MADISON — The Wisconsin Supreme Court Thursday upheld the 2013 vehicular homicide conviction of a Shullsburg man and his 10-year prison sentence, rejecting arguments that excluding GPS evidence denied Kyle Lee Monahan a fair trial.

By a 4-3 vote, the state’s high court found that Lafayette County Circuit Court Judge William Johnston’s decision to exclude GPS data recorded during the entire fatal trip taken by Monahan, 28, and his passenger Rebecca Cushman was a “harmless error.” 

During the trial, Monahan contended that Cushman was driving her 2001 Saab station wagon when it left Dunbarton Road, east of Shullsburg, on Aug. 20, 2011. The accident resulted in her death. Monahan went to trial, charged with homicide by intoxicated use of a motor vehicle.

The sole issue on appeal was Johnston’s decision to allow GPS data from only part of the journey. It was decided that only the final miles of the trip were considered during the initial trial.

According to the judge’s the opinion:

Cushman, 21, worked as a nanny in the Chicago area. She was visiting Monahan when they attended a party at his cousin’s farm. They both consumed alcohol at the party. When tested, Monahan had a blood-alcohol content of 0.14 and Cushman was 0.112.

Multiple witnesses testified that they saw Monahan in the passenger’s seat when they left the party with Cushman driving.

The couple stopped in Shullsburg for two minutes then continued. GPS data recovered showed the car was traveling at 96 mph when the driver lost control of the car. It rolled over onto the passenger side and continued on its trajectory, flipping several times. Monahan and Cushman were both ejected from the car.

Emergency responders located Monahan lying in a cornfield near the vehicle. Cushman died later that night.

At trial, jurors heard Monahan’s many conflicting statements to law enforcement and medical personnel as to who was driving the car at the time of the crash.

While still lying on the ground, he said “I was driving, I guess” to responding Shullsburg firefighter Timothy Corely.

Lafayette County Sheriff’s Deputy Paul Klang said he overheard Monahan say, “That is the last time I will drink and drive.”

But when Klang questioned Monahan, Monahan did not remember who was driving. When he was told a female also was in the car, personnel said Monahan responded he “was probably driving then.”

In a medical helicopter on the way to the hospital, Monahan said he was driving and at the hospital wrote a short statement that he was the driver.

Monahan testified at trial that he that he did not remember the accident or ever admitting that he was the driver.

Experts for the state and Monahan both testified that the passenger side window and sunroof were open, neither individual wore a seatbelt and blood identified as Monahan’s was found inside the car, indicating he was the driver.

Both used data from Cushman’s GPS unit to reconstruct the trip leading up to the accident and the crash itself. The state’s expert said that Monahan was the driver, while the defense expert said Cushman could not be excluded as the driver.

Before trial and on appeal, Monahan’s attorneys argued that GPS data for the entire trip would show the car was driven at a very fast rate before and after stopping in Shullsburg. That combined with the eyewitness testimony that Cushman was driving at the start of the trip would allow jurors to conclude that she was driving when the car crashed.

The state argued that Monahan drove after the stop in Shullsburg because Cushman was unfamiliar with the roads.

Johnston concluded that only the GPS data recorded after the stop in Shullsburg and until the crash occurred was relevant to the cause of the accident. Last year, the District IV Court of Appeals ruled that Johnston’s GPS decision was erroneous but the error was not significant enough to alter the jury’s guilty verdicts.

On Thursday, the majority of the state Supreme Court agreed, concluding that the evidence Monahan crashed the car was strong and the excluded GPS data was only a small part of the state’s case.

Instead, the majority found it was reasonable to assume Cushman was not the reckless driver given her unfamiliarity with the roads. Also, the state’s expert concluded the same based on where Cushman’s body was found at the accident scene, the position of the driver’s and passenger’s seats and Monahan’s blood found on the steering wheel air bag.

“Given the other evidence presented, and emphasized, by the parties, the GPS data would have been largely inconsequential to the verdict,” Wisconsin Supreme Court Justice Michael Gableman wrote for the majority.   

In her dissent, Justice Rebecca Bradley noted that excluding some GPS data was not a harmless error because it denied evidence to support Monahan’s defense. Instead, it allowed the state to contend without contradiction that Cushman would never have driven so fast on unfamiliar roads, she argued.

“The defense case was not weak, and admission of the excluded GPS evidence certainly would have strengthened it, lending credibility to Monahan’s testimony and raising reasonable doubt,” she wrote in a dissent joined by justices Shirley Abrahamson and Ann Walsh Bradley.