State v. Shulikov, Docket No. Y

• Decision Date: 14 May 1998
• Docket Number: Docket No. Y
• Citation: 1998 ME 111,712 A.2d 504
• Parties: STATE of Maine v. Nikolay SHULIKOV. or-97-140.
• Court: Maine Supreme Court

Page 504

712 A.2d 504

1998 ME 111

STATE of Maine v. Nikolay SHULIKOV.

Docket No. Yor-97-140.

Supreme Judicial Court of Maine.

Argued Nov. 13, 1997.

Decided May 14, 1998.

Michael P. Cantata, District Attorney, David D. Gregory, of counsel (orally), Anne Marie Letoumeau-Pazar, Asst. Dist. Atty., Alfred, for the State.

Thomas J. Connolly (orally), Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.

DANA, Justice.

¶1 Nikolay Shulikov appeals from the judgments of conviction entered in the Superior Court (York County, Bradford, J.) after a jury verdict finding him guilty of ten counts of Class A gross sexual assault, one count of Class B gross sexual assault, two counts of terrorizing, and one count of sexual abuse of a minor, contending: the court's failure to instruct the jury on the presumption of innocence and burden of proof at the start of the trial was obvious error; the evidence was insufficient as a matter of law; and the prosecutor's use of improper impeachment methods resulted in obvious error. Shulikov also appeals from the sentences imposed on him, claiming that the court: abused its discretion in sentencing Shulikov to a twenty year unsuspended sentence on the ten counts of Class A gross sexual assault; improperly took the relationship between Shulikov and the victim into account at both the first and second steps of the sentencing process; improperly used the family's support of Shulikov as an aggravating factor; abused its discretion by not taking Shulikov's health into account in sentencing; and unlawfully imposed consecutive sentences on Counts 13 and 14. We affirm the judgments of conviction and affirm in part and vacate in part the sentences.

I. THE FACTS

¶2 In October 1995, Shulikov's daughter, then fourteen years old, told her friend that she had been raped by her father. She subsequently reported a two-year history of sexual abuse by her father to her mother, her friend's mother, a crisis worker from Sweetser Children's Services, and investigators with the Saco Police Department. As a result of his daughter's allegations, Shulikov was charged in a fourteen count indictment with ten counts of gross sexual assault (Class A) in violation of 17-A M.R.S.A. § 253(1)(B) (Supp.1997); two counts of terrorizing (Class D) in violation of 17-A M.R.S.A. § 210(1)(A) (1983); one count of gross sexual assault (Class B) in violation of 17-A M.R.S.A. § 253(2)(H) (Supp.1997); and one count of sexual abuse of a minor (Class C) in violation of 17-A M.R.S.A. § 254(1)(A), (3)(A), and (3)(B) (Supp.1997). Shulikov pleaded not guilty to all charges.

¶3 During the course of a three-day trial, the State called six witnesses, including the victim and the victim's mother and brother. The victim testified that her father first had sexual intercourse with her sometime between December 1992 and June 1993. She reported that the second incident took place "a couple of days" after she returned from a trip to her godmother's house that she took shortly after the first incident. She related that her father had sexual intercourse with her approximately three times a week for about a year and then with decreasing frequency for another year, and that the last time she remembered her father having intercourse with her was in October 1995. Although she did not describe any other specific incidents of sexual intercourse with her father, she testified that she did not remember ever going longer than a week between January 1993 and December 31, 1994, without her father having sexual intercourse with her.

¶4 Shulikov called three character witnesses in his defense: his wife's sister, brother, and father. Shulikov's sister-in-law and brother-in-law each testified that Nikolay had a reputation in his community as a truthful man and a good father. On cross-examination, the prosecutor, without objection, asked them whether their opinion of Shulikov as a good father would change if they heard from a truthful person that Shulikov had provided alcohol to people under the age of twenty-one. The witnesses stated that this information would change their opinion. Shulikov also testified in his own defense and denied that he had sexually assaulted or threatened his daughter. ¹ The jury found Shulikov guilty on all fourteen counts.

¶5 Before sentencing Shulikov, the court reviewed a presentence investigation report and written submissions from members of the family of the victim's mother. At the sentencing hearing, the court heard arguments from the prosecutor and the defense counsel, as well as statements from the victim's mother and brother, and, in support of Shulikov, statements from the pastor of Shulikov's church, several of the victim's mother's siblings, and Shulikov himself. The court performed the sentencing analysis required pursuant to State v. Hewey, 622 A.2d 1151 (Me.1993) and as codified at 17-A M.R.S.A. § 1252-C (Supp.1997). ² The court sentenced Shulikov as follows:

Counts 1 to 10--Gross Sexual Assault (Class A): 20 years of imprisonment to be served concurrently.

Counts 11 and 12--Terrorizing (Class D): 364 days of confinement on each of the two counts to be served consecutively to Counts 1 to 10 and consecutively to each other.

Count 14--Gross Sexual Assault (Class B): six years with all but four years suspended to be served consecutively to Count 12 and to be followed by four years of probation.

Count 13--Sexual Abuse of a Minor (Class C): three years all suspended followed by four years of probation to be served consecutively to the previous term of probation.

The sentence as a whole resulted in 26 years of imprisonment followed by eight years of probation with five years of imprisonment suspended. The Sentence Review Panel granted Shulikov's application for leave to appeal his sentence pursuant to M.R.Crim.P. 40 on September 19, 1997.

II. THE DIRECT APPEAL

A. JURY INSTRUCTIONS

¶6 In challenging his convictions, Shulikov first argues that the trial court committed obvious error because it failed to instruct the jury at the start of the trial regarding the presumption of a defendant's innocence, the burden of proof in a criminal prosecution, and the fact that the indictment should not be given any evidentiary weight. He contends that such instructions at the beginning of a case are necessary to guarantee a fair trial, and that the court's failure to provide the instructions immediately after the reading of a long and prejudicial indictment constitutes obvious error.

¶7 Shulikov made no request for the instructions at the beginning of the trial and did not bring the failure to provide such instructions to the court's attention. The failure to give the instructions is therefore reviewed for obvious error. State v. Dow, 616 A.2d 864, 865 (Me.1992). Obvious error review seeks to "maintain the basic integrity of judicial proceedings ... in order to avoid depriving the defendant of his constitutional right to a fundamentally fair trial and thus prevent a miscarriage of justice." State v. Bahre, 456 A.2d 860, 864 (Me.1983).

¶8 The trial court addressed the jury prior to the reading of the indictment as follows:

Again keep in mind that this is only a written accusation and this will be followed by the opening statements of the attorneys. The statements of the attorneys are not evidence. The purpose of an opening statement is for the attorneys to tell you what they believe the testimony and the evidence is going to show, but the evidence that you will be considering in this case will be the sworn testimony of the witnesses who testify and such exhibits as may be admitted into evidence.

The court gave the following instruction before the jury began its deliberations:

I have mentioned this to you at the outset of this trial and I mentioned [sic] it to you again as part of my final instructions, but the law presumes Mr. Shulikov to be innocent and every defendant, although accused, begins a trial with a clean slate, with no evidence whatsoever against him and this presumption of innocence alone is sufficient to acquit the defendant unless you are satisfied beyond a reasonable doubt of the defendant's guilt after a careful consideration of all of the evidence in the case.

There is no record, however, of the court actually instructing the jury on the presumption of innocence or burden of proof at the start of the trial.

¶9 M.R.Crim.P. 30(b) allows a court flexibility in deciding the timing of instructing the jury: "The court, at its election, may instruct the jury before or after argument, or both." Although the Maine Jury Instruction Manual provides an example of an instruction that includes the law governing the presumption of innocence and the burden of proof which may be made immediately after the clerk finishes reading the charging document, see Alexander, Maine Jury Instruction Manual §§ 4-1, 4-2 (3d ed. 1996), such an instruction at that juncture has never been held to be constitutionally required for a fair trial. See, e.g., United States v. Payne, 944 F.2d 1458, 1464 (9th Cir.1991) (analysis of whether ill-timing or omission of a presumption of innocence instruction constitutes reversible error is based on individual circumstances of particular case).

¶10 On appeal we review Jury instructions in their entirety to ensure they are adequate. State v. Cloutier, 1997 ME 96, p 14, 695 A.2d 550, 554. This method of review comports with the United States Supreme Court's standard of ensuring a defendant's right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. See Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640 (1979) (per curiam) (failure to give a requested instruction on the presumption of innocence must be evaluated in light of the totality of the circumstances, including all the instructions to the jury, to determine whether defendant received a fair trial). In State v. Liberty, 478 A.2d 1112...