In an unusual move, the Vermont Supreme Court today overturned the murder conviction of a Windsor County man who has spent three years in prison for a shooting he has long claimed was self-defense.

In a 5-0 opinion, justices ruled that a trial judge improperly excluded key evidence that could have bolstered Kyle Bolaski’s claim of self-defense in the 2008 shooting of Vincent Tamburello, who had charged at a group of Bolaski’s friends with a small axe. Additionally, the court said the judge gave improper instructions to jurors that made the murder conviction more likely.

Currently serving a 25-year-to-life sentence, Bolaski may soon be freed from a Kentucky prison in which Vermont houses long-term inmates. Bolaski, 30, was free on bail before his 2011 trial. With the case effectively reset to pre-trial status, courts traditionally revert to the prior bail status.

It is unclear when a new trial would occur, though a hearing on Bolaski’s bail status will likely come much sooner.

Members of Bolaski’s family in Chester and Tamburello’s family outside Boston did not immediately respond to messages. 

Today’s decision was a dramatic twist in a six-year old case that has been fraught with controversy from the start.

Bolaski fired two shots from a .30-06 rifle at Tamburello during an August 2008 fracas in broad daylight on a softball field in Chester. Tamburello, a Boston native who had recently moved to Vermont, had been feuding with a group of Bolaski’s friends for days over a disagreement about stolen marijuana. The victim had no prior contact with Bolaski.

Wielding a splitting maul, Tamburello charged at a group that included Bolaski, chased Bolaski back to Bolaski’s truck, and began pummeling the truck with the axe. Under highly disputed circumstances that were at the heart of the trial, Bolaski grabbed his rifle, shot Tamburello once in the leg and a second time in the back. Tamburello, 32, bled to death.

Prosecutors argued that Tamburello had been retreating from Bolaski when he was killed. Defense attorneys made the point that Bolaski rightly feared for his life and was in a state of high anxiety when he fired two quick shots.

The initial prosecutor in the case, former Windsor County State’s Attorney Robert Sand, reduced the murder charge to voluntary manslaughter, saying there was insufficient evidence to prove murder. The Tamburello family was enraged and lobbied to have Sand removed from the case. Eventually, Franklin County Deputy State’s Attorney John Lavoie took over — and reinstated the murder charge.

A jury took only two hours to return a guilty verdict after a two-week trial in Windsor Superior Court.

The Vermont Supreme Court’s decision to reverse the conviction is based in part on information that jurors never heard during the trial. Bolaski’s attorneys sought to show jurors medical evidence indicating that Tamburello was suicidal shortly before the incident and had several drugs in his system at the time of his death.

Judge Patricia Zimmerman rejected that request, preventing jurors from hearing that evidence.

Today the justices said Zimmerman, who has since retired, was wrong. 

“In this case, the victim’s conduct at the ball field, and particularly in the last minutes before the killing, is relevant to the defendant’s self-defense claim,” justices wrote in a 23-page opinion. “If the victim’s state of mind is, in turn, relevant to the victim’s conduct…it meets the relevancy requirement.”

The court also ruled that Zimmernan erred when she failed to explain to jurors that prosecutors were obligated to prove that Bolaski did not act out of “passion or provocation” — which Bolaski argued was exactly what happened — in order to return a guilty verdict on second-degree murder. 

“We conclude that the jury instruction caused a miscarriage of justice that affected the fairness of the trial,” the court wrote. “We cannot uphold the resulting verdict.”

Bolaski’s attorney at the trial, Kevin Griffin, has since been appointed a judge and is currently serving in Chittenden County. 

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Mark Davis was a Seven Days staff writer 2013-2018.

9 replies on “Vermont Supreme Court Overturns Windsor County Murder Conviction”

  2. NOW TRUE JUSTICE CAN BE SOUGHT IN THIS CASE

    Lavoie, the crooked prosecutor in the case evaded service concerning my motion to intervene in the district court.

    Zimmerman who i successfully sued in federal court for civil rights charges ruled on my motion to intervene in the district court with a conflict of interest.

    Zimmerman is now retired –Justice has prevailed.

    I would be very surprised if Lavoie stays on, If he does I will file to intervene again based upon his wholesale violations of attorney ethical precepts. THis Lavoie character must be stopped.

    I have no opinion about guilt or innocence, I only can swear to the fact that Lavoie engages in prosecutorial misconduct and any case he is involved in violates Due Process.

    SCOTT HUMINSKI,

  3. Now to look at the sixth amendment right to a speedy trial. The event occurred in 2008, now there will be a new trial in 2014 or 2016. This case may be over.

    Criminal defendants have the right to a speedy trial. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court laid down a four-part case-by-case balancing test for determining whether the defendant’s speedy trial right has been violated. The four factors are:

    Length of delay. A delay of a year or more from the date on which the speedy trial right “attaches” (the date of arrest or indictment, whichever first occurs) was termed “presumptively prejudicial,” but the Court has never explicitly ruled that any absolute time limit applies.
    Reason for the delay. The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations (e.g., change of venue).
    Time and manner in which the defendant has asserted his right. If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.
    Degree of prejudice to the defendant which the delay has caused.
    In Strunk v. United States, 412 U.S. 434 (1973), the Supreme Court ruled that if the reviewing court finds that a defendant’s right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court held that, since the delayed trial is the state action which violates the defendant’s rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place.

  6. PROBATION FOR MURDER

    The hearing for May 7 includes a probation officer. Looks like there is a deal with the state for probation.

  7. From: s_huminski@live.com
    To: aginfo@atg.state.vt.us; mdonofrio@atg.state.vt.us; kylelm@atg.state.vt.us; wgriffin@atg.state.vt.us; skline@atg.state.vt.us; basay@atg.state.vt.us; jkolber@atg.state.vt.us; afitzgerald@atg.state.vt.us; secretary@sec.state.vt.us; wsorrell@atg.state.vt.us; cmaguire@atg.state.vt.us; john.lavoie@state.vt.us; wnelson05753@gmail.com; anna.saxman@state.vt.us; matthew.valerio@state.vt.us; ekruska@rivercitylawyers.com; brian@rivercitylawyers.com; lwilkes@rivercitylawyers.com; omartin@rivercitylawyers.com
    Subject: Lavoie evades service Web Link
    Date: Fri, 2 May 2014 13:58:39 -0400

    Here’s the link on the web concerning Lavoie evading and dodging service in the case. Even in civil matters evasion of service is frowned upon, this is a murder case that Lavoie is toying with. This gamesmanship has no place in a murder case, it is patently unethical conduct of the government worthy of the sanction of dismissal of the charging instrument.

    http://www.scribd.com/doc/221608332/Lavoie-Evades-Service-in-Bolaski-Case-Vermont-v-Bolaski

    Lavoie has a per se conflict with me and so does Vermont, they should recuse. I am suing them for declaratory and injunctive relief concerning the threat issued by Lavoie on behalf of the State of Vermont.

    Huminski v. Vermont et al, USDC (M.D. FLorida) 2:13-cv-685-Ftm-29dnf,
    It was dismissed and then appealed to the 11th Circuit in Atlanta. The appeals court found the dismissal premature as well as the appeal, thus, it is still pending in the USDC. 11th Circuit Docket, 13-14534, Huminski v. Vermont.

    As I am participating in Vt v. Bolaski, the state must appoint an independent non-biased prosecutor on the case. I will supply more details concerning lavoie’s conflict of interest with me in a future email. The conflict is vast.
    — scott huminski

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