bars.


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