Court of appeals frowns strongly at state, declares error harmless

State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)

Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.

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. Given the state’s agreement that the evidence was admissible (as part of the course of conduct leading to the crash) the court of appeals assumes that it was, and moves on to harmless error analysis.

This analysis consists of a recitation of much of the evidence in the case, which the court pronounces “strong.” Monahan also argued that the prosecution relied on the exclusion of evidence about Cushman’s driving to argue to the jury that it was “common sense” that she would not drive in the manner that caused the crash. The court is troubled, rejecting as “tepid at best” the state’s response that the prosecutor also made other arguments to the jury. (¶29). Though it calls the prosecutor’s argument “improper” and “strongly frowned upon,” the court concludes that it did not prejudice Monahan.

The reason? The argument was “short” and “made only twice.” (¶29). Query whether this differs materially from the state’s rejected claim that the argument was harmless because the prosecutor made other arguments.

Monahan also successfully challenged his DNA surcharge as an ex post facto violation, which the state cross-appealed. During the long pendency of Monahan’s appeal, the supreme court decided State v. Scruggs, 2017 WI 15, which is on all fours with this case and defeats Monahan’s claim (though curiously, the issue still generates six pages of discussion here). (¶¶41-57).