A Lynden man must serve 5 years, 3 months in prison for firing a bullet that missed its target and killed a Ferndale woman about one-half mile away across the Nooksack River, a Whatcom County judge ruled Tuesday.
A jury found Nickolas Adam Zylstra, 34, guilty in December of shooting a fatal round from a Saiga 7.62 x 39, a semiautomatic copy of an AK-47, on the east bank of the Nooksack. Sheriff’s deputies and eyewitnesses testified Zylstra used a “bump fire” technique to make the rifle shoot like a machine gun.
On the west side of the river, the Smith family hosted a Father’s Day barbecue. Alyssa Christine Smith was picking flowers with younger kids, while the men grilled steaks on a warm, sunny Sunday afternoon on June 16, 2013, according to their testimony at trial.
Gunfire crackled through a row of cedars. Once the shots broke, the family went to find the shooters to warn them of the danger. As Smith walked back to the house to grab binoculars, a bullet struck her chest. She suffered for hours before dying at St. Joseph hospital. She was 23.
The case went to trial 3½ years later. Jurors deliberated for almost a week before acquitting Zylstra of first-degree manslaughter, i.e., causing a death “recklessly.” He was found guilty, however, of second-degree manslaughter, for causing the death through “criminal negligence.”
In the month that followed, Superior Court Judge Raquel Montoya-Lewis considered nixing the verdict because the defense had received pieces of evidence – recordings of 911 calls, dispatch logs, Google Earth photos, even police reports – in the 11th hour before the trial or later. At least eight pieces of evidence weren’t handed over to the defense until after the trial began in late November.
Court rules require prosecutors to share evidence with defense attorneys in the pretrial process called “discovery.” The state attributed the sluggish response to the case’s complexity, police computer systems not cooperating with each other and a sheriff’s detective not realizing that some deputies had written reports.
Throughout the trial, defense attorney Robert Butler suggested he would make a motion to dismiss based on discovery issues, but didn’t do so until after the trial.
Montoya-Lewis issued a thorough 18-page ruling Jan. 30, where she declined to overturn the jury’s verdict but censured the state for how the case was handled.
“To be clear here, it is utterly astounding to me to be put in the position of being required to consider whether it is possible that the state was intentionally hiding material from the defense,” Montoya-Lewis said at a hearing last week.
“I have concluded it was not, but the state should be very, very concerned that I even considered it a possibility as I analyzed this case.”
The family of Alyssa Smith brought white roses and a framed portrait to the courtroom Tuesday, and read statements recounting the horror, shock and pain of Father’s Day 2013, a day that was supposed to be a celebration. They asked for the maximum sentence.
“The yard that we played in together as children was turned into a zone of terror and eventually a crime scene,” said Alyssa’s sister, Jennifer Smith.
That day Smith’s father, Jeff Smith, performed CPR on his daughter as she faded in and out of consciousness and bled from the gunshot. He held her in his arms in the yard, as she was dying. He read devastating letters from an uncle; a girl to whom Alyssa was like a mom; Alyssa’s boyfriend, who witnessed her death; and himself.
“I am haunted by what I saw and experienced that day,” he had written. “I still hear her scream when she was hit by the bullet. I still see her lying on the ground: eyes dazed, teeth clenched and the color draining from her face. I had to deal with what no father should never have to.”
He recalled driving home from the hospital with his wife in dazed silence – no crying, because they were so engulfed in grief they could hardly breathe.
Zylstra maintains his innocence. Others were target shooting on the riverbank that June afternoon.
He paused for a few seconds Tuesday before reluctantly standing up, unfolding a sheet of paper and addressing a packed courtroom. He called Smith’s death “a very tragic accident.”
“I have to accept a lot of finger-pointing and a lot of blame,” he said, fighting back tears. “I know in my heart truly what happened that day, but once again I’m very sorry there was a death involved. I know there’s a lot of angry people out there.
“I wish – I wish we weren’t so fast to point fingers and blame. I do have to live with this for the rest of my life, we all know this. I also do have to think about this every day. It weighs, a lot.”
The defense submitted 26 character letters on behalf of Zylstra, a contractor who builds homes around Lynden.
State guidelines suggest a sentence of 57 to 63 months in prison. The defense had asked the judge to let Zylstra remain out of prison while he appeals the case. Montoya-Lewis denied that request, saying it would add to the Smith family’s tremendous ongoing trauma, if he were allowed to stay out.
Montoya-Lewis handed down the maximum sentence.
“When you fire a gun, you have to be willing to accept the responsibility that you may destroy whatever, or whoever, is behind the area you fire into,” she said.
“A bullet fired from a gun like this can travel up to 5 miles. I don’t see anything in the record here that indicates you appreciated that in any way, shape or form.”