Self-defense ruling relies on admitted shooter’s account

by Jordan Green

Winston-Salem police and a local prosecutor say that physical evidence backed up the account of the man who admitted to shooting and killing a young man involved in an apparent drug deal that went. As a result, the admitted shooter was not charged with murder.

Kathy Fett was stunned to learn from a Winston-Salem homicide detective that even though a man had confessed to killing her son during a botched drug deal, the police had released the admitted shooter and had no plans to charge him with murder.

In Forsyth County, unlike neighboring Guilford, police are required to confer with the district attorney’s office before charging a defendant with murder. In the Dec. 18, 2013 killing of Zachary Fett, a 26-year-old man, the decision to rule the matter a justified homicide based on self-defense relied significantly on the account of his shooter, a 27-year-old Matthew Bliven.

“I met with the district attorney — well, we conferred a lot last night — and the thinking was, there’s a lot of unknowns, but it’s looking very much like, if what Matthew was saying, that it was going to be a case where charges weren’t gonna be filed,” Detective Kevin Bell told Kathy Fett during a meeting in December 2013, one day after the shooting, as captured on a recording made by Fett. “We held off until today. We kept Matthew Bliven until early hours of this morning and let him go, continued processing the house.”

Fett was incredulous. Assuming that her son had fired a weapon — and she was skeptical on that point — how, she wondered, could Bell say who fired first?

“We obviously don’t have your son’s account,” Bell said. “We can only see that the evidence doesn’t refute what Mr. Bliven is saying. And so we can’t just theorize without any basis about maybe Matthew shot first and your son shot in response. There’s no way that that would hold up. All we would have is speculation.

“There are times when shooting is justified,” he continued. “You can defend yourself and defend another person. In this case, based on his account, that’s what appeared happened: [Bliven] was getting shot at and a car driven at him, both of which would constitute deadly force, so in return he shot back.”

Bell told Fett that officers processing the scene, at a farmhouse just inside the city’s northern limits on Ziglar Road, found two shell casings inside her son’s car that appeared to have been “fired from Zack’s gun.” He also said that Bliven appears to have fired about 11 times.

Clearly frustrated and at a loss, Fett quietly said, “If he’s lying and he’s not charged, then he got away with murder — is the problem.”

ΨΨΨ

Both sensitive and outgoing, Zachary Fett’s personal life had begun to unravel in the year before his death. He had admitted to his mother that he was addicted to Oxycontin, a powerful opiate that can be legally obtained as a painkiller with a prescription. Treatment efforts at his mother’s prodding seem to have not taken, and a plan for Fett try a new start with the help of extended family in Nevada ended abruptly with his return to North Carolina. Thinking that tough love might be the best way to help her son, Kathy, who had moved to Wilmington, took a restraining order out against Zack. Cut off from his mother’s support, he returned to Winston-Salem for the final chapter of his life.

“Zack could sometimes present himself on the outside as a hardened kind of person, but he had a very tender, tender heart like me,” Kathy said. “Some things could bring tears to his eyes like a homeless person or seeing an animal brutalized. He was extremely bright; he either got As or zeroes.”

As a single mother, Kathy thought her son would benefit from a masculine environment, and enrolled him in military school for seventh grade, with mixed results.

“While it did him an extreme amount of good,” she said, “when you put a tenderhearted person in that environment it can also be very damaging.”

Zack attended Mount Tabor High School in Winston-Salem, but didn’t graduate. He went back later and earned his GED. The year leading up to his death, Zack was trying to obtain a license to sell life insurance.

“He knew he was no longer a teenager, and was trying to make something of his life,” Kathy Fett said. “He sat for the state exam. He was all excited about pursuing that career.”

©

Kathy moved to Wilmington in April 2013, but returned to Winston-Salem to visit her son on Mother’s Day that year. She noticed that Zack was acting odd, and wondered if he was depressed because she was no longer around to help support him.

“I was able to convince him to go to the hospital and be admitted,” she recalled. “He got upset and was crying, and saying he couldn’t be stay there. He admitted he was addicted to Oxycontin and said he would start withdrawing.”

Two days after her son was admitted to the hospital, Fett said she received a call to come pick him up, that he had completed withdrawal, and didn’t need further treatment. But that was apparently not the case. Kathy Fett stayed with her son for another week.

“The hardest part was watching him go through withdrawals,” she said. “He tried to hide it from me by getting up early and going outside to be sick.” By the time her son returned from Nevada in August 2013, Kathy Fett was at the end of her rope, having seen her son get aggravated with her when she confronted him about his apparent drug use.

“I talked to a magistrate and he said it sounded to him that I needed to get him involuntarily committed,” Kathy Fett recalled. “Zack was arrested when he got off the plane here and involuntarily committed here in Wilmington. I was trying to save his life. It was the hardest thing a mother could do. He was only kept 48 hours. Because he at this point was very angry with me, I realized that I couldn’t save him; I had to save myself. I had to take out a no-contact order. It was ultimate tough love: Get your life straight.

“I was under the impression that if I did this, Zack would go into a treatment program,” she continued. “He was again released. I had to call the police and the police had to come to my house. Zack left, and that was the last time I saw him.”

ΨΨΨ

Less than a month after the shooting, Winston-Salem Police Chief Barry Rountree would simply describe the circumstances as a “drug-related robbery.”

“In this particular case, two individuals planned to meet at this location,” Rountree told members of city council during the January 2014 meeting of the public safety committee. “They knew each other; they planned to meet each other. One was gonna deliver drugs to the other party. Once both of them reached Ziglar Road, the victim — the one who wind up being the victim — pulled a weapon out on the person who actually wind up being the shooter; he just shot him first, and he was killed at that point.”

Whether or not Zachary Fett had planned to deliver drugs to Matthew Bliven that night, at the time of the shooting, he had not done so.

Kathy Fett said she believes her son owed Bliven money. Shortly before the shooting, she said she received a text message from Zack saying in effect, “I’m sorry, I love you very much.” The message closed by requesting that she take care of Smokey, his dog, if anything were to happen to him.

“To me and to a lot of his friends, something was going on: He was acting calm, but weird,” Kathy Fett said. “He knew he was walking into a dangerous situation. It was very concerning to me that Zack may have owed Matthew money and he was going over there to resolve his debt.” The official story doesn’t add up to her.

“Per what the police told me, there was a drug deal going down that had to do with a significant amount of marijuana,” she said. “Zack was going to be the one providing the marijuana to Matthew. From Zack acting as a middleman I guess a middleman picks up the money and then goes and picks up the drugs and brings them back.

“I was told by the police that Matthew said that Zack robbed him in the house,” Kathy continued. “My big question is why wouldn’t Zack just take the money and leave. Why would he have to rob someone?”

Bell, who has since been promoted to sergeant, referenced Bliven’s account in his interpretation of events.

“Going on [Bliven’s] account of what happened, granted he came out there with a gun, but he was standing in front of a car, and a car that was accelerating towards him, and then shots were fired at him, and so at that point him shooting back is not something that’s unlawful,” Bell told Kathy Fett.

Her skepticism towards Bliven’s account is exacerbated by Bliven’s admission that he waited 50 minutes before calling the police to report the shooting.

Assistant District Attorney Jennifer Martin said her office made a determination of self-defense when analysis came back from the SBI crime lab indicating the presence of gunshot residue inside the window of Fett’s car, consistent with having a firing a gun.

While Martin pointed to the presence of gunshot residue on the inside of Fett’s car, it is unclear whether Winston-Salem police checked for the presence of gunshot residue on his hands. Kathy Fett and her uncle, John Dyer, said Bell told them they did not.

“When Kathy and I met with Detective Bell and the assistant DA, I asked Detective Bell if they had tested for powder residue on Zachary Fett’s hands,” Dyer, a chemical engineer, wrote in an email to Triad City Beat. “My reason for the question was to confirm that, in spite of shell casings and a fired gun being found in the car, that if Zachary had actually fired a gun there would be nitrates from burned powder on Zack’s hands.”

Dyer said Bell “responded to my question by saying that powder residue tests were not done on Zack’s hands because the test would be meaningless because the residue would have evaporated. The answer would have been valid if Zack had been alive, active and had had the chance to rub off the residue. His answer is not valid for a deceased person. The nitrate residues are inorganic chemical compounds and do not deteriorate over time.”

Lt. Steve Tollie, who supervises the homicide division, disputed Dyer and Fett’s recollection.

“According to Detective Bell, numerous [gunshot residue] swabs were taken,” Tollie said. “Standard operating procedure is to swab the victim’s hands, and I’m absolutely confident that GSR tests were done.”

The last time Kathy Fett spoke to Assistant District Attorney Jennifer Martin was when Matthew Bliven pleaded guilty to a minor drug charge related to the shooting in Forsyth County court in May 2014. Fett said she was “blindsided” when Martin told her Bliven would not be charged in her son’s murder “because I had had Zack hospitalized.”

That’s simply not true, Martin said.

“When we met with her we gave her a list of the obstacles that would preclude a successful prosecution, and explained the law to her,” Martin said. “There were several reasons that we did not pursue homicide charges. The primary reason would be the law of self-defense and the Castle Doctrine.”

Martin said her office had made the determination of self-defense by May 2014 but a review of recent homicides provided to Triad City Beat by Lt. Tollie indicated that police were still investigating the case as late as October 2014. In an email update in February Tollie indicated the case had been closed “as a self-defense matter.” Tollie said the case was kept open for several months as an administrative matter to ensure that the department completed paperwork.

The primary factor in the self-defense determination is evidence that Fett fired a gun, Martin said. She cited the 2003 prosecution of Bryant Gwynn as an example of an instance in which the Forsyth County District Attorney’s office has made the call the other way.

“That also involved a drug deal,” she said. “One individual shot the other. We prosecuted that as first-degree murder. There was no evidence that the decedent fired a gun.”

Martin echoed the statement of Bell that physical evidence, including the presence of a firearm and shell casings, corroborated Matthew Bliven’s characterization of the shooting.

“This young man had been homeless,” Martin said of Fett. “He had tried to reach out to his mother. He needed his mother. He had begged for help from his mother, and he was living out of his car. He was begging for a place to stay. He had the money in the car. That supports that statement that he robbed the other party. Do you see how that supports what the shooter said?”

Martin acknowledged that no one really knows for sure who fired first.

“That’s the crux of it: We don’t know which bullet came out first,” she said. “All the reliable evidence was this young man was desperate and committed a robbery and went there armed.”

Tollie acknowledged that the delay in Bliven reporting the crime creates some doubt. “He certainly could have planted a gun and money,” he said, “but we can’t prosecute someone on the basis of ‘He could have.’”

While it might be tempting to go ahead and charge a suspect and let the evidence come out in court, Tollie said that’s not the way the justice system should work.

“How would you report a story if you learned that a gentleman was incarcerated, went through the excruciating time of a murder trial only to be acquitted, and then you talked to the detective and the prosecutor and they told you they didn’t have evidence to charge the person?” Tollie asked. “That’s not a criminal justice system that I want to be a part of.

“I don’t think the taxpayers want to foot the bill for that kind of system, and I don’t want to be part of a system that inflicts that kind of punishment on a person when the authorities didn’t think there was evidence to support a charge, just so the family members could have the satisfaction of having the case come to light in the court,” he continued. “It requires a substantial amount of evidence to deprive a person of their liberty, and I’m glad it does.”

Martin said the fact that Zachary Fett was apparently engaged in a criminal activity played no role in her handling of the case.

“Most of our cases involve people who have made tough choices, that have made criminal choices, but that doesn’t prevent us from prosecuting and obtaining justice for the victims,” Martin said. “I have a whole list of people who have been prosecuted where the victim was involved in criminal activities. In this case, the law precluded us from prosecuting the young man. I don’t want people to think it’s the choices that young man [Fett] — other than the choice to fire a gun — that influenced us on whether to go forward with a prosecution.”