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SCOW will decide if excluding OWI homicide defendant’s evidence he wasn’t the driver was harmless

State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)

The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt. The facts, as noted in our prior post:

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).

On appeal, Monahan argued that the evidence was admissible for three reasons: that the pre-stop driving was not an “other” act at all but instead part of the course of conduct leading to the crash; that even if it were “other acts” evidence it was admissible to show context and identity; and finally, that even if the evidence was statutorily inadmissible, Monahan was entitled to introduce it pursuant to his constitutional right to present a defense.

The state agreed that the evidence was admissible but argued its exclusion was harmless, based on a state’s expert report about the crash and Monahan’s statements in the aftermath of the crash that he had been the driver (though these statements were contradictory and made under the influence of alcohol and a concussion that had rendered him unconscious for a time).

The court of appeals assumed the GPS evidence was admissible but agreed with the state that its exclusion was harmless, despite the fact that the prosecutor, in closing, “improperly” took advantage of the exclusion by arguing there was no evidence that Cushman would have driven recklessly.

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