This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Jeffrey W. MacDonald,




Filed May 2, 2006


Toussaint, Chief Judge


Hennepin County District Court

File No. 04064966



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487  (for respondent)


Robert D. Miller, 2915 Wayzata Boulevard South, Suite 101, Minneapolis, MN 55405 (for appellant)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal is from a conviction of attempted first-degree murder and terroristic threats.  Appellant Jeffrey W. MacDonald challenges the district court’s refusal to suppress evidence seized in a warrantless search of his home and the admission of rebuttal evidence offered by the state at trial.  We affirm.


            The complaint charged appellant with attempted first-degree murder and terroristic threats based on a September 24, 2004 incident in which appellant confronted his estranged wife, J. M., in the marital home, which she had moved out of three months earlier.  J. M. fled from the house naked and called police from a nearby auto dealer’s parking lot.  She then accompanied police to the scene, where she gave them the keys to the house to conduct a search.  In the course of the search, police seized a shotgun, a murder/suicide note, and other evidence.

            The district court denied a defense motion to suppress this evidence, ruling that J. M. retained sufficient authority over the premises to consent to the police search.

            At trial, J. M. also testified about an earlier incident following their separation during which appellant sexually assaulted her.  On cross-examination, she denied that she struck appellant during an argument while on vacation in Cozumel, Mexico, or that she had hit appellant with her car after a Christmas Eve argument.

            After the defense rested, the district court allowed the state to present two rebuttal witnesses over a defense objection that they had not been disclosed before trial and that their testimony was not proper rebuttal evidence.  The district court indicated it would limit the rebuttal evidence to testimony about prior consistent statements made by J. M. 

            J. M.’s brother offered testimony corroborating J. M.’s account of the prior sexual assault.  He also testified about J. M.’s prior consistent account of the September 24 charged offense.  J. M.’s housemate also testified that J. M. called her on September 24 and gave a consistent account of the charged offense.

            The jury found appellant guilty of both attempted first-degree murder and terroristic threats.  He was sentenced to 180 months in prison.


1.         Warrantless search

Appellant argues that the warrantless search of his residence immediately following the incident was not justified by the emergency exception or by J. M.’s consent.  In reviewing the legality of a search, this court will reverse the district court’s findings only if they are “clearly erroneous or contrary to law.”  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  The state bears the burden of establishing the applicability of an exception to the warrant requirement.  State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

The district court concluded that the victim, J. M., although separated from appellant and living out of the residence since June 2004, retained sufficient mutual use and control of the property on September 24, 2004, to validly consent to a search.  We agree.

A third party has actual authority to consent to a search of a residence if she “possess[es] common authority over or other sufficient relationship to the premises.”  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988 (1974)).  Under the Matlock test, mutual use is the key component of effective consent.  Id. at 251.

Appellant argues that because J. M. had moved out of the house three months earlier, changed her mailing address, obtained an order for protection, and had minimal contacts with the property, she did not have that right to “mutual use” essential to have actual authority to consent to a search.  Appellant cites Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793 (1990), in which the Supreme Court held that an ex-girlfriend who had moved out about a month earlier, although she retained a key and some of her clothing and furniture remained in the apartment, did not have actual authority to consent to a police search.  But J. M. not only retained a key, she also visited the house about once a week, stayed overnight occasionally, and participated to some degree in the cleaning and maintenance of the property.

The leading commentator on Fourth Amendment law discusses the status of a recently separated spouse in these terms:

Recent cases have quite properly rejected the contention that a spouse’s consent is effective only during periods of amicable relations.  And, . . . , where the remaining spouse  continues to allow the departed spouse full access to the premises this may be taken to mean that the departed spouse has essentially the same authority to consent as before.


4 Wayne R. LaFave, Search & Seizure § 8.4(a), at 191-92 (4th ed. 2004).  Appellant, who was trying to save the marriage and had encouraged J. M. to visit the house, certainly allowed J. M. “full access to the premises.”  On the day of the offense, she was at the house at appellant’s invitation.

            There appear to be no Minnesota cases in which police have obtained consent to search from an estranged or separated spouse.  But under the Matlock test, J. M. had “mutual use” of the property, using it for various purposes, including storage of some of her clothing and other belongings.  She used the property far less than appellant.  But the case law does not require that the consenting party use the property to a degree equal with that of the party who does not consent to the search.  Indeed, the supreme court in Licari remanded for findings on whether a landlord had “rights of ‘use’” that would confer actual authority to consent to search.  Id. at 256.  J. M. enjoyed, and exercised, at least as much right of use as a landlord. 

            Even if J. M. did not have authority to consent to the police search, however, the emergency exception to the warrant requirement justified the police in entering without a warrant because they had information that appellant was armed and suicidal.  See generally State v. Taylor, 590 N.W.2d 155, 157 (Minn. App. 1999), review denied (Minn. May 18, 1999).  Contrary to appellant’s argument, the record establishes that police were already engaged in a room-to-room search when he was detained in a traffic stop at about 9 p.m.

We agree with appellant that, although the emergency exception applied to the initial room-to-room search of the residence, police exceeded the scope of a search permissible under that exception when they opened the drawer in which the murder/suicide note was found.    The shotgun, the baseball bat, and other evidence obtained by police, however, were in plain view of police conducting that search and therefore were properly seized.  Although discovery of the murder/suicide note was outside the scope of an emergency search, we conclude that the failure to suppress the note was at most harmless error.

            The admission of evidence seized in violation of the Fourth Amendment may be found to be harmless error.  See State v. McBride, 666 N.W.2d 351, 363 (Minn. 2003).  If evidence wrongfully seized is merely cumulative to other evidence, its admission may be harmless.  See Fisher v. State, 327 N.W.2d 30, 32 (Minn. 1982).  The note seized by police is cumulative to another murder/suicide found by J. M.  If anything, the note seized by police is slightly less inculpatory because it does not indicate the means of causing death (strangling), which is added evidence of premeditation, and it includes an apology.  Thus, the admission of this murder/suicide note, assuming it was illegally seized, was harmless error.

2.         Rebuttal evidence

Appellant also argues that the district court abused its discretion in admitting as rebuttal evidence testimony from two prosecution witnesses about prior consistent statements J. M. had made about the September 24 charged offense because the defense, while attacking J. M.’s credibility in certain respects, had not presented any evidence about the September 24 incident.

Evidentiary rulings rest within the sound discretion of the district court and will not be reversed unless the court has clearly abused its discretion.  See State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  Id.   The determination of what is proper rebuttal evidence rests almost entirely in the discretion of the district court.  State v. Yang, 627 N.W.2d 666, 677 (Minn. App. 2001).

Rebuttal evidence in a criminal trial is evidence that “explains, contradicts, or refutes” evidence offered by the defendant.  State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993).  In addition to witnesses testifying to appellant’s good character, the defense presented two witnesses who testified about appellant’s relationship with the victim, particularly as shown by the Cozumel and Christmas Eve incidents. None of the defense witnesses, however, challenged J. M.’s account of the September 24 offense.

We agree that the rebuttal evidence relating to the September 24 charged offense was not properly admitted.  But even though the district court has erred in admitting evidence, the error will not require reversal if there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

The defense cross-examined J. M. on only a few details of her testimony concerning the September 24 charged offense. Defense counsel did not challenge J. M.’s basic account that appellant had lured her to the house with the claim that he was flying to Texas and the request that she care for their dog, that he then grabbed her and threw her down, threatening to kill her, and that she fled the house naked.  Because the defense never challenged the basic outlines of this story, the admission of the prior consistent statements in rebuttal could not have significantly affected the verdict.

3.         Pro se brief

            In his pro se supplemental brief, appellant reiterates counsel’s challenge to the warrantless search and the rebuttal evidence, argues there was insufficient evidence to convict him of attempted murder, and challenges the admission of the 911 tape and the relationship evidence.

            We have already addressed the warrantless search and the rebuttal evidence.  Appellant’s additional pro se arguments do not add to counsel’s arguments on those issues and rely on several incorrect factual assumptions.

            Appellant’s challenge to the sufficiency of the evidence appears to be based on counsel’s argument at trial that appellant had to commit some act that, if completed, would have resulted in his wife’s death in order to be guilty of attempt.  An attempt, however, requires only an act that is a “substantial step” toward, and more than “preparation” for, the completed crime.  Minn. Stat. § 609.17, subd. 1 (2004).   Appellant’s grabbing his wife, punching her, and throwing her down on the couch was a “substantial step” toward a murder, given that a baseball bat and shotgun were nearby.  Although much of the planning and preparation of the scene could be described as merely “preparation,” when appellant began to carry out the plan, which was thwarted only by his wife’s escape, he committed an attempt.

The 911 tape was missing only the section in which the 911 call was transferred from Richfield to Bloomington.  There is no indication that anything said in that portion of the tape was significant or that it was exculpatory.  And, as the district court found, it was equally accessible to both parties.  As for the relationship evidence, it was clearly admissible under case law and under Minn. Stat. § 634.20 (2004).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.