Judge to hear motion on shooting evidence

More than seven years after Kyle Bolaski shot and killed a man, a judge will hear a motion on whether jurors should learn about the victim’s mental health during Bolaski’s new trial.
http://www.vnews.com/news/19800386-95/judge-to-hear-motion-on-shooting-evidence

Judge to Hear Motion On Shooting Evidence By Jordan Cuddemi Valley News Staff Writer Wednesday, December 2, 2015 (Published in print: Wednesday, December 2, 2015) White River Junction — More than seven years after Kyle Bolaski shot and killed a man who had chased him with a splitting maul during a confrontation at a Chester, Vt., softball field, a judge will hear a motion on whether jurors should learn about the victim’s mental health during Bolaski’s new trial. The same motion prosecutors filed years ago, which sought to exclude information about Vincent Tamburello’s mental health from Bolaski’s 2011 trial, will go before a Windsor Superior Court judge later this month, court clerks said this week. At that hearing, a judge will take oral arguments from defense attorneys and prosecutors about whether to admit such evidence at trial. The information has been at the center of the lengthy case. Bolaski, a 31-year-old Springfield, Vt., resident, claims he acted in self-defense at the ball field off Route 103 on Aug. 17, 2008, when he fired two shots at Tamburello after Tamburello chased him with a splitting maul. But prosecutors say evidence from that day tells a different story. Bolaski was convicted of second-degree murder following a 2011 jury trial, but the Vermont Supreme Court overturned that conviction in 2014. Now, Bolaski is in the midst of preparing for a new trial on the same felony-level charge. The date of the new trial has yet to be set. The Supreme Court’s decision overturning the jury’s ruling said Judge Patricia Zimmerman prematurely excluded from Bolaski’s original trial evidence of Tamburello’s mental health in the months prior to the shooting. In addition, the decision — written by Justice John Dooley — said Zimmerman gave improper instructions to the jury. The motion from John Lavoie, a Franklin County prosecutor who took over the case after then-Windsor County State’s Attorney Robert Sand said it would be difficult to disprove Bolaski’s self-defense claims, currently is sealed at the White River Junction courthouse, so few specific details are available about what it contains. However, the Supreme Court ruling speaks to a 2011 prosecution motion to exclude evidence about Tamburello’s mental health, which court clerks this week said is the same motion that will be brought up on Dec. 14. In the 2011 motion, prosecutors asserted that mental health information is protected under patient privilege, and therefore should be excluded from trial, according to the Supreme Court ruling. In addition, prosecutors argued that the mental heath information was irrelevant because Bolaski didn’t know about it at the time of the shooting. Lastly, the state suggested that introducing the evidence would be more likely to prejudice a jury than prove guilt or innocence. The Supreme Court, however, found that the records could be an important element in a self-defense claim. Bolaski’s defense attorney, Brian Marsicovetere, in May filed a response to the state’s sealed motion. In his response, Marsicovetere said Tamburello’s medical records in the months prior to the shooting paint a picture of an unstable individual who was misusing medications and had constant run-ins with police. The information could explain Tamburello’s behavior on Aug. 17, 2008, Marsicovetere wrote. According to the Supreme Court ruling, a toxicology report revealed Tamburello had numerous drugs in his system, including Xanax, methadone, Paxil, Restoril, Oxazepam, THC and cannabinoids. Klonopin, the anti-anxiety medication prescribed to Tamburello in the weeks before the shooting, wasn’t found in Tamburello’s system, Marsicovetere wrote in his response. “Instead, Xanax was found in his system, the one medication (Tamburello) specifically reported as making him angry, violent and rageful,” Marsicovetere wrote. A doctor is expected to testify at Bolaski’s trial that Tamburello was taking a higher than “therapeutic” dosage of Xanax, and that his failure to use his regularly prescribed medication “contributed to his inability to control such behavior,” the response said. “(Tamburello’s) conscious decision to request and consume Xanax, a medication that he knew caused him to act out violently, and to avoid taking his prescription Klonopin medication likely caused him to experience a psychotic rage that propelled him to chase multiple individuals with an ax in broad daylight, at a public park,” Marsicovetere said. Marsicovetere declined to comment on the upcoming hearing. Several messages left for Lavoie were not returned. Bolaski spent roughly three years in a Kentucky prison serving the beginning of a 25-year to life sentence on the 2011 conviction. He was returned to Vermont soon after it was overturned. After several bail hearings, a judge released Bolaski while he awaits a new trial.