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Commonwealth v. Kolenovic

Supreme Judicial Court of Massachusetts, Hampshire

October 18, 2017

COMMONWEALTH
v.
ENEZ KOLENOVIC.

          Heard: April 7, 2017.

         Indictment found and returned in the Superior Court Department on September 24, 1996.

         The case was tried before Mary-Lou Rup, J.; a posttrial motion for reduction of the verdict, filed on March 18, 2003, was heard by her; and, following review by this court, 471 Mass. 664 (2015), a motion for reconsideration was heard by her.

          Michael R. Schneider for the defendant.

          Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

          BUDD, J.

         The defendant, Enez Kolenovic, was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in the death of David Walker. On appeal, the defendant argues error in several areas, including error committed by his trial counsel, the trial judge, and the prosecutor, creating a substantial likelihood of a miscarriage of justice. He also asks this court either to remand his case to the Superior Court for renewed consideration of his motion to reduce the verdict, or to grant him relief under G. L. c. 278, § 33E. We affirm the defendant's conviction and the denial of his motion for a reduced verdict, and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

         Background.

          The evidence presented in the defendant's trial and the postconviction evidence introduced in his motion for a new trial hearing is summarized in Commonwealth v. Kolenovic (Kolenovic I), 471 Mass. 664 (2015) . We provide a condensed version of events as the jury could have found them, reserving some details for discussion.

         1. The homicide.

         The defendant spent much of the day on September 15, 1996, drinking alcohol. Around 9:30 P..M. he went to a bar, which was connected to a restaurant that his family operated. At the bar, the defendant continued to drink, along with Melissa Radigan and John McCrystal.

         Near 11 P..M., the defendant had a dispute with another patron, David Walker, the victim, which culminated in the two going outside, where, chest-to-chest, they "bumped" and yelled at each other. Police happened upon the scene, and tempers quickly cooled. The defendant and the victim returned to the bar; the defendant bought the victim a drink.

         At approximately 1 A.M., the defendant, McCrystal, Radigan, and the victim made their way to McCrystal's vehicle with plans to drive to the defendant's apartment. The defendant asked Radigan to sit with him in the back seat, ensuring that the victim sat in the front passenger seat, with the defendant directly behind the victim.

         Minutes later, as the vehicle approached the defendant's apartment, McCrystal, who was driving, noticed the defendant move forward in his seat and put his arm around the victim. The defendant had slit the victim's throat with a knife.[1] McCrystal stopped the vehicle; the defendant got out, pulled the victim from the vehicle onto the ground, and continued to stab him. In total, the victim suffered nine knife wounds, the fatal one extending from the middle of the victim's neck to behind his ear. The lack of defensive wounds on the victim suggests that he did not anticipate the initial and fatal attack in the vehicle.

         After McCrystal pulled the defendant off the victim, the defendant stated to McCrystal, "You've got to be with me on this." When McCrystal refused, the defendant got in the vehicle and drove away.

         After an approximately twenty-minute, high-speed police chase, the defendant was apprehended. At the time of the killing, the defendant's blood alcohol content level was estimated to be between 0.26 and 0.3.

         2. The trial.

         In September, 1996, a grand jury indicted the defendant for the victim's murder. The prosecution pursued a charge of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty in an eleven-day trial in early 1999. The jury ultimately convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty.

         3. Procedural history.

         As his direct appeal to this court was pending, the defendant filed a motion for a new trial and requested a reduction of the verdict pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). We stayed the direct appeal and remanded the motions to the Superior Court. The motion judge, who was the trial judge, denied the rule 25 (b) (2) motion; however, she granted the defendant's motion for a new trial. The Commonwealth appealed, and we reversed the order for a new trial. See Kolenovic I, 471 Mass. at 665. The defendant then sought a remand to allow the judge to reconsider her denial of the rule 25 (b) (2) motion. A single justice remanded the matter to the trial judge, who denied the motion to reconsider. The defendant's appeal from that denial has been consolidated with his renewed direct appeal.

         Discussion.

         1. Ineffective assistance of counsel.

         The defendant contends that his trial counsel rendered ineffective assistance because his closing argument rebutted only the prosecution's theory of deliberate premeditation. This, he argues, left the defendant exposed to the prosecution's other, and ultimately successful, theory: extreme atrocity or cruelty.

         In the review of cases involving murder in the first degree,

"[r]ather than evaluating an ineffective assistance claim under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), [2] ... we apply the standard of G. L. c. 278, § 33E, to determine whether there was a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469 Mass. 447 (2014) . See Commonwealth v. LaCava, 438 Mass. 708, 712-713 (2003), quoting Commonwealth v. Harbin, 435 Mass. 654, 656 (2002). More particularly, we determine whether there was an error in the course of the trial by defense counsel (or the prosecutor or the judge) 'and, if there was, whether that error was likely to have influenced the jury's conclusion.' Wright, supra at 682."

Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017). We find no error.

         Defense counsel portrayed the prosecution's extreme atrocity or cruelty theory as a "fallback" theory and asserted that the prosecution's "true" position was that the defendant was guilty of deliberately premeditated murder. He then set about arguing that the Commonwealth had not proved deliberate premeditation beyond a reasonable doubt.

         Counsel's emphasis on premeditation in his closing was a tactical decision. "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) .

         Selecting which arguments to address in closing "is a core exercise of defense counsel's discretion." Yarborough, 540 U.S. at 8. "In deciding what to highlight during closing argument, counsel inevitably [has] to make strategic choices with regard to emphasis and importance, all in the context of the time allotted to such argument." Commonwealth v. Dinkins, 440 Mass. 715, 722 (2004). Here, trial counsel chose to apportion his allotted time between refuting the Commonwealth's theory of deliberate premeditation and mounting an intoxication defense.

          In reviewing whether an attorney's tactical decision was an error, we consider if that decision, when made, was "manifestly unreasonable." Commonwealth v. Degro, 432 Mass. 319, 332 (2000), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Counsel's decision to focus on the deliberate premeditation theory in his closing made sense at the time, given that the majority of the evidence introduced at trial was aimed at proving deliberate premeditation.[3] See Yarborough, 540 U.S. at 9 ("Counsel plainly put to the jury the centerpiece of his case . . ."); Degro, supra at 333 (reasonable for closing argument to focus on theory on which "the defendant had tried the case") .

         Trial counsel also focused, more generally, on an intoxication defense, which, had it been successful, would have removed the case from the realm of murder altogether. Counsel repeatedly argued that the defendant's higher-order thinking was impaired, that the defendant did not have the ability to "think clearly" or "reflect, " and that he was incapable of forming the specific intent necessary for malice.[4]

          Further, counsel's use of the intoxication defense did challenge the prosecution's extreme atrocity or cruelty theory, albeit in an indirect fashion, as a defendant's impaired mental capacity is an additional factor that the jury can consider in determining whether the murder was committed with extreme atrocity or cruelty. See Commonwealth v. Cunneen, 389 Mass. 216, 228 (1983), citing Commonwealth v. Gould, 380 Mass. 672 (1980). As discussed infra, the judge so instructed the jury. Contrast Commonwealth v. Street, 388 Mass. 281, 287 (1983) (in conceding that defendant could not be found to lack criminal responsibility, counsel also destroyed defendant's impairment defense). Counsel told the jury that, in order to convict under either theory of murder in the first degree, they had to find that "[the defendant] had the ability to know what [he was] doing; [he] had the ability to think about what [he was] doing is wrong; and then [he] thought about it and [he] carried it through." Counsel concluded, "That's not what happened here." This assertion, coming at the end of a closing argument that largely focused on the defendant's intoxication throughout the entirety of the crime, amounts to a defense against the theory of extreme atrocity or cruelty.[5] See Gould, supra at 686 & n.16 (when defendant is impaired, whether he "appreciate[d] the consequences of his choices" is relevant to extreme atrocity or cruelty).

         In addition, although he did not necessarily focus on the extreme atrocity or cruelty theory during his closing, trial counsel undercut that theory during the cross-examination of the medical examiner. He established that some of the knife wounds were superficial, that none of the torso wounds touched a major organ or penetrated the chest wall, that the victim would have lost consciousness within "minutes" of the initial neck wound, and that the medical examiner could not be certain of the size of the knife. This evidence challenged the presence of some of the factors that guide the jury in assessing extreme atrocity or cruelty. See Cunneen, 389 Mass. at 227.[6] Counsel's decision to omit points already made on cross-examination from his closing does not amount to ineffective assistance of counsel. See Commonwealth v. Denis, 442 Mass. 617, 628 (2004) ("suggesting ways in which counsel's closing argument might have been stronger does not make out a claim of ineffective assistance").

         "[T]he guaranty of the right to counsel is not an assurance to defendants of brilliant representation or one free of mistakes." Commonwealth v. LeBlanc, 364 Mass. 1, 13-14 (1973). Although trial counsel's closing did not ultimately succeed, it was not manifestly unreasonable and was not ineffective assistance.[7]

         2. Jury instructions.

         a. Instructions on extreme atrocity or cruelty.

         Despite acknowledging that the judge's instructions on extreme atrocity or cruelty reflect current case law, the defendant nevertheless asserts that they violated his right to due process. We disagree.

         The defendant asserts that the judge failed to provide sufficient guidance to the jury in assessing extreme atrocity or cruelty given evidence of the defendant's intoxication. The judge repeatedly instructed that the jury should consider intoxication when making this determination.[8] This instruction gave the defendant an advantage: we have held only that a jury may, not must, take a defendant's intoxication into account when evaluating extreme atrocity or cruelty. See Commonwealth v. Szlachta, 463 Mass. 37, 49 (2012) ("judge properly instructed the jury that they could consider evidence of mental impairment in determining whether the defendant acted with extreme atrocity or cruelty in causing the victim's death"); Commonwealth v. Oliveira, 445 Mass. 837, 845-846, 848-849 (2006); Gould, 380 Mass. at 685-686. Contrast Commonwealth v. Howard, 469 Mass. 721, 750 (2014) (extreme atrocity or cruelty instructions that only relate impairment to defendant's intent or knowledge but not to whether killing occurred with extreme atrocity or cruelty constitute error); Commonwealth v. Gonzalez, 469 Mass. 410, 421-422 (2014) (same). Certainly, the judge's instructions made clear that intoxication was an appropriate consideration in determining whether the defendant committed the killing with extreme atrocity or cruelty, in accordance with our prior case law.

         The defendant notes that members of this court have raised questions in the past as to whether a jury should be able to find that a defendant, whether impaired or not, committed a murder with extreme atrocity or cruelty without a finding that the defendant "appreciate[d] the consequences of his choices." Gould, 380 Mass. at 686 n.16. See, e.g., Commonwealth v. Riley, 467 Mass. 799, 828-829 (2014) (Duffly, J., concurring); Commonwealth v. Berry, 466 Mass. 763, 777-778 (2014) (Gants, J., concurring). However, the court has not reformulated our homicide jurisprudence in this area. See, e.g., Commonwealth v. Boucher, 474 Mass. 1, ...


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