STATE of Maryland v. Michael James KRAMER
No. 73, Sept. Term, 1989
Court of Appeals of Maryland
Feb. 13, 1990
569 A.2d 674
Julia Doyle Bernhardt, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for respondent.
Argued before ELDRIDGE, COLE, RODOWSKY, MCAULIFFE and ADKINS, JJ., HOWARD S. CHASANOW, Judge * Specially Assigned and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned, JJ.
CHARLES E. ORTH, Jr., Judge, Specially Assigned.
The life of Sue Wharton Miller was snuffed out in an automobile accident on a rural road in Cecil County, Maryland, shortly before midnight on December 5, 1987. The accident was investigated by the Maryland State Police. The investigation led to a criminal information which presented that Michael James Kramer committed the crime of manslaughter of Mrs. Miller by automobile (first count), three traffic violations related thereto (counts two, three, and four—reckless driving, negligent driving, and passing in a no-passing zone), and the offense of driving a motor vehicle not covered by required security (fifth count). The pretrial maneuvering focused on a motion by Kramer to
The Court of Special Appeals reversed the judgments and remanded the case for new trials. Kramer v. State, No. 945, September Term, 1988, filed 26 April 1989, unreported. The court concluded that Kramer “suffered significant prejudice when the [trial] court refused to sever the two charges against him.” Slip opinion at 2. Although we disagree in part with the judgment of the Court of Special Appeals, we agree with its conclusion regarding prejudicial joinder. In reaching that conclusion, however, we travel a different path than that followed by the Court of Special Appeals.
I
Maryland Code (1977, 1987 Repl.Vol.), Title 17 of the Transportation Article (TR) concerns “required security.” Subsection (a) of
[a] person who has knowledge that a motor vehicle is not covered by the required security may not:
(1) Drive the vehicle.... 1
(a) In general.—The [Motor Vehicle] Administration may not issue or transfer the registration of a motor vehicle unless the owner or prospective owner of the vehicle furnishes evidence satisfactory to the Administration that the required security is in effect.
(b) Owner to maintain required security.—The owner of a motor vehicle that is required to be registered in this State shall maintain the required security for the vehicle during the registration period. [Emphasis added.]
It is perfectly clear that the “required security” prescribed by Title 17 must be maintained only on “a motor vehicle that is required to be registered in [Maryland].” Nationwide Mutual Ins. Co. v. USF & G, 314 Md. 131, 135-136, 550 A.2d 69 (1988). Were it otherwise, for example, the operator of a motor vehicle registered in a sister state which did not require compulsory insurance, or which required less security than Maryland, would have to stop at the Maryland border and obtain the “required security”
(a) In general.—A nonresident may drive or permit the driving of a foreign vehicle in this State, without registering the vehicle in this State, if:
(1) At all times while driven in this State, the vehicle:
(i) Is registered in and displays current registration plates issued for it in the owner‘s place of residence; and
(ii) Carries as provided in
§ 13-409(a) of this subtitle, 2 a current registration card issued for it in the owner‘s place of residence; and(2) Except as otherwise provided in this section..., the vehicle is not:
(i) Used for transporting persons for hire, compensation, or profit;
(ii) Regularly operated in carrying on business in this State;
(iii) Designed, used, or maintained primarily for the transportation of property; or
(iv) In the custody of any resident for more than 30 days during any registration year.
The fifth count of the information was drawn under
unlawfully did drive a vehicle which was not covered by required security while having knowledge that said vehicle was not covered by required security.
At the time the information was filed, the authorities knew that Kramer was a resident of Pennsylvania, that the
“Basic to our theory of justice is the principle that there can be no punishment for harmful conduct unless it was so provided by some law in existence at the time.” Clark & Marshall, A treatise on the Law of Crimes 11 (7th ed. 1967). This is expressed in the maxim nullum crimen sine lege, nulla poena sine lege (no crime or punishment without law). W. LaFave & A. Scott, Criminal Law 8 (1986). “[T]he maxim cuts deeply into the judicial process....” R. Perkins & R. Boyce, Criminal Law § 106 (3d ed. 1982).
Trooper First Class Ralрh G. Pierce of the Maryland State Police learned that the Pennsylvania license tags on Kramer‘s automobile had been issued by Pat‘s Auto Tags, a Pennsylvania licensing authority in Philadelphia. He procured a copy of the form completed by Kramer which was necessary to obtain the tags. It stated that the vehicle was insured by the Erie Insurance Group and gave the policy number. Pierce contacted Michael Gannon, an investigator for Erie whose duties were to investigate “suspicious insurance claims.” Pierce asked Gannon to ascertain if Michael Kramer or Robert Kramer (Michael‘s father) was or had been insured by Erie. Gannon determined thаt
there was no insurance by either individual at any time and also the number supplied me was not an insurance policy number.... It was not a correct number.
“These individuals are not and have never been policy holders with the Erie Insurance Company.” Gannon so testified and a letter to this effect from Gannon to the Maryland State Police was admitted in evidence. Subsequently, in a statement Kramer gave Pierce, Kramer said that he had found an insurance certificate in an automobile in a junk yard. It was the name of the insurance company and policy number on that certificate that he gave the licensing authority to obtain the registration and license tags. All of this was admitted in evidence.
Potential prejudice is the overbearing concern of the law of this State with respect to the question of joint or separate trials of a defendant charged with criminal offenses. We have observed that joinder may be prejudicial to a defendant in three important aspects:
Prejudicial Joinder.—If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice required. 4
We believe it to be self evident that, as to the manslaughter charge, the рotential prejudice in all three of the McKnight aspects arose from the insurance charge. That charge and the evidence with respect to it were permitted to go before the jury in the mistaken belief that the insurance offense was a crime. The lengths Kramer went to in order to register his automobile and obtain license plates for it—the fraud and deceit he practiced in taking a certificate from a junked car and submitting the name of the insurance company and policy number thereon to the licensing authority—not only could seriously affect his credibility in the eyes of the jury, but tended to show that he had a criminal disposition. The evidence with respect to the insurance charge
II
In disposing of the appeal, the intermediate appellate court deemed it advisable to address another contention raised by Kramer—that the evidence was insufficient to prove he was guilty of manslaughter by automobile—“for possible guidance of the trial court should a double jeopardy plea be interposed before the trials of the indictments on remand.” The court declared:
With respect to both convictions, we have reviewed the evidence and we hold that it was legally sufficient to support the convictions.
Kramer v. State, supra, slip opinion at 3. We granted a cross petition filed by Kramer asking that we review the sufficiency of the evidence to sustain his conviction of manslaughter by automobile.
A
We reprise in condensed form the evidence adduced at the guilt stage of the trial. Route 213 in Maryland around the scene of the accident is a two-lane road in a rural environment running approximately north and south through open fields and some wooded areas. Where the accident occurred the road curved slightly—an investigating officеr characterized it as a “radial curve“—and the northbound and southbound lanes are separated by two solid parallel yellow lines, indicating a no-passing zone. Each lane is bordered on its right by a dirt shoulder.
Two cars were involved in the collision—Kramer‘s car, a 1979 Oldsmobile 98, equipped with a “350 engine and a 4-barrel” carburetor, which he had bought two weeks previously, and the car of William F. Miles, a 1979 Fiat, 4-door hatchback. A third car, that of Daniel Lee and his wife, Andrea, was involved, but not in the actual collision. Kramer was driving the Olds and there were five passengers. Anthony Brooks, 18 years old, occupied the right side of the front seat. Between him and Kramer was Tina Papavisini, 18 years old. James Simms, 18 years old, was in the right rear seat. His girlfriend, Renee Trott, 18 years old, was
Trooper First Class John Heckner of the Maryland State Police was a traffic homicide investigator, accepted as an expert in vehicle accident reconstruction. He had investigated some 100 accidents a year for the past 20 years. The no-passing zone started four tenths of a mile north of the accident and continued all through the accident scene. Despite the “radial curve” in the road, there was “clear visibility” in passing a car in that area. The first indication
When Trooper Pierce interviewed Kramer at the hospital shortly after the accident, Kramer executed a brief statement. It read:
I was coming down the highway. I saw a car in front of me slow down really fast. I tried to avoid the car. As I did another car was coming in the other direction and we hit.
Q. Were you passing at the time?
A. Yes to try to avoid the car in front of me.
Q. How fast were you traveling?
A. About 55 mph.
Q. Were you aware of the yellow lane indicating no passing?
A. No, I wasn‘t.
About two months later, Pierce interrogated Kramer further. At first his version followed that of the prior statement, adding that he smelled alcohol on the breath of the woman driving the car in front of him. But when told of Mrs. Miller‘s death and was asked: “Is the first story a lie as to what happened?” he answered, “Yes, I was scared.”
The passengers in Kramer‘s car indicated that his driving was “normal,” and that he was not speeding. Shining through their testimony, however, was that none of them was really paying any attention to what was going on immediately before the accident. Papavisini said that she and Brooks were talking, playing with the radio: “We were like, messing around, arguing what station we wanted on the radio,” which was on her and Brooks‘s lap. Trott and Simms testified that they were arguing about a chocolate Frosty that had spilled over her pants and were trying to clean it up. Berry said before the accident she was listening to the radio and looking out the window. In rebuttal, Miles denied that he had ever swerved to his left—he went to his shoulder and then headed more right, “I wanted to get out of the way.” Both Mr. and Mrs. Lee said that the Kramer car never swerved toward the southbound lane; it kept going to the left toward the northbound shoulder.
B
(1)
As we have seen, the judgment which Kramer would have us overturn here was entered upon his conviction of manslaughter by automobile.
Every person causing the death of another as a result of the driving ... of an automobile ... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as “manslaughter by automobile....”
Our decisions have uniformly interpreted this statute as requiring proof of gross negligence, which has been defined in this context as a wanton or reckless disregard for human life. Abe v. State, 230 Md. 439, 440, 187 A.2d 467 (1963); Johnson v. State, 213 Md. 527, 531, 132 A.2d 853 (1957); Lilly v. State, 212 Md. 436, 442, 129 A.2d 839 (1957); Clay v. State, 211 Md. 577, 584, 128 A.2d 634 (1957); Duren v. State, 203 Md. 584, 588, 102 A.2d 277 (1954). See Nast v. Lockett, 312 Md. 343, 350-352, 539 A.2d 1113 (1988). In each case, as a matter of law, the evidence must be sufficient beyond a reasonable doubt to establish that the defendant was grossly negligent, that is, that he had a wanton or reckless disregard for human life in the operation of an automobile. It deals with the state of mind of the defendant driver. Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind. Simple negligence will not be sufficient—even reckless driving may not be enough. Reckless driving may be a strong indication, but unless it is of extraordinary or outrageous character, it will ordinarily not be sufficient. Id. at 351-352, 539 A.2d 1113.
(2)
The case at hand focuses on speed. Three and a half decades ago we observed in Duren v. State, 203 at 590, 102 A.2d 277:
It is plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Speed in the open country on a four lane highway may be very high and not constitute negligence. A much lower rate of speed in a city street may constitute gross negligence. This, too, was the law long before automobiles existed.
Id. at 591, 102 A.2d 277. We quoted the Supreme Court of Illinois in its case of Belk v. People, 17 N.E. 744 (1888):
There can be but little distinction, except in degree of criminality, between a positive intent to do wrong and an indifference whether wrong is done or not ... As a rule, the care required is to be proportioned to the danger; hence driving rapidly in an open country highway may not be negligence, while the same character of driving in a thronged street or thoroughfare, or where there is known hazard to others, may be negligent in the highest degree.
Duren, 203 Md. at 592, 102 A.2d 277. We found it obvious that
what must be looked for in each case is whether, by reason of the speed in the environment, there was a lessening of the control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another.
Duren at 592, 102 A.2d 277. We concluded:
If there is found such lack of control, whether by reason of speed or otherwise, in a place аnd at a time when there is constant potentiality of injury as a result, there can be found a wanton and reckless disregard of the rights and
lives of others and so, criminal indifference to consequences.
Id. We quoted from Duren in Lilly v. State, 212 Md. at 443, 129 A.2d 839, and we repeated the Duren quote in Lilly in Johnson v. State, 213 Md. at 532-533, 132 A.2d 853. See Clay v. State, 211 Md. at 584, 128 A.2d 634.
(3)
To determine the sufficiency of the evidence to sustain a conviction, we must ascertain whether the trier of fact could have found from the evidence or inferences drawable therefrom that the defendant was guilty beyond a reasonable doubt. We view the evidence and permissible inferences in the light most favorable to the prosecution. This standard is derived from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Branch v. State, 305 Md. 177, 182-183, 502 A.2d 496 (1986); Brooks v. State, 299 Md. 146, 150-151, 472 A.2d 981 (1984); State v. Rusk, 289 Md. 230, 240, 424 A.2d 720 (1981); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980); Wilson v. State, 261 Md. 551, 563, 276 A.2d 214 (1971); Royal v. State, 236 Md. 443, 448-449, 204 A.2d 500 (1964).
It is true that, ordinarily, speed alone may not be a sufficiently negligent act to support an inference of criminal intent. It is also true that here the speeding was in a rural environment. Regardless, considering the nature of the road, it is apparent, in the language of Duren, that the evidence was sufficient for the jury to find that “by reason of the speed in the environment, there was a lessening of the control of [Kramer‘s] vehicle to the point where such lack of effective control [was] likely at any moment to bring harm to another.” And, we believe it to be clear, that, the jury, weighing the speed in the light of the surrounding circumstances, could, again in the words of Duren, have found “such a lack of control, whether by reason of speed or otherwise, in a place and at a time when there [was] constant potentiality of injury as a result....” In addition to speed and lack of control, the factor of lack of attention
III
Our agreement with the reversal of the judgment entered on thе manslaughter by automobile charge was not by reason of insufficiency of the evidence but because of its prejudicial joinder with the insurance charge. Therefore, Kramer may be retried for the manslaughter offense.
When a criminal defendant takes an appeal and succeeds in having his conviction reversed on a ground other than the sufficiency of the evidence, the Fifth Amendment‘s Double Jeopardy Clause does not preclude a retrial of the defendant on the same charges.
Huffington v. State, 302 Md. 184, 189, 486 A.2d 200 (1985) (emphasis in original; footnote omitted).
In other words, the “Double Jeopardy Clause precludes retrial ‘once the reviewing court has found the evidence legally insufficient’ to support conviction.” Tibbs v. Florida, 457 U.S. 31, 40-42, 102 S.Ct. 2211, 2217-2218, 72 L.Ed.2d 652 (1982), quoting Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). Accord Greene v. Massey, 437 U.S. 19, 24-25, 98 S.Ct. 2151, 2154-2155, 57 L.Ed.2d 15 (1978); Mackall v. State, 283 Md. 100, 113-114, 387 A.2d 762 (1978).
Warfield v. State, 315 Md. 474, 502, 554 A.2d 1238 (1989).
AS TO COUNT ONE OF THE INFORMATION—MANSLAUGHTER BY AUTOMOBILE—JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED;
AS TO COUNT FIVE OF THE INFORMATION—DRIVING A VEHICLE WITHOUT REQUIRED SECURITY—
COSTS TO BE PAID BY CECIL COUNTY.
McAULIFFE, J., dissents.
McAULIFFE, Judge, dissenting.
I disagree with Part I of the Court‘s opinion, аnd with the result the Court has reached. Kramer was charged with a crime. He was charged with driving a motor vehicle with knowledge that the motor vehicle was not covered by the required security, a violation of
Except as otherwise provided in this section or elsewhere in the Maryland Vehicle Law, each motor vehicle driven on a highway shall be registered under this subtitle.
The State did not prove the charge of driving without the required security, and if Kramer had challenged that convic-
The question that this Court should have reached is whether the trial judge abused his discretion in denying Kramer‘s motion to sever the charge of driving without the required security from the remaining charges. Given the particular facts of this case, that becomes a close question. The trial judge was aware that the State‘s proof on the insurance charge would include the fact that Kramer fraudulently obtained registration for the vehicle in Pennsylvania by representing that he was insured when he knew that he was not. That fact would not have been admissible in a separate trial of the manslaughter and related charges, and it had a potential for improper prejudice against the defendant. These circumstances would have justified the granting of a severance. These circumstances did not, however, mandate the granting of a severance.
We are not dealing with the situation we faced in McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977), or in State v. Jones, 284 Md. 232, 395 A.2d 1182 (1979). Those cases involved the question of joinder of charges that were not part of a single transaction. Kramer‘s case involves the defendant‘s attempt to sever charges that did arise out of a single transactiоn. Under the clear language of the Court in Jones, this case falls within the exception to the general rule of non-joinder.
We repeat; there must be a causal relation or logical or natural connection among the various acts or they must form part of a continuing transaction to fall within the exception.
Id. at 244, 395 A.2d 1182.
Two or more offenses, whether felonies or misdemeanors or any combination thereof, may be charged in sepa-
rate counts of the same charging document if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Maryland Rules 4-203 and 4-253 closely follow Federal Rules of Criminal Procedure 8 and 14. Accordingly, we should find persuasive the interpretation given those Rules by the federal courts. Referring to Rule 14, Professor Moore states:
[T]he wаy the Rule is administered by the courts is to presume that if joinder is properly pleaded under Rule 8 then joint trials should follow. This places a heavy burden on a defendant moving under Rule 14 which is not satisfied by the claim that the defendant would have had a “better chance of acquittal” in a separate trial. (footnotes omitted).
8 Moore‘s Federal Practice § 14.02[1] (1983). The United States Court of Appeals for the Ninth Circuit has stated:
The test is whether joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court‘s discretion to sever.
United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977). The trial judge in this case balanced the expense, inconvenience and delay that would neсessarily be occasioned by separate jury trials against the possible prejudice that might result to the defendant from a single trial. He considered the fact that he could instruct the jury that they were not to consider any evidence bearing on the