Argument: March 14, 2 018
Circuit Court Lafayette county No. 2012CF72 William D.
the defendant-appellant-cross-respondent-petitioner, there
were briefs filed and an oral argument by Andrew R. Hinkel,
assistant state public defender.
the plaintiff-respondent-cross-appellant, there was a brief
filed and an oral argument by Jeffrey J. Kassel, assistant
attorney general, with whom on the brief was Brad D. Schimel,
amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak
and Henak Law Office, S.C., Milwaukee.
MICHAEL J. GABLEMAN, J.
This is a review of an unpublished, authored decision of the
court of appeals affirming the Lafayette County Circuit
Court's judgment of conviction against Kyle Lee
Monahan. State v. Monahan, No.
2014AP2187-CR, unpublished slip op. (Wis. Ct. App. Apr. 27,
2017) . Monahan raises a single issue for our review: was the
erroneous exclusion of data from a portable GPS unit
We hold that the circuit court's erroneous exclusion of
the GPS data was harmless, and therefore affirm the decision
of the court of appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Monahan was involved in a single-vehicle crash that took
place on August 20, 2011, in Shullsburg, Wisconsin. As a
result of this crash, Monahan was seriously injured and his
girlfriend, R.C., who was also in the vehicle, was killed.
The State subsequently charged Monahan with three counts of
criminal conduct: (1) homicide by intoxicated use of a motor
vehicle contrary to Wis.Stat. § 940.09(1)(a)
(2011-12); (2) homicide by intoxicated use of a
vehicle contrary to § 940.09(1) (b); and (3) homicide
by negligent operation of a vehicle contrary to Wis.Stat.
§ 940.10(1). The only factual dispute at trial was
whether it was Monahan or R.C. who was driving at the time of
Monahan and R.C. met in early summer 2011 and started dating
shortly thereafter. R.C. worked as a nanny in the Chicago
suburb of Glenview, and she would often drive to Shullsburg
on weekends to visit Monahan. The crash occurred during one
R.C. arrived in Shullsburg at approximately 12:30 p.m. on
Saturday, August 20, 2011. The couple engaged in several
social activities during the course of that day. One such
event was a birthday party for Monahan's cousin, which
was held at that cousin's farm. Monahan and R.C. arrived
at the farm in R.C.'s Saab 9-5 station wagon at
approximately 6:30 p.m. Monahan and R.C. each had a couple
drinks, but left approximately 45 minutes later at about 7:15
p.m. because R.C. was exhausted from the day. Multiple
eyewitnesses testified that Monahan was in the passenger seat
when he left in the Saab with R.C.
After leaving the party, the Saab experienced a catastrophic
rollover event. Both Monahan and R.C. were ejected from the
vehicle. At the scene, emergency personnel asked Monahan
multiple times how many people were in the Saab in order to
ensure there were no others to be found (first responders
were especially concerned by an empty child seat they found
in the back of the Saab, which R.C. kept in her vehicle due
to her job as a nanny).
Multiple emergency personnel asked Monahan who was driving.
To each, he initially stated that he did not know, but then
stated that he probably was the driver. Throughout the
following several hours, Monahan's recollection of who
had been driving at the time of the crash continued to
evolve, eventually adhering to the conclusion that he, in
fact, had been the driver. While in a medical helicopter on
the way to the hospital, Monahan unequivocally stated that he
was driving the Saab. At the hospital, after undergoing
emergency surgery, Monahan-unprompted-asked for a pen and pad
of paper and wrote that he remembered the accident and that
he had been driving. However, on January 13, 2012, while
signing a DNA sample consent form, Monahan told Wisconsin
State Trooper Ryan Zukowski, "[i]t doesn't matter,
you know, I wasn't driving." Ten months after the
accident, in July 2012, Monahan told Wisconsin State Trooper
Thomas Parrott "[i]t's not like I meant [it to]
F'ing happen." At trial, Monahan testified that he
did not remember the accident and did not remember ever
admitting that he was the driver.
The State and Monahan engaged their own respective experts.
Trooper Parrott prepared a report and testified on behalf of
the State. Paul Erdtmann, a Licensed Professional Engineer,
prepared a report and testified on behalf of Monahan.
Erdtmann and Trooper Parrott both came to some of the same
conclusions. Both experts agreed that the Saab was traveling
between approximately 87 and 100 miles per hour when the
crash sequence began. The crash sequence began when the
Saab's wheels left the pavement and fell onto the grassy
shoulder. After leaving the pavement, the Saab
"furrowed" towards the passenger's side-that
is, the Saab moved sideways through the grassy shoulder area
such that the passenger's side (and not the front) of the
Saab was leading the path of travel. The Saab went airborne
after "tripping" on something on the shoulder and
rolled multiple times with the passenger's side leading
Both experts also agreed that at the time of the crash, the
passenger's side window was open, the sunroof was open,
the driver's side window was closed, neither occupant
wore their seatbelt, and both occupants were ejected from the
Saab. The experts further agreed that R.C. had been ejected
from the vehicle before Monahan based on each occupant's
resting position at the crash scene.
The two experts disagreed, however, as to the ultimate
conclusion to be drawn from the physical evidence. Trooper
Parrott concluded that Monahan was the driver. He based this
conclusion on a number of pieces of physical evidence. First,
the amount of dirt on both R.C. and Monahan's clothing
indicated that R.C. had been in the passenger's seat.
R.C.'s clothes were covered in dirt; conversely,
Monahan's clothes were relatively clean. This indicated
to Trooper Parrott that R.C. was in the passenger's seat
because the Saab would have kicked up substantial amounts of
dirt that would have entered the vehicle through the open
passenger's side window. Further, the passenger's
side windowsill had an area where the dirt was rubbed off.
Based on the amount of dirt on each occupant's clothing,
Trooper Parrott concluded that R.C. rubbed the dirt off the
windowsill while she exited the Saab.
Next, Trooper Parrott testified that the physics of the crash
showed that R.C. had been ejected through the open
passenger's side window, making it likely she had been
seated in the passenger's seat and not the driver's
seat at the time of the crash. He further testified that the
positions of the driver's seat and front passenger's
seat in the Saab indicated that Monahan was driving.
Finally, Trooper Parrott testified that the driver's side
airbag was covered in blood. Analysts at the State Crime Lab
found Monahan's DNA in this blood. Analysts found a
second DNA profile in the blood, but it was insufficient for
identification. This indicated that Monahan had to be in the
driver's seat, as his blood would not have covered the
airbag had he been in the passenger's seat.
On the other hand, Erdtmann testified that he could not
determine, to a reasonable degree of engineering certainty,
who had been driving at the time of the accident. He agreed
with Trooper Parrott that R.C. had been ejected first, but he
concluded that R.C. could have been ejected through the open
sunroof and therefore could have been the driver. He
testified that it was equally likely that R.C. was ejected
through the sunroof from the driver's seat as it was that
she was ejected through the passenger's side window from
the passenger's seat.
In regard to the seat positions, Erdtmann conducted a test on
an exemplar Saab that was the same model and year as
R.C.'s. He placed the seats in the exact positions at
which they were found after the crash. He then found
individuals to serve as models who were approximately the
same height and weight as Monahan and R.C. The R.C. model was
able to reach the pedals and steering wheel from the
driver's seat with no "physical constraints."
The Monahan model was able to "comfortably" sit in
the passenger's seat. On rebuttal, the State offered the
testimony of R.C.'s mother, who testified that R.C.
"would always have her seat as close up to the steering
wheel as she possibly could" and that the R.C. model was
"much farther back than [R.C] would have been."
Erdtmann also testified that he inferred that the second DNA
profile found on the driver's side airbag was R.C.'s.
He testified that, given the jostling that occurred inside
the Saab while it was rolling, the DNA was inconclusive as to
seat position-meaning that Monahan's DNA could have
fallen on the driver's side airbag from the
passenger's seat when the Saab was rolling.
It is against this factual backdrop that we come to the
evidentiary crux of this matter-the erroneously excluded GPS
data. R.C. owned a portable GPS unit that she kept in the
Saab. The GPS unit recorded timestamped coordinates when it
was powered on. This allowed both Erdtmann and Trooper
Parrott to recreate the Saab's movements and calculate
its speed on the date of the accident.
The data extracted from the GPS unit for the trip commencing
at approximately 7:15 p.m. on August 20, 2011, from the farm
to the crash site showed that the Saab was driving at a high
rate of speed-sometimes in excess of 100 miles per hour-
after leaving the farm. It also showed that after leaving the
farm, the Saab stopped for approximately two minutes in
downtown Shullsburg before resuming the trip. Neither party
presented any direct evidence as to what happened during this
stop. After resuming the trip, the Saab again traveled at a
high rate of speed-again sometimes exceeding 100 miles per
hour-during the time period between the two-minute stop and
Both the State and Monahan filed pretrial motions regarding
the GPS data for the portion of the trip between the farm and
the two-minute stop. Monahan moved for its admission,
intending to use the GPS data of the entire trip between the
farm and the crash to show that the same person was likely
driving both before and after the stop in Shullsburg. He
based this argument on the fact that the GPS data revealed
similar driving patterns both before and after the stop. He
reasoned that combined with eyewitness testimony that R.C.
was driving when the pair left the farm, the jury could
reasonably conclude that R.C. was driving at the time of the
The State opposed admission of the GPS data detailing the
portion of the trip between the farm and Shullsburg, arguing
that only the GPS data of the segment between Shullsburg and
the crash should be admitted. The State argued that admitting
the GPS data relating to the trip between the farm and
Shullsburg would constitute other acts evidence used to show
propensity. See Wis.Stat. §
904.04(2). The State argued that, if Monahan's
motion was granted, the GPS data would be improperly used to
show that R.C. had a propensity for driving above the speed
limit, and thus must have been driving at the time of the
crash. See id.
The circuit court denied Monahan's motion and admitted
only the GPS data relating to the period of time between the
two-minute stop in Shullsburg and the crash. This ruling
reflected the circuit court's determination that the GPS
data between the farm and two-minute stop constituted other
acts evidence offered to show R.C.'s propensity for
driving fast. In the circuit court's view, the continuum
of relevant events leading to the crash started at the
two-minute stop, not the farm.
Although the GPS data relating to the time period between the
two-minute stop and the crash was admitted, it did not become
the centerpiece of either party's case. In fact, after
its introduction into evidence, it was not discussed again
until the State's closing argument. In closing argument,
the State asserted that it did not "make sense that a
young girl who doesn't know the area is driving on some
rural road and driving, no less, after she'd been
drinking[, ] and at speeds of 40 to 50 miles per hour over
the speed limit [ .] That doesn't make sense. "
The jury returned verdicts of guilty as to all three
Monahan appealed, arguing that the circuit court erroneously
excluded the GPS data relating to the time period between the
farm and the two-minute stop in Shullsburg. The State
conceded-and the court of appeals accepted for purposes of
appeal-that the circuit court's exclusion of the GPS data
was erroneous. Monahan, 2014AP2187-CR, ¶2.
However, the court of appeals concluded that the error was
harmless. Id. In explaining its conclusion, the
court of appeals emphasized the strength of the State's
case. Id., ¶17.
First, the court of appeals noted that Monahan's many
admissions that he had been driving at the time the accident
provided strong evidence for the State. Id.,
Next, the court of appeals noted that Monahan had never
substantially contradicted Trooper Parrott's testimony
that Monahan had been the driver. Id., ¶33. The
court observed that Erdtmann testified that "it was
possible that either Monahan or R.C. was the
driver." I_d, ¶37. It further observed that
Erdtmann's testimony regarding his exemplar of the
vehicle's seats and his conclusions therefrom had been
rebutted by the testimony of R.C.'s mother, which would
have allowed the jury to accept Trooper Parrott's
reconstruction. Id., ¶¶38-39.
Finally, the court of appeals chastised the State for
exploiting the excluded GPS data in closing argument.
Id., ¶29. However, it concluded that the
State's discussion was harmless because its argument
concerning the excluded evidence comprised an aggregate of
five sentences out of approximately 70 transcript pages of
closing argument. Id.
The court of appeals determined that "even if the jury
heard the excluded GPS data evidence, the GPS data would have
paled in comparison to the strong evidence that Monahan was
driving at the time of the accident." Id.,
¶40. Consequently, the court of appeals saw "no
reason to think that, in light of all the evidence that
Monahan was the driver, admission of the excluded evidence
would have changed the outcome of this case."
Monahan petitioned this court for review, which we granted on
November 13, 2017.
STANDARD OF REVIEW
Circuit court evidentiary decisions are reviewed for an
erroneous exercise of discretion. State v. Hunt,
2014 WI 102, ¶20, 360 Wis.2d 576, 851 N.W.2d 434');">851 N.W.2d 434.
However, in this case, the State concedes that the circuit
court erroneously exercised its discretion in excluding the
GPS data from the farm to the two-minute stop.
Whether a circuit court's erroneous exclusion of evidence
is harmless is a question of law we review de novo.
Id., ¶21. III. ANALYSIS
We first set forth and discuss the harmless error rule. We
next apply the rule to Monahan. We then hold that the circuit
court's erroneous exclusion of the GPS data was harmless,
and consequently affirm the decision of the court of appeals.
Harmless Error Rule
An erroneous evidentiary ruling is reversible only if "a
substantial right of the party is affected." Wis.Stat.
§ 901.03(1). We construe this to mean that an error is
harmless if the party benefitted by the error shows
"beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained."
Hunt, 360 Wis.2d 576, ¶26 (quoting State v.
Harris, 2008 WI 15, ¶42, 307 Wis.2d 555, 745 N.W.2d
397) . In the present case, the State has the burden to prove
"beyond a reasonable doubt that a rational jury would
have found [Monahan] guilty absent the error."
Id. (quoting State v. Harvey, 2002 WI 93,
¶49, 254 Wis.2d 442, 647 N.W.2d 189).
The harmless error rule originated in response to the
perception that appellate courts were "applying a rule
approximating automatic reversal" when trial error was
found. John M. Greabe, The Riddle of Harmless Error
Revisited, 54 Hous. L. Rev. 59, 67 (2016); see
also 7 Wayne R. LaFave, et al., Crim. Proc.
§ 27.6(a) (4th ed. 2017). The United States Supreme
Court aptly described the problem: "So great was the
threat of reversal, in many jurisdictions, that criminal
trial became a game for sowing reversible error in the
record, only to have repeated the same matching of wits when
a new trial had been thus obtained." Kotteakos v.
U.S., 328 U.S. 750, 759 (1946). The goal of the harmless
error rule is to "inject reasoned judgment . . . into
appellate review" to ensure retrials occur only when the
error actually affected the original trial. Id. at
759-60; see also Harry T. Edwards, To Err is
Human, but not Always Harmless:When Should Legal Error be
Tolerated?, 7 0 N.Y.U. L. Rev. 1167, 1174 (1995).
We use several non-exclusive factors to aid our application
of the harmless error rule in the evidentiary context: (1)
the frequency of the error; (2) the importance of the
erroneously included or excluded evidence to the
prosecution's or defense's case; (3) the presence or
absence of evidence corroborating or contradicting the
erroneously included or excluded evidence; (4) whether
erroneously excluded evidence merely duplicates untainted
evidence; (5) the nature of the defense; (6) the nature of
the State's case; and (7) the overall strength of the
State's case. State v. Martin, 2012 WI 96,
¶46, 343 Wis.2d 278, 816 N.W.2d 270');">816 N.W.2d 270; State ...