Shaburov v. State
324 Ga. App. 743
Ga. Ct. App.2013Background
- Defendant Sergey Shaburov was convicted by a jury of attempted murder, aggravated assault, aggravated battery, two counts of first-degree arson, and burglary after attacking his friend Vladimir Schennikov, setting his bedroom on fire, and inflicting severe facial and rib injuries.
- At trial Shaburov did not testify but gave a recorded statement to police admitting involvement while claiming self-defense and that the fire began accidentally during a struggle.
- During opening and during a fire investigator’s testimony, the prosecutor and the investigator said police had sought Shaburov, left a message at a third party, and that Shaburov did not contact them; later the jury heard Shaburov’s statement given after arrest.
- Trial counsel made no objection to the prosecutor’s opening comment or the investigator’s testimony about Shaburov’s failure to respond.
- Shaburov moved for a new trial claiming ineffective assistance of counsel for failing to object to impermissible comments on his failure to come forward (alleged Mallory violation).
- The trial court denied the motion; the Court of Appeals affirmed, finding no deficient performance or prejudice under Strickland because no inference of assertedly exercised silence was supported and the evidence of guilt was overwhelming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to object to prosecutor/investigator comments about defendant not contacting police | Comments were improper commentary on Shaburov’s failure to come forward and violated the Mallory bright-line rule; counsel should have objected/moved for mistrial | Prosecutor’s statements were part of investigative narrative; no evidence defendant received message or invoked right to remain silent, and defendant later gave a statement to police | Court held counsel not deficient: statements did not constitute impermissible comment on silence because defendant never invoked right to remain silent and later spoke to police; alternatively, any error was not prejudicial given overwhelming evidence of guilt |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Mallory v. State, 261 Ga. 625 (rule against comments on defendant’s silence)
- Gilyard v. State, 288 Ga. 800 (silence commentary not impermissible where defendant spoke to police and did not invoke right to silence)
- Boggs v. State, 304 Ga. App. 698 (standard for viewing evidence post-conviction)