Perjury Charge Filed in Murder
White River Junction — A Springfield, Vt., man who allegedly kicked a man as he lay dying on a Chester, Vt., softball field was arraigned on a perjury charge this week.
Authorities allege Timothy Arbuckle made false statements during a 2011 trial of Kyle Bolaski, who was convicted of second-degree murder for the 2008 shooting death of Vincent Tamburello.
It’s been more than five years since the shooting that killed Vincent Tamburello, and it’s been more than two years since Tamburello’s killer, Kyle Bolaski, was convicted of second-degree murder.
Arbuckle, 33, now faces two felony charges, perjury and aiding in the commission of a felony.
Deputy Franklin County State’s Attorney John Lavoie, who prosecuted Bolaski, announced in court in October 2012 that he would pursue the charges.
At the time, Arbuckle was in the New Hampshire State Prison serving a two- to six-year sentence for multiple convictions of driving while intoxicated in both New Hampshire and Vermont.
This summer, Arbuckle had served his minimum sentence in New Hampshire and he was extradited to Vermont to face the charges in the Tamburello case.
He is now at the Southern State Correctional Facility in Springfield, Vt.
Arbuckle was already facing a simple assault charge for allegedly kicking Tamburello after Bolaski shot him.
But in June, the simple assault charge, which was a misdemeanor, was amended to a felony charge of aiding in the commission of a felony. And on Tuesday, Arbuckle was arraigned on the perjury charge.
He is currently being held on $20,000 bail.
The simple assault charge carried a maximum sentence of one year in prison, but now Arbuckle faces a maximum of 30 years in prison if convicted of the two felony charges.
The perjury charge alleges that during Bolaski’s 2011 trial, Arbuckle took the stand and falsely testified that he “never went up to Vinnie,” or Vincent Tamburello, when a prosecutor asked him if he kicked Tamburello.
But during the police investigation and the jury trial, several witnesses gave a different account.
One witness said she saw Arbuckle’s foot go up and down, but she could not see the impact, while another witness said he saw Arbuckle kick Tamburello “one good time,” according to the affidavit.
And another witness testified that he saw Arbuckle kick Tamburello in the face, although he did not see contact made, according to the affidavit.
Lavoie said in a phone interview this week that he waited to formally file the perjury charge and the upgraded aiding in a commission of a felony charge until after Arbuckle had returned to Vermont.
George Ostler, a Norwich criminal defense attorney, said that if Arbuckle is convicted of perjury, it shouldn’t affect Bolaski’s conviction of second-degree murder. He said the only way a perjury charge could affect a conviction is if the state had some evidence that they didn’t disclose during Bolaski’s trial that later came up during the perjury charge.
Ostler said it’s not impossible for a perjury charge to affect a conviction, but there would have to be some kind of collateral linkage between what Arbuckle did and Bolaski’s conviction.
Scott McGee, a Hartford defense attorney and former federal prosecutor and former Lamoille County state’s attorney, agreed with Ostler and said it’s difficult to see how a perjury charge would affect the Bolaski’s conviction, especially since the perjury charge is related to an event that occurred after Bolaski shot Tamburello.
But McGee said he needs to know other crucial information, like what was Arbuckle’s role in the trial and why was it relevant to the trial, to really know if it would affect the conviction, but McGee said it’s unlikely that it would have an effect.
But there’s no denying that perjury is viewed as a serious crime in the eyes of prosecutors.
“Prosecutors see it as underpinning the reliability of the judicial system,” Ostler said. “If people don’t tell the truth, it fundamentally undermines the integrity of the entire system.”
Vincent Tamburello’s father, Vincent Tamburello Sr., said he’s very pleased to see these upgraded charges filed against Arbuckle, and said he and his wife have wanted him to be charged with accessory to murder.
In January 2012, the Tamburellos attended a plea hearing in which Arbuckle was planning to plead no contest to simple assault. But as prosecutors and Arbuckle’s defense attorney were arguing for a sentence, Arbuckle backed out of the plea deal.
Tamburello Sr., said that at the time, he and his wife felt they were betraying their son by allowing Arbuckle to plea to the simple assault, but at the time, they agreed with the plea deal because they wanted to put it behind them.
But now, he doesn’t feel that way.
“I’m not ready to put this case behind me until everybody involved is held accountable,” Tamburello Sr., said. “I’d love to let Vinnie rest and give him justice, but as long as any one of them that helped kill Vinnie is walking the streets and walking free while my son is buried, that’s not going to happen.”
Tamburello Sr., added that he wants to see more charges filed against three other men that were at the softball field that day.
Since the new charges have been filed, the defense has filed motions in court.
Arbuckle’s defense attorney, Mark Furlan, filed a motion in court for a more definite statement regarding the charge of aiding in the commission of a felony, arguing that the affidavit of probable cause alleges a series of events and it is unclear which events the state alleges constitutes the crime.
However, Judge Karen Carroll denied that motion.
Furlan declined to comment for this story.
Lavoie confirmed during a phone interview on Friday that the charge of aiding in a commission of a felony is related to the aggravated assault charge in which Bolaski was acquitted.
But at least one local attorney said he thinks that Bolaski’s acquittal could affect the validity of the charge of aiding in a commission of a felony.
Ostler made the point that there doesn’t need to be a conviction on the target charge — being aggravated assault — for Arbuckle to be convicted as an accomplice.
Just because Bolaski wasn’t convicted doesn’t mean that the aggravated assault didn’t occur, Ostler said, it just means that the state couldn’t prove it beyond a reasonable doubt.
McGee agreed with Ostler’s statement that it isn’t necessary to have a conviction of the target charge to move forward with the charge of aiding in the commission of a felony, but he elaborated that once a charge of aggravated assault has been acquitted, then it cannot be used as the target charge.
McGee said he would argue based on his reading of the case that essential elements of the crime will need to be proven, and one of the essential elements is that the crime was committed.
Since the aggravated assault was acquitted, McGee argues that there’s nothing to aid.
“It’s factually and legally impossible to aid in a commission of a felony that did not occur,” McGee said.
McGee argued that he would move to dismiss the charge for lack of prima facie case, which meant that the prosecution would be unable to prove one or more element of the crime.
Arbuckle has already filed a motion pro se to dismiss the charge, but a defendant who is represented by an attorney cannot file a motion on their own. All motions must go through his lawyer.
Sarah Brubeck can be reached at firstname.lastname@example.org or 603-727-3223.