Michael Joseph Kramm v. State of Mississippi ( 2004 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-KA-01901-SCT
MICHAEL JOSEPH KRAMM
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/12/2004
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ROGER WAYNE WOODALL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE McCRORY
DISTRICT ATTORNEY: CONO A. CARANNA, II
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART; REVERSED AND
VACATED IN PART - 02/08/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1. Michael Joseph Kramm was indicted by a Harrison County grand jury in a three-count
felony indictment: (1) Count I: driving a motor vehicle while under the influence and causing
death, Miss. Code Ann. § 63-11-30(1)(a) and (5) (Rev. 2004); (2) Count II: driving a motor
vehicle with a blood alcohol level of .08% or more and causing death, Miss. Code Ann. § 63-
11-30(1)(c) and (5); (3) Count III: leaving the scene of an accident which resulted in the
death of another person, Miss. Code Ann. § 63-3-401(1) and (4). Kramm did not file a
motion to quash the indictment.
¶2. Kramm was convicted in the Circuit Court of the Second Judicial District of Harrison
County, Mississippi, on all three counts. Thereafter, the Honorable Kosta Vlahos sentenced
Kramm to twenty years on Count I and twenty years on Count II to be served concurrently.
He was also sentenced to five years on Count III to be served consecutively, for a total of
twenty-five years to serve in the custody of the Mississippi Department of Corrections.
¶3. Kramm filed a post-trial motion for new trial, which was denied by the trial court.
Kramm filed a motion for bail pending the outcome of his appeal and an addendum to the
motion for appeal bond with a hand-written letter from Kramm attached.1 The trial court
issued an opinion and order of the court denying Kramm’s request for bond pending the
outcome of the appeal.
¶4. Kramm now appeals his conviction and sentence to this Court.
FACTS
¶5. On the evening of December 4, 2002, several students from William Carey College,
Joseph Nunnally, Nick Mulvaney, Treacy Staunton, and two young females, referred to as
“Brin” and “Sinead,” went to the Grand Casino in Biloxi to enjoy a night out before the
Christmas holidays. Nunnally and Mulvaney were members of the men’s soccer team at
William Carey. Staunton, a native of Ireland, was a member of the women’s soccer team.
1
The motion for appeal bond is not in the court papers. However, the addendum is
contained in the court papers.
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Nunnally served as the designated driver, refraining from drinking any alcohol that evening.
The students decided to leave the Grand and meet some other soccer players at another bar.
¶6. Nunnally testified that he drove, and Staunton was seated in the back seat directly
behind him. The students were traveling in a Honda. While heading west on Highway 90,
Nunnally stopped at a red light at the intersection in front of Edgewater Mall. The vehicle
behind them, an SUV, did not stop and slammed into the back of the Honda. The other
vehicle then left the scene of the accident. The Honda was pushed through the median into
a light pole. Nunnally got out of the car and then pulled Staunton out of the car. Nunnally
testified that Staunton was bleeding from her mouth and her nose. Staunton did not speak.
All five of the students were transported to the hospital.
¶7. Dr. Donald Robert Doran, Jr., testified that he treated Staunton when she arrived at
the hospital. Dr. Doran testified that Staunton died from blunt force trauma to the head area
and stoppage of the heart. Staunton was pronounced dead when her heart would not restart.
¶8. Danielle Rose Yarbrough testified that she and her friend Paul Duane Ladner
witnessed the accident on Highway 90. Yarbrough was traveling in Ladner’s car down
Highway 90. Yarbrough had seen the SUV swerving in and out of the median before the
accident. The SUV went up an embankment and came back onto Highway 90. Yarbrough
testified that they did not have a cell phone so Ladner planned to pull into a gas station near
the mall to call the police regarding the erratic driving. However, before they could pull into
the gas station, Yarbrough saw the SUV slam into the back of a car. She testified that the
accident occurred at approximately 1:20 a.m. Yarbrough testified that the SUV did not slow
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down before the accident, and the driver did not hit the brakes. After the SUV left the scene
of the accident, Ladner and Yarbrough followed it until it pulled into the VA.2 After they
took the SUV’s tag number, they went back to the scene of the accident and informed the
police.
¶9. On December 4, 2002, Lee William Valencia was employed as a security guard
assigned to work the gate in front of the Armed Forces Retirement Home, located on
Highway 90. Valencia observed the driver of an SUV turn off the headlights while driving
slowly. The SUV turned into the gate to the Home. Valencia approached the SUV to inform
the driver that he was not authorized to be on the premises. The driver told Valencia that he
was looking for the admissions office at the VA. Valencia gave the driver directions, but the
driver “could not figure out a way to get out” of the parking lot. Valencia decided he should
call the main office for assistance. Valencia did not see the driver eat or drink anything.
¶10. Greg Connelly responded to Valencia’s call for assistance. The driver exited the
SUV, a Ford Explorer, when Connelly arrived. Connelly testified that the driver “appeared
to be drunk, and didn’t know how to leave out.” Connelly stated that the driver could
“hardly stand up” and was “disoriented.” Connelly smelled an “intoxicating beverage on his
breath,” and he observed blood on the driver’s face, trickling down from the lip area, and
“bloodshot red eyes.” The driver apologized for being so drunk and stated that he would
leave his vehicle and walk home.
2
Yarbrough referred to the retirement home as the VA.
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¶11. Connelly took the driver’s driving license, which was issued by the state of Texas.
Connelly removed the keys from the SUV’s ignition and put the vehicle in park. The SUV
had “heavy damage to the front end” which appeared to be fresh on the right passenger side
and glass inside the vehicle, along with beer cans on the floorboard on the driver’s side. The
driver told Connelly that he had been involved in an accident “about a mile east of our
location.” The driver did not eat, drink, or smoke anything while in Connelly’s presence.
Connelly refused the driver’s request to be allowed to smoke a cigarette. Connelly identified
the driver of the vehicle as Michael Kramm. Connelly testified that no one else was in the
vehicle with Kramm. The Gulfport Police Department was contacted for assistance.
¶12. Officer Nicholas Sonnier, Biloxi Police Department, responded to the accident scene
on December 5, 2002, at approximately 1:23 a.m. Only one car was in the median when he
arrived. He was provided a description of the other vehicle, a dark-colored SUV. He
advised dispatch that he was looking for a hit and run. Dispatch informed Officer Sonnier
that the Gulfport Police Department had a suspect vehicle at the retirement home. Officer
Sonnier arrived at the retirement home at approximately 1:40 a.m. The driver was advised
of his rights. Officer Sonnier identified Kramm for the record as the individual he
questioned.
¶13. Officer Sonnier testified that he detected a strong odor of alcohol coming from
Kramm’s breath as he spoke. Kramm had blood coming from his lip. Kramm’s speech was
slurred. He also swayed back and forth as he spoke. Based on his observations, Officer
Sonnier placed Kramm under arrest for suspicion of DUI and leaving the scene of an
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accident. Officer Sonnier helped Kramm walk to his patrol car. A videotape of the condition
of Kramm’s SUV was introduced into evidence.
¶14. Officer Sonnier transported Kramm to Biloxi Regional Medical Center to obtain
medical treatment for his lip and to draw a blood sample for a blood alcohol content test.
Officer Sonnier testified that he stayed with Kramm from 1:41 a.m. until the blood was
drawn at approximately 3:55 a.m. Kramm received stitches for his injuries. Officer Sonnier
testified that the Biloxi Police Department sent the hospital a blood sample kit. Once he was
advised that it was time to draw the sample, Officer Sonnier had a lab technician at the
hospital draw the blood. The blood sample kit was sealed and initialed by the lab tech and
Officer Sonnier, who mailed the blood samples to the Mississippi Crime Lab. Kramm told
Officer Sonnier that he was “sorry” and his insurance would cover the damages involved in
the accident. Officer Sonnier testified that Kramm was wearing an armband from the
nightclub Reflections.
¶15. Thomas Roberts, a phlebotomist at the Biloxi Regional Medical Center, testified that
he drew Kramm’s blood sample for the kit. Roberts stated that he labeled the vials with his
initials, placed security tape on the vials, and boxed and sealed the blood sample kit before
giving it to Officer Sonnier. Maury Phillips, section chief from the Implied Consent Section
of the Mississippi Crime Lab, testified that he was the forensic toxicologist who tested the
sample for the presence of alcohol. The blood sample contained an ethyl alcohol
concentration of .20 grams per percent. The defense’s witness, Patrick Demers, an expert
in forensic chemistry, testified that the fact that the blood alcohol level (BAC) was .20% at
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3:55 a.m. did not necessarily mean that the BAC had been higher than that at 1:20 a.m. He
testified that the two and a half hours between the time of the accident and when the sample
was drawn could result in significant differences in the levels. He stated he was not able to
determine the level at the time of the collision from the blood sample. However, Demers
stated on cross-examination that he could not testify that Kramm’s BAC was less than .08%
at the time of the collision. Kramm did not testify, however, the trial court conducted an
examination of Kramm outside of the jury’s presence to ensure that he understood he had a
right to testify as well as a right to not testify in his defense.
ANALYSIS
I. Whether Count I and Count II of the indictment, which resulted in
conviction and sentence under both counts, are the same crime.
¶16. Kramm was indicted on three separate counts, Count I and Count II both being under
Miss. Code Ann. § 63-11-30 (Rev. 2004). Count I of the indictment is pursuant to Miss.
Code Ann. § 63-11-30(1)(a), and Count II of the indictment is pursuant to Miss. Code Ann.
§ 63-11-30(1)(c). According to the record, Kramm did not file a motion to quash the
indictment before trial. Kramm argues that the two subsections described the same crime.
Kramm asserts that if both his convictions and sentences under Count I and II, along with his
conviction and sentence under III of the indictment, are allowed to stand, he will qualify as
a habitual status offender.
¶17. Miss. Code Ann. § 63-11-30(1) provides:
It is unlawful for any person to drive or otherwise operate a vehicle within this
state who (a) is under the influence of intoxicating liquor; (b) is under the
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influence of any other substance which has impaired such person's ability to
operate a motor vehicle; (c) has an alcohol concentration of eight
one-hundredths percent (.08%) or more for persons who are above the
legal age to purchase alcoholic beverages under state law, or two
one-hundredths percent (.02%) or more for persons who are below the legal
age to purchase alcoholic beverages under state law, in the person's blood
based upon grams of alcohol per one hundred (100) milliliters of blood or
grams of alcohol per two hundred ten (210) liters of breath as shown by a
chemical analysis of such person's breath, blood or urine administered as
authorized by this chapter; (d) is under the influence of any drug or controlled
substance, the possession of which is unlawful under the Mississippi
Controlled Substances Law; or (e) has an alcohol concentration of four
one-hundredths percent (.04%) or more in the person's blood, based upon
grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol
per two hundred ten (210) liters of breath as shown by a chemical analysis of
such person's blood, breath or urine, administered as authorized by this chapter
for persons operating a commercial motor vehicle.
(Emphasis added).
¶18. This Court previously has examined Miss. Code Ann. § 63-11-30(1)(a) and (c) to
determine whether the prosecution may proceed to trial under both subsections. Young v.
City of Brookhaven, 693 So. 2d 1355, 1357 (Miss. 1997). The Court interpreted the two
subsections as merely providing two different ways to prove a single violation. Id. at 1358.
The Court affirmed Young’s conviction, finding no error in the prosecution’s choice to
proceed under both subsections rather than electing to proceed under just one. Id. The Court
stated that “Miss. Code Ann. § 63-11-30 merely sets forth numerous methods of committing
the same crime.” Id.
¶19. However, unlike the case at hand, the Court in Young did not convict and impose
sentence under both subsections of Miss. Code Ann. § 63-11-30. Young, 693 So. 2d at 1358.
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Accordingly, Kramm is correct that his conviction and sentence under Count I and Count II
amounted to being convicted and sentenced twice for the same crime.
¶20. Having imposed a conviction and sentence under Count I, the trial court erred by
accepting the conviction under Count II and imposing a separate twenty-year sentence under
Count II. The trial court sentenced Kramm to serve a separate twenty-year sentence under
Count II to run concurrently with the twenty-year sentence imposed under Count I.
Therefore, the judgment of the trial court as to Count II is reversed and judgment rendered
to vacate the conviction and sentence imposed under Count II. However, Kramm’s twenty-
year sentence under Count I and five-year sentence under Count III, to run consecutively
with the sentence under Count I, for a total of twenty-five years in the custody of the
Mississippi Department of Corrections, is affirmed.
II. Whether the State meets its burden of proof on Count III.
¶21. Kramm argues that the State failed to prove that he was the driver of the SUV at the
time of the accident. The State asserts that there is no proof that Kramm was not the driver
of the SUV at the time of the accident. In Holloway v. State, 860 So. 2d 1244, 1246-47
(Miss. Ct. App. 2003), the court held:
A person may be arrested, tried, and convicted of operating a motor vehicle
while under the influence of an intoxicating liquor even if there is no
eyewitness presented who viewed the defendant operating the vehicle,
provided there is sufficient evidence. Horn v. State, 825 So. 2d 725 (Miss.
Ct. App. 2002). Reasonable doubt need not be removed about whether the
defendant had actually driven the vehicle prior to his discovery. Lewis [v.
State], 831 So. 2d [553, 558 (Miss. Ct. App. 2002)].
In Lewis, 831 So. 2d at 558, the court similarly stated the following:
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We hold that to be guilty of driving or operating a motor vehicle while
under the influence of drugs or alcohol, or with an illegally high blood alcohol
content, the person must be shown by direct proof or reasonable inferences to
have driven the vehicle while in that condition, or as in Jones [ v. State, 461
So. 2d 686 (Miss. 1984)] to be "operating" the vehicle while sitting behind the
wheel, in control with the motor running. Reasonable doubt need not be
removed about whether the defendant had actually driven the vehicle prior to
his discovery. Proof of the imminence of such driving by being the "operator"
of a vehicle that has its motor running is itself an offense even if the offender
has yet to move the vehicle.
Driving under the influence is a serious crime with serious risks to the
public. It may often be difficult to catch an offender in the act. He or she may
be discovered only after causing a horrendous accident or perhaps, as alleged
by the State here, only after the intoxication causes the driver to stop for
awhile. In order to avoid the former harm we do not believe that we have the
authority to relax the proof necessary to convict in the latter instance. Perhaps
intoxicated individuals in vehicles for whom no proof exists of past act or
future intent to move the vehicle should be guilty of some offense, such as
public intoxication if the vehicle is in a public place. Miss. Code Ann. §
97-29-47 (Rev. 2000). Being found alone in a vehicle alongside the road, even
when an excuse is later offered, may be sufficient to infer past driving. If the
motor is running, the separate element of operating the vehicle is proven.
¶22. Following the guidance provided in Holloway and Lewis, we conclude that the State
is not required to provide eyewitness evidence that Kramm was the driver of the SUV at the
time of the accident as long as it provides sufficient proof supporting a reasonable inference
that the defendant was driving the vehicle. See also Turner v. State, 910 So. 2d 598, 610
(Miss. Ct. App. 2005).
¶23. Kramm raised the State’s alleged failure to prove that he was the driver of the SUV
at the time of the accident in his motion for new trial. This Court has repeatedly held that a
motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So. 2d
123, 127 (Miss. 1999). A reversal is warranted only if the trial court abused its discretion in
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denying a motion for new trial. Id. In Bush v. State, 895 So. 2d 836, 844 (Miss. 2005), this
Court set out the standard of review for weight of the evidence:
When reviewing a denial of a motion for a new trial based on an objection to
the weight of the evidence, we will only disturb a verdict when it is so contrary
to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice. Herring v. State, 691 So. 2d 948, 957
(Miss. 1997). We have stated that on a motion for new trial, the court sits as
a thirteenth juror. The motion, however, is addressed to the discretion of the
court, which should be exercised with caution, and the power to grant a new
trial should be invoked only in exceptional cases in which the evidence
preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc.,
796 So. 2d 942, 947 (Miss. 2000). However, the evidence should be weighed
in the light most favorable to the verdict. Herring, 691 So. 2d at 957. A
reversal on the grounds that the verdict was against the overwhelming weight
of the evidence, “unlike a reversal based on insufficient evidence, does not
mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.
2d 800, 803 (Miss. 1982). Rather, as the “thirteenth juror,” the court simply
disagrees with the jury's resolution of the conflicting testimony. Id. This
difference of opinion does not signify acquittal any more than a disagreement
among the jurors themselves. Id. Instead, the proper remedy is to grant a new
trial.
¶24. Here, no new trial is warranted, as the jury’s verdict is consistent with the weight of
the evidence allowing the State the benefit of all reasonable inferences drawn from the
evidence. Sitting as the “thirteenth juror,” we find that the evidence and testimony, weighed
in the light most favorable to the verdict, support the jury's conviction.
¶25. Yarbrough testified that she witnessed the accident, which occurred at approximately
1:20 a.m. She testified that the SUV did not slow down before the accident and the driver
did not hit the brakes. The SUV left the scene of the accident. Yarbrough and Ladner
followed the SUV to where it pulled in at the retirement home. Yarbrough wrote down the
SUV’s tag number and then went back to the scene of the accident and informed the police.
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She did not testify that she observed a change of drivers in the SUV. At the retirement home,
Valencia testified that he observed the SUV pull into the parking lot with its lights turned off.
He told Kramm that he could not park there.
¶26. When Kramm did not leave, Valencia called for assistance. When Connelly arrived,
he spoke to Kramm and took his driver’s license from him and took the keys out of the
ignition. Kramm smelled of alcohol, could hardly stand up, and was bleeding. Connelly
observed the damage to Kramm’s SUV. Kramm apologized to Connelly for being so drunk,
and he told Connelly that he had been involved in an accident “about a mile east of our
location.” Connelly testified that no one else was in the vehicle with Kramm.
¶27. The security guards at the retirement contacted the police for assistance. Officer
Sonnier arrived at the retirement home at approximately 1:40 a.m. Officer Sonnier detected
a strong odor of alcohol coming from Kramm’s breath as he spoke. Kramm’s speech was
slurred, and he also swayed back and forth as he spoke. Officer Sonnier testified that Kramm
told him that he was “sorry” and his insurance would cover the damages involved in the
accident. Kramm did not tell Officer Sonnier that someone else was driving the SUV at the
time of the accident.
¶28. On the record, the weight of the evidence presented by the State supported the jury’s
verdict. Accordingly, we find that the trial court did not abuse its discretion in overruling
Kramm’s motion for a new trial.
CONCLUSION
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¶29. For the foregoing reasons, the judgment of the Circuit Court of the Second District
of Harrison County, Mississippi, is affirmed in part and reversed and vacated in part.
¶30. COUNT I: CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE
AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II:
CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND
SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, REVERSED AND VACATED. COUNT III:
CONVICTION OF LEAVING THE SCENE OF AN ACCIDENT AND SENTENCE
OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN
CONSECUTIVELY WITH THE SENTENCE IN COUNT I FOR A TOTAL OF
TWENTY-FIVE YEARS.
SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON
AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.
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