Valley News -

By Jeff Pack
Writer 

Husband fights for changes in wake of death of wife and unborn daughter

 

Last updated 10/19/2018 at 4:01am

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Zach Kincaid is attempting to to change the way district attorneys prosecute cases involving the death of an unborn child in vehicular manslaughter cases. His wife, Kristil, and the couple's unborn child were killed in late September when police said she was involved in a head-on collision with a drunken driver.

It was Sept. 29 when Zach Kincaid was on the phone with his pregnant wife, Krystil, while she drove home early from work, he said.

That's when he heard Krystil scream, heard a collision, heard the car spinning, heard the fire – and then he heard nothing.

Kincaid, who was in San Jose for work at the time, said he began screaming into the phone, hoping someone, anyone, would hear his voice.

He heard the paramedics; he heard them cutting Krystil out of the wreckage. He kept screaming until an officer picked up the phone and told him that his wife and unborn child were being airlifted to an unknown hospital.

Kincaid said he stayed in close contact with friends and family for updates with phone calls, but the news was grim. Doctors did an emergency cesarean section on Krystil immediately when she got to the hospital due to massive internal bleeding.

Kincaid was still in San Jose waiting for the next flight when doctors told him that they couldn't save, Avalynn, the child that was due to join their family in less than a month's time.

By the time Kincaid made it to Krystil's side by 9 a.m. that next day, he had heard all night long that she might bleed to death before he could get there, but she didn't. It wasn't until 12:09 a.m. the next morning that doctors told Kincaid that Krystil was gone.

Kincaid was left to explain to Krystil's surviving children, a 14-year-old daughter, a 11-year-old daughter and two sons, ages 8 and 4, that their mom and expected baby sister were gone.

"When I first went downstairs to meet them, they ran from my mother-in-law's car, because they were so excited," Kincaid said. "My daughter was super excited. She has two younger brothers, and she's annoyed by them, because she wanted to be a big sister. And here I am trying to fake it to make it OK."

When they headed up to their mom's room, a child psychologist met Kincaid and the children in the hallway, so they could talk. He met with the oldest children first and explained what happened.

"We had to explain to them that during that crash, they lost their sister as well," Kincaid said. "They broke down; they were crushed. They thought they were going to the hospital to meet their little sister, and I gave them the worst news of their life."

Then Kincaid and the psychologist sat and talked honestly with the 4-year-old boy in a separate room.

"We had to explain to him that mom had an accident and her brain is dead," he said. "He got really quiet and just looks me right in my eyes and tells me, 'Daddy, I'm so happy.' I didn't know what to say. He tells me, 'I'm just so happy you're alive daddy, and I'm so sad mommy's gone.'"

Kincaid said he learned gratitude from his 4-year-old that day, and it would help him in the coming days and weeks.

Later that week, police arrested Marcos Forestal-Coutin, 28, a Cuban athlete, for the killing of the 29-year-old mother when he struck her vehicle head-on in Hemet while driving under the influence. He was charged with DUI gross vehicular manslaughter.

According to Kincaid, since Avalynn was killed before being born she is not considered a victim of this accident. That meant Forestal-Coutin would not face additional charges in the death of their unborn child.

According to the state of California's penal code for murder, PC 187, is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." When it comes to manslaughter, state law defines it as "the unlawful killing of a human being without malice." There's no mention of a fetus.

Basically, if there was intention to harm the victim, the act can be charged as murder, but if there is no perceived intention to harm the victim, the charges can be manslaughter.

"The DA talks about these words, 'intent,'" Kincaid said. "I said, 'What was he intending to do?'"

According to police, Forestal-Coutin was driving his BMW over the speed limit south on Warren Road when he veered into opposing traffic lanes.

Krystil, who was at the wheel of a Chrysler minivan, was unable to steer clear of the defendant's car, and the two vehicles collided in the northbound lanes.

"He drove to that party knowing he had no other way to get home," Kincaid alleged. "He then decided to get drunk and drive like a maniac. He wasn't 'Oh, I had a couple of beers, and I am going to drive home to get home to my family.' No, he was driving with no regard for anyone else."

Kincaid said he knew he had to do something.

"I knew as soon as I found out that this guy was (allegedly) drunk; I knew, deeper than that, I had a problem to actually someone getting what they deserve for doing what they did to my wife and daughter," Kincaid said. "I was surprised it went up to a 10 year max. But it's not enough."

Forestal-Coutin will have his first court date Nov. 1 and, according to Kincaid, he will not face charges in the death of Avalynn.

Instead of lashing out in anger, Kincaid said, he took the lesson taught to him by his young son and utilized his fierce dedication to make a difference in the system, his community and his country.

He has endorsed and promoted a petition on http://www.change.org called "Justice for Krystil & Avalynn Kincaid" which calls for stricter punishment for people convicted of vehicular homicide while intoxicated and for additional changes that would include consideration for the death of unborn children in these instances, like Avalynn.

Kincaid said that he invites anyone who wishes to sign the petition to visit http://www.change.org/p/california-governor-justice-for-krystil-avalynn-kincaid.

"I feel that this is one of the only ways I can honor them," Kincaid said. "I just can't sit back and let them be another forgotten cross on the side of the road. I see them on the side of the two-lane roads I drive all the time. So many of them are from drunk drivers – drunk drivers just killing innocent people."

While the community has surrounded him and his children with support and love, Kincaid said he struggles every day with how to negotiate life without Krystil while working to help the children deal with the loss of their mother.

"It's an all day, everyday thing. I get scars ripped open. How do you replace someone like that?" Kincaid said. "She's a great mom. She's my best friend. I literally heard her voice every day of my adult life. And I haven't heard her voice in a month, and it's ripping me up."

On social media, Kincaid said he has been very vocal and public about sharing the horrors his family is going through in the wake of the accident.

"My cause is to make this world a better place," Kincaid said. "The drunk driving, we have to create deterrents, we have to stop playing this game saying there's no intent and giving people excuses."

Kincaid said he encourages people to educate people by sharing his family's story on social media, writing and calling their representatives as well as the district attorney's office.

"Call the DA; let them know that they should push for a second manslaughter charge at minimum," he said. "I believe there was intent. It should be two counts of second-degree murder.

"To sit there and make it black and white and say, 'No, we're not even going to try' – that's unacceptable. They should try. I think a district attorney shouldn't be so concerned with their winning percentage over trying to get justice and do what's right for the community," Kincaid said.

Jeff Pack can be reached at [email protected]

 

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