Supreme Judicial Court of Massachusetts, Hampshire
Heard: April 7, 2017.
found and returned in the Superior Court Department on
September 24, 1996.
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.
H. Townsend, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.
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.
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.
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.
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.
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.
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. 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.
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.
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.
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.
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
Ineffective assistance of counsel.
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.
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),  ... 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
Commonwealth v. Gulla, 476 Mass. 743, 745-746
(2017). We find no error.
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.
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
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
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. 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") .
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.
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. 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).
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.
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
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.
Instructions on extreme atrocity or cruelty.
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.
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. 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.
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, ...