Bolaski likely to stand trial again for murder

Kyle Bolaski appears headed for another trial on a charge of second-degree murder now that a judge has rejected a motion by his lawyer to toss out the case.
http://www.vnews.com/news/14970104-95/bolaski-likely-to-stand-trial-again-for-murder

Bolaski Likely to Stand Trial Again for Murder By Maggie Cassidy Valley News Staff Writer Friday, December 26, 2014 (Published in print: Saturday, December 27, 2014) White River Junction — Kyle Bolaski appears headed for another trial on a charge of second-degree murder now that a judge has rejected a motion by his lawyer to toss out the case. The Springfield, Vt., man was convicted earlier on that charge, but the verdict was overturned by the Vermont Supreme Court last spring. Defense attorney Brian Marsicovetere argued in court documents that the case shouldn’t even make it to a second trial because prosecutors couldn’t prove that Bolaski’s actions hadn’t been provoked i n the December 2008 shooting at a park in Chester, Vt. Bolaski fatally shot Vincent Tamburello Jr., 32, in the leg and buttocks after Tamburello chased him to his truck with a splitting maul. Bolaski has argued that he acted in self-defense. Prosecutor John Lavoie, in his response to the defense’s motion to dismiss the case, wrote that Tamburello’s death “was due to malicious, murderous intent and not provocation,” and that Bolaski, recruited by friends who were feuding with Tamburello, “came to the ball field armed and ready for confrontation.” In a two-page ruling issued earlier this month from Windsor Superior Court, Judge Karen R. Carroll wrote that the facts of the case “must be considered anew,” and that prior to trial, the prosecution does not yet bear the burden of proving that Bolaski did not act under passion or provocation. “This element is ... not ripe for consideration, as passion or provocation is not yet introduced and has not become an element which the state must disprove,” Carroll wrote. “It does not become a required element until evidence of passion or provocation has been introduced at trial.” Carroll wrote that, at this point in the process, she is required to determine whether “the evidence, taken in the light most favorable to the State, and excluding modifying evidence (introduced by the defendant), can fairly and reasonably show that the defendant committed the alleged violation.” She ruled that prosecutors had met that burden. Bolaski, who will turn 31 next month, has been out on $100,000 bail since June. He has been living with his parents, David and Kathy, in Springfield. Carroll initially ruled in May, when Bolaski was brought to Vermont from a Kentucky prison where he had been serving his sentence, that Bolaski would have no bail. Marsicovetere appealed to the Supreme Court and was awarded a full bail hearing. Following that hearing, Carroll ruled that although the court had the right to withhold bail, Bolaski’s “ties to the community and the support from his father and others outweighs any risk of flight posed by the knowledge that he was previously convicted of the murder charge.” Reached by phone on Friday, Kathy Bolaski said Kyle was celebrating the holiday with his girlfriend and not available for comment. She confirmed that Kyle Bolaski was living at the home but declined to comment on his case. F ollowing his initial conviction by a jury in 2011, Bolaski began serving a prison sentence of 25-years-to-life and was incarcerated in Kentucky. Three years into his sentence, Vermont’s high court ruled that the judge who had presided over that case, Patricia Zimmerman, gave erroneous jury instructions and wrongly excluded evidence about Tamburello’s mental health at the time of the incident.