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SCOW: excluding defendant’s evidence he wasn’t the driver in OWI homicide trial was harmless error

State v. Kyle Lee Monahan, 2018 WI 80, affirming an unpublished court of appeals decision, 2014AP2187, case activity (including briefs)

You wouldn’t know it from the opinions, but the parties here briefed (and WACDL filed an amicus brief on) a question of harmless error doctrine. When trying to decide whether a trial error is harmless, the court is to ask whether “the jury would have arrived at the same verdict had the error not occurred.” Monahan contended that since a jury, as finder of fact, is free to draw any reasonable inference from the evidence, the reviewing court must view the trial evidence in the light most favorable to the defendant–that is, not declare an error harmless unless there is no reasonable set of inferences that would lead the jury to acquit. He argued that the court of appeals had not done this–that it had instead taken a conviction-friendly view of the evidence, effectively substituting its own views for that of the hypothetical “reasonable jury.” In so doing, he said, the court of appeals had effectively turned the (ostensibly stringent) harmless error test to the (extremely forgiving) standard for sufficiency of the evidence.

As noted, the supreme court doesn’t say anything about this argument. But its recitation of the evidence, like that of the court of appeals, simply leaves out some important facts helpful to Monahan. Also like that of the court of appeals, the supreme court’s analysis gives the state the benefit of the doubt, rather than asking whether there might be a different, but still reasonable, view of the evidence that would support acquittal.

We’ve previously summarized the facts as follows:

Monahan and his girlfriend, Rebecca Cushman, were both intoxicated at the time of the crash. They had been in her vehicle, which crashed after attaining speeds greater than 90 miles per hour on a country road. Both Monahan and Cushman were ejected during the crash; Cushman died from her injuries. The sole issue at his trial was whether he or she was driving at the time of the crash.

The car had been equipped with a GPS device, which contained a record of its speeds throughout the day of the crash. This record showed that after Monahan and Cushman left a party in the late afternoon, the vehicle was driven, at reckless speeds topping 100 miles per hour, into Shullsburg. There, it stopped on the street for a couple of minutes, before continuing out of town and attaining similar speeds before the crash.

Monahan and two other witnesses testified that Cushman had been driving when they left the party (Monahan testified that he could not remember the moments immediately preceding the crash). The state questioned these witnesses’ credibility, but also argued that even if Cushman was driving at first, she had switched places with Monahan during the stop in Shullsburg.

To rebut the state’s argument, Monahan sought to introduce the GPS evidence of high-speed driving before the Shullsburg stop. The point of the evidence was to show that Cushman had been driving recklessly before the stop, making it more likely that she was also the one driving recklessly afterward. The circuit court excluded the evidence on the ground that it was “other acts” propensity evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

There’s not much in the way of new law in the court’s opinion. The four-justice majority holds the exclusion of evidence harmless after a mechanical and blinkered application of the factors laid out in State v. Hunt, 2014 WI 102, ¶20, 360 Wis. 2d 576, 851 N.W.2d 434. For example, the court declares that the “frequency of the error” factor favors the state, since issues related to the GPS evidence were barely referred to at trial. (¶¶36-38). Of course they were! The evidence was excluded. In assessing the “nature of the state’s case” the court decides this favors the state, because the excluded GPS evidence wasn’t really related to the story the state was trying to tell. (¶¶52-54). But of course, the point of a defense is frequently to tell a different story than the one the state is telling.

The dissent by Justice Rebecca Bradley contains its own recitation of the evidence, including some facts that the majority omits. It concludes that neither side’s case was weak, and that the excluded evidence could have made a difference. It goes on to say that, by preventing Monahan from using his best evidence, the court denied him his Sixth Amendment right to a defense. (¶¶90-91).

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{ 1 comment… add one }
  • Jeremiah W Meyer-O'Day July 5, 2018, 12:11 am

    I sincerely hope that there’s a petition for cert, and further and more doubtful, that said petition is granted. This is a terrible decision for the reasons noted in the post.

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