This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Pyotr V. Shmelev,
Hennepin County District Court
File No. 01031431
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
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.
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.
D E C I S I O N
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 objection raised in the trial court was inadequate to preserve the issue raised on appeal. The trial court could not have been expected to “read into” a relevancy objection the constitutional claims now argued.
Even if we were to disregard the inadequacy of the objection and address Shmelev’s constitutional issues on their merits, we would conclude that his right to counsel was not violated. That right had not yet attached during his pre-arrest consultation with counsel. The Sixth Amendment right to counsel attaches once the prosecution of the defendant is formally commenced, usually by the filing of the complaint. United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297 (1984). Also, the court-created Fifth Amendment right to counsel attaches only when a suspect invokes the right during custodial interrogation. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990). A suspect has no right to counsel under the Fifth Amendment, even if he asks for it, if no charge has been filed against him and if he is not “in custody.” State v. Murphy, 380 N.W.2d 766, 769-70 n.2 (Minn. 1986).
Prior to Shmelev’s confession, no complaint or formal charges had been filed against him and he was not in custody because the police were unaware that Pedash was dead. He was not arrested until he confessed his crime to police. Therefore, it could be argued that Shmelev did not have a constitutional right to an attorney prior to his confession, and that any testimony the prosecutor elicited at trial regarding Shmelev’s pre-arrest consultation with an attorney did not violate this constitutional right.
Taking the analysis of this issue a step further, we conclude that even if Shmelev’s constitutional right to an attorney had attached prior to his confession, the challenged testimony constitutes harmless error. When a defendant claims his constitutional rights were violated, an appellate court, in assessing whether any error was harmless, “must independently evaluate the evidence to determine whether or not an average jury would have changed its verdict had the questioned statement been excluded.” State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988) (citations omitted). The error should not be considered in isolation, but rather in the broader context of all facts appearing in the record. Id. If the record contains overwhelming evidence of guilt and the statement was merely cumulative and could not have played a significant role in the jury’s conviction, it is harmless error. Id. Constitutional issues raised by remarks during direct examination are of less concern due to the defense counsel’s opportunity to rehabilitate the defendant on cross-examination. See State v. Buggs, 581 N.W.2d 329, 341 (Minn. 1998) (holding that the prosecutor’s remarks were not prejudicial error because the defense had an opportunity to rehabilitate the defendant on re-direct, which lessened the possibility that the remarks contributed to the verdict).
The primary argument raised by Shmelev appears to be that if he was guilty of any offense it was manslaughter in the first degree. He does not deny that he killed Pedash. He does, however, argue that the evidence at trial supported only conviction of an offense less serious than second-degree intentional murder and, therefore, the testimony regarding consultation with defense counsel cannot be harmless error. We disagree. Our review of the record reveals ample evidence to support Shmelev’s conviction. The location, severity, and number of stab wounds to Pedash’s vital organs show that Shmelev intended to kill Pedash. See State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200-01 (1974) (holding that the prosecutor’s misconduct was harmless error because the evidence against the defendant strongly supported his conviction). In addition, during cross-examination, defense counsel clarified why Shmelev was delayed in making his confession. For these reasons, even if Shmelev’s constitutional right to an attorney had attached prior to his confession, and even if the prosecutor erred, that error was harmless.
Shmelev also argues that the prosecutor’s questions of the police officer at trial regarding pre-arrest consultation with counsel violated his constitutional right to remain silent. The alleged impropriety occurred when the prosecutor asked the police officer who took Shmelev’s confession if Shmelev’s attorney had indicated prior to the confession how many times the officer would be able to talk to Shmelev. The police officer replied “one.” Shmelev argues this testimony insinuates that he would refuse to talk further with police after his confession. Shmelev, however, failed to object to the testimony he now claims violated his constitutional right to remain silent, so the issue need not be considered on appeal.
Again, even if we were to address this issue on its merits, we would conclude that the prosecutor’s questions did not infringe on Shmelev’s right to remain silent. Shmelev’s own attorney characterized his comment to the police officer prior to the confession as a “request” that he be informed if the police intended to speak with Shmelev again after his confession. He made it very clear in the record that his comment was not intended to notify the police that they would only have one opportunity to speak with Shmelev. Based on the record, we conclude that Shmelev’s attorney was not notifying the police of Shmelev’s intent to remain silent after the confession and, therefore, the disputed testimony did not infringe on Shmelev’s Fifth Amendment rights.
Even if we were to assume, contrary to the assurances of defense counsel, that Shmelev’s right to remain silent was invoked, we would conclude that any error made by the prosecutor in questioning the police officer was harmless. We recognize, certainly, that the use of counseled pre-arrest, pre-Miranda silence is error when introduced in the state’s case-in-chief. State v. Dunkel, 466 N.W.2d 425, 428 (Minn. App. 1991). While the challenged testimony here is not as innocuous, brief, quiet, and undramatic as that described in Dunkel, where error was deemed to be harmless, neither do we have here a direct statement of the defendant, which was the case in Dunkel. The statement at issue in this case was that of Shmelev’s attorney. Further, the testimony of the police officer in its entirety covers only 25 pages of a 640-page transcript; several of those 25 pages are devoted to the defense attorney’s cross-examination rehabilitation of his comments to the police officer regarding future police contact with Shmelev. Finally, the record amply supports Shmelev’s conviction for second-degree murder.
We have held that the determination of whether a prosecutor engaged in prejudicial misconduct is largely within the discretion of the trial court, and we will reverse only where the misconduct, viewed in light of the entire record, is of such serious and prejudicial nature that appellant’s constitutional right to a fair trial was impaired. See State v. Johnson, 277 Minn. 230, 235-36, 152 N.W.2d 768, 772 (1967); see also State v. Guevara, 270 Minn. 356, 360, 133 N.W.2d 492, 495 (1965). When a defendant fails to object to a prosecutor’s statement, the defendant typically forfeits his right to have the issue considered on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). While certain cases may warrant a new trial, we may decline to consider an appellant’s prosecutorial misconduct claim altogether when there is substantial evidence against the defendant ensuring that the alleged misconduct was harmless beyond a reasonable doubt. State v. McDonough, 631 N.W.2d 373, 389 (Minn. 2001).
Shmelev argues that the prosecutor’s questions regarding the delay in his confession constitute prosecutorial misconduct because they insinuate that prior to the confession the defense attorney helped Shmelev concoct a story about how he murdered Pedash. Again, the only objections regarding this testimony were on the grounds of relevance, which does not properly support this argument made on appeal. In addition, the prosecutor’s questions do not rise to the level of prosecutorial misconduct. Initially, we recognize that it is inappropriate for a prosecutor to suggest that there is collusion between a defendant and defense counsel. See State v. Ellert, 301 N.W.2d 320, 323 (Minn. 1981) (discussing impropriety of prosecutor’s suggestion of collusion between defense counsel and attorney retained to represent victim in personal injury case); see also Laughnan v. State, 404 N.W.2d 326, 331 (Minn. App. 1987) (stating that prosecutor’s suggestion that defendant concocted his alibi was improper), review denied (Minn. June 9, 1987). The state’s argument need not be “colorless,” however, so long as it is based on the evidence produced at trial, or reasonable inferences from that evidence. State v. Gulbrandsen, 238 Minn. 508, 511, 57 N.W.2d 419, 422 (1953). We conclude that in this case the prosecutor’s questions were not improper. They were designed to suggest to the jury that Shmelev’s confession was given for the purpose of accepting responsibility while minimizing his behavior during the murder.
Even if we were to consider the prosecutor’s questions to be inappropriate, they were harmless error. The defense rebutted any inference of collusion on cross-examination and in closing arguments. See State v. Buggs, 581 N.W.2d 329, 341 (Minn. 1998) (holding that the prosecutor’s remarks did not amount to prejudicial error because the defense had an opportunity to rehabilitate the appellant on re-direct and respond to the remarks during closing argument, which lessened the possibility that the remarks contributed to the verdict).
The decision whether to allow the use of transcripts to assist jurors in listening to a tape recording lies within the sound discretion of the trial court. See State v. Olkon, 299 N.W.2d 89, 103 (Minn. 1980) (stating the district court did not abuse its discretion in allowing the use of transcripts). The need for transcripts generally arises under two circumstances, inaudibility of portions of the tape under the circumstances in which it will be replayed or the need to identify the speakers. Id. In the ordinary case, the use of transcripts will not be prejudicially cumulative. Id. The trial court should instruct the jury that they should rely on what they hear rather than on what they read when there is a difference between the tape and the transcript. Id. These guidelines appropriately recognize the need for using transcripts in certain instances and at the same time serve to protect against any undue emphasis that might be given to such transcripts. Id.
In this case, the trial court permitted the jurors to use transcripts because two portions of the tape were inaudible and because the tape might be difficult to hear in the courtroom. The judge gave the jury a cautionary instruction that they should use the transcript only when necessary and advised them to concentrate on watching the confession video. Because the record indicates that portions of the tape were inaudible, and because the jury received an appropriate cautionary instruction, the trial court did not abuse its discretion when it allowed the jurors to use the transcripts.
Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). Our standard of review of such departures is abuse of discretion. Id.
The sentencing guidelines allow departures when the victim was treated with particular cruelty for which the individual offender should be held responsible. Sentencing Guidelines II.D.2.(2). Shmelev dismembered Pedash, which is considered a particularly cruel act under the sentencing guidelines. See State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998) (upholding an upward departure for a defendant who dismembered his victim). In addition, the impact on the victim’s family can also be considered when deciding if a crime was committed with “particular cruelty.” State v. Norton, 328 N.W.2d 142, 146 n.2 (Minn. 1982).
In this case, the record clearly indicates that the trial court departed from the sentencing guidelines because Shmelev mutilated Pedash’s body and because the mutilation increased the pain and suffering of Pedash’s family. The guidelines sentence for second-degree intentional murder is 306 months; the trial court imposed a sentence of 360 months, an upward departure of approximately 16 percent. Clearly, the trial court acted within its discretion in doing so.
Shmelev raises several issues in his pro se brief, the first of which is that the prosecutor, in suggesting that Shmelev and his attorney concocted a story about Pedash’s death, may have forced the jury to disregard the tape of the confession, and if so, the remaining evidence was insufficient to sustain a finding of guilty of intentional second-degree murder. There is no merit to this argument because there is no evidence that the jury did not consider the confession video. The trial court instructed the jury to consider all of the evidence they heard and saw during the trial, and we must presume that jurors follow a court’s instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).
Shmelev also challenges the sufficiency of the evidence to support the verdict. As noted previously, ample evidence supports this verdict. Shmelev was convicted of intentional murder causing the death of a human being with intent to effect the death of that person, but without premeditation. Minn. Stat. § 609.19, subd. 1(1) (2000). The location, severity, and number of stab wounds to Pedash’s vital organs support an intent to murder.
Shmelev also argues that the prosecutor engaged in improper closing argument. We note initially that no objection was raised during that argument. Therefore, Shmelev is deemed to have forfeited the right to have this issue considered on appeal. See State v. Darris, 648 N.W.2d 232, 241 (Minn. 2002) (stating it is well-established that a defendant who fails to object to a prosecutor’s statements is deemed to have forfeited the right to have the issue considered on appeal). But even if we were to address this issue on its merits, we would see no impropriety. Nothing presented in the prosecutor’s closing argument warrants a new trial.
Next, Shmelev argues that his motion for acquittal on the charge of first-degree premeditated murder should have been granted, and that permitting this charge to be considered by the jury was reversible error. We disagree. We note that the jury, in fact, did acquit Shmelev of the first-degree murder charge. Also, an examination of the testimony reveals evidence that Shmelev may have known about Pedash’s affair some time prior to the killing, and that he had been arguing with her on multiple occasions the day of her death. There was a sufficient basis to submit the charge of first-degree premeditated murder to the jury.
Finally, Shmelev argues that the trial court erroneously precluded defense counsel from questioning a witness who had appeared before the grand jury. Shmelev’s argument, however, rests on evidence not contained in the trial court record. Therefore, we decline to consider it on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appellate court will not generally decide issues not raised below).
MINGE, Judge (concurring specially)
I concur with the majority opinion except that portion dealing with the right to counsel. I would not reach the issue of whether there is a pre-arrest right to counsel and, if so, whether that right was compromised by the prosecutor’s questioning of the appellant. Deciding those issues is not necessary to our holding in this case.
I disagree with the majority’s discussion of the right to counsel. As the majority opinion states, the Fifth and Sixth Amendments provide that the government has an obligation to inform an individual that he has the right to consult with legal counsel and to provide an attorney for those who cannot otherwise obtain one. But the right of an individual to seek the advice and assistance of an attorney in our society is not restricted to the specific rights afforded by the Fifth and Sixth Amendments. Basic procedural due process and the fundamentals of our legal system recognize that a person can seek legal assistance to understand one’s situation in planning one’s affairs and asserting one’s rights and that communications with an attorney are privileged. See Hunter v. State, 82 Md. App. 679, 573 A.2d 85 (1990) (stating right to seek legal advice not restricted to specific right of Sixth Amendment but is independent due process right under Fourteenth Amendment). As was observed by a Maryland court a generation ago: “[A]n individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him * * * . ” Morris v. State, 4 Md. App. 252, 254, 242 A.2d 559, 561 (1968). The majority does not consider the nature and extent of these and other dimensions of the attorney-client relationship, and the impact that adverse comments by a prosecutor has on such rights and that relationship. Indeed, such comments imply the defendant is guilty and is seeking legal advice to manufacture a defense.
Finally, the scope of an individual’s pre-arrest right to consult with an attorney is an issue of first impression in Minnesota. This court should not take a position on this issue in dicta. The majority cites Riddley v. State, 777 So. 2d 31 (Miss. 2000), for the proposition that a defendant’s constitutional right to an attorney is not violated by comments during trial regarding the defendant’s pre-arrest consultation with an attorney. However, that Mississippi case was decided by an evenly divided court; a strong opposing position was supported by an equal number of justices. Furthermore, the other reported decisions on this issue reached the opposite conclusion of that taken by the majority. See United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973) (holding prosecutor’s comment that defendant conferred with an attorney after defendant’s alleged crime was constitutional error); see also Hunter, 82 Md. App. 679, 573 A.2d 85.
The majority’s discussion should not confine our future flexibility in deciding the issue of prosecutorial comments on consulting with an attorney.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We are aware of Riddley v. State, 777 So. 2d 31 (Miss. 2000), in which the court held that the defendant’s constitutional right to an attorney was not violated by the prosecutor’s comments during trial that the defendant consulted an attorney before confessing his crime because a defendant does not have a constitutional right to an attorney when no police investigation into the defendant’s crime has commenced. We note that the dissenting opinion in Riddley, which was joined by three justices, disagreed with the majority as to the scope of the right to counsel. We are also aware of United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1972), where the court held that the prosecutor’s comment at trial that the defendant saw his attorney the morning after committing his alleged crime was constitutional error.
 During the prosecutor’s direct examination of the officer, Shmelev’s attorney questioned the officer for the purpose of establishing a foundation from which Shmelev’s videotaped confession could be offered into evidence. During this inquiry, Shmelev’s attorney asked the officer, “And it’s also correct when you and I discussed this statement my client gave to you, I indicated that he would be available to talk but I wanted to be notified, he would answer questions, is that correct?” In addition, when Shmelev’s attorney recross-examined the officer, he asked, “Sergeant, earlier today, I asked you if it wasn’t true that I made a request of you after the interview was done, that if you or anyone else from law enforcement intended to speak to my client, I would be notified?”