State v. Monahan, 2014AP2187-CR

• Citation: 913 N.W.2d 894,2018 WI 80,383 Wis.2d 100
• Decision Date: 28 June 2018
• Docket Number: No. 2014AP2187-CR,2014AP2187-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross-Appellant, v. Kyle Lee MONAHAN, Defendant-Appellant-Cross-Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

383 Wis.2d 100

913 N.W.2d 894

2018 WI 80

STATE of Wisconsin, Plaintiff-Respondent-Cross-Appellant,

v.Kyle Lee MONAHAN, Defendant-Appellant-Cross-Respondent-Petitioner.

No. 2014AP2187-CR

Supreme Court of Wisconsin.

Opinion Filed: June 28, 2018

Oral Argument: March 14, 2018

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¶ 1 This is a review of an unpublished, authored decision of the court of appeals affirming the Lafayette County Circuit Court's¹ judgment of conviction against Kyle Lee Monahan.²

State v. Monahan, No. 2014AP2187-CR, unpublished slip op., 2017 WL 1504259 (Wis.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...