Judge upholds Bolaski conviction

Judge M. Patricia Zimmerman has rejected a retrial and upheld the conviction of Kyle Bolaski.

http://www.rutlandherald.com/article/20110927/NEWS02/709279944

Judge upholds Bolaski conviction


By Christian Avard
Staff Writer - Published: September 27, 2011

WHITE RIVER JUNCTION — Judge M. Patricia Zimmerman has rejected a retrial and upheld the conviction of Kyle Bolaski of Chester.

In a Sept. 15 written decision, Zimmerman wrote there was no sufficient evidence to approve two motions filed by Bolaski’s attorney Kevin Griffin. Griffin filed two motions on June 10 for a new trial and acquittal of second-degree murder. Bolaski was convicted in the August 2008 shooting death of Vincent Tamburello of Springfield in May. He faces 20 years to life in prison and is awaiting a sentencing date. He is being held without bail at the Springfield prison.

Griffin that Bolaski deserved a new trial because the court committed an error when it suppressed evidence of Tamburello’s conduct leading up to the shooting. According to Griffin, presenting Tamburello’s psychiatric and medical records were necessary for a fair trial. In a June 10 motion, Griffin stated that Tamburello was involved “in a number of ‘investigations’ in the community” and that the jury was exposed to a limited understanding of the events. Zimmerman disagreed.

She said that the court admitted substantial testimony including 10 witnesses and other observers of the shooting.

The trial encompassed nine days of testimony,” Zimmerman wrote. “(Bolaski) knew none of the circumstances present in the victim’s medical records. In a self-defense case, the touchstone is the reasonableness of (Bolaski’s) fear of imminent harm and it is relevant to consider what the defendant knew about the victim’s attributes.”

Griffin said Bolaski also deserved a new trial based on Franklin County State’s Attorney John Lavoie’s conduct with witnesses. In the motion, Griffin wrote that Lavoie “badgered and argued” with witnesses, spoke over their answers and “commented on their answers in front of the jury.” He said Lavoie’s conduct was not “earnest and vigorous” and that he used “improper methods to produce a wrongful conviction.” Zimmerman determined that Lavoie did not engage in “prosecutorial misconduct.”

According to Zimmerman, nine of the witnesses were intent on telling their version of events instead of answering Lavoie’s questions. She said the court also took measures to control Lavoie’s questioning of witness Tristan Blanchard. But despite Lavoie’s behavior, Zimmerman did not find Griffin’s claim compelling.

“The court is not able to find any case law that would support ‘aggressive trial style’ as prosecutorial misconduct,” Zimmerman wrote. “The defense has not presented any authority for that argument.”

Zimmerman did not acquit Bolaski because there was sufficient evidence of murder in the second-degree. She wrote that Bolaski agreed to assist Jerry Ucci and Blanchard in settling their dispute with Tamburello. They called Tamburello, met at the ball field, and Bolaski brought two weapons to the scene. “(Tamburello’s) stun gun was never used and there was no evidence that (it) was a credible threat to anyone,” Zimmerman wrote. “While Tamburello may have still had the splitting maul in his hand, it was not raised toward anyone or anything.”

A sentencing date will be determined after the presentence investigation report has been issued. As for Tamburello’s father Vincent Tamburello Sr., his family is looking forward to finally moving on with their lives.

“We never had any doubt as to the legality of the conviction. It was through the courage of John Lavoie to see justice done and the resolve of Judge Zimmerman to implement the justice that we are finally going to have for Vinnie. And for that we are grateful,” Tamburello said in an email.