Sergey Shaburov v. State

• Court: Court of Appeals of Georgia
• Decided: November 15, 2013
• Docket: A13A1187
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

November 15, 2013

In the Court of Appeals of Georgia A13A1187. SHABUROV v. THE STATE.

MCMILLIAN, Judge.

Sergey Shaburov appeals the denial of his motion for new trial after a jury

convicted him of one count of criminal attempt to commit murder, two counts of

aggravated assault, one count of aggravated battery, two counts of arson in the first

degree, and one count of burglary. As his sole argument on appeal, Shaburov asserts

that he received ineffective assistance of counsel when his attorney failed to object

and/or move for a mistrial when both the prosecuting attorney and a witness for the

State improperly commented on Shaburov’s failure to come forward to law

enforcement.

“Following a criminal conviction, the defendant is no longer presumed

innocent, and we construe the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Boggs v. State, 304 Ga. App. 698, 698 (1) (697 SE2d

843) (2010). So viewed, the evidence showed that Shaburov was staying with his

friend, Vladimir Schennikov, when the two got into a dispute over Shaburov’s

behavior with Schennikov’s niece, who also was staying at Schennikov’s house.

Schennikov subsequently asked both Shaburov and his niece to move out of his

house.

Sometime later, Shaburov returned to Schennikov’s house saying that he was

there to kill Schennikov. Shaburov apparently believed Schennikov had told

Shaburov’s girlfriend that he was having an affair with the niece. Shaburov began

hitting Schennikov, and the two ended up in Schennikov’s bedroom where Shaburov

poured a liquid on the bed and set it on fire, telling Schennikov that he was going to

burn him in his bed and nobody would know. Schennikov was able to get the fire

under control, but Shaburov reignited it. Shaburov again began hitting Schennikov

in the face and ribs, and at some point, Schennikov grabbed a BB gun and began to

shoot. Shaburov took the gun from Schennikov and emptied it into the left side of

Schennikov’s head and face. Shaburov began beating Schennikov again, while the

bed continued to burn and smoke filled the room. Although Schennikov cannot

remember how, he eventually was able to get out of his house, where he fell to the

2 ground unconscious. Most of Schennikov’s bedroom was consumed by fire.

Schennikov was transported to the hospital where he was diagnosed with multiple rib

fractures, bruises to his lung, and multiple facial fractures, including a fractured eye

socket, broken sinuses, and a broken nasal septum.

Shaburov did not testify at trial, but he gave a statement to the police, which

was played for the jury. Although Shaburov admitted having an altercation with

Schennikov, he told police that Schennikov was the aggressor and that he struck

Schennikov in self-defense1 when Schennikov pulled a knife. He also said that

Schenikov put a grill lighter in his face and the two struggled over it. Shaburov said

that the fire started accidentally during the struggle when he forced Schennikov’s

hand down on the bed. After the struggle, Shaburov just left Schennikov in the house.

On appeal, Shaburov contends that he is entitled to a new trial because his trial

counsel failed to object when the prosecuting attorney and a State witness improperly

commented on his failure to come forward to law enforcement during their

investigation. He asserts these instances represented improper commentary on his

1 Shaburov said in his interview that he used to be a boxer and a wrestler, and while the police investigator’s “hit is like a 100 pounds, [Shaburov’s] hit is 600 pounds.”

3 right to remain silent and a violation of the “bright line rule”2 set out in Mallory v.

State, 261 Ga. 625 (409 SE2d 839) (1991).3 Shaburov argues that his counsel was

ineffective in failing to object or to move for a mistrial.

In opening statement, the prosecutor told the jury that “[t]he investigators that

you will hear from in this case immediately obtained the name of Sergey Shaburov,

and they went looking for him, and they went to the house of his fiancee and left a

message for him to contact them. He never did[.]” Later, during DeKalb County Fire

Investigator William Walker’s testimony regarding his investigation into the fire, the

prosecutor asked Walker the following series of questions:

2 In Mallory, the Supreme Court announced:

We take this opportunity to hold that in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. Accordingly, from the date of publication of this opinion . . . such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.

261Ga. at 630 (5). 3 Mallory was implicitly overruled on other grounds in Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998). See Clark v. State, 271 Ga. 6, 9-10 (5) (515 SE2d 155) (1999) (recognizing overruling of Mallory).

4 Q: At some point during the police investigation, did you obtain the name of Sergey Shaburov?

A: Yes, I did.

Q: Okay. And what did you proceed to do next?

A: I tried to find out his location. When I obtained that information, I tried to locate that individual, went to the location where he was believed to be.

Q: Okay. Do you remember what day you went to the location?

A: It was probably within a week, probably three to four days later.

Q: Okay. And did you speak with someone when you went to that location?

A: I did.

Q: Okay. And did you give your information that you were looking for Sergey Shaburov?

Q: And did Mr. Shaburov ever contact you?

5 A: No, he did not contact me. (Emphasis supplied.)

Shaburov’s counsel raised no objection to either the prosecutor’s opening

statement or the testimony. At the hearing on Shaburov’s motion for new trial, the

attorney stated that she had no recollection of “making any conscious decision

whether or not to object during opening [statement].” She said that the argument and

testimony could be considered “comments on . . . whether or not [Shaburov] was

coming forward” but she thought that such testimony “could be” admissible evidence

at trial. In any event, she stated “[t]here was no strategic reason whether or not to

object.”

“A claim of ineffective assistance of counsel is a mixed question of law and

fact. The proper standard of review requires that we accept the trial court’s factual

findings unless clearly erroneous, but we independently apply the legal principles to

the facts.” (Citation and punctuation omitted.) State v. Crapp, 317 Ga. App. 744, 745

(2) (732 SE2d 806) (2012). And in considering Shaburov’s arguments, we apply

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [which] asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability

6 that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819)

(2001). “There is a strong presumption that counsel’s conduct falls within the range

of sound trial strategy and reasonable professional judgment. [Strickland, 466 U.S.

at 689].” Newkirk v. State, 290 Ga. 581, 582 (2) (722 SE2d 760) (2012).

[A]nd the defendant bears the burden of overcoming this presumption. To carry that burden, the defendant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not, or put another way, that his lawyer made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.

(Citations and punctuation omitted.) State v. Worsley, 293 Ga. 315, 323 (3) (745

SE2d 617) (2013). Moreover, “[t]he likelihood of a different result must be

substantial, not just conceivable.” (Citation omitted). Hill v. State, 291 Ga. 160, 164

(4) (728 SE2d 225) (2012).

The trial court found that Shaburov received “amply effective assistance of

counsel” under the Strickland standard. The court also found that Shaburov failed to

carry his burden under Strickland of showing that his counsel’s performance was

7 deficient or that his defense was prejudiced, noting that “[his attorney’s] performance

was eminently reasonable under the circumstances confronting her both before and

during trial.”

1. With regard to the argument on appeal, the trial court specifically found that

neither the prosecutor’s argument nor Walker’s testimony constituted improper

commentary on Shaburov’s right to remain silent because

[i]n neither instance was there evidence or claim that Shaburov in fact received the message left with a third party for him to contact the police, so as to raise the inference that Shaburov was exercising a “right to remain silent” by not contacting the police. Moreover, the evidence showed that as soon as he was contacted by the police, Shaburov chose to give a lengthy statement, thereby clearly demonstrating that, when, in fact, given the choice, Shaburov did not exercise a “right to remain silent.” In light of these facts, no fair inference can be raised that the prosecutor’s complained-of opening comments or the fire investigator’s testimony was an improper comment on Shaburov’s “right to remain silent.”

(Emphasis in original.) Accordingly, by implication, the trial court found that

Shaburov’s counsel was not deficient in failing to object or move for a mistrial on this

ground. We agree.

8 As the trial court stated, the prosecutor neither contended nor presented

evidence that Shaburov ever received the message Walker left asking Shaburov to

contact police. Moreover, immediately after the complained-of portion of opening

statement, the prosecutor told the jury that approximately two weeks later, after

Shaburov was arrested, the police were able to interview him and “he gave his side

of the story, and that side of the story you will have the opportunity to listen to.”

Similarly, after the quoted portion of Walker’s testimony, Walker testified that he, in

fact, interviewed Shaburov, after reading him his rights, and Shaburov gave a

statement, a portion of which was then played for the jury. Accordingly, as the trial

court found, no evidence exists that Shaburov ever exercised his right to remain

silent; instead, he chose to talk to the police.

Under these circumstances, Shaburov cannot show any deficiency on the part

of his trial attorney in failing to object. “Specifically, since [Shaburov] spoke with

police without ever invoking his right to remain silent, the prosecutor’s line of

questioning [and opening statement] did not constitute impermissible commentary on

appellant’s right to remain silent.” (Citations omitted.) Gilyard v. State, 288 Ga. 800,

802 (2) (708 SE2d 329) (2011). See also Carter v. State, __ Ga. App. __ (2) (b) (Case

No. A13A0943, decided October 4, 2013) (trial counsel not deficient in failing to

9 object to alleged commentary on defendant’s failure to mention a certain fact in first

interview with police where defendant readily spoke with police after receiving

Miranda warnings and never invoked right to silence, finding Mallory principle does

not require exclusion of such testimony); Fleming v. State, __ Ga. App. __ (3) (a)

(Case No. A13A1203, decided October 2, 2013) (counsel not ineffective in failing to

object to testimony about defendant’s failure to show for appointment with internal

affairs investigator where evidence showed that defendant previously spoke with

internal affairs investigator and never invoked right to silence).

Accordingly, we find that Shaburov failed to carry his burden on the first prong

of the Strickland test.

2. But even if the trial counsel’s failure to object somehow could be considered

deficient performance, the trial court also found Shaburov failed to carry his burden

of showing that but for the opening comments or Walker’s testimony, a substantial

likelihood existed that the outcome of the trial would have been different, stating,

This Court sat through the evidence in this case twice.4 The evidence against Shaburov was overwhelming, inclusive of his admissions to

4 An earlier trial on the same charges ended in a mistrial when one juror refused to continue deliberations. According to the trial court’s order, “[t]he second jury returned a verdict of guilty on all counts within three hours of receiving the case.”

10 being present at the victim’s home; hitting the victim multiple times; and putting a “flame” to the victim’s face, after which the victim’s bed began to “smoke” and Shaburov “left.” The victim sustained severe injury, including five rib fractures and twenty fractures around his eye, breaking his eye socket and sinuses; he was beaten so badly that at [the] time of trial, he was still suffering from seizures. The victim barely escaped from his burning bedroom and was found sprawled unconscious on his front lawn. Shaburov presented no credible defense to the beating or to the fire.

(Footnote omitted.) The trial court thus concluded “[b]ased upon the above

considerations, as well as evidence adduced on motion for new trial including

credibility witnesses” that Shaburov failed to carry his burden on the prejudice prong

of the Strickland test. We agree.

Courts must consider a number of factors “[w]hen determining whether the

State’s unchallenged comments or questions about a defendant’s right to remain silent

have prejudiced that defendant.” Scott v. State, 305 Ga. App. 710, 717 (2) (a) (700

SE2d 694) (2010).

These include whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the State to use the defendant’s silence against him. We also examine the “trial context” of the error, and take a particularly dim view of the State’s conduct in

11 arguing during closing that evidence of the defendant’s silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the State’s improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendant’s guilt was overwhelming or whether the evidence was conflicting.

(Citations omitted.) Id.

Here, although the argument and testimony cannot be considered inadvertent,

we find no deliberate attempt to use Shaburov’s failure to respond to Walker’s

message against him, because it appears that these statements, when considered in

context, “[were made] during a narrative on the part of the authorities of a course of

events and apparently [were] not intended to, nor did [they] have the effect of, being

probative on the guilt or innocence of the defendant.” (Citation omitted.) Hardy v.

State, 301 Ga. App. 115, 116 (2) (686 SE2d 789) (2009). In each instance, the jury

immediately was informed that Shaburov, in fact, did speak with police, and the

jurors were able to hear his statement. Because these incidents occurred as part of a

narrative of events and were not “directed to a particular statement or defense offered

by [Shaburov],” they were not prejudicial. DeLong v. State, 310 Ga. App. 518, 526

12 (4) (714 SE2d 98) (2011). See also Hardy, 301 Ga. App. at 116 (2). Moreover, we

agree with the trial court that evidence of Shaburov’s guilt was overwhelming.

Therefore, we find that Shaburov also failed to meet the second prong of the

Strickland test.

Judgment affirmed. Andrews, P. J., and Dillard, J., concur.

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