Deadly nine months: 3 crashes, 4 lives

Nearly three years ago, four pedestrians died in three crashes on Route 1 within a nine-month period, forcing the Cape Region to take a hard look at pedestrian safety along the busy roadway.

A detailed review of these accidents reveals something else: A stark difference in charges leveled against the drivers involved in the crashes.

In September 2012, Rehoboth residents Scott Emory and his girlfriend Cheryl Dunn-Winchester were killed as they crossed Route 1. Months later, state prosecutors determined the driver in the late-night accident would face no charges.

In June 2013, a second pedestrian death rocked the Cape Region. Dover attorney Brandon Jones struck and killed Smyrna resident Garabed Zakarian as Zakarian walked two large dogs across the Forgotten Mile section of Route 1. Jones eventually pleaded guilty to one count of a misdemeanor, operating a motor vehicle causing death. Jones is on probation.

Just weeks after Zakarian's death, Roy E. Love died July 4 while he and his wife were crossing Route 1 south of Dewey Beach, struck by a car driven by Matthew O’Connor. Love's wife, Helene, was sent to the hospital in critical condition. O'Connor later pleaded guilty to driving under the influence and was sentenced to complete a program for first offenders.

All three crashes resulted in the loss of life, yet the culminating charges – or lack of any charge at all in one case – varied. In fact, it was the driver in the crash with only one victim who received the harshest charge. The other two drivers killed or injured two people.

Only through a review of Delaware State Police investigation reports was the Cape Gazette able to analyze what was checked, and how, during the fatal crash probes. The reports are not public documents. They are developed by Delaware State Police investigators who pass them on to the Attorney General's Office, which decides whether to prosecute.

Investigation reports are given to families only after request. For families, the report provides a glimpse into the last minutes of their loved ones' lives. It may bring closure, or for some, it may raise more questions. Details in the reports also provide an inside look into how fatal accidents are investigated.

Steve Norman, attorney at The Norman Law Firm in Dagsboro, said investigation reports are an integral part of the judicial process. “This is not a typical police report, but rather a comprehensive report with pictures, measurements of the skid marks, toxicology analysis, and comprehensive interviews of witnesses. When a fatality is involved, there is much more information gathered by the police investigator.”

In all three fatal crashes examined by the Cape Gazette, families shared their copies of the investigation report, allowing the Gazette to review details hidden from public purview because the reports are not made public. In each case, police reviewed cellphone use, speed, alcohol use and visibility, and although some circumstances were similar, the outcomes weren't.

Dover attorney sentenced in fatal crash

When a Dover attorney was sentenced for the 2013 death of a pedestrian crossing Route 1, it was the harshest penalty handed down of the three fatal crashes.

On May 16, 2014, R. Brandon Jones, 70, of Felton, was charged and pleaded guilty to a misdemeanor vehicle offense for the 2013 death of a pedestrian who was crossing Route 1.

The charge and guilty plea occurred nearly a year after the accident that took the life of Garabed D. Zakarian, 55, of Smyrna, who was walking two large dogs when he was struck.

Jones, who has offices in the Cape Region, is now on probation.

The police report states that on June 8, 2013, Jones went out to get ice cream and was driving his 2001 Jeep Wrangler southbound on Route 1 when he hit Zakarian in an area known as the Forgotten Mile. Zakarian was caring for his sister's two golden retrievers and was returning to her Dewey home after a nightly walk. At 8:50 p.m., he had almost finished crossing Route 1 southbound when Jones' Jeep struck him. Zakarian died at the scene. The dogs ran off following the crash, but were found the next day.

Karen Zakarian, sister of Garabed, spoke June 20 during Jones' sentencing about her brother and how his death affected her family.

“It has been the hardest during the times when we have had to endure the criticisms of the unknowing few who have blamed him for his own demise,” she said. “We have lost a loved one. Please keep this in mind. Our hearts are forever broken.”

Jones expressed similar sorrow when he spoke to the court.

“I've wanted to communicate to the family my concerns and sorrow and sympathy since day one,” Jones said. Reading from a letter he wrote to the family after the accident, Jones said, “I feel devastated and want you to know how much I sincerely care. I will always continue to pray for Garabed and your family.”

Delaware State Police investigated the crash, but the Attorney General's Office handled the charge, said Sgt. Paul Shavack, spokesman for the Delaware State Police. Jones was charged May 16 and immediately pleaded guilty in Sussex County Superior Court, said Jason Miller, former spokesman for the Attorney General's Office.

According to Delaware Code, operation of a vehicle causing death is charged when a person's driving or operation of a vehicle causes the death of another person, but there are no aggravating circumstances.

“The facts and circumstances of this case were thoroughly investigated by the Delaware State Police and carefully reviewed by the Department of Justice,” Miller said.

Alcohol may have contributed

Although the investigation report ruled out speeding or cellphone use, investigators said alcohol may have contributed to the collision.

“He openly admitted to drinking alcoholic beverages prior to the collision. His statement combined with the fact that I detected a strong odor of an alcoholic beverage emitting from his breath lead [sic] me to believe he may be under the influence of alcohol,” the report states. Jones told an officer at the scene that he had consumed a Manhattan and one glass of wine at a Lewes restaurant in the hours before the crash.

A blood sample drawn about two hours later and finally tested a month later was 0.081 percent, the report states. A reading above 0.08 constitutes driving under the influence.

There was, however, a refrigerator malfunction while the blood sample was waiting for final testing. Chief Forensic Toxicologist Jessica Smith said in the report that there is no way of knowing how the malfunction affected the blood sample. The 0.081 percent blood alcohol content had an uncertainty value of plus or minus 0.002 percent, the report states.

Three other sobriety tests were administered to Jones at the crash scene. Although he swayed a bit while walking a line and also during a one-leg stand, the report states, Jones successfully touched the tip of his nose with his finger.

The report notes that there was no sign of braking before the crash. A witness driving south on Route 1 in the left lane said she saw Zakarian crossing the roadway and she slowed down as she approached him.

The witness also said she wondered why Jones was not slowing down when Zakarian was struck by the right side of Jones' Jeep, the report states. A video camera at a nearby Valero station recorded the tragic event.

Jones was sentenced June 20, 2014, in Sussex County Superior Court by Judge T. Henley Graves to two years of prison. One year was suspended, and Graves gave Jones a year probation. Jones was fined $1,150, which increased to $1,959 after fees were added. The sentence order states the crash was not DUI related.

As part of Jones' plea agreement, he is to have no contact with Zakarian's family. He must also perform 120 hours of community service to Legal Aid during his yearlong probation. Jones is a partner with Hudson, Jones, Jaywork and Fisher, which has offices in Rehoboth Beach, Lewes and Dover.

He could not be reached for comment.

During sentencing, Jones said he remembers driving south along the Forgotten Mile the night of the fatal accident and keeping an eye out for a large number of people walking on the sidewalk alongside the highway.

“I'm not trying to say I'm not guilty of something ... I want the family to know that I was trying to do the right thing. I was paying attention … trying to do the very best thing; everything went horribly wrong,” he said.

Keith Donovan and Pete Jones are attorneys with Morris James who represented the Zakarian family in a civil case settled in September. The firm also represented the Love family in a civil case settled in October. Details of the settlements were not released.

Of the three families who lost loved ones in fatal crashes, only the Zakarian family had no complaints about how state officials handled their case. Pete Jones said the Zakarians were kept in the loop during the entire process and they had no issues.

“In terms of the criminal side, they were satisfied with the way the procedure occurred and satisfied that they were kept informed,” he said.

But that's where the plaudits end.

Fourth of July proves fatal

Dewey Beach residents Roy and Helene Love were returning to their oceanside home July 4, 2013, after watching fireworks over Rehoboth Bay. As the couple crossed the southbound lanes of Route 1 at about 9:30 p.m., they were struck by a Lincoln Aviator driven by Matthew O'Connor of Washington, D.C.

Roy Love, 79, died at the scene; 75-year-old Helene was taken to Beebe Healthcare and later flown to Christiana Hospital for critical injuries that included a broken left ankle and injuries to her lower body. Although investigators ruled out speed and cellphone use as factors in the crash, the investigation report states O'Connor, then 25, was driving under the influence of alcohol.

“I began to notice a sweet smell mixed with a semi-tart smell of alcohol, coming from his breath and person; the odor quickly filled the small cabin area of the patrol vehicle. I immediately recognized the odor to be that of an alcoholic beverage, possibly a mixed drink,” an arresting officer wrote in the investigation report.

The officer then performed a series of tests to determine O'Connor's level of inebriation. Following a horizontal gaze nystagmus test, the report states, there “was a clear indication of a high dose of alcohol.” He hopped slightly during a 30-second, one-leg stand, but swayed and appeared confused while walking the line, the report states. Based on the results of the field sobriety tests, officers gave O'Connor a portable breathalyzer test which resulted in a blood alcohol content reading of 0.132 percent – nearly twice the legal limit.

O'Connor was issued a summons for driving under the influence of alcohol and released to his friend.

Although O'Connor was under the influence of alcohol at the time of the fatal crash, the report states, “there is not enough evidence to support any other negligent/traffic violations on behalf of Mr. O'Connor, which is needed for further prosecution.”

According to the investigation report, deputy attorneys general Christopher Hutchison and Kevin Gardner reviewed the crash scene, roadway evidence and report and decided not to charge O'Connor with vehicular homicide or another criminal violation.

Joseph Rogalsky, former spokesman for the Attorney General's Office, said records show only that O'Connor pleaded guilty to DUI and completed the requirements for the first offenders program at an approved facility out-of-state.

O'Connor could not be reached for comment.

Speaking on behalf of the Love family, Pete Jones said family members were unhappy that the Attorney General's Office allowed O'Connor to enter the first offender program without notifying or consulting them.

“They clearly did not know or were not advised that the first offender program would be offered to him,” Jones said.

According to the Division of Motor Vehicles, participants of Delaware's First Offense Election program must not have caused injury to another person.

But moving down about 20 subsections and paragraphs to the bottom of the statute, section 4177B(f) of Title 21 of the Delaware Code gives the attorney general power to admit anyone to the program as they see fit.

“The attorney general may move the sentencing court to apply this section to any person who would otherwise be disqualified from consideration,” the statute states.

Carl Kanefsky, spokesman for the Attorney General's Office, said the facts and circumstances supported charging O'Connor with driving under the influence and allowing him to enter the first offender program.

“To promptly and effectively address this crime, and to spare the Loves the agony of revisiting the facts of this case at a contested trial, Mr. O’Connor, a first time offender, was afforded the opportunity to engage in the first offender program pursuant to Section 4177B(f) of Title 21 of the Delaware Code – a program designed to educate and treat offenders and to curb recidivism,” Kanefsky said.

But instead of sparing them, that decision has rankled members of the Love family, who question why O'Connor was allowed in the first offenders program and why they were notified only after the fact.

“That's what really stuck in their craw,” said Donovan, the family's attorney.

Parent Julie Wightman, whose son was killed in 2012, knows how they feel. She said she has been let down by the lack of justice in her son's case. The death of her son and his girlfriend resulted in no charges at all.

The absence of any charge – even a misdemeanor inattentive driving citation – leaves her questioning the actions of the Attorney General's Office.

One crash, two fatalities, no charges

On Sept. 2, 2012, Wightman received the worst news a mother can hear.

Her son, Scott Emory, was dead, struck by a car while he and his girlfriend Cheryl Dunn-Winchester walked a bicycle across Route 1 in the early morning hours.

It would take months for the Attorney General's Office to decide no charges would be filed against the driver, Lisa Governa, 25 at the time of the accident. Prosecutors reviewed a Delaware State Police report detailing the fatal crash, and the Attorney General's Office determined in February 2013 no charges would be filed.

“Lisa Governa was not responsible for the collision. Therefore, no prosecution is pending in this investigation as the responsible parties died as the result of this collision,” the report states.

Governa could not be reached for comment.

The report finds Emory was highly intoxicated – about three times the legal limit – when the front left of Governa's car struck the couple and the bike. The report also states that if Emory had survived, he could have been charged with crossing a road while intoxicated.

Wightman said she understands her son and his girlfriend were intoxicated and were crossing the highway near a dimly lit intersection with no crosswalk. But, she said the couple was not totally at fault, especially considering details in the 37-page accident report. It took Wightman months to receive the police investigation report – a document provided to the Attorney General's Office but available to families only after request. Wightman shared her copy of the report with the Cape Gazette.

“I don't think she deserves the death penalty,” Wightman said, speaking of the woman who was driving the car that struck her son. At the same time, she said, “I didn't think nothing would happen, but it did.”

Since receiving the police report, Wightman said, she has practically memorized it, reading and rereading witness statements and the police reports filed immediately after the accident.

There are a number of discrepancies, enough to make Wightman wonder whether alcohol, speeding or cellphone use may have played a role in the fatal crash. Two troopers initially responding to the scene reported the primary contributing circumstance for the accident was driving under the influence. One report stated alcohol was “suspected/confirmed” and Governa was “under the influence of medications/drugs/alcohol” at the time of the crash.

“She openly admitted to drinking alcoholic beverages prior to the collision,” an investigator wrote in the report. “Her statement combined with the fact that I detected a slight odor of an alcoholic beverage emitting from her breath lead [sic] me to believe she may be under the influence of alcohol.”

A preliminary breath test administered at the scene registered 0.082 percent – slightly higher than legal limit. However, a blood sample taken more than two hours after the accident, and not analyzed by the Medical Examiner's Office until Oct. 18, 2012, showed a blood alcohol content of 0.074 percent – slightly lower than the DUI minimum.

A trooper who met Governa in the parking lot at Wendy's, where she stopped immediately after the accident, reported she was crying hysterically, but he did not detect an odor of alcohol, the report states.

Wightman also points out three of the five witnesses interviewed said they thought Governa was driving fast; one of the witnesses stopped at the Route 1 and Route 24 intersection was a taxi driver, who estimated Governa was driving above the posted 45 mph speed limit.

However, a test used by police to determine crash speeds – a Serle equation – calculated the car was traveling between 41 and 49 miles per hour. No traffic citation was issued.

Besides alcohol and speed, the report shows Governa was talking on a cellphone at the time of the crash. A friend who was talking to Governa when the crash occurred said he believed she was on speaker phone because of the way the call sounded.

“That could still be inattentive driving,” Wightman said.

Additionally, Governa received a text, “Nope not quite yet love ya!” at 2:20 a.m., although the report notes investigators were unable to determine when Governa actually opened the text. At the same time as the incoming text, the report states, Governa ended her phone conversation and called 911 to report the collision, which the report notes occurred at 2:18 a.m.

So many questions

With all the questions raised in the investigative report, Wightman said, she can't understand how Governa could walk away without a single charge or citation.

Delaware State Police did not charge Governa with DUI based on the preliminary breath test because the result was only slightly above the accepted limit and it is not an accurate reading, said Master Cpl. Gary Fournier of the Delaware State Police.

Police cannot charge just from the portable breathalyzer test, Fournier said. “It's just another step in the field tests … we get clues from the other tests.”

Other tests given to Governa the night of the accident included variations of counting numbers and reciting the alphabet, a finger-to-the-nose test and walking a straight line. The report notes nothing unusual about her results, except for the finger-to-the-nose test, where she missed the tip of her nose, placing her finger next to her nose once and just underneath another time, and a slight bobble during her walking test.

Police decided to use a blood test for a more accurate read on Governa's condition, Fournier said. A blood sample, however, was taken two hours after the crash, and the Medical Examiner's Office tested it a month later, which Fournier said is not unusual.

Police may charge someone with DUI at the scene if field tests overwhelmingly indicate intoxication, and they may issue other charges if someone poses a flight risk, Fournier said. Otherwise, he said, a fatal crash or other incident that could be prosecuted is usually sent to the Attorney General's Office, which decides whether to charge.

“We investigate and take all the facts and then pass a report to the Attorney General's Office,” he said.

Although the report clears Governa of all wrongdoing, Wightman said drivers still need to beware of pedestrians crossing Route 1, especially when there are no official crosswalk areas along the busy roadway. “To say it was their fault because they weren't in a crosswalk when there aren't any crosswalks … that really gets me,” she said.

Wightman said she is reminded of her son's accident and the fact no charges were ever filed against the driver whenever she hears a news report about a fatal crash.

In September 2014, a fatal bus crash on Route 1 in New Castle County resulted in charges against the bus driver including operation of a vehicle causing death of another person.

There has been no mention of alcohol or cellphone use in the bus accident, Wightman said, compared to multiple references in her son's accident investigation report, yet the bus driver still faces accident-related charges.

“These are the charges I argued for at the [Attorney General's] office,” she said. “No mention of alcohol or cellphone use, yet the bus driver was still charged.”

A disheartened Wightman is reluctantly resigned to accepting the prosecutor's decision. But for her, justice was not served.

“I can't see that she did nothing wrong,” Wightman said. “Even inattentive driving, just to show she did something wrong.”