This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeffrey W. MacDonald,
Filed May 2, 2006
Toussaint, Chief Judge
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.
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
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
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 (
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 (
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.
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.
appear to be no
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 (
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.
admission of evidence seized in violation of the Fourth Amendment may be found
to be 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.
rest within the sound discretion of the district court and will not be reversed
unless the court has clearly abused its discretion.
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 (
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 (
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
The 911 tape was
missing only the section in which the 911 call was transferred from
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.