EAGLE RIVER - A Keweenaw County jury didn't think there was enough proof David Simons was drunk during the car crash that killed a friend riding with him. But they did hold him responsible.
After just more than four-and-a-half hours of deliberation, the jury found Simons, 39, of Calumet, guilty of failing to stop after an accident causing death and driving with a suspended or revoked license in an accident causing death. Both are 15-year felonies. The jury also acquitted Simons of operating while intoxicated in an accident causing death, also a 15-year felony.
Simons was driving his friend Jeffrey Brusso home early on the morning of Nov. 5, 2011, when he failed to negotiate a corner on Five Mile Point Road. Brusso, 53, of Allouez Township, was killed almost instantly in the crash.
Daily Mining Gazette/Garrett Neese
David Simons, 39, of Calumet, reacts after hearing the verdict of his trial in Keweenaw County Friday. He was convicted of two 15-year felonies and acquitted of another 15-year felony.
Keweenaw County Prosecuting Attorney Donna Jaaskelainen and Simons' attorney, Nicholas Daavettila, declined comment after the verdict.
Simons showed little difference in reaction from the not guilty verdict to the two guilty verdicts, casting brief downward glances and fidgeting with his thumbs.
Simons will be sentenced in approximately four weeks.
The case went to the jury about 2:30 p.m., following closing arguments and testimony earlier in the day from Simons and an expert medical witness for the defense.
Simons contested claims made by prosecution witnesses who said he had appeared intoxicated on the night of the accident.
George Krainatz, a friend of Brusso's, had run into Simons earlier that night at Brusso's house, where Simons had been obnoxious and hit on his girlfriend, he said. Also testifying was Emily Pizzi, a bartender at the Cliff View Inn, who said Simons had driven into a ditch as he arrived and later almost hit her car.
Simons said he had treated Krainatz's girlfriend respectfully. As for his visit to the bar, he said, he had been on the far side of the parking lot, not a ditch, and had not come close to hitting Pizzi's car.
"I've always been nice to George," he said. "I don't understand why he would want to say those things, unless he was upset, or something. ... Neither one of them know me personally."
Although Brusso was a close friend, he said, their relationship had become strained over a growing debt Brusso owed him.
"I know Jeff personally was not having money coming in," he said. "He needed money. ... He confronted me, asked me about some money. ... I had no problem with it at first."
What started out as a $100 loan had grown to weekly loans totaling nearly $3,000 by early November. Brusso had given him a black AR-style gun as collateral; the gun, valued at $1,500, eased but did not eliminate the debt.
Simons had asked him to turn over another gun toward the collateral, on which Brusso was dragging his feet, Simons said.
As they were returning to Brusso's home after going to a bar on the early morning, Brusso picked up a shotgun he had brought and threatened to shoot him, Simons said. The struggle for the gun was fierce enough that he was briefly pulled over to the passenger side of the car, Simons said. In the ensuing fracas, he didn't notice an oncoming sharp turn until Brusso yelled out an obscenity.
"I looked back at the road," he said. "We were already into a turn. I froze. I turned, tried to turn the wheel. I hit the brakes. The car started skidding, and I just held on. I heard a bunch of noise like crashing sounds."
When he came to, he said, he was in the car, laying in the center console.
Brusso was lying in the passenger seat, unresponsive. He checked Brusso for a pulse and breathing, and performed CPR on him.
After an unsuccessful attempt to call 911, he went over to Brusso's house to attempt to wake up his wife. He left a message on Brusso's wife phone and also called his mother to pick him up. Although he saw police lights back at the car, he said, he was "not thinking clearly" at the time and didn't go back.
Back at home, he said, he grabbed two beers and wine, along with a shotgun and shells, and went upstairs to his room planning to commit suicide.
"I drank those beers, I told (my mother), 'Leave me alone. I don't want to go through any of this. I'll deal with this,'" he said. "My mom was banging on the door, my girlfriend was on the phone. I finally took the phone, they tried to talk me out of it."
He came out of the room when police arrived at the house three-and-a-half hours after the accident.
Simons still feels terrible about the crash, he said, but he doesn't think he is responsible.
"I feel tremendous guilt," he said. "My friend lost his life. There's not a day that goes by that I do not think of him, or the last words we exchanged in that car. It bothers me every single day, and it runs through my head every day. ... I'm devastated about what happened, but I don't feel that I'm responsible for the accident. My driving didn't cause the accident. I was struggling with my friend over a stupid frickin' idea of nothing, when it comes down to it. But I don't feel I'm responsible for this accident."
Also testifying for the defense was Werner Spitz, a forensic pathologist from St. Clair Shores, Mich., who has also testified in a number of high-profile cases over the past half-century, including John Kennedy's assassination and the O.J. Simpson civil case.
He said based on his examination of Brusso's shotgun, a pattern near the bottom of the barrel had caused a similar-looking abrasion on Simons' right hand. Viewed through a magnifying glass, there were a number of small black dots on the skin.
"They all look the same," he said. "And they are made by those little protuberances that the pattern of the gun makes when it pushes forcefully into the skin."
Also, he said, based on the drinks Simons had reported, as well as the food he ate, his blood-alcohol level could have been as low as .02 at the time of the accident. Simons tested at .125 several hours later, a timespan that would have included the beer and wine he drank at home.
Brusso's blood-alcohol level was measured at .285 after the crash, which Spitz said could have been consistent with visible intoxication and uncharacteristic behavior.
In his closing argument, Daavettila reminded jurors that Spitz's .02 estimate would not have been illegal, and at the equivalent of one beer, would not cause significant impairment.
Daavettila did not dispute Simons was traveling at 80 miles per hour before the crash. But he said that could have come from Simons trying to brace himself or be otherwise distracted by the fight.
"Mr. Simons was wrestling, essentially for his life, against that weapon, and he's pulled into that passenger side compartment, his foot may be down, he may be trying to brace himself," he said. "In any event, he's not paying attention to what's going on in front of him, because he's got a gun close to his face."
Jaaskelainen said Simons' actions after the crash, particularly once police arrived at the scene, did not rise to the level of upholding the law.
Where Daavettila looked at the car's electronic recorder and saw a pattern showing Simons tried to yank the car back onto the road at the last second, Jaaskelainen saw a straight line with a car not braking until one or two seconds before impact on an embankment off the roadway.
"It was the impact that occurred on the embankment, and the stop, the sudden deceleration, that caused the death, unfortunately, of Mr. Brusso," she said.