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Advocacy In DUI Cases – 6

Advocacy In DUI Cases – 6

The defense investigation suggests that the first person to speak to Mr. Simmons was Mr. James Yockey whose vehicle was also impacted in the collision. A portion of the interview with Mr. Yockey is as follows:

“I walked up to the door [of the bus] and I said, ‘Why did you do that? Why did you run through those lights? You ran through red lights; why were you speeding? You killed people.’ And he looked at me, and I could tell he was in shock, but he was physically all right and he did not look like he was injured. And if there was anything particularly wrong with him, other than being in shock at that moment. And he said to me, when I asked him why he ran the lights, why he was speeding, he killed people, he said he was just trying to take care of his people. And I said, ‘What?’ I said, ‘Man, you’ve killed people here. Don’t you understand what you’ve done? What were you doing? What were you thinking?’ He said, ‘I was just trying to take care of my people.’

The interview discloses that Mr. Yockey was also a medic in Vietnam and is certainly in a position to recognize a person in shock. After the wreck there was the odor of gasoline. Apparently, Mr. Simmons could not turn off the motor. Officer Crumby’s report indicates that he, Officer Crumby “proceeded to the bus because the driver was panicking about getting the motor off.” The officer and a fireman eventually found the fuse and cut the motor off in that fashion. Mr. Simmons was transported to Baptist Hospital. The emergency room physician made note that “the patient was a restrained driver of a bus which was driving into an intersection when another car plowed into it.” Of course this is certainly inaccurate, to say the least, but reflects what Mr. Simmons was thinking when he was at the hospital. Mr. Simmons was arrested later that evening for vehicular homicide. Officer Meihls spoke with Mr. Simmons in the booking room. According to this police report Mr. Simmons “also stated that he had taken the prescribed amounts [of medication] the previous evening, and to his knowledge, had not been in any type of medical distress prior to or during the crash.” Mr. Simmons is obviously confused. Mr. Simmons had taken medication in the morning when he had had his only meal of the day at approximately 9:00 a.m. Mr. Simmons did not have anything further to eat prior to the collision which occurred approximately eleven hours later. As to Mr. Simmons’ statement that he was not in any medical distress at the time of the wreck, suffice it to say that a person suffering a severe hypoglycemic episode is seldom aware of his or her condition.

The medical reports of Dr. Andrea Hayes and Dr. William Bernet are attached. Dr. Hayes is a physician specializing in endocrinology. As the Court will observe from Dr. Hayes’ Curriculum Vitae virtually all of her work has been in the treatment of diabetes. Dr. Hayes concluded that “Mr. Simmons was hypoglycemic at the time of his accident and that this event played a significant role in the events that occurred.”

Dr. Bernet is a psychiatrist at Vanderbilt. Based on the available documentation and in particular, the report of Dr. Hayes, Dr. Bernet concludes that Mr. Simmons “did not have full control of his behavior” as a “result of the hypoglycemia.” he defense asserts that this Court may find a factual basis for the statutory mitigating factors that Mr. Simmons was suffering from a “mental and physical condition that significantly reduce his culpability for the offense.” Further, this Court may find a basis for the other statutory mitigating factor that “although guilty of the crime, [Mr. Simmons] committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct.”


The sentencing guidelines indicate that Mr. Simmons is a Range I, Standard Offender which means that the span here is between one and two years for each count. The primary issue in this case will be whether Mr. Simmons should be placed on full probation supervision or, as the State will undoubtedly argue, whether Mr. Simmons should be incarcerated. T.C.A. §40-35-102(6) provides that a person who is convicted as a Standard Offender for a Class E felony is “presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” T.C.A. §40-35-103(4) provides that “the sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §40-35-103(6) provides that “trial judges are encouraged to use alternatives to incarceration.”

The State may argue that Mr. Simmons should be denied probation because of the enhancement factor that he allegedly had “no hesitation about committing a crime when the risk to human life was high.” T.C.A. §40-35-114. In State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995) the Tennessee Supreme Court found that the concept of “lack of hesitation” was similar to “reckless indifference” signifying a “conscious lack of concern for foreseeable consequences.”

Obviously this factor deals with reckless behavior where a person is aware of but disregards a danger. This could have no application to criminally negligent homicide where, by definition, the accused is not aware of the danger causing the harm. Thus, this aggravating factor would not apply here.

Wilkerson also addresses consecutive sentencing factors where it is alleged that a defendant is a “dangerous” offender, defined under T.C.A. §40-35-115 as an “offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life high.” Again, the Supreme Court made it clear that this consecutive sentencing factor dealt with someone who acted with “reckless indifference” which is conscious risk-creation. Moreover, Wilkerson was an instance of vehicular homicide by intoxication which is governed by vastly different policy considerations. Thus, consecutive sentencing is not appropriate here.

Unquestionably, this is a serious case. Two people were killed in this collision. The nature of the conviction, however, is not that of an intentional or even a reckless act. Because criminally negligent homicide (or involuntary manslaughter under prior law) involves non-intentional or non-reckless conduct, the standards for probation are different. In State v. Clifton, 880 S.W.2d 737 (Tenn.Cr.App. 1994) the defendant there was convicted of criminally negligent homicide by shooting through a wall when he heard what he believed to be intruders. The trial judge sentenced the defendant to two years and granted unsupervised probation for all but 28 days with 100 days of community service and restitution to cover the funeral expenses. The defendant appealed, contending that the trial judge should not have required him to serve the 28 days in confinement. The Court of Criminal Appeals addressed many of the sentencing factors discussed here and remanded the matter so that the defendant could be placed on full probation. The Court’s discussion is relevant here:

“We recognize that the unlawful killing of another human being is generally viewed to be more serious, for sentencing purposes, than many other criminal acts. See, e.g., Kilgore v. State, 588 S.W.2d 567 (Tenn.Crim.App. 1979). However, in State v. Travis, 622 S.W.2d 529, 535 (Tenn.1981),our Supreme Court concluded that an involuntary manslaughter conviction resulting from an act occurring without any actual intent to harm would not ordinarily reflect such a violent or heinous crime as to preclude, by itself, a grant of probation. We conclude that the defendant’s offense was not sufficiently aggravated so as to outweigh the evidence supporting suspension of his entire sentence.As to the states’ contention that split confinement was appropriate as “shock probation,” we acknowledge that cases exist in which a short period of confinement is particularly suited to address sentencing principles dealing with the need for confinement, for rehabilitation, and for appropriate use of alternatives to confinement. However, it is not necessarily warranted in every case. Under the circumstances in this case, we see no sufficient reason to justify a requirement of a period of confinement.” (State v. Clifton, 880 S.W.2d 745, 746 (Tenn.Crim.App. 1994).

This case cites State v. Travis, 662 S.W.2d 529 (Tenn. 1981). An examination of Travis indicates that that case was an involuntary manslaughter conviction involving an automobile which went out of control and struck a tree. The cause of the wreck apparently was excessive speed. The trial judge denied probation but the Supreme Court reversed and remanded for the reasons addressed in Clifton, which apply with equal force here.

In determining the appropriate punishment this Court should not only consider Mr. Simmons’ medical condition at the time of the offense but also his current health situation. The doctors will testify that Mr. Simmons suffers from a multitude of health-related medical problems. He is now on insulin and will be required to take that medication for the rest of his life.6Another issue concerns the question of restitution. T.C.A. §40-35-304 provides that the Court may require restitution to be paid to the victim’s next-of-kin. This would include such matters as funeral expenses.

As the Court might imagine, there have been a multitude of lawsuits filed in this case. Mr. Mund’s family has filed a lawsuit in federal court which is currently pending. Mr. Aingworth has also filed a suit in federal court for his injuries. These lawsuits against the employer should be successful given that Mr. Simmons has now pled guilty to criminally negligent homicide. It is probable that the remaining civil litigation will now revolve around the issue of damages as opposed to the question of liability. As the Presentence Report notes, the civil suit involving Mr. Gasho has been resolved with a confidential settlement. Counsel will provide the Court with in camera documentation concerning that significant sum. Mr. Reed’s suit pending in circuit court has recently also been settled. Thus, restitution should not be an issue here since it has been or will be accomplished through the companion civil cases.

In summary, the defense respectfully requests that this Court permit Mr. Simmons to be on probation supervision for the duration of his sentence. He has lost much by these convictions. He lost his job. He will be a convicted felon for the rest of his life. The conviction will preclude Mr. Simmons from challenging his termination from his employment, thus precluding his retirement benefit which took him 30 years to acquire.

This is a matter uniquely within the discretion of this Court. The statutes and cases governing this issue authorize this Court to grant probation. The facts and circumstances here are highly unusual. The mitigating factors are profound. Thus, this Court should grant probation under such terms and conditions as this Court believes are appropriate.

Respectfully submitted,

Raybin & Weissman P.C.