By CHANSE WATSON
WALLACE — In a busier than normal Law Day, Judge Scott Wayman addressed the criminal cases of more than 30 individuals at the Shoshone County Courthouse on Monday.
Among the many cases heard were those of Duane Zwiers, 29, and Richard Willoughby, 81.
Zwiers was charged with felony vehicular manslaughter in July 2017 after his unintentional actions lead to the death of his wife, Rebecca J. Zwiers.
Idaho State Police, who responded to the incident, reported that Duane was driving a 2004 GMC Envoy at a high rate of speed down Forest Service Road 209 near Bumble Bee Campground on July 29, 2017, when he failed to negotiate a left curve at milepost 2. The vehicle then went over a roughly 20-foot embankment and struck a tree.
Rebecca was pronounced dead at the scene of the crash.
Court records show that Duane was under the influence of alcohol at the time of the incident. ICourt also states that he has a significant criminal history in Idaho involving several alcohol and substance abuse charges.
After initially pleading not guilty and posting bail, Zwiers changed his plea to guilty at his last court appearance on Nov. 7, 2018. He was taken back into custody before his sentencing for driving under the influence in Kootenai County — a violation of the terms of his bond.
The circumstances in this case were fairly unique for Shoshone County Prosecuting Attorney Keisha Oxendine, as the family of the deceased wished that Zwiers did not receive a harsh sentence so that he can raise the daughter he and Rebecca had together.
This stance however did not make things any easier for the family at the courthouse.
Rebecca’s mother, Elizabeth Niemyjski, gave a tearful victim impact statement before the sentencing. In it, she recounted the heartache that she and the rest of the family has suffered since Rebecca’s death. From struggling to find out details of the crash, to being removed from her grandchild (due to Idaho law, Duane and Rebecca’s daughter has been in state custody for more than a year), Niemyjski expressed her sorrow and extreme disappointment with Zwiers while looking him in the eye from the witness stand.
“Duane, I remember the day I got a phone call from Becky and she said, ‘…We’re going to get married to get out of the circumstances we are in … Mom, I want to make sure it’s OK with you if I get married.’ and I said ‘Becky, honey, I’ll do whatever I can for you. Can you promise me that he will always protect you?’ You failed. I had faith in you, but in the end, you weren’t the man to protect her. Because of you, our lives and (juvenile’s name) will always be shredded.”
Oxendine then spoke to the court about the unique circumstances of the case during her sentence recommendation to the judge.
“This is a family torn apart by the incident that occurred in the summer of 2017,” she said. “…The Niemyjski’s in this case do not want to ruin Mr. Zwiers life. I mean he is the father of their grandchild, who is the one thing that still is alive that stems from Rebecca.”
She added, “These charges do not stem from a family pushing for justice. These charges stem from his actions and the state’s responsibility to ensure that this does not happen to anyone else. If anything, it was with the family’s support that we were able to reach a resolution in this case — the ultimate goal of that resolution being the protection of society and secondary, rehabilitation for the defendant. Despite what assumptions have been made about the family and these charges all stemming from them pushing for them, it is the state who brought the charges based upon the evidence in this case.”
Then after recapping the incident that lead to Rebecca’s death and Zwiers’ significant criminal history (largely involving substance abuse in one way or another), Oxendine recommended a previously agreed upon sentence of five years in prison (two and a half years fixed, two and a half indeterminate), supervised probation and substance abuse treatment.
Zwiers’ defense attorney, Suzanna Graham, argued for her client by stressing his total acceptance of responsibility, his mental issues and his love for his daughter.
“He doesn’t think he is the victim, he knows what he did was wrong. He takes it, he doesn’t know how he is going to get past it most days,” she said. “He must have told me 200 times that he wished he could trade spots and be the one that died, because then she could continue on with her child.”
Zwiers also tearfully addressed the court briefly before sentencing.
“I wanted to apologize (inaudible). I miss my wife more than anything. My daughter looks just like her and has her mom’s personality and sometimes it’s hard to bear. I want nothing but our families to love each other … I did drink that night, I thought I could bury my grief. I couldn’t. I know that, if you would give me a chance with this probation, you’ll never see me again. I love my daughter more than anything and I would never do anything to hurt her.”
Judge Wayman then handed down the sentence, initially stating that he was going to follow the recommendation agreed upon by both sides.
“This is a tragic situation, there’s no other way to put it. Your actions resulted in the death of your wife. Your actions resulted in the death of a daughter.”
Right after he handed down the five-year sentence (three years fixed, two years indeterminate) and let it sink in though, he immediately suspended it and instead went with a less harsh sentence of 180 days in jail.
“That’s part deterrence and part punishment,” Wayman said of the jail time. “The concern of the state and everyone else in this room is that you never, ever jeopardize anyone else with your own reckless conduct.”
On top of jail, Zwiers will also be placed on supervised probation for four years, must pay fees totaling more than $2,000 and must obtain both substance abuse and mental health evaluations.
In the other case involving Richard Willoughby, the defendant pleaded not guilty in his first court appearance since being released from the hospital and then subsequently arrested.
Willoughby is facing two counts of aggravated assault on a peace officer that stem from his actions on Oct. 29, 2018, in which he allegedly discharged a firearm at Shoshone County Sheriff’s deputies.
The incident began around 12:19 a.m. that morning, when deputies John Richter and Jake Delaney responded to a report of suspicious activity in the area of F and Washington streets next to the old Sands Motel in Smelterville.
Upon arrival, the deputies located a 38-year-old male inside a motor home (which did not belong to him), parked on the northeast corner of the property belonging to Nickerson’s Towing. While the deputies were in the process of detaining the male, Willoughby exited a van parked just south of their position and began firing at them with a Ruger 357 revolver.
While taking action to keep the handcuffed detainee safe, both deputies proceeded to return fire and ended up hitting Willoughby three times.
The deputies quickly provided first aid to Willoughby, who was subsequently transported first to Shoshone Medical Center in Kellogg and then to Kootenai Health in Coeur d’Alene, for further medical treatment.
He was later declared to be in stable condition the morning of the incident, but is now in a wheelchair.
Referencing Idaho Code 18-915, the maximum penalty for Willoughby’s charges if convicted is 25 years in prison. It is believed that the prosecution and defense teams are in the process of working on a plea-deal that would have Willoughby change his plea to guilty in exchange for a lighter sentence.
As of March 7, no deal has been made and his case is scheduled for jury trial on July 16.