State v. Monahan

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Justia Opinion Summary

The Supreme Court affirmed Defendant’s convictions for homicide by intoxicated use of a motor vehicle, homicide by intoxicated use of a vehicle and homicide by negligent operation of a vehicle, holding that the erroneous exclusion of data from a portable GPS unit was harmless.

Defendant was involved in a single-vehicle crash in which Defendant was seriously injured and his girlfriend, R.C., was killed. The only factual dispute at trial was whether it was Defendant or R.C. who was driving at the time of the crash. R.C. owned a portable GPS unit that she kept in the vehicle, from which officers recreated the vehicle’s movements and calculated its speed on the date of the accident. Defendant moved for the admission of GPS data before the accident to show that R.C. was likely driving the vehicle at the time of the accident. The circuit court excluded the GPS data. The court of appeals accepted for purposes of appeal that the circuit court’s exclusion of the GPS data was erroneous but that the error was harmless. The Supreme Court affirmed.

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2018 WI 80 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2014AP2187-CR State of Wisconsin, Plaintiff-Respondent-Cross-Appellant, v. Kyle Lee Monahan, Defendant-Appellant-Cross-RespondentPetitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 375 Wis. 2d 796, 899 N.W.2d 737 (2017 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 28, 2017 March 14, 2018 Circuit Lafayette William D. Johnston JUSTICES: CONCURRED: DISSENTED: R.G. BRADLEY, J., dissents, joined by ABRAHAMSON, J., and A.W. BRADLEY, J. (opinion filed). NOT PARTICIPATING: ATTORNEYS: For there were the defendant-appellant-cross-respondent-petitioner, 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. 2 2018 WI 80 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP2187-CR (L.C. No. 2012CF72) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent-Cross-Appellant, FILED v. JUN 28, 2018 Kyle Lee Monahan, Defendant-Appellant-Cross-RespondentPetitioner. Sheila T. Reiff Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. This is a Affirmed. review of an unpublished, authored decision of the court of appeals affirming the Lafayette 1 County Circuit Court's1 judgment of The Honorable William D. Johnston, presiding. conviction No. against Kyle Lee Monahan.2 2014AP2187-CR State v. Monahan, No. 2014AP2187-CR, unpublished slip op. (Wis. Ct. App. Apr. 27, 2017). raises a single issue for our review: was the Monahan 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. ¶3 FACTUAL AND PROCEDURAL BACKGROUND 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 2 The court of appeals also reversed a circuit court order granting Monahan's postconviction motion to relieve Monahan from paying the DNA surcharge. State v. Monahan, No. 2014AP2187-CR, unpublished slip op., ¶56 (Wis. Ct. App. Apr. 27, 2017). Monahan states in his petition for review that he does not raise this issue for our review. Accordingly, we do not consider it further. See State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not raised in the petition for review or in a cross petition, 'the issue is not before us.'"). 3 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 2 No. 2014AP2187-CR 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 dating Chicago Monahan and R.C. met in early summer 2011 and started shortly suburb thereafter. of R.C. Glenview, and worked she as a would Shullsburg on weekends to visit Monahan. nanny often in the drive to 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. R.C.'s Monahan Saab and 9-5 R.C. Monahan and R.C. arrived at the farm in station each wagon had at a approximately couple drinks, 6:30 p.m. but left approximately 45 minutes later at about 7:15 p.m. because R.C. 4 Though count one and two have the same title, they are based on different statutory provisions. Count one prohibits "[c]aus[ing] the death of another by operation or handling of a vehicle while under the influence of an intoxicant." Wis. Stat. § 940.09(1)(a). Count two prohibits "[c]aus[ing] the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration . . . ." § 940.09(1)(b). See also infra note 9. 3 No. was exhausted from the day.5 2014AP2187-CR 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 scene, the vehicle. At the 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 driving. Multiple emergency personnel asked Monahan who was To each, he initially stated that he did not know, but then stated that he probably was the driver.6 Throughout the 5 Between the time R.C. arrived in Shullsburg and the start of the party, Monahan and R.C. had socialized at his home and a local restaurant, and assisted his cousin in preparing for the party. 6 While Monahan was still lying on the ground after the crash, he told Shullsburg firefighter Timothy Corley "I was driving, I guess." After Monahan was placed on a backboard at the side of the road, Lafayette County Sheriff's Deputy Paul Klang walked towards him to question him. While walking towards Monahan, Deputy Klang heard him say "that is the last time I will drink and drive." When Deputy Klang questioned Monahan directly, Monahan did not remember who was driving. After being informed a female was also in the vehicle, Monahan said "I was probably driving, then." (continued) 4 No. 2014AP2187-CR following several hours, Monahan's recollection of who had been driving at the time of the crash continued to evolve, eventually adhering to driver. the While conclusion in a that medical he, in fact, helicopter on had the been way to the 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 experts. The State and Monahan engaged their own respective Trooper Parrott prepared a report and testified on After Monahan was moved to a gurney, while being treated by EMS personnel, Lafayette County Sheriff's Deputy Michael Gorham asked Monahan who was driving. Monahan responded, "I don't know, I might have been." Shortly after this exchange, Deputy Gorham returned with a digital recorder at the instruction of Lafayette County Sheriff's Sergeant Darrell Morrissey. Deputy Gorham again asked Monahan, "were you the driver?" Monahan responded, "yeah, I guess." After informing Monahan that a firefighter reported seeing Monahan driving the car out of Shullsburg, Deputy Gorham asked Monahan "so you were the driver?" Monahan responded "yeah." Gorham followed up "you were?" Monahan again responded "yeah." 5 No. behalf of the State. 2014AP2187-CR Paul Erdtmann, a Licensed Professional Engineer, prepared a report and testified on behalf of Monahan. ¶9 same Erdtmann and Trooper Parrott both came to some of the conclusions. Both experts agreed that the Saab was traveling between approximately 87 and 100 miles per hour when the crash sequence began. Saab's wheels shoulder. left After the leaving The crash sequence began when the pavement the and fell pavement, onto the the Saab grassy "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. Parrott concluded that Monahan was the driver. Trooper 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. 6 R.C.'s clothes were No. 2014AP2187-CR 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 passenger's rubbed off. open side passenger's windowsill side had an window. area Further, where the the was dirt 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. DNA profile in identification. the blood, but it Analysts found a second was insufficient for 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 7 No. 2014AP2187-CR 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. serve as models who were weight as Monahan and R.C. pedals and "physical steering wheel constraints." He then found individuals to approximately the same height and The R.C. model was able to reach the from The the driver's Monahan model "comfortably" sit in the passenger's seat. seat with no was able to 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 8 No. GPS data. Saab. 2014AP2187-CR R.C. owned a portable GPS unit that she kept in the 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. 9 No. ¶20 2014AP2187-CR 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 7 Wisconsin Stat. § 904.04(2) states, in relevant part: "[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." 10 No. two-minute stop in Shullsburg and the crash.8 2014AP2187-CR This ruling reflected the circuit court's determination that the GPS data between the farm and two-minute stop constituted other evidence offered to show R.C.'s propensity for driving fast. the circuit court's view, the continuum of relevant acts In 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 8 The pretrial motions filed by Monahan and the State also addressed GPS data that would show the Saab traveled at a high rate of speed on the way to the farm; a period during which the parties agree R.C. was driving. The circuit court excluded this GPS data for the same reasons it excluded the GPS data of the trip between the farm and Shullsburg. The extent to which Monahan appeals exclusion of the trip to the farm is unclear——at various points in briefing, he appears to challenge only the exclusion of the trip from the farm to Shullsburg, but at other points, he appears to also challenge the exclusion of the trip to the farm. The scope of the State's confession of error is similarly unclear. In its brief to the court of appeals——the first point at which the State confessed error in this case——the State conceded error only as to the trip between the farm and Shullsburg. However, other areas of briefing and oral arguments to this court indicate that the State may also confess error as to the trip to the farm. Neither party offers analysis of the trip to the farm separate from its analysis of the trip from the farm to Shullsburg. We determine that separately addressing the exclusion of the GPS data relating to the trip to the farm is unnecessary because our analysis and holding would remain the same even if we assumed error regarding that trip. 11 No. until the State's closing argument. 2014AP2187-CR 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 9 The circuit court dismissed count two by operation of Wis. Stat. § 940.09(1m), which states in relevant part: "[a] person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1)(a) . . . or (b) . . . for acts arising out of the same incident or occurrence. . . . If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing . . . ." The circuit court dismissed count three by operation of Wis. Stat. § 939.66(2), which states, in relevant part: "[u]pon prosecution for a crime, the actor may be conviction of either the crime charged or an included crime, but not both. An included crime may be . . . [a] crime which is a less serious type of criminal homicide than the one charged." 12 No. was erroneous.10 Monahan, 2014AP2187-CR, ¶2. 2014AP2187-CR 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. ¶25 Id., ¶17. 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. ¶26 never Next, the substantially court of appeals contradicted that Monahan had been the driver. that Erdtmann testified that that Erdtmann's testimony noted Trooper was Monahan his had testimony The court observed possible Id, ¶37. regarding that Parrott's Id., ¶33. "it Monahan or R.C. was the driver." Id., ¶¶19-26. that either It further observed 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. ¶27 Id., ¶¶38-39. 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 10 The State agreed with Monahan that "[t]he vehicle's speed after it left the cousin's residence was not other acts evidence[,] but part of the continuum of facts relevant to the crime" pursuant to State v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d 515. The court of appeals did not "weigh in on whether the [circuit] court erroneously excluded the GPS data," but rather accepted the State's concession for purposes of the appeal. Monahan, 2014AP2187-CR, ¶2. 13 No. an aggregate of five sentences out transcript pages of closing argument. ¶28 of 2014AP2187-CR approximately 70 Id. 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. ¶30 STANDARD OF REVIEW 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. case, the State concedes that the circuit However, in this 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. 11 We are not v. Anderson, 2014 For purposes of deciding that the erroneous. bound by a party's concession of law. State WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760. this opinion, however, we assume without circuit court's exclusion of the GPS data was 14 No. III. ¶32 rule. We first set ANALYSIS forth and discuss We next apply the rule to Monahan. circuit court's 2014AP2187-CR erroneous exclusion the harmless error We then hold that the of the GPS data was harmless, and consequently affirm the decision of the court of appeals. A. ¶33 The Harmless Error Rule An erroneous evidentiary ruling is reversible only if "a substantial right of the party is affected." § 901.03(1). Wis. Stat. 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 "So described the problem: 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 15 No. 2014AP2187-CR repeated the same matching of wits when a new trial had been thus obtained." The goal of Kotteakos v. U.S., 328 U.S. 750, 759 (1946). 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?, 70 N.Y.U. L. Rev. 1167, 1174 (1995). ¶35 We application context: the use of several the non-exclusive harmless error factors rule in the to aid our evidentiary (1) the frequency of the error; (2) the importance of 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; State v. Norman, 2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d 97; see also Hunt, 360 Wis. 2d 576, ¶27; State v. Nelson, 2014 WI 70, ¶46, 355 Wis. 2d 722, 849 N.W.2d 317. B. 1. ¶36 Application to Monahan Frequency of the error This factor requires us to consider whether the error scarcely appeared in the record or pervaded it. Wis. 2d 278, ¶47. Martin, 343 An error that pervades the record is more 16 No. 2014AP2187-CR likely to be harmful than an error that appears only a few times, though an error may be so prejudicial that reversal is required despite appearing in the record only once. See id.; see also United States v. Impson, 531 F.2d 274, 278 (5th Cir. 1976). ¶37 In this case, the error manifested in the record once. The GPS data was not a centerpiece of the State's case, but rather was mentioned only briefly in closing argument, when the State argued that it did not make sense that a driver who was unfamiliar with the area would operate a vehicle at the speed the Saab was traveling at the time of the crash. While the excluded GPS data would have undoubtedly undercut this argument because it would have allowed the jury to conclude that R.C. had, in fact, been operating the Saab at a high rate of speed over (presumptively) unfamiliar roadways, the argument was not central to the State's theory of the case. The State's theory of the case rested on Trooper Parrott's crash reconstruction; the argument that R.C. would not have driven so recklessly given her unfamiliarity with the area constituted a miniscule percentage of a 70-page closing argument transcript.12 12 The court of appeals considered five sentences in the State's closing argument to be objectionable. Monahan, 2014AP2187-CR, ¶29; see also infra, ¶27. Depending on how one classifies certain sentences in the State's closing argument, the objectionable portion of the State's closing argument could constitute up to three paragraphs or 24 lines of the transcript. See dissent, ¶3. This would add up to approximately one full page of transcript (the transcript pages from closing arguments contain 25 lines of text each) out of 70 pages of closing arguments, or approximately 1.4 percent. 17 No. ¶38 This is in contrast to Martin, where 2014AP2187-CR erroneously- admitted testimony constituted the bulk of the State's case. Id. The testimony was "discussed at length in both the State's opening statement and closing argument." repeated often in State's argument." the record Id. and was Id. "the The error was backbone of the The extent to which the State relied upon the excluded GPS data in the present case simply did not rise anywhere close to that level of repetition, duration, or extent. We conclude that this factor weighs in favor of the State. 2. ¶39 evidence Importance of the erroneously excluded evidence This factor considers the extent to which the excluded impacted the verdict. Hunt, 360 Wis. 2d 576, ¶29; Nelson, 355 Wis. 2d 722, ¶47; see also Martin, 343 Wis. 2d 278, ¶51. Exclusion of evidence that would go to the foundation of the verdict is less likely to be harmless than exclusion of evidence that would have little impact on the verdict. See Martin, 343 Wis. 2d 278, ¶51. ¶40 The excluded GPS data did not go to the foundation of the verdict. Rather, the excluded GPS data is direct evidence of a fact that is not of consequence: how fast the Saab was traveling between the farm and the two-minute stop. Given the other evidence presented——and emphasized——by the parties, the GPS data would have been largely inconsequential to the verdict. ¶41 Hunt, while factually this question. 360 Wis. 2d 576. disparate, is instructive on In that case, the defendant, Hunt, was convicted of causing a child under 13 to view or 18 No. 2014AP2187-CR listen to sexual activity based on an incident in which Hunt showed his adopted daughter a video of sexual intercourse. ¶¶1-2, 4. Id., At the preliminary hearing, the victim testified that Hunt referred to the video as stuff that he received from a certain friend, Venske. Id., ¶5. Hunt admitted that the victim may have seen an image of a testicular hernia sent by Venske, but denied intercourse. ever showing Id., ¶8. the victim a video sexual Hunt argued that the victim embellished the story due to an ongoing custody dispute. ¶42 of Id., ¶9. Consistent with that defense, Hunt proffered testimony from Venske that he sent Hunt an image of a testicular hernia, but never sent Hunt a video of sexual intercourse. The circuit court excluded Venske's testimony. Id., ¶12. Id., ¶13. We held that the circuit court erroneously exercised its discretion when it excluded Venske's testimony because the testimony would have corroborated Hunt's testimony. error to be harmless, however, Id., ¶25. because the We held the source of sexually explicit content was not an element of the crime. ¶30. the Id., Stated differently, the excluded testimony did not go to the foundation of the verdict because it would have demonstrated a fact that was irrelevant to the crime charged. ¶43 See id., ¶34. Similarly, in the present case, the excluded GPS data would have bolstered Monahan's contention that R.C. may have been driving the Saab at the time it crashed. For this reason, excluding that portion of the GPS data was error. Establishing that the evidence was admissible course, answer the harmless error question. 19 See id., ¶29. does Id. not, of Though the No. 2014AP2187-CR excluded GPS data should have been admitted, it nonetheless did not impact the verdict because it bears little relation to the elements of homicide by intoxicated use of vehicle. Stat. § 940.09(1)(a).13 See Wis. Because neither the speed of the Saab between the farm and two-minute stop, nor who was driving it during that time period, were "required element[s] of the State's case, the value of [the excluded GPS data] lay solely in its potential to corroborate [Monahan]'s version of events." Hunt, 360 Wis. 2d 576, ¶34. ¶44 Thus, while the excluded GPS data may have added some credibility to Monahan's defense, it was not a fact that was important to the verdict. Accordingly, we conclude that this factor weighs in favor of the State. 3. ¶45 The presence or absence of evidence corroborating or contradicting the erroneously excluded evidence This factor is closely related to the preceding one, the importance of the erroneously excluded evidence. Hunt, 360 Wis. 2d 576, what ¶30. If other evidence demonstrates the excluded GPS data was offered to show, or if the excluded GPS data would not contradict any of the State's evidence, then its erroneous exclusion is more likely harmless. See Martin, 343 Wis. 2d 278, ¶54. 13 A person commits homicide by intoxicated use of a vehicle if he "[1] causes the death of another [2] by the operation or handling of a vehicle [3] while under the influence of an intoxicant." Wis. Stat. § 940.09(1)(a). 20 No. ¶46 The excluded GPS data was neither 2014AP2187-CR corroborated nor contradicted because no other evidence was admitted to establish the speed of the vehicle between the farm and the two-minute stop. Again, Hunt is helpful application of this factor. excluded testimony did to our understanding 360 Wis. 2d 576. not contradict of the In Hunt, Venske's any of the State's evidence because the State did not offer any evidence of the source of the sexually explicit video. Id., ¶33. the that error harmless, we reasoned In holding "the excluded evidence . . . would not have served to weaken the State's case on the issue of where Hunt obtained the sexually explicit video, because the State never alleged it was sent by Venske." similar reasoning applies here: Id. A the excluded GPS data would not have served to weaken the State's case on the issue of how fast the Saab was traveling between the farm and the two-minute stop because the State never during that segment. alleged that the Saab was speeding Consequently, this factor weighs in favor of the State. 4. Whether the erroneously excluded evidence duplicates untainted evidence. ¶47 This factor reflects our understanding that the error is more likely harmless if the excluded evidence would serve only to duplicate admitted evidence. ¶50. Nelson, 355 Wis. 2d 722, Conversely, if the erroneously excluded evidence would have been the only evidence to support a factual finding by the jury, then the error is more likely prejudicial. 343 Wis. 2d 278, ¶57. 21 See Martin, No. ¶48 2014AP2187-CR Literal application of this factor leads us to observe that the GPS data does not duplicate any evidence because no other evidence regarding the speed of the Saab between the farm and two-minute stop was offered. The State did not offer any evidence as to either how fast the Saab was traveling or who was driving it between the farm and two-minute stop. Conversely, Monahan offered evidence in the form of eyewitness testimony that R.C. was driving when the couple left the farm. The excluded GPS data, had it been admitted, would have constituted circumstantial evidence that the same person was driving both before and after the two-minute stop. data would have fractionally While the excluded GPS overlapped with the eyewitness testimony, we cannot say that the erroneously excluded GPS data would have duplicated untainted evidence. the eyewitness testimony——or any other The result of our consideration is that this factor weighs in favor of Monahan. 5. ¶49 The nature of the defense If the erroneously excluded evidence closely fits the defense theory of the case, then its exclusion is more likely prejudicial. See State v. Deadwiller, 2013 WI 75, ¶43, 350 Wis. 2d 138, 834 N.W.2d 362; see also Martin, 343 Wis. 2d 278, ¶59. Conversely, if the erroneously excluded evidence would not have furthered harmless. ¶50 the defense, its exclusion more likely Nelson, 355 Wis. 2d 722, ¶49. Monahan's defense was that either he or R.C. could have been driving at the time of the crash. Monahan is argues that the jury could 22 not Stated otherwise, have found beyond a No. 2014AP2187-CR reasonable doubt that Monahan was driving at the time of the crash. The excluded GPS data could have raised an inference that the same person was driving both before and after the twominute stop. When combined with the eyewitness testimony that R.C. was driving at the time the couple left the farm, this inference could have supported a jury determination that R.C. was driving at the time of the crash. ¶51 Although the weight, if any, the jury would have given to such an inference is (by definition) impossible to know, it is clear that the excluded evidence would complementary to the nature of the defense. have been Accordingly, this factor weighs in favor of Monahan. 6. ¶52 with the harmless. ¶53 If the The nature of the State's case erroneously State's case, excluded then its evidence exclusion is is consistent more likely See Martin, 343 Wis. 2d 278, ¶60. The GPS data is irrelevant to the State's case. The State focused its evidence on who was driving at the time of the crash; its theory of the case is compatible with either Monahan or R.C. driving between the farm and the two-minute stop. The State's evidence that Monahan was driving at the time of the crash——Trooper Parrott's crash reconstruction, Monahan's admissions, and the DNA found on the driver's side airbag——are not affected by who was driving between the farm and the twominute stop. undercut the The GPS data would have neither bolstered nor State's case had it been admitted because the State's evidence was consistent with either Monahan driving the 23 No. 2014AP2187-CR whole way or Monahan and R.C. switching seats during the twominute stop. ¶54 Because the GPS data was not inconsistent with the State's case, this factor weighs in favor of the State. 7. ¶55 If The overall strength of the State's case the State's case was strong notwithstanding the erroneous exclusion of the GPS data, then the error is more likely harmless. Hunt, 360 Wis. 2d 576, ¶35. Conversely, if the State relied heavily on the exclusion of the GPS data, then the error is more likely to be prejudicial. Martin, 343 Wis. 2d 278, ¶62. ¶56 We first address Monahan's complaint that considering the strength of the State's case improperly transforms harmless error analysis into sufficiency-of-the-evidence analysis. We begin by noting that the strength of the State's case has long been considered an appropriate——and harmless error analysis. important——factor in E.g., Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) ("These factors include . . . ,of course, the overall strength of the prosecution's case."); United States v. Wilson, 134 F.3d 855, 867 (7th Cir. 1998) ("[Van Arsdell] recognize[ed] that, 'of course,' an important factor to consider is 'the overall strength of the prosecution's case.'"); State v. Fishnick, 127 Wis. 2d 247, 267, 378 N.W.2d 272 (1985); State v. Drusch, 1987). 139 Wis. 2d 312, 324 n.1, 407 N.W.2d 328 (Ct. App. Second, we understand that courts cannot properly answer the core question——whether the State proved "beyond a reasonable doubt that the error complained of did not contribute to the 24 No. verdict obtained"——without State's case. considering the 2014AP2187-CR strength of the See United States v. Littrell, 439 F.3d 875, 883 (8th Cir. 2006). Finally, we note that error is less likely to have a "substantial influence" on the verdict where the State presented overwhelming evidence of guilt. United States v. Lane, 474 U.S. 438, 450 (1986). ¶57 the For these reasons, consideration of the strength of State's factor in case has evaluating been——and whether remains——a proper circuit court's a and useful error was harmless. ¶58 This factor cuts decisively in favor of the State because the State's case was strong, and would have remained strong even if the excluded GPS data had been admitted. First and foremost, Monahan's numerous admissions that he was driving provide substantial evidence of his guilt. He told Shullsburg firefighter Timothy Corley "I was driving, I guess" while lying in the cornfield. He then said "that is the last time I will drink and drive" within earshot of Deputy Klang. Klang told Monahan Monahan said "I that was a female probably was driving, also in then." When Deputy the Once vehicle, on the gurney, Monahan responded "yeah" when Deputy Gorham asked him "so you were the driver." While in the medical helicopter en route to the hospital, Monahan again unequivocally admitted to driving the Saab. While at the hospital, he again admitted to being the driver. He wrote that he remembered the crash and that he was driving. At the time of this writing, the attending nurse described him as "neurologically . . . intact." 25 Finally, No. ten months after the accident, Monahan told 2014AP2187-CR Trooper Parrott "[i]t's not like I meant [it to] F'ing happen." ¶59 Even admissions, if the Trooper jury had Parrott's discounted crash compelling evidence for the State. unequivocally that all Monahan as the driver. contradict Trooper of the all of Monahan's reconstruction provided Trooper Parrott testified physical evidence pointed to Ertdmann, on the other hand, did not Parrott's conclusion. In fact, concluded that Monahan could have been the driver. Erdtmann Erdtmann merely disagreed as to whether that was the only reasonable conclusion one could draw from the physical evidence. ¶60 Moreover, the physical evidence supported the State's assertion that Monahan was the driver. The seat positions—— coupled with the testimony of R.C.'s mother that the driver's seat was found "much farther back than [R.C.] would have been"—— indicated that Monahan was driving. The position of the bodies at the crash scene, the closed driver’s side window, and the open passenger's side window indicated that R.C. was ejected first R.C.'s and from the clothing——and passenger's the seat. relative lack The of dirt dirt patterns on on Monahan's clothing——indicated that R.C. was in the passenger's seat, next to the open window. ¶61 All of these factors lead us to conclude that the State's case was very strong——and would have remained so even if the excluded GPS data had been admitted into evidence. Because of the strength of the State's case, we are not surprised that the jury came to the only reasonable conclusion: 26 Monahan was No. 2014AP2187-CR driving at the time of the crash; this factor weighs in favor of the State. *** ¶62 Applying the relevant circumstances of Monahan's case to these factors leads to the conclusion that the erroneous exclusion of the GPS data was harmless; that is, the State has met its burden to rational jury would error." Hunt, prove 360 "beyond have found a reasonable [Monahan] Wis. 2d 576, ¶26 doubt guilty (quoting that absent Harvey, a the 254 Wis. 2d 442, ¶49). ¶63 Though we utilize the seven factors to aid in our analysis, harmless mathematical formula. error is not subject to a precise See State v. Bolstad, 124 Wis. 2d 576, 589-90, 370 N.W.2d 257 (1985); see also State v. Anthony, 2015 WI 20, ¶104, 361 Wis. 2d 116, 860 N.W.2d 10; State v. Grant, 139 Wis. 2d 45, 77, 406 N.W.2d 744 (1987) (Day, J., concurring) (describing the underlying rationale of the harmless error test to be "eliminating prejudicial error but not becoming bogged down in endless formulas for determining harmless error."). ¶64 Factors four and five weigh in favor of Monahan, as the excluded GPS data would have bolstered Monahan's theory of defense that R.C. was driving. would have done so by necessary for conviction. Supra, ¶¶47-51. demonstrating a fact However, it that was not Hunt, 360 Wis. 2d 576, ¶34; see also supra, ¶46. ¶65 Though the excluded GPS data would have bolstered Monahan's theory of defense, the factors weighing in favor of 27 No. the State——especially the final factor, the 2014AP2187-CR strength of the State's case——"tip the scales in support of harmless error." Anthony, 361 Wis. 2d 116, ¶104. As in Hunt, the State's case did not hinge on establishing who was driving the Saab, and how fast it was traveling, between the farm and two-minute stop. See Hunt, 360 Wis. 2d 576, ¶36. Rather, the strength of the State's case rested largely on Monahan's five admissions that he was driving at the time of the accident, Trooper Parrott's crash reconstruction testimony, and the DNA evidence. See id. The State never raised at trial the issue of who was driving the Saab between the farm and two-minute stop, nor how fast it was traveling during that segment, in proving the essential elements of the crime for which Monahan was convicted. See id. We agree with the court of appeals that "the [excluded] GPS data would have paled in comparison to the strong evidence that Monahan was driving at the time of the accident." Monahan, 2014AP2187-CR, ¶40. ¶66 a Based on the foregoing, we conclude that "it is beyond reasonable doubt that the error contribute to the verdict obtained." complained of did not Hunt, 360 Wis. 2d 576, ¶26 (quoting Harris, 307 Wis. 2d 555, ¶42). IV. ¶67 CONCLUSION 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. By the Court.—The decision affirmed. 28 of the court of appeals is No. ¶68 REBECCA GRASSL BRADLEY, J. 2014AP2187-CR.rgb (dissenting). In this court, everyone agrees the circuit court erred in excluding the GPS data, which revealed the excessive speeds R.C.'s car traveled both on the way to the party and on the way from the party to the stop in Shullsburg. The only question is whether this erroneous exclusion of evidence was harmless. It was not. If the jury had heard that R.C.'s car grossly exceeded the speed limit both on the way to the party and while traveling from the party to Shullsburg——when independent witnesses testified that R.C. drove away from the party——the State could not have made the same closing argument and Monahan would have had evidence to support his defense. argument——unrefuted at The excluded evidence plus the State's trial as a result of the erroneous evidentiary ruling——that R.C. never would have driven that fast on unfamiliar roads, create reasonable doubt as to whether a rational jury would have found Monahan guilty absent the error. Accordingly, I conclude the error was not harmless and single car respectfully dissent. I ¶69 accident. There were no eyewitnesses to this Only two people actually knew what happened. One of them did not survive the accident; the other, Monahan, testified he does not remember anything between the time he and R.C. left the party and the time he woke up in the hospital. The car's GPS unit does give some information about the car's speed and location on the day of the accident. The GPS data allowed Monahan's accident reconstruction expert to calculate how fast 1 No. 2014AP2187-CR.rgb the car was driven both on the way to the party and on the way from the party to Shullsburg. minute stop Monahan's in The GPS data also showed a twoFinally, the and Shullsburg. accident State's the data allowed reconstructionists both to calculate the speed the car was traveling after the two-minute stop until the crash. The speed calculations estimated the car's speed on the way to the party at 79-93 miles per hour. The car's estimated speed during the segment from the party to the Shullsburg stop was 82-105 miles per hour. After the brief stop in Shullsburg, the car's speed reached 97-120 miles per hour during the trip from Shullsburg until the crash.1 The GPS unit listed the "max speed" the car had traveled as 123 miles per hour. The only estimated speed evidence the jury heard was that at the time of the crash, the car's speed was 87-98 miles per hour. the car We also know that both occupants were ejected from during the wearing seatbelts. window were open. crash and neither Monahan nor R.C. were The sunroof and the front passenger side Finally, it is undisputed that both Monahan and R.C. had been drinking. Both had blood alcohol content above the legal limit. ¶70 The State's entire case depended on proving that Monahan was in fact driving at the time R.C.'s car crashed. There were no eyewitnesses to the crash itself and no eyewitness 1 These numbers come from Monahan's expert engineer's report. The State's expert calculated only the speed at the time of the crash, and told the jury the car was traveling at 87-98 miles per hour. 2 No. put Monahan behind the wheel. presented testimony from 2014AP2187-CR.rgb To prove its case, the State State Trooper Thomas prepared a reconstruction of the accident. Parrott who Parrott testified he believed Monahan was driving based on where Monahan's and R.C.'s bodies landed after ejection. Parrott believed R.C. was ejected through the open passenger window before the airbags deployed. The State also introduced evidence showing that the driver's seat was positioned passenger's seat. four inches farther back than the Using this information, together with the fact that Monahan was taller than R.C., the State argued Monahan was the driver at the time of the crash. Additionally, the State relied on evidence showing the driver's side airbag had a major and a minor contributor contributor was Monahan. of DNA and that the major The State also introduced Monahan's numerous statements. In some of these statements, Monahan said he was the driver. The only GPS evidence the circuit court admitted showed that the car stopped for just over two-minutes in Shullsburg, and Parrott testified that he estimated the car's speed at the time of the crash to be between 87-98 miles per hour based upon the GPS data. The prosecutor seized upon this speed evidence to argue during closing: [Monahan] testified he knew the hills, knew the curves, knew the terrain of that road. Why would a young woman from Maine who's living in Chicago, who doesn't know the roads, who by all accounts hadn't been on that road and if -- had been maybe once or twice, why would she be driving? She didn't know the area. The prosecutor further emphasized this point by arguing: 3 No. 2014AP2187-CR.rgb [R.C.] didn't know her way around. So using your common sense, you need to ask yourself, does it 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 . . . . Using your common sense, that tells you it's the defendant behind the wheel. And, later, the State emphasized again: If it's [R.C.] who was driving that night, again we'd have to believe she's driving on that rural country road in a place she's not familiar with on a road she's not familiar with. Despite the fact that she's not familiar with that road, we have to believe that she's traveling -- after having some drinks, traveling 40 to 50 miles per hour over the speed limit on a road she has no experience or familiarity with. ¶71 Without the pre-Shullsburg stop GPS speed calculations in evidence, Monahan could not refute the State's "common sense" and persuasive argument. Now, on appeal, the State concedes that excluding the pre-Shullsburg stop GPS-calculated speeds was in fact error, but it asserts the exclusion was harmless error. The majority agrees with the State that this error was harmless— —that it had no impact on the verdict and even if the jury heard the complete GPS evidence, the jury still would have convicted Monahan. In majority reaching improperly its harmless applied the error harmless conclusion, error the standard. Applying the harmless error standard correctly, I conclude the exclusion of the GPS evidence was not harmless and I would reverse the decision of the court of appeals and remand for a new trial. II ¶72 Before Congress adopted the harmless error rule in 1919, criminal cases were retried with some regularity when an 4 No. 2014AP2187-CR.rgb error occurred during the trial, regardless of whether the error was minimal or material. See, e.g., Kotteakos v. United States, 328 U.S. 750, 759 (1946) ("[Appellate courts] tower above the trials of criminal technicality" (quoting cases as Marcus impregnable A. Kavanagh, citadels Improvement of of Administration of Criminal Justice by Exercise of Judicial Power 11 A.B.A.J. 217, 222) (1925)). was codified "to prevent The federal harmless error rule matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict." U.S., 308 U.S. 287, 294 (1939). have been enacted in Wisconsin Bruno v. The rule, versions of which and other states, "block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." Chapman v. California, 386 U.S. 18, 22 (1967). The error in Monahan's trial cannot be fairly characterized as "mere etiquette" nor minutiae of procedure. The error precluded him from presenting his defense with respect to the main issue at trial: ¶73 who was driving the car. Whether an error is harmless beyond a reasonable doubt is a question of law. See State v. Nelson, 2014 WI 70, ¶18, 355 Wis. 2d 722, 849 N.W.2d 317. The harmless error test is easily defined but difficult to apply. The test requires the State to prove "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" by showing "that a rational jury would have found the defendant guilty absent the error." State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 5 No. N.W.2d 434. The reviewing court looks at the effect the error had on the verdict. Id. we factors. consider examines: evidence; 2014AP2187-CR.rgb several (1) the (2) In applying the harmless error test, As importance whether there of is relevant the here, the erroneously evidence court excluded corroborating or contradicting the erroneously excluded evidence; (3) "the nature of the defense"; (4) "the nature of the State's case"; and (5) "the overall strength of the State's case." ¶74 Id., ¶27.2 Factor (1), the importance of the excluded evidence, cannot be disputed, particularly given the State's exploitation of it during closing argument. Monahan's only defense was that he was not driving at the time of this accident. evidence would have supported that defense. The excluded If all the GPS evidence had been admitted, the jury would have learned R.C. drove her car excessively fast. It would have shown that despite her unfamiliarity with the area, she drove far above the posted 55 miles per hour speed limit. Applying factor (1) demonstrates the harmfulness of excluding the GPS data. 2 The majority considers two additional factors——frequency of the error and whether the excluded evidence would have been duplicative. These extra factors are referenced in a 2012 case, State v. Martin, 2012 WI 96, ¶46, 343 Wis. 2d 78, 816 N.W.2d 270, cited by the majority. Majority op., ¶35. The list of factors considered under the harmless error test are nonexhaustive. See State v. Hunt, 2014 WI 102, ¶27, 360 Wis. 2d 576, 851 N.W.2d 434. In any event, the frequency-of-anerror factor is of limited value when the error was exclusion of evidence and thus I do not address it. As for the duplicative factor, the majority concedes that this favors Monahan as it is undisputed that exclusion of the complete GPS speed evidence was not duplicative of other admitted evidence. Majority op., ¶48. 6 No. ¶75 2014AP2187-CR.rgb As to factor (2), Monahan would have used the GPS evidence to show R.C. drove at high rates of speed. no evidence in the record to that effect. There was The State did not and could not present any direct evidence or eyewitness testimony to disprove Monahan's defense that R.C. was driving her car and refused to let anyone else drive it. The main evidence contradicting this defense was Parrott's supposition, bolstered by the driven State's so fast closing on argument unfamiliar that roads. R.C. never Admitting would all the have GPS evidence would have supported Monahan's defense and poked holes in the State's argument. Applying factor (2) illustrates how excluding this evidence was harmful. ¶76 Factor (3) looks to the nature of the defense. Monahan presented contrary expert witness testimony from his engineering the accident. expert, Paul Erdtmann, who reconstructed Erdtmann opined that it is impossible, based on the physical evidence, to discern who was driving at the time of the crash. Erdtmann refuted each of the Parrott's opinion that Monahan was driving. factors underlying Erdtmann presented a photo showing a woman of R.C.'s height could comfortably reach the controls to operate the same type of car with the driver's seat in the same position. Another photo showed that a man of Monahan's height would fit comfortably in the passenger side of the same type of car with the seat in the same position as the subject car's passenger seat. Erdtmann offered an explanation for the major and minor DNA located on the driver's airbag——the bodies were moving around during the rollover and both could 7 No. 2014AP2187-CR.rgb leave DNA on the airbag regardless of which seat each occupied. Moreover, State-witness, Dr. Robert Corliss, a forensic pathologist who performed R.C.'s autopsy, testified on crossexamination that, in a rollover accident during which the car's occupants were not wearing seatbelts and were ejected from the car, it is not possible to discern whether R.C. was in the driver's or passenger's seat. ¶77 Monahan explained he had also no testified memory of in the his own accident. defense. He He remembered leaving the party with R.C., who was driving him in her car. She had driven him to the party and she drove him after the party. He told the jury that he never drove R.C.'s car because she never let anyone else drive it. ¶78 One eyewitness testified R.C. was driving when the two arrived at the party. Two other No witness contradicted that testimony. independent eyewitnesses who were at the party testified they recalled R.C. driving when she and Monahan left the party. from the One remembered Monahan flashing a big smile at her passenger seat as the car drove away. The other testified that Monahan and R.C. walked by him on the way to her car and the witness saw R.C. get in the driver side and saw Monahan in the passenger seat. No witness contradicted that testimony. witness A third independent never let anyone drive her car. testified that R.C. No witness contradicted that testimony. ¶79 excluded The defense case was not weak, and admission of the GPS evidence certainly 8 would have strengthened it, No. lending credibility reasonable to doubt. Monahan's Applying 2014AP2187-CR.rgb testimony factor (3) and raising necessitates the conclusion that the erroneous exclusion was harmful. ¶80 Factors (4) and (5) each address the State's case and will be considered together. weak. Its accident The State's case was likewise not reconstructionist driver's seat at the time of the crash. put Monahan in the The State presented Monahan's multiple statements to the effect that he was driving through live statements. testimony of the eyewitnesses who heard the These statements consisted of (1) statements at the scene, (2) statements in the helicopter transporting him to the hospital, (3) statements at the hospital, and (4) statements after recovery. First, at the scene: When emergency personnel found Monahan in a cornfield, he was unconscious regained and unrecognizable. consciousness, he When repeatedly asked Monahan "what happened"; he did not know who he was or how many people were in the car or where he had been. asked him who was driving, but EMTs repeatedly received no answer. Monahan eventually responded, "I was driving, I guess." The Chief of Police, Richard Moyer, asked Monahan if there was anyone else in the car and Monahan said he did not know; when Moyer asked who was driving, Monahan responded that he did not know. Sergeant Darrell Morrissey testified that when he asked Monahan who was driving, Monahan said he did not remember or did not know. When Morrissey asked Monahan if there 9 No. 2014AP2187-CR.rgb was anyone else in the car besides R.C., Monahan answered he was not sure. Deputy Sheriff Paul Klang testified he asked Monahan if he was the driver and Monahan replied that he did not remember. When Klang told Monahan there was a female in the car, Monahan said, "I probably was driving, then." Monahan told coming from. Klang he did not remember where he was Klang also told the jury that he overheard Monahan say to an EMT or firefighter, "that is the last time I will drink and drive." An EMT, who was also a religious minister, testified he heard Monahan say "I fell asleep" and "I'll never drink again." Sheriff Deputy Michael Gorham testified he spoke with Monahan at the scene while Monahan was lying on a backboard and being tended to by emergency personnel. Gorham asked how many people were in the car. answered: Monahan "It depends who's asking" and subsequently said that he and "his girlfriend" were in the car. When Gorham asked who was the driver, Monahan said "I might have been, I guess." Gorham again approached Monahan, this time with a digital tape recorder to get a more definitive statement. When Gorham asked, "Were you the driver?", Monahan answered, "Yeah, I guess." Gorham told Monahan a fireman said he saw Monahan driving the car out of Shullsburg and asked "so you were the driver?" 10 Monahan replied, "Yeah, I No. guess." 2014AP2187-CR.rgb When Gorham asked, "You're not BSing or anything right?", Monahan answered, "I don't think so." The audio-recording was played for the jury and Monahan can be heard groaning in pain. Medical personnel interrupted Gorham's questioning to insert an IV. he was in pain. Monahan expressed Gorham resumed the questioning, asking if Monahan could "explain what happened," and Monahan replied, "No." Gorham pressed, "You don't remember how the crash occurred?" to which Monahan replied, "My tires went off the side of the road and I believe it was I lost control." [sic] When Gorham followed up by asking about the tires, Monahan asked, "Can we talk tomorrow?"3 ¶81 flight During the flight to the hospital, Monahan told the nurse and medic he remembered what driving and he was wearing his seatbelt. happened——he was Prior to the flight, Monahan had been given Fentanyl, a pain medication. ¶82 At the hospital, Monahan signaled to his nurse that he wanted paper and pencil. intubated. He could not speak because he was Monahan wrote he remembered the accident——he was going too fast over a hill and lost control. ¶83 During an interview with a state trooper ten days after the crash and after Monahan had been released from the hospital, Monahan said he had "no idea" who was driving at the time of the crash and he "did not have memory of the crash at 3 No firefighter testified to making the statement to Gorham and Gorham told the jury he was not able to locate the firefighter. 11 No. all." 2014AP2187-CR.rgb Monahan also told the trooper that the car belonged to R.C. and he had never driven her car. Five months after the crash, the state trooper interviewed Monahan again. Monahan told the trooper he still had no recollection of the crash. Monahan said R.C. was an aggressive, "kind of nuts" driver. trooper asked Monahan to give a DNA sample so it The could compared to physical evidence collected from the car. be Monahan agreed, saying, "It doesn't matter, you know, I wasn't driving." At the time of neurologist. this statement, Monahan was still seeing a He was not cleared to return to work until nine months after the accident. ¶84 The State's case relied on Monahan's statements, Parrott's reconstruction opinion, and the DNA airbag evidence. In addition, R.C.'s mother testified during the State's rebuttal case that R.C. drove as close to the steering wheel as possible.4 Although this Monahan, it evidence is by no is means certainly overwhelming. statements are far from conclusive. described as equivocal. sufficient Many of to First, convict Monahan's Most could be accurately his statements were given within minutes of a high-speed car crash, which caused serious injury, including immediate unconsciousness 4 and a later- The actual testimony was: "She would always have her seat as close up to the steering wheel as she possibly could." And when shown Erdtmann's photo she said: "The model is much farther back than [R.C.] would have been." 12 No. diagnosed head injury.5 only after being 2014AP2187-CR.rgb One of Monahan's statements was given told he was the driver. Many of these statements were given while Monahan was in severe pain. His statement in the helicopter admitting that he was driving was given at the same time he either lied or mistakenly stated he was wearing his seatbelt. ¶85 It could easily be discounted. Second, Parrott was not the only reconstructionist to testify at trial. Monahan's expert refuted Parrott's testimony in every regard. And, the jury heard that Parrott's report included false information. R.C. as the driver because Namely, his report said he excluded lab results analyzing window fragments did not contain R.C.'s DNA. the car's At trial, Parrott admitted that this was an error——no glass fragments were ever tested in this case. Parrott explained this mistake appeared in his report because he "cut and pasted" it from another report for a different "who was the driver" reconstruction case; he inserted R.C.'s name in place of the person from his other case. Moreover, Parrott's opinion that Monahan was driving was based on his comparison of Monahan's and R.C.'s shoes to what claimed were "little flecks" on the gas and brake pedal. he admitted he was not a footprint expert. he But, He conceded that Karley Hujet of the Wisconsin State Crime Lab, who performed the official analysis of the pedals and the shoes, was the footprint 5 Monahan's medical records show he had surgery on his spleen, was hospitalized for six days, and his injuries included traumatic shock, lung contusion, fractures to the cervical, lumbar, and thoracic vertebrae, rib fracture, and a concussion with loss of consciousness. 13 No. expert. 2014AP2187-CR.rgb Hujet testified that she could not conclusively say there was a footwear impression and in comparing the pedals to the shoes, she could not say who was driving. Parrott told the jury the reason he could opine that Monahan's shoes were on the pedals when Hujet could not was because Hujet was bound by industry standards, which did not apply to him. ¶86 Third, Monahan's expert gave an explanation regarding the DNA on the airbag, which refuted Parrott's opinion on seat position and dirt evidence. Parrott's reconstruction theory had R.C. ejecting from the car before the airbags deployed, leaving unanswered the question of why the driver's airbag had a second person's DNA on it. ¶87 Finally, R.C.'s mother's testimony that her daughter would drive with her seat as close to the steering wheel as possible cannot prove that R.C. did so while driving her car on the day of the crash nor can it establish that Monahan was driving. We simply do not know, and the mother's testimony alone cannot make the erroneous exclusion of the complete GPS evidence harmless. ¶88 There certainly are cases in which the State's evidence is so overwhelming and uncontested that a reviewing court can say, as a matter of law, the evidentiary error had no impact. But this is not one of those cases. Factors (4) and (5) do not demonstrate beyond a reasonable doubt that excluding the GPS evidence had no impact on the verdict or that the jury would have convicted Monahan absent the error. 14 No. ¶89 Application of the Hunt factors 2014AP2187-CR.rgb shows that the erroneous exclusion of evidence in this case was not harmless. This was a close case. Excluding the complete GPS data prevented Monahan from introducing evidence to corroborate his expert's opinion and his defense. At the same time, its exclusion allowed the State to persuasively argue in favor of its expert's theory. We do not know which theory presented with all the GPS evidence would believe. exclusion, exploited by the State in its a jury But, its closing, creates reasonable doubt as to whether a rational jury would have found Monahan guilty absent the error; the State has failed to prove "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Therefore, the error was not harmless and Monahan should get a new trial during which he can present the GPS evidence to support his defense. III ¶90 The trial court's erroneous exclusion of evidence prevented Monahan from fully presenting his defense, which is a constitutional error. A criminal defendant has a Sixth Amendment right to present his defense. Washington v. Texas, 388 criminal U.S. "right 14, to 18-19 present (1967) a (discussing defense, the right to defendant's present the defendant's version of the facts" so the jury can compare to the State's evidence version the to "decide defendant seeks where to the truth introduce, lies."). however, 'both material and favorable to his defense.'" "The must be State v. Ward, 2011 WI App 151, ¶16, 337 Wis. 2d 655, 807 N.W.2d 23 (quoting 15 No. 2014AP2187-CR.rgb United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). The evidence excluded in this case is material and favorable to Monahan's defense, satisfying both criteria. By excluding this evidence, the circuit court violated Monahan's right to present a defense. defend A new trial would give him a fair opportunity to against the State's accusations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations."). ¶91 The trial court committed a constitutional error in depriving the jury of evidence material to Monahan's defense and the majority errs in denying Monahan a new trial in which he could present it. Because it is far from clear beyond a reasonable doubt that a rational jury would have found Monahan guilty if it had heard the excluded evidence, I respectfully dissent. ¶92 I am authorized to state that Justices ABRAHAMSON and ANN WALSH BRADLEY join this dissent. 16 SHIRLEY S. No. 1 2014AP2187-CR.rgb