Sentencing Memorandum

Sentencing Memorandum

IN THE CIRCUIT COURT OF DAVIDSON COUNTY, TENNESSEE

DIVISION VII

STATE OF TENNESSEE Vs. JIMMY RAY SIMMONS — Case No. 99-T-77

SENTENCING MEMORANDUM

Mr. Jimmy Ray Simmons is before the Court for sentencing upon his guilty plea to two counts of criminally negligent homicide. The plea agreement contemplates that this Court has full discretion to impose any sentence within the statutory limits.(1)

Mr. Simmons is to be sentenced within Range I given that he has no prior convictions of any sort that would trigger sentencing into higher ranges. A Range I sentence for criminally negligent homicide is between one and two years.

While this Court has authority to impose incarceration, the relevant statutory guidelines, as well as the unusual facts and circumstances of this case, justify a finding that Mr. Simmons should be placed on probation supervision under such terms and conditions as this Court believes to be appropriate.

A.

There should be few, if any, factual disputes in this case. Mr. Jimmy Ray Simmons was employed by McDonald Transit Associates that provides drivers for the buses operated by the Metropolitan Transit Authority. On August 31, 1998, Mr. Simmons was driving a bus that went through a red light at 14th and Broadway and also went through a red light at 13th and Broadway. The bus initially collided with at least one vehicle and then veered into a lane of oncoming traffic. The bus rode over a Volkswagen, killing two of the occupants and injuring a third. Other vehicles sustained significant damage. Approximately eleven other people were hurt including individuals on the bus as well as one or more people in other vehicles.

It is also undisputed that Mr. Simmons is a diabetic. The defense will demonstrate through medical testimony that Mr. Simmons was suffering from hypoglycemia at the time of this event. Hypoglycemia (or low blood sugar) can produce various symptoms such as faintness, dizziness, and blurred vision. Obviously, this can affect driving performance by decreasing accurate perception.

The defense asserts two factors in mitigation. T.C.A. §40-35-113(8) provides that it is a mitigating factor that the “defendant, although guilty of the crime, was suffering from a mental or physical condition that significantly reduced his culpability for the offense.”

T.C.A. §40-35-113(11) provides in part that it is a mitigating factor that the “defendant, although guilty of the crime, committed the offense under such unusual circumstances, that it is unlikely that a sustained intent to violate the law motivated his conduct.”

The defense asserts that both of these factors are present here. Thus, this Court should exercise its discretion by sentencing Mr. Simmons to probation supervision. Mr. Simmons should not be incarcerated.

B.

Mr. Simmons is currently 58 years of age. He was born in Drew County, Arkansas. He grew up in Chicago, Illinois. Mr. Simmons graduated from high school where he was on the track team.

Mr. Simmons moved to Nashville after receiving a track scholarship to Tennessee State University. After several years of college he enlisted in the Army in 1965.

Mr. Simmons saw substantial combat. He served with the 101st as a medic in Vietnam. Mr. Simmons was awarded a medal for heroism. The specifications are as follows:

“For heroism in connection with military operations against a hostile force: Specialist Simmons distinguished himself by exceptionally valorous actions on 9 June 1967 in the Republic of Viet Nam. As Specialist Simmons, the platoon medic, landed on a landing zone during a heliborne assault, he observed a machine gunner badly sprain his ankle as he jumped from the helicopter. Taking immediate action, he administered the proper medical aid to the man and carried the man’s machine gun as he escorted him to the landing zone. As they approached the landing zone, they were suddenly brought under an intense volume of enemy fire. Realizing the necessity for immediate action, Specialist Simmons opened fire with the machine gun and with complete disregard for his own safety, charged through the enemy’s withering hail of fire and assaulted their position. He succeeded in overrunning their position and killing one enemy soldier. He then heard the cry of “medic” and he again rushed through the enemy fire to aid a wounded comrade. Throughout the battle, he moved all over the battle area treating the wounded, and in one instance undoubtedly saved a seriously wounded soldier’s life. Specialist Simmons devotion to duty and personal courage were in keeping with the highest traditions of the military service, and reflect great credit upon himself, his unit, and the United States Army.”

Mr. Simmons received an Honorable Discharge on January 20, 1968. On June 24, 1968, Mr. Simmons began working as a bus driver here in Nashville. He also finished college and graduated from TSU with a B.S. degree in 1972.

Mr. Simmons developed an adult diabetic condition in 1985.(2) On July 28, 1988, the physicians advised that Mr. Simmons’ diabetic condition required that he be treated with insulin. Mr. Simmons then took disability retirement effective September 1, 1988 at the age of 47 with 20 years of service. He then sold insurance for a time.

In 1991 Mr. Simmons returned to work as a bus driver because the doctors found that Mr. Simmons had adequate control of the sugar level through the use of an oral non-insulin medication. The relevant medical documentation is attached to this memorandum.

Mr. Simmons had a serious bus accident on April 30, 1992. The attached documentation from the MTA advises that:

“One of my drivers, Jimmy Simmons, had a diabetic episode today that rendered him incapable of safely operating a bus. Unfortunately he was driving at the time, and we are very lucky to have avoided a major accident. He was cited for reckless driving.”

This Memorandum includes a defense interview with a witness to the 1992 accident. The interview is relevant as to what happened in the prior accident and, in particular, of the witness’ description of Mr. Simmons:

Mr. Michael Lewis: Ah but there were, there must have been a half dozen people, close to a half dozen people that witnessed this situation.

  [Investigator] Wells: Oh really?

Lewis: Yeah. And there’s also, what he did was went through a construction site. They were repairing the street and they had a flagman out and everything. Two flagmen in fact.

Wells: And he went through it.

Lewis: Yeah. He went through it, he had a huge ah skid marks on the pavement where the bus had nearly overturned and he managed to avoid everybody except one little ol’ gal that he tapped the tire on her car an there was no damage by that. It was just a miracle that he kept from killing somebody.

Wells: Were you the only one that showed up for court that day?

Lewis: Right.

Wells: They notified everybody else and told them not to come.

Lewis: I would assume they notified everybody but ah I was the only one that showed up.

Wells: Okay. Then they failed to notify you?

Lewis: Right.

Wells: Okay ah was it in the summer time or?

Lewis: Yeah.

Wells: Okay.

Lewis: In fact ah what really surprised me is during this whole thing everybody else was sweating up a storm and here’s Jimmy Simmons just sitting there and not breaking a sweat and I said there’s something wrong with this guy.

Wells: Uh-huh. Did you see him personally face to face?

Lewis: Yeah. Yeah. He was sitting in his bus ah pulled over to the side of the road almost in the ditch and ah I told him, I said can you call your supervisor and ah, and, I think we have a problem here and he acted like he didn’t know anything and I assume he didn’t.

Wells: So he was incoherent?

Lewis: Yeah cause he tried to start his bus up and pull on out.

Wells: So he was incoherent then?

Lewis: Yeah.”

Two physicians advised that Mr. Simmons could go back to work after five days. The medical documentation is attached. The documentation also includes the following letter to Mr. Simmons from his employer, a full copy of which is attached:

“To follow up on our conversation of yesterday, your return to work is conditional on your personal ability to follow doctor’s instruction on diet and exercise. Your doctor says your condition is controllable and only you are in control. Any recurrence will be a consequence of your own causing and will leave the company limited latitude but indefinite suspension or termination. I truly hope that your health remains good, because that is what is really important to you and the company. I am glad that this incident turned out so positively.”

The attached documentation includes medical reports from 1993, 1994, 1995, 1996, and 1997. In general, the doctors continue to treat Mr. Simmons for his diabetes.

Mr. Simmons had a full physical on or about June 30, 1998. Dr. Daniels’ letter of June 30, 1998 is among the papers enclosed and the Court will see that Dr. Daniels advises Mr. Simmons that “I want to keep your sugar consistently between the 115 and 120 range if at all possible.”

Jumping ahead a little bit, the attached documentation includes the first page from the Baptist Hospital records indicating that about an hour after the current 1998 bus collision Mr. Simmons’ sugar level was approximately 73. After the wreck, Mr. Simmons ate some candy mints which he carried with him. This raised his blood sugar before he was transported to Baptist. The doctors will testify that adrenaline will elevate blood sugar even further and certainly that occurred as a result of this bus collision. Thus, the 73 reading at Baptist demonstrates a depressed blood sugar level which was significantly lower at the time of the bus wreck occurring an hour earlier.

Moving back to the medical documentation, the Court will find that after the visit of June 30, 1998 Mr. Simmons returned several times to Dr. Daniels since there was some alteration and modification of his medication. There was another visit to the doctor’s office on July 8, 1998, another on July 16, 1998, and another on July 22, 1998.

Mr. Simmons was seen yet again on August 21, 1998. Dr. Daniels’ final office note is as follows:

“Because of the low sugar, even though he has had no hypoglycemia symptoms, we are cutting his glucotrol back to 5mg twice a day. Phone call and message to him about [this], together with asking him to have a follow up sugar this week. He is to report to me immediately any symptoms of hypoglycemia.”

The fatal bus collision occurs just ten days later.

The attached documentation includes an article provided by Dr. Hayes which deals with hypoglycemia. Significantly, onset of hypoglycemia can occur without warning when an individual has long-term diabetes. The defense physicians will testify that typically an individual may become cognizant of the onset of hypoglycemia (and take precautions) but that there can be an episode where the person does not recognize the symptoms or goes immediately into a hypoglycemic episode which starts with drowsiness, leading to confusion and subsequently a possible coma if severe enough.

“The neuroglycopenic symptoms of hypoglycemia are those attributed directly to a slowing of higher brain function, including drowsiness, confusion, inability to concentrate and/or speak clearly, and irritability. These, together with feelings of warmth, are not affected by autonomic blockade. Traditionally, it is assumed that the autonomic symptoms occur at a slightly higher blood glucose concentration (i.e., earlier) than the neuroglycopenic symptoms and are thus the classic “early warning symptoms” of hypoglycemia. However, many diabetic patients depend on the latter symptoms to alert them to the situation. As long as some of these symptoms are generated at a time when sufficient cognitive and motor ability remain for the patient to recognize them and take appropriate action, he/she is protected against the more profound fall in blood glucose that causes clinically serious loss of brain function (less than 3 mmol/L). Such symptomatic episodes are unpleasant, but the danger lies in the failure to generate symptoms in response to relatively mild hypoglycemia. If symptoms are absent, there is an increased risk of plunging into profound hypoglycemia with cortical dysfunction that is evident to observers but not to the patient. Severe hypoglycemia is often embarrassing and socially disabling because the patient may behave illogically and uncharacteristically. At worst, injury and even death can result, either from loss of concentration while doing something dangerous or (probably very rarely) from prolonged and/or very severe hypoglycemia.” Amiel, Hypoglycemia Without Warning: A Dangerous but Reversible Phenomenon?, The Endocrinologist (1994).

On August 31, 1998 Mr. Simmons was on a new route which, significantly, had different work hours. Mr. Simmons had no lunch and had no dinner. Bus drivers, like police officers, get no specific break. In summary, Mr. Simmons had been on this route for about six hours with no food and his blood sugar got low and he had the hypoglycemic episode.

C.

As has been noted, Mr. Simmons was employed as a bus driver for almost 30 years. In the year preceding the bus collision, Mr. Simmons worked as an “extra board” driver. This meant that he substituted for other drivers who were sick or were on vacation. Thus, his hours and route varied almost every day.

As an “extra board” driver Mr. Simmons reported to work anywhere from 4:30 to 9:00 in the morning. He worked between 6 and 14 hours a day.

On August 31, 1998 Mr. Simmons was assigned a permanent route as “night driver.” This route covered various streets. In the evening the route would change and would pick up routes from other buses as the number of passengers would decrease. Significantly, however, the new “night route” required that Mr. Simmons get to work at 2:15 in the afternoon and drive the bus for 9 hours.

As noted, the various directions that the bus would travel changed during the evening. On the late evening “trip” the bus would leave from the shelter across the street from First American Bank and would go up Charlotte and would turn left on White Bridge Road. The bus would then travel down White Bridge Road and take a left on Harding and go down West End. The bus was scheduled to go down West End and Broadway and take a right on 14th by Beaman Pontiac. The bus was then to go around to Demonbruen, up to the Clement Landport and then back around into town to the bus station by First American, arriving there at 8:15 p.m.

Mr. Simmons began his new route on August 31st, and, as noted, he had no lunch and no dinner. The bus company does not factor in meal breaks and the drivers catch something to eat when they can or they eat on the bus. As Dr. Hayes’ report discloses, the failure to have any food during the afternoon and evening contributed significantly to Mr. Simmons’ low blood sugar.

As Mr. Simmons was coming down West End and Broadway he should have turned right on 14th. He did not. The police report discloses that he went straight through the intersection. Significantly, the light at 14th and Broadway had been red for at least five seconds before the bus went through that intersection.

The accident report also discloses that the light at Broadway and 13th turned red for Broadway traffic just after the bus crossed the intersection at 14th Avenue.

Traffic on 13th had already proceeded into the intersection as the bus approached at perhaps 50 miles per hour.(3) Mr. Blackwell’s vehicle had already gone through the intersection just as the bus narrowly passed by. However, another vehicle, being operated by Mr. Reed was struck by the bus.(4)

The police report indicates that the impact caused the bus to go left into the oncoming lane of traffic on Broadway in front of Hippodrome. The Volkswagen containing Mr. Mund, Mr. Gasho, and Mr. Aingworth was then struck and the bus literally rode over that vehicle. Mr. Mund and Mr. Gasho were killed and Mr. Aingworth was trapped in the vehicle for a time.

The report indicates that two other vehicles were struck near Hippodrome but fortunately none of the drivers or their passengers were seriously injured.

The attachments include a transcript of the first 911 call. From the context of the conversation with the 911 dispatcher it is evident that the call is made probably just a few moments after the bus came to rest since the caller reports that individuals are still in the bus and are jumping out of the bus. The transcript reflects that the call is received at the Police Department at 8:03:34 p.m. The caller reports that the bus “skidded all the way across the bridge [over the interstate].” The drawings contained in the accident report show the path of the various vehicles and, in particular, the path of the bus as it entered the intersection at 13th and Broadway.(5)

While there are some contrary police reports, there are many witnesses who observed Mr. Simmons both before and after the collision who indicated that Mr. Simmons was disoriented.

Mr. Nelson (a passenger on the bus) testified at the preliminary hearing that he heard Mr. Simmons talking to someone after the wreck: “All I remember him saying was that he said there was a car coming at him and then there were cars coming from every direction.” Ms. Spencer, another bus passenger, testified at the preliminary hearing that Mr. Simmons “was in a daze or something.”

We know from the reports of the witnesses that Mr. Simmons got off the bus immediately after the collision and then got back on. The police report from Tracy Easley states as follows:

“Easley was a rear (passenger side) passenger in the bus, and had boarded at 7:45 p.m. at the Nashville Tech campus on White Bridge Road. He said that the bus began to speed up going down the big hill on Broadway approaching the interstate, then hit a white car that was crossing Broadway (on 13th Avenue). Then he stated that the bus bounced before coming to a stop. Easley had to kick a window out in order to exit the bus, and then went to the aid of bus driver who was lying in the stairwell area of the bus and being trampled by the other passengers.”

Another bus passenger Tramaine Burns, advised in her police report that:

“Ms. Burns said that the driver got off of the bus and never checked to see how any of the bus passengers were. She added that she had ridden with this same driver before, and he never had driven like this.”

Mr. Richard Kolinski testified at the preliminary hearing that:

“And I mean people had already jumped out of the bus windows. I instinctively ran to the front of the bus to make sure whoever was driving the bus didn’t get away, and I saw the bus driver walking back up the stairs. And that was the only time I saw the bus driver.”

The investigating police sergeant interviewed Mr. Simmons after Mr. Simmons had gotten back on the bus. At the preliminary hearing Sgt. Carter testified that Mr. Simmons said he was speeding and ran the light. This officer was certainly not the first person to speak to Mr. Simmons given that the officer did not get to the scene until four to five minutes after the wreck.

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.”

The 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.”

D.

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.(6)

Another 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.

E.

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.(7) 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.

David L. Raybin, B.P.R. No. 3385

Attorney for Defendant

Suite 2200, Fifth Third Center

424 Church Street

Nashville, Tennessee 37219

(615) 256-6666

1. The parties did agree, however, that no fine would be assessed. Further, the relevant statutes require that Mr. Simmons’ driver’s license be suspended for six months. He surrendered his license on the day of the plea.

2. There are two basic types of diabetes mellitus: Type I is developed in childhood; Type II is adult-onset. Mr. Simmons also suffers from hypertension.

3. The police officers have made multiple speed calculations. The accident report indicates that the speed loss from “first skid” to final rest was 49.81 mph.

4. Mr. Reed sustained serious injuries as a result of this collision including a severe injury to his shoulder and arm.

5. The police report indicates that the distance from the intersection of 13th and Broadway to the intersection of 14th and Broadway is 233.66 feet.

6. The fact that Mr. Simmons is now on permanent insulin therapy will forever preclude him from being able to drive a commercial vehicle. The Department of Transportation Regulations provide at 49 CFR, Section 391.41 that to be qualified for a commercial vehicle permit, an applicant must have “no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.”

7. In State v. Sharpton, Tenn.Cr.App., October 22, 1999 (copy appearing in appendix) the Court affirmed the trial judge’s decision to fully suspend the sentence of a defendant convicted of two counts of vehicular homicide.

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