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State v. Shmelev12/24/2002
Affirmed
Concurring specially, Minge, Judge
Considered and decided by Shumaker, Presiding Judge, Minge , Judge, and Huspeni , Judge.
Appellant challenges his conviction and sentence for second-degree intentional murder, arguing that (1) the trial court allowed testimony that impermissibly penalized appellant for exercising his constitutional right to counsel and to remain silent, (2) the prosecutor committed prejudicial misconduct by implying that defense counsel suggested a heat-of-passion manslaughter story to his client, (3) the trial court erred in providing the jury with a transcript of appellant's videotaped confession, and (4) the trial court abused its discretion in departing upward at sentencing based on appellant's mutilation and dismemberment of the victim's body. Because we see no abuse of discretion in any of the issues raised by appellant, we affirm.
FACTS
On February 24, 2001, appellant Pyotr Shmelev had a heated argument with his wife, Svetlana Pedash, in which Pedash confessed to having an extra-marital affair. Shmelev claimed that when Pedash told him about the affair, he became enraged and repeatedly hit and stabbed her. Pedash was stabbed twice in the scalp, once in the back, three times in the chest area (piercing her breastbone, lung, and heart), and three times in her abdomen.
The day after the murder, Shmelev purchased a reciprocating saw and dismembered Pedash. The following day he drove to Missouri and disposed of all of Pedash's body parts, except for her head, which he retained in the trunk of his car. On approximately March 11, Shmelev contacted an attorney who made arrangements for Shmelev to confess his actions to police on March 14.
Shmelev was indicted on charges of premeditated first-degree murder and intentional murder in the second degree. At the close of the evidence at trial, Shmelev requested jury instructions on felony (unintentional) murder in the second degree and manslaughter in the first degree. The trial court granted both requests. The jury acquitted Shmelev of premeditated first-degree murder and found him guilty of intentional second-degree murder. The court, citing the mutilation of Pedash's body, departed upward from the guideline sentence of 306 months and sentenced Shmelev to 360 months in prison.
DECISION
I.
This court will generally not consider matters not argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). An objection must be specific as to the grounds for challenge. See State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983) (issue not addressed on appeal in part because defense counsel did not state precisely his objection on the record). An appellate court will consider only the specific grounds for challenge raised in the trial court. See State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993) (stating that defendant's objection to the word "kidnapping" on grounds of a "legal conclusion" could not have alerted the district court to the detailed hearsay and confrontation clause arguments defendant raised on appeal), review denied (Minn. Oct. 19, 1993).
Shmelev argues that testimony elicited from a police officer by the prosecutor during trial regarding when police were contacted and when the confession actually occurred violated his constitutional right to an attorney because that testimony implied that he colluded with his attorney prior to confessing in order to concoct a story regarding how the murder happened. Shmelev objected to the challenged testimony only on the grounds of relevance, however. We conclude, as did the court in Rodriguez, that the objecti
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