Irvington man sold deadly dose of fentanyl for $40, Mobile County investigator testifies

MOBILE, Ala. (WALA) - A judge on Monday found prosecutors have enough evidence for a grand jury to consider a first-of-its-kind indictment in a case involving a fentanyl overdose.

Michael Elton Moseley, 45, of Irvington, faces a felony murder charge stemming from the death of Brian Zewen in August. It is the first time Mobile County prosecutors have pursued a felony murder charge for a fentanyl overdose.

Sgt. Matthew Peak, an investigator with the Mobile County Sheriff’s Office, testified at a preliminary hearing that Moseley gave conflicting statements to detectives. In an initial interview that was not recorded, he said, the defendant admitted that he had sold fentanyl to Zewen. For $40. Peak testified that he and another detective subsequently recorded a conversation with Moseley. He said the defendant at that time repeated what he had told the first detective up a point.

“He adamantly denied selling fentanyl to Mr. Zewen, which contradicts {the first detective’s) statement,” he said.

Mobile County prosecutors and law enforcement officials have made fentanyl a primary focus in recent months, highlighting its uniquely deadly effects and supporting legislative efforts to require mandatory prison time for dealing it. In addition to this case, the District Attorney’s Office has trumpeted the arrest of two people accused of carrying enough fentanyl along Interstate 10 to kill some 1.5 million people.

Defense attorney Dennis Knizley suggested that prosecutors overcharged the case.

“This was brought five days before the election,” he told FOX10 News. “And we’ve been talking about how to clean up the fentanyl problem in this county. And you can draw your own conclusions as to why that happened.”

Mobile County District Attorney-elect Keith Blackwood told FOX10 News that the election had absolutely no influence and that he played no role in the decision to file the charge.

Under the law, felony murder occurs when someone causes the death of another person during the course of another felony. Mobile County Assistant District Attorney Lauren Walsh that felony, in this case, was selling fentanyl.

“Fentanyl is, obviously, an especially dangerous drug, and that’s part of why this was charged as felony murder,” she said outside the courtroom.

Dressed in a suit, Moseley stood behind his lawyer during Monday’s hearing but did not speak. The defendant, who works as an oysterman, is free on a $250,000 bond.

Peak testified that Moseley told investigators that he and Zewen were friends. He said the defendant told investigators that when he wanted fentanyl, he usually met a dealer named “G” at a gas station and paid $40, the detective testified.

Peak said investigators obtained additional information from Moseley’s phone, some of which contradicted what the defendant told investigators. For instance, Peak testified, Mosley told deputies he had not seen or spoken to Zewen in some time.

“Not true,” Peak said, pointed to a text message the defendant sent to Zewen a day before he died.

“Don’t take more than 2/3 at a time,” he wrote, according to the detective.

During cross-examination by Knizley, Peak acknowledged that an autopsy had not been conducted, although he testified that doctors had taken a blood sample at Providence Hospital.

Outside the courtroom, Knizley suggested that prosecutors would have a difficult time meeting their burden of proof in front of a jury at trial.

“If it’s a murder case, it’s gonna have to be a reckless disregard for human life in giving someone a substance that they reasonably understood would kill the person, which I think they’re a long, long way from establishing that based on this glimmer hearing,” he said.

Knizley noted that fentanyl is a drug used legally and safely in the medical industry.

“Yes, it could be harmful,” he said. “But I think from what you hear at this preliminary hearing, in order to bring a charge of this nature, they have an awful, awful long ways to go before establishing a causation of the defendant causing this person’s death.”

Peak acknowledged during cross-examination that he was not aware of Moseley selling drugs to anymore else. But Walsh said it does not matter, legally, how frequently the defendant sold drugs.

“What matters is if he distributed that fentanyl to the victim and then that overdose on fentanyl is what caused his death, which is how we’re proceeding in this case,” he said.

The case now heads to a grand jury, which will decide whether to indict Moseley. That is little more than a formality in most cases, but Knizley suggested it might be different in this instance.

“I think it’s a real question is what the grand jury may do with it,” he said. “Most cases it’s not, but with the concerns about causation of death, concerns about fentanyl tolerance and other things, concerns about whether there was a sale, concerns about the standard of recklessness, I think there’s an awful lot of questions about this case, whether it should ever come out of grand jury.”

Felony murder is a Class A felony punishable by 10 years to life in prison.

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