WAILUKU - Within an hour after sentencing a 48-year-old woman to 30 days in jail for her involvement in a fatal crash that killed a 96-year-old man, a judge reversed his decision and ordered no jail for the woman after learning the victim's family did not want to see the woman behind bars.
Instead, 2nd Circuit Judge Richard Bissen on Thursday ordered Roxanne Cumming to serve one year of probation and pay $17,000 in restitution within a week, which had been requested by Cumming's defense attorney.
Cumming had pleaded no contest to a charge of third-degree negligent homicide, a misdemeanor, which was reduced from the original charge of second-degree negligent homicide, a felony.
"This was a close call in the beginning," said Bissen, explaining his thoughts of imposing jail time for Cumming, also known as Roxanne Setsuko and Ewalani Hirano.
Bissen said he thought Deputy Prosecuting Attorney Mark Simonds was speaking for the family when the state asked for a 30-day jail term during sentencing.
But, after that jail term had been imposed, Simonds and defense attorney David Sereno were approached by the family of Masami Nikaido, the victim. They said they did not want a jail sentence for Cumming. The two parties then went back into court for Bissen to reconsider his sentence.
Outside the courtroom, after Bissen changed his sentence, Cumming and a family member thanked and hugged members of the Nikaido family.
According to police, around 11 a.m. on April 11, 2010, Cumming was driving her employer's 2002 Ford van toward Pukalani on Haleakala Highway when the van rear ended a 2004 Toyota four-door sedan, driven by Nikaido. He had gone to Costco that morning to pick up pizza.
The Toyota was propelled forward, hitting the rear end of a Nissan Sentra, which struck a black Toyota Tacoma truck. The three vehicles were stopped in the outer lane of the highway. Nikaido sustained multiple traumatic injuries, police said.
"I'm sorry I hurt you," Cumming said, while crying and facing the Nikaido family during sentencing. "I hope this brings you closure."
In response to questions from Bissen, Cumming said she was traveling to Upcountry to pick up a dog she works with while being employed with the U.S. Department of Agriculture. She said she had passed a vehicle that was not maintaining a consistent speed. She said she wanted to maintain a consistent speed and a safe distance away from other vehicles.
She said the crash happened when she moved back into the far right lane while her attention was focused on what was happening with traffic behind her.
"I was just paranoid and looking in the mirror because I didn't know if somebody had come behind me," she told Bissen.
It was then that she hit Nikaido, she said.
Allen Nikaido, the victim's son, spoke highly of his father, who was a self-taught plumber and electrician and had became a licensed contractor.
He said his father operated like clockwork, so when he didn't return home by 10:45 or 11 a.m. on April 11, 2010, he went to look for his father and saw his father's truck was involved in an accident.
While the younger Nikaido said he recognizes the incident was an accident, he said during sentencing that he wanted to "see my father receive all the justice he deserves."
He said he didn't want to see the defendant in jail and deferred to the court.
"This was a case of deadly inattention," Simonds said. "The defendant was simply not paying attention."
He said police reports indicate that Cumming was taking off her shoe when the crash occurred. Both Cumming and Sereno denied that was the case.
Simonds said there were no skid marks at the scene, indicating inattention by Cumming.
He added that while Cumming was not impaired at the time of the crash, she had been convicted of driving under the influence in 1995 and 2003, and was convicted of inattention to driving in 1986.
Simonds asked for one year of probation and 30 days in jail in light of Cumming's previous convictions. He also asked that Cumming's license be suspended for a year and that she pay restitution.
Sereno asked that Cumming's license not be suspended because she needed to drive for her job as an agricultural inspector.
Cumming was willing to use her savings to pay the restitution and remained remorseful, he said.
Bissen ordered Cumming to refrain from alcohol and drugs during her probation. Instead of imposing a license suspension, Bissen ordered Cumming to continue to keep an ignition interlock system she has on her car which prohibits her from driving if she is impaired.
* Melissa Tanji can be reached at email@example.com.