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State v. Monahan

Supreme Court of Wisconsin

June 28, 2018

State of Wisconsin, Plaintiff-Respondent-Cross-Appellant,
v.
Kyle Lee Monahan, Defendant-Appellant-Cross-Respondent-Petitioner .

          Oral Argument: March 14, 2 018

          Circuit Court Lafayette county No. 2012CF72 William D. Johnston Judge

          For the defendant-appellant-cross-respondent-petitioner, there were briefs filed and an oral argument by Andrew R. Hinkel, assistant state public defender.

          For 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, attorney general.

          An 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.

         ¶1 This is a review of an unpublished, authored decision of the court of appeals affirming the Lafayette County Circuit Court's[1] judgment of conviction against Kyle Lee Monahan.[2] State v. Monahan, No. 2014AP2187-CR, unpublished slip op.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 harmless?

         ¶2 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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)[3]; (2) homicide by intoxicated use of a vehicle contrary to § 940.09(1) (b)[4]; 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 the crash.

         ¶4 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 such weekend.

         ¶5 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.[5] Multiple eyewitnesses testified that Monahan was in the passenger seat when he left in the Saab with R.C.

         ¶6 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).

         ¶7 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.[6] 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.

         ¶8 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.

         ¶9 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 the rolls.

         ¶10 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.

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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.

         ¶15 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."

         ¶16 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.

         ¶17 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.

         ¶18 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 the crash.

         ¶19 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 crash.

         ¶20 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).[7] 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.

         ¶21 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.[8] 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.

         ¶22 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. "

         ¶23 The jury returned verdicts of guilty as to all three counts.[9]

         ¶24 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.[10] 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.

         ¶25 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., ¶¶19-26.

         ¶26 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.

         ¶27 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.

         ¶28 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." Id.

         ¶29 Monahan petitioned this court for review, which we granted on November 13, 2017.

         II. STANDARD OF REVIEW

         ¶30 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.[11]

         ¶31 Whether a circuit court's erroneous exclusion of evidence is harmless is a question of law we review de novo. Id., ¶21. III. ANALYSIS

         ¶32 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.

         A. The Harmless Error Rule

         ¶33 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).

         ¶34 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).

         ¶35 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 ...


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