STATE OF NEW JERSEY v. ANATOLIY SHASHKOV

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0036-04T40036-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANATOLIY SHASHKOV,

Defendant-Appellant.

___________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-02-0233.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for murder, in violation of N.J.S.A. 2C:11-3a(1); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; and unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d. A jury acquitted defendant of murder but found him guilty of the lesser included offense of passion/provocation manslaughter, in violation of N.J.S.A. 2C:11-4b(2). The jury also found defendant guilty of the two weapons charges. The trial court sentenced defendant to a ten-year term of imprisonment for manslaughter, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged defendant's other convictions.

The homicide was committed on December 19, 2002. The victim was defendant's estranged wife. After the couple's twin daughters had gone to school and the victim's live-in boyfriend had gone to work, defendant went to the apartment where the victim was living to pick up some of his clothing and other personal items. According to defendant, while he was packing these items, his wife started screaming at him and calling him names. Defendant became angry and grabbed a kitchen knife. Defendant gave the following account of what occurred next:

[S]he was screaming how old I was, how young he was, and how much better in bed he was to her. And I could barely control myself. And I was in the process of sitting back on the chair and then I hear this clinking noise. I heard this clink and I looked up again sort of involuntarily, that was even before I completely sat down, I look up, I saw her holding a fork this time. And I have this knife in my other hand, I barely had time to grab her by the wrist and twist the fork out of her hand, and she is going at the top of her voice comparing cocks, whose cock is longer and whose cock is better and I felt I was losing it. I didn't see anything or hear anything anymore. The fork fell on the floor. And the knife is in her belly. I don't know how it happened, so I just cut her throat and she is screaming and I couldn't, it was like I didn't know, I couldn't stop myself. You know, it is like a car skidding on ice, there's nothing you can do.

The stab wound to the victim's abdomen inflicted by defendant was five-and-a-half inches deep. Defendant also inflicted two deep stab wounds to the front of the victim's throat. The medical examiner testified that if the victim had been brought immediately to the hospital, she could have survived the stab wound to her abdomen, but she could only have survived for one or two minutes after defendant stabbed her in the throat.

Approximately six hours after killing his wife, defendant called 9-1-1. After being asked what the emergency was, defendant replied: "Hello, my name is Anatoliy Shaskov. I kill my wife." When the police came to the address defendant had given the 9-1-1 operator, defendant said to one of the officers: "I killed her." He later told two other officers: "I stabbed her and the knife is in the kitchen." The officers went into the kitchen and found the victim lying face down on the floor, cold and stiff to the touch with blood on her nightgown. A subsequent investigation of the crime scene revealed the victim's blood on one of the knives in the kitchen sink.

After he was given Miranda warnings in Russian, which is his native language, defendant said in English: "I guess I should talk to a lawyer. My life is over anyway. I killed my wife and I don't regret it. If I could kill her five more times I would." This statement was not recorded.

At trial, defendant denied making this statement to the police and also said he did not speak to the police in English. In addition, defendant testified that he regretted killing his wife and did not go to the apartment with any intention to kill her.

The State introduced into evidence a note written by defendant after he killed his wife, which was found on the kitchen table near the body. This note, which was translated into English by a detective fluent in Russian, stated:

I came for things. Didn't want to come here anymore but she made me and this was more than I could handle. What she fought for backfired. I'm very sorry for what happened. Forgive me and farewell. A Bitch gets a Bitch's death.

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DETECTIVE BUTKOFF TO TRANSLATE THE NOTE WRITTEN IN RUSSIAN (S-26) BECAUSE DETECTIVE BUTKOFF'S ROLE IN THE INVESTIGATION PRECLUDED HIM FROM SERVING IN THE CAPACITY OF A RUSSIAN TRANSLATOR OR INTERPRETER AT TRIAL (Not Raised Below).

II. COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE NOT SUPPORTED BY THE EVIDENCE PRESENTED DURING THE TRIAL.

III. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (Not Raised Below).

IV. IMPOSITION OF THE TEN (10) YEAR BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR MANSLAUGHTER ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON.

A. THE TRIAL COURT'S FINDINGS WITH REGARD TO THE AGGRAVATING FACTORS PRESENT CANNOT BE SUPPORTED.

B. IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR A SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.

The arguments presented under Points I through III of defendant's brief do not present a substantial question concerning the fairness of defendant's trial, and they only require brief discussion. R. 2:11-3(e)(2). The State properly concedes that because the trial court relied upon aggravating factors other than defendant's prior convictions in imposing a sentence above the presumptive seven-year term for passion/provocation manslaughter, defendant's sentence must be vacated and he must be resentenced in conformity with State v. Natale, 184 N.J. 458 (2005).

Detective Butkoff was a person fluent in the Russian language who was properly qualified to translate defendant's inculpatory note from Russian into English. See N.J.R.E. 702. The fact that he is a police officer did not disqualify Butkoff from giving such expert testimony. See State v. Odom, 116 N.J. 65, 73-81 (1989). The interpretation of a written document, such as defendant's note, does not pose the same risk of biased interpretation that concerned the Court in State in the Interest of R.R., 79 N.J. 97, 117-18 (1979), in which the trial court had allowed a mother to interpret the idiosyncratic speech patterns and gestures of her four-year-old child during his trial testimony. We also note that defendant had a Russian interpreter at trial. If there were any inaccuracy in Detective Butkoff's interpretation of the note, the interpreter undoubtedly would have told defense counsel and been placed on the stand to dispute the detective's interpretation. Moreover, defendant impliedly acknowledged in his trial testimony that Butkoff's interpretation of the most inflammatory statement in the note -- that "a bitch gets a bitch's death" -- was accurate.

We question whether there was sufficient evidence in the record to support the prosecutor's characterization of defendant as a "liar" in his summation. However, we do not find this single statement sufficiently egregious to warrant a new trial, particularly in view of the fact that defendant's acquittal of the murder charge indicates that the jury credited his account of his wife's killing. See State v. Frost, 158 N.J. 76, 83 (1999).

Defendant's third point is based on a single statement made by the trial court near the beginning of its jury instructions. The court told the jury:

The defendant is entitled to have his guilt or innocence separately considered for each crime based on the evidence which is relevant and material to that particular crime based on the law as I will explain it to you.

Defendant relies upon the statement in our opinion in State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), that "the term 'guilt or innocence' should be avoided" in jury instructions because it may imply that defendant has the burden to prove his innocence. However, the trial court explicitly told the jury that defendant had no such burden:

[U]nder our law the defendant is presumed to be innocent. Unless each and every element or part of a crime . . . is proved beyond a reasonable doubt the defendant must be found not guilty of that crime. The burden of proving each element of a crime charged beyond a reasonable doubt rests upon the State or the prosecutor and that burden does not shift ever to the defendant. The defendant has no obligation to prove his innocence or to offer any proof relating to his innocence. . . . If, based on your consideration of the evidence you are firmly convinced that the defendant is guilty of any of the crimes charged, you must find him guilty of that crime. If, on the other hand, you're not firmly convinced of the defendant's guilt, you must give him the benefit of the doubt and find him not guilty.

The fact that, despite the State's strong evidence, the jury acquitted defendant of murder and only found him guilty of the lesser included offense of passion/provocation manslaughter indicates that the court's instructions properly communicated to the jury the State's heavy burden of proof in a criminal trial. Jury instructions must be considered as a whole. See State v. Hunt, 115 N.J. 330, 372-73 (1989). In this case, the trial court's single reference to the term "guilt or innocence," considered in light of the remainder of its instructions, did not have the capacity to leave the jury with the impression that defendant had to prove his innocence.

As previously noted, the State concedes that defendant must be resentenced in conformity with Natale. Because defendant will be resentenced, there is no need at this time to consider defendant's argument that his sentence is excessive.

 
Accordingly, defendant's conviction is affirmed. Defendant's sentence is vacated, and the case is remanded for resentencing in conformity with Natale.

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A-0036-04T4

December 30, 2005