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Man sentenced in shooting death of wife loses appeal

BENSON -- The Minnesota Court of Appeals has denied the appeal of Andrew Lemcke, 36, and affirmed his conviction for second-degree manslaughter in the shooting death of his wife.

The court's unpublished opinion was filed Dec. 27.

Lemcke is currently serving a 52-month sentence in the St. Cloud Correctional Facility for his March 10, 2010, conviction for the fatal shooting of Nichole Riley-Lemcke. The 26-year-old mother of three died of a single gunshot wound to her head suffered Sept. 12, 2004, in their Appleton home.

Lemcke is expected to remain in prison until Dec. 25, 2012, after which he will be on supervised release until June 5, 2014, according to Minnesota Department of Correction records.

Lemcke based his appeal on two arguments.

He claimed that the district court erred when it instructed the jury that self-defense authorizes intentionally killing to defend your life. He argued that the jury should not have heard the instruction since he had never asserted that he intentionally killed his wife.

He also argued that the district court erred by allowing evidence during his trial that he had prison guard training. Evidence of his training and membership on a tactical response team in the Prairie Correctional Facility in Appleton tended to impose a strict standard of negligence for him, he argued.

The court pointed out in its decision that Lemcke had requested the self-defense instruction provided the jury. Even if Lemcke could show an error had been made, the court stated: "The evidence of guilt is too strong for us to believe that any confusion from the instruction might have influenced the verdict.''

The court rejected the prison guard training challenge by pointing out that Lemcke had failed to raise an objection to it at the trial. He forfeited the right to raise the objection subsequently, the court stated.

In its decision, the court also stated that the jury had "ample ground to find culpable negligence in his taking substantial control of the gun that Nichole allegedly introduced to the scene.''

Lemcke claimed that the shooting occurred as he attempted to wrestle control of a handgun from his wife. He claimed she had been sleep walking and had come into the living room where he was sleeping and discharged the gun.

After a change of venue from Swift County, a jury in Pope County heard two weeks of testimony in the case, and found Lemcke not guilty of first-degree, premeditated murder and not guilty of second-degree, intentional murder. Lemcke had successfully moved the district court to add the lesser offense of second-degree manslaughter to the charges at the close of the trial, and the jury returned a guilty verdict to that charge.

The Court of Appeals decision was decided by Presiding Judge Kevin Ross and Justices Natalie Hudson and Renee Worke.

Tom Cherveny

Tom Cherveny is a regional and outdoor reporter with the West Central Tribune in Willmar, MN.

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