Commonwealth v. Kolenovic, SJC–08047.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtHINES, J.
Citation471 Mass. 664,32 N.E.3d 302
PartiesCOMMONWEALTH v. Enez KOLENOVIC.
Docket NumberSJC–08047.
Decision Date23 June 2015

471 Mass. 664
32 N.E.3d 302

COMMONWEALTH
v.
Enez KOLENOVIC.

SJC–08047.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Dec. 4, 2014.
Decided June 23, 2015.


32 N.E.3d 304

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

Michael R. Schneider, Boston, for the defendant.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

HINES, J.

On February 2, 1999, a jury convicted the defendant, Enez Kolenovic, of murder in the first degree on the theory of extreme atrocity or cruelty.1 The defendant's conviction stems from the stabbing death of David Walker (victim) during the early

morning hours of September 16, 1996, following an altercation between the two in a bar. While the defendant's appeal to this court was pending, he filed a motion for a new trial arguing ineffective assistance of counsel and error in the jury instructions. We remanded the motion to the Superior Court.2 The judge, who had been the trial judge, granted the defendant's motion for a new trial based on ineffective assistance of counsel. The Commonwealth appealed. We conclude that the judge erred and reverse the order allowing the motion for a new trial.

1. Background. a. Facts presented at trial. From the evidence presented at trial, the jury could have found the following facts. In the early morning hours of September 16, 1996, the defendant was riding in the back seat of his friend's vehicle after a day spent consuming alcohol. His friend, John J. McCrystal, was driving; the defendant and another friend, Melissa Radigan, were seated in the back seat, and the victim was sitting directly in front of the defendant in the front passenger seat. The defendant and the victim had had an altercation earlier in the evening. The group was on the way to the defendant's house to continue drinking when the defendant reached forward and slit the victim's throat. McCrystal stopped the vehicle, and the defendant got out, opened the front passenger door, and pulled the victim to the ground. The defendant stabbed the victim multiple times while he lay on the concrete.

The defendant spent the hours before the murder drinking to excess. Beginning at approximately 12:45 p.m. , the defendant,

32 N.E.3d 305

accompanied by a friend, David Bruso, consumed at least two beers and two double shots of one hundred proof alcohol at a bar owned by McCrystal.3 At 2:30 p.m. , the defendant and Bruso left the bar, stopped at the liquor store Bruso owned to obtain eight to ten single-shot bottles of one hundred proof alcohol, and went to a barbecue at the local Knights of Columbus hall. The two consumed the single-shot bottles, and the defendant also drank more than six beers and more than four shots of seventy-proof alcohol.

While at the barbecue, the defendant ran into Radigan, who was attending the event with her mother and sister. For a brief time, the defendant and Radigan left the barbecue and returned to McCrystal's bar where they each had a drink. The two went back to the barbecue, where they continued to drink and fell down when they attempted to dance together.

The defendant and Radigan left again at about 9:30 P.M. to return to McCrystal's bar. Later in the evening, the defendant telephoned McCrystal to ask him to come to the bar to give the two a ride home. McCrystal arrived and saw the defendant and Radigan in the restaurant portion of the building. McCrystal then entered the bar to wait. The victim arrived shortly thereafter. The defendant and Radigan left the restaurant area, entered the bar, and sat next to McCrystal. The defendant ordered a cognac on the rocks, and Radigan and McCrystal both ordered a beer. The bartender hesitated in serving the defendant and Radigan because both appeared to “have been drinking quite a bit.” The bartender served the two only after McCrystal said he was driving them home.

The altercation with the victim, a bar patron, began at approximately 11 p.m. The defendant had thrown a drink on Radigan. The victim reprimanded the defendant by telling him, “You don't do that to a lady” and “You don't treat a lady like that.” The defendant approached the victim, repeating, “Don't cross my path.” The defendant challenged the victim to take their dispute outside; after trying to ignore the defendant, the victim agreed.

The two men continued their argument outside, frequently bumping chests. As the bar was across from the police station, a police officer arrived quickly and asked them to break it up. The officer recognized the two men and told them he did not want any “problems out here on the street.” Each man responded that there was no problem and returned inside. The defendant then bought the victim a beer.

The parties were joined at the bar by Bruso, who had spent several hours asleep in his vehicle after leaving the barbecue. Bruso described the defendant's demeanor, noting that “his eyes were very glossy. He seemed very intoxicated to the point of almost being asleep, but not asleep. His eyes were open.” Although Bruso had seen the defendant intoxicated on many occasions, he noted that “it was the drunkest I've ever seen him.” Another patron, Irene Grigas, who arrived after the altercation with the victim, similarly noted that she had never seen the defendant

in that state. Bruso offered to give the defendant a ride home but McCrystal told Bruso that he was giving the defendant a ride. Bruso left the bar.

The bartender started to close the bar about 12:30 a.m. and the defendant, Radigan, and McCrystal made plans to go back to the defendant's apartment to “keep the party going.” The victim declined McCrystal's invitation to join them, opting instead to assist the bartender in closing

32 N.E.3d 306

for the night. Before departing, the defendant went to the restaurant side of the building, where he remained for about five minutes before meeting with the others. While inside, he put on a winter jacket that he stored at the restaurant, even though the weather was “nice” and the evening was an “Indian Summer September type of night.”

McCrystal carried some beer to his vehicle, where he sat in the driver's seat to await the defendant. Radigan joined him and sat in the front passenger seat. The defendant arrived; when he was told the victim would not be joining them, he returned to the bar. After a few minutes, the defendant emerged from the bar followed by the victim. The defendant asked Radigan to get in the back seat. Radigan complied and sat behind McCrystal. The defendant directed the victim to sit in the front passenger seat and he sat in the back seat behind the victim.

McCrystal drove the short distance to the defendant's apartment complex, stopping for a few minutes to talk to a police cruiser that pulled alongside his vehicle. About one hundred yards from the complex, the defendant leaned forward and put his arm around the victim. McCrystal admonished them because he thought the two were “fooling around.” Radigan heard McCrystal shouting and then saw the defendant lean forward toward the victim. In the immediate aftermath of that event, both McCrystal and Radigan felt and saw blood. McCrystal stopped the vehicle.

The defendant pulled the victim from the vehicle and continued to stab him. McCrystal shouted to the defendant to stop and “get off him, you're going to kill him.” The defendant replied, “I think it's too late for that.” McCrystal was able to push the defendant off the victim when he noticed, for the first time, that the defendant had a knife in his hand. McCrystal recognized the knife as the type the defendant used at his family's restaurant.

The defendant said to McCrystal, “You've got to be with me on this.” McCrystal responded, “What, are you crazy? ... No way.” The defendant's face then became more serious and he ran past McCrystal into the driver's seat of McCrystal's vehicle. McCrystal

attempted to reach through the window and shut off the engine but was unsuccessful. In response to a resident's telephone call, Scott J. Crevier, a Ware police officer, arrived just as the defendant entered McCrystal's vehicle. While the defendant was turning the vehicle around in the parking lot, Crevier attempted to block the exit with his cruiser. The defendant “narrowly missed” striking the cruiser and took off out of the parking lot. After a high speed car chase, at times approaching 110 miles per hour, police eventually were able to apprehend the defendant, who resisted handcuffs until he was sprayed with mace.

Police accompanied the defendant to the hospital at 2:55 a.m. to be treated for the after-effects of the mace. The defendant smelled of alcohol and admitted to drinking a lot. The emergency room physician did not perform any alcohol ingestion evaluation because the defendant's “gait was normal, his speech was clear, his coordination was intact, [and] he was cooperative.” Later, at the police station, a police officer observed that the defendant's eyes were “bloodshot, glassy, and watery”; his speech was “very slow”; and he “took a while” to answer questions.

The victim was pronounced dead at 1:28 a.m. The medical examiner who performed his autopsy opined that the victim suffered a “major fatal...

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131 practice notes
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    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 6, 2018
    ...criminal law would not consider competent" (citation omitted). Holland, 476 Mass. at 812, 73 N.E.3d 276. See Commonwealth v. Kolenovic, 471 Mass. 664, 674, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017) ("[R]easonableness does not demand perfection.... Nor is reasonableness......
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    • July 24, 2019
    ...a tactical or strategic decision, the test is whether the decision was ‘manifestly unreasonable’ when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442, 845 N.E.2d 274 (2......
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    • May 5, 2017
    ...that this strategic choice was "manifestly unreasonable" when made (quotations and citation omitted). Commonwealth v. Kolenovic , 471 Mass. 664, 674, 32 N.E.3d 302 (2015). Here, however, the record is unclear as to whether counsel's [73 N.E.3d 810decision was tactical, as the defendant did ......
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    ..." (quotations and citations omitted). Commonwealth v. Holland, 476 Mass. 801, 812, 73 N.E.3d 276 (2017). See Commonwealth v. Kolenovic, 471 Mass. 664, 674-675, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017) (describing manifestly unreasonable test as "search for rationality......
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