Crime

A Harnett deputy’s aggressive choice, and a death that defies reason

A knock, a struggle, a death

Deputy Nicholas Kehagias and witness Clayton Carroll give their accounts of what happened the night of Nov. 15, when Kehagias shot and killed Carroll's friend, John Livingston.
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Deputy Nicholas Kehagias and witness Clayton Carroll give their accounts of what happened the night of Nov. 15, when Kehagias shot and killed Carroll's friend, John Livingston.

John Livingston opened his door to a sheriff’s deputy who had some simple questions.

Harnett County Deputy Nicholas Kehagias was looking for Becca and Lonnie Setzer Jr., a brother and sister he knew well from patrolling their rural community.

Livingston had no reason to be wary of this November encounter. Earlier that night, he had been hanging out with his son and friends in the neighborhood. Besides, Kehagias was looking for people who weren’t there, investigating a disturbance on the other side of the neighborhood.

Livingston had no inkling that he was about to die.

He pointed to the other side of the community of mobile homes lining sandy roads. Livingston told Kehagias what he already knew: The Setzer siblings and three generations of their family lived about a mile away on Evans Street.

Simple questions. Asked and answered.

But Kehagias, 26, assigned to patrol the crossroads community of Anderson Creek, was skeptical. He wanted a look inside.

Livingston bristled. It was about 3:40 on the morning of Nov. 15, and he wanted to get to bed. His roommate, Clayton Carroll, had just crashed on the couch in the living room; two friends were getting ready to go home. Livingston, 33, had been in enough scrapes with the law over the years to know a thing or two about his rights.

He asked the deputy if he had a search warrant. He did not.

Livingston tried to close the door as he turned away. The door hit Kehagias’ foot and arm. As Kehagias saw it, Livingston had just assaulted him. With that, Kehagias rushed inside.

Three witnesses inside the home, Kehagias and the other deputy there with him, John Werbelow, described the chaos that followed to Harnett County sheriff’s investigators last November.

The News & Observer spoke with Kehagias and two of those witnesses – roommate Carroll and visiting friend Bradley Timmerman – about the 10-minute encounter. The N&O also reviewed an internal affairs investigative file that included interviews with more than a dozen officers and witnesses connected to that night. It contained emergency dispatch reports, audio clips and reports on the use of Kehagias’ Taser.

 
A family photo showing friends John Livingston and Lonnie Setzer. 
A family photo showing friends John Livingston and Lonnie Setzer. PHOTO COURTESY OF JOHN LIVINGSTON'S FAMILY

While accounts of that night vary, this much is certain:

Once inside, Kehagias tried to arrest Livingston. Livingston would not give up his wrists to be handcuffed. The men fought. Kehagias fired his Taser into Livingston at least twice. After Kehagias dropped the Taser, Livingston grabbed it and turned it on Kehagias.

Kehagias reached for his gun and shot Livingston three times. Livingston died before paramedics arrived.

Last month, a Harnett County grand jury listened to an agent from the State Bureau of Investigation recount what happened that night. Its members heard from the three people who watched their friend Livingston die. The grand jury rejected District Attorney Vernon Stewart’s request that it indict Kehagias on a charge of second-degree murder; Stewart says he will not try again.

The U.S. Department of Justice will investigate whether Kehagias and the sheriff’s office violated Livingston’s civil rights, said John Bruce, acting U.S. attorney for the Eastern District.

A knock. Some questions. And according to Deputy Werbelow, answers Kehagias wouldn’t accept.

Kehagias told Livingston: “This is not how this works.”

Skipping a party

There were other places Livingston could have been that night.

One friend invited him to a party in Fayetteville; another asked Livingston to a bonfire. Both invitations could have kept him away from 172 W. Everett St.

Livingston had a hearty laugh, a sweet smile and a wild beard. He worshipped the Carolina Panthers and tinkered with cars for fun.

John Livingston had a hearty laugh, a sweet smile and a wild beard. 
John Livingston had a hearty laugh, a sweet smile and a wild beard. PHOTO COURTESY OF JOHN LIVINGSTON'S FAMILY

Livingston needed little in life, save a steady paycheck to support his 14-year-old son, Little John, and the two younger half-siblings of his son whom Livingston had taken under his wing.

Livingston dropped out of high school at 17 and began working in construction. He worked 10 hours a day framing houses. At week’s end, he handed nearly all his paycheck to the grandmother of the three children, who helped rear them. When she needed more money, he’d pawn some tools or spare car parts.

Livingston lived a couple hundred yards from the children. Every day, he and the kids would walk the unpaved road between their homes to visit and share meals.

The night of Nov. 14, Livingston walked that stretch, as he had hundreds of times. Little John wasn’t feeling well, so Livingston turned down the invitations to go out. He settled in with his son and played video games until Little John started to fade.

Around midnight, Livingston slipped away, returning home to join his roommate and a few friends to watch TV and drink beer.

Pursuing an assault

While young men Kehagias’ age headed to bars and football games that crisp Friday night, he reported to work.

He had joined the Harnett County Sheriff’s Office 2 1/2 years before, fresh out of basic law enforcement training at Central Carolina Community College. He followed the footsteps of his father, Daniel Kehagias, a seasoned narcotics detective for the Sanford Police Department.

A grand jury declined to indict Harnett County deputy Nicholas Kehagias for second-degree murder in the death of John Livingston. 
A grand jury declined to indict Harnett County deputy Nicholas Kehagias for second-degree murder in the death of John Livingston.TRAVIS LONG - tlong@newsobserver.com

Kehagias’ patrol zone was a swath of the county that, until a base realignment at nearby Fort Bragg, consisted mostly of mobile homes and rundown farmhouses. If there were to be trouble in Harnett County, this is where it was most likely to ignite.

About 2:30 in the morning on Nov. 15, Kehagias heard a typical call over his radio. A woman named Melissa Chestnutt complained that Penny Setzer had called her a “whore” and had physically thrown Chestnutt out of Setzer’s house.

Kehagias, one of two deputies on the west side of the Cape Fear River at that hour, was stuck on another call at a local bar miles away.

As the minutes passed, the Evans Street melee escalated. Chestnutt said two other women, Becca Setzer – Penny Setzer’s niece – and a younger woman she didn’t know, punched her. She called 911 again.

Melissa Chestnutt calls 911 to complain that Penny Setzer had thrown Chestnutt out of her house.

Still, no deputies. Finally, she gave up and went home.

Kehagias felt bad about not getting to Evans Street sooner. He called Chestnutt and listened to her description of the attack. He said he offered to hunt for Becca Setzer and get the name of the younger woman so Chestnutt could swear out a warrant herself.

Chestnutt told him she had seen the two drive away from Evans Street in a silver sedan.

Over the threshold?

Kehagias said Becca Setzer and her brother, Lonnie Setzer Jr., liked to play hide and seek with police.

Kehagias figured that if the women had taken off from Evans Street, they might be hiding at 172 W. Everett, where Lonnie Jr. had recently stayed.

Kehagias cut off the headlights of his patrol car as he neared Livingston’s driveway. Werbelow did the same.

Harnett County deputy John Werbelow was Nicholas Kehagias' partner Nov. 15, 2015, the night of John Livingston's death. He used pepper spray on Livingston. 
Harnett County deputy John Werbelow, center, was Nicholas Kehagias' partner Nov. 15, 2015, the night of John Livingston's death. He used pepper spray on Livingston.TRAVIS LONG - tlong@newsobserver.com

As they walked to the deck, Werbelow later told sheriff’s investigators, Kehagias filled him in. A guy named Lonnie Setzer Jr. stayed here, and Kehagias knew he had outstanding felony warrants related to a stolen motorbike.

He told Werbelow to guard the back in case someone tried to escape; both took note of a silver sedan out back. Kehagias went to the front door. When Livingston answered, Kehagias said he leaned into the door frame, his foot resting on the threshold.

It’s this moment that Harnett County prosecutors studied closely. Without a warrant or a pressing danger, deputies must have an invitation to come inside someone’s home. Even if Kehagias wanted to serve a warrant on Setzer, the outstanding warrants listed Setzer’s address as Evans Street.

The way Kehagias saw it, he had the right to enter the moment Livingston attempted to shut the door on his arm and foot. Both were over the threshold, but Kehagias took issue with the way that Livingston tried to keep him out.

“If someone says, ‘No, you are not allowed in my house. Come back with a warrant,’ I’m done,” Kehagias said. “... If I’m leaning there and talking to you, and all of the sudden, you decide to slam the door on me, I think that’s a pretty important distinction.

“We’re trying to nitpick a very small portion of this event that isn’t something I think is crucial to the matter.”

A scuffle, then shots

The accounts of what happened in the moments leading up to Kehagias’ pushing his way inside Livingston’s home differ, but the versions of witnesses and deputies once Kehagias entered are quite similar.

Livingston didn’t want to be arrested, and he battled to keep the deputies from strapping handcuffs onto his wrists. Kehagias repeatedly used his Taser on Livingston. After each shock, Livingston tried to escape the deputy’s reach.

Kehagias says he is 6 feet 2 and weighs 230 pounds. But he and his partner could not subdue Livingston, 5 feet 9 and roughly 130 pounds. The deputy said that Livingston was strong and asserted that he weighed at least 180.

Kehagias said nothing he tried – his Taser, pepper spray, an elbow to Livingston’s ribs – seemed to work.

“He was stronger than me every time we turned around,” Kehagias said. “I was trying to fight for my own life.”

The fight moved to the deck, and Livingston picked up the Taser that Kehagias dropped during the tussle. He pushed it into Kehagias’ stomach, below the edge of his bulletproof vest.

Kehagias said he thought he had lost the battle. He reached for his .40-caliber Glock.

Where’s the ambulance?

Two of the shots were likely survivable, one in each arm. The third struck Livingston in the chest, nicking his lung.

At 3:49 a.m., Werbelow alerted dispatchers. Shots fired. Suspect down.

Livingston’s friends crowded onto the deck where he lay. Carroll knelt beside him and begged him to breathe. Kehagias pressed a sweatshirt against Livingston’s chest.

Carroll thought about how lucky they were to have a state-of-the-art emergency services station a half-mile drive away. The men could see it from the deck of their home. Paramedics would be there in no time.

Clayton Carroll witnessed the death of his roommate John Livingston, who was shot and killed at his home by Harnett County deputy Nicholas Kehagias during a struggle Nov. 15, 2015. 
Clayton Carroll witnessed the death of his roommate John Livingston, who was shot and killed by Harnett deputy Nicholas Kehagias during a struggle Nov. 15, 2015. TRAVIS LONG - tlong@newsobserver.com

As the minutes passed, Livingston’s breathing thinned. Where was the ambulance?

Finally, Bradley Timmerman, one of the friends who had been visiting that night, ran to the next-door neighbor’s house to borrow his phone.

He called 911. In an eight-minute call, he tried to explain the incident.

At 3:59 a.m., a dispatcher logged Timmerman’s frantic words: “Caller advised officer came to door asking for Lonnie Setzer. Homeowner John Livingston advised not here.”

Timmerman urged dispatch to send an ambulance to help Livingston. He then cursed the dispatcher and railed against the cops who shot his friend.

“They kicked in the damn door, tased him five times and shot his ass,” Timmerman told the dispatcher.

Later in the call: “This is ridiculous. Y’all better find a better background for the f------- cops y’all hire. It’s a g------ shame.”

Paramedics rolled out from the Anderson Creek EMS station at 3:54 a.m., within five minutes of the “shots fired” alert.

But the ambulance went to 146 Evans St. That was where the women had fought, not where Kehagias fired his gun.

At 4:05 a.m., as Livingston struggled to breathe, paramedics were on the other side of the neighborhood, confused and wondering where the deputies were. Two detectives – the first to rush to Kehagias’ aid after the shooting – made the same mistake.

By the time a paramedic knelt beside Livingston, it had been well over 20 minutes since he was shot. He had no pulse.

EMS packed up and retreated at 4:33 a.m. They left Livingston with the deputies on the porch of his home, lifeless in a pool of blood.

Angry on Facebook

In the hours after Livingston was shot, a dozen deputies flocked to 172 W. Everett St. They hung crime scene tape and corralled witnesses. They summoned agents from the State Bureau of Investigation.

Harnett deputy Nicholas Kehagias offered this commentary above a photo of a jet dropping napalm: About 791 days since I first thought this would be an appropriate way to improve my patrol zone. Now that I'm a little more mature, I realize it probably wouldn't burn hot enough. 
Harnett deputy Nicholas Kehagias offered this commentary above a photo of a jet dropping napalm: "About 791 days since I first thought this would be an appropriate way to improve my patrol zone. Now that I'm a little more mature, I realize it probably wouldn't burn hot enough."

Three deputies were sent down the street to break the news of his death to some members of Livingston’s family.

Sgt. John Knight noted in his report that night that one of the family members said Livingston hated cops and was unpredictable when he drank. Another deputy attributed that comment to a different family member. Both relatives who spoke with the officers that night deny saying anything of the sort.

Other deputies secured a judge’s permission to search Livingston’s home for weapons. They wanted to collect computers and hard drives.

Livingston and his friends had been drinking heavily that night, and later, a medical examiner found Livingston had cocaine in his system when he died. Though Livingston had scrapes with the law over the years – an assault or drunken-driving charge – deputies found no drugs or contraband in the home.

Detectives looked for another type of item during the search: cellphones.

The detective explained why in his application: “Mobile telephones have become a staple in people’s lives and a way to communicate and evidence of (premeditation), involvement and conspiracy to this incident may be found on these device(s).”

Detectives, however, did not seize Kehagias’ cellphone.

Kehagias deleted his Facebook and Instagram accounts shortly after the shooting. Before that, the deputy posted regularly, at least once sharing a picture of himself in uniform.

In that post, Kehagias and a fellow deputy sit in a sheriff’s vehicle. Kehagias mimicked a line from the Will Ferrell movie “Step Brothers.” He wrote: “We’re here to f--- s--- up. #eastsidewestsidemashup #thinblueline #snowpatrol.”

In a separate post, above a picture of a jet dropping napalm bombs from the sky, Kehagias offered this commentary:

“About 791 days since I first thought this would be an appropriate way to improve my patrol zone. Now that I’m a little more mature, I realize it probably wouldn’t burn hot enough.”

A warrantless entry, an innocent man shot dead. A squad of Harnett County deputies who spread fear south and west of the Cape Fear River. A homicide in jail, caught on tape, yet somehow kept under wraps. Who polices the sheriff's office?

Monday: Cowering in fear

Database editor David Raynor contributed.

The series

Today: Shots fired. Suspect down.

Monday: The deputies of D squad

Tuesday: Death in jail, on video

Wednesday: Little scrutiny of sheriffs

Kehagias’ status

In the days and weeks after Nicholas Kehagias shot John Livingston, detectives within the sheriff’s office investigated whether Kehagias acted appropriately.

Former Sheriff Larry Rollins and Sheriff Wayne Coats have supported Kehagias and his decisions that night. He still has a job.

Kehagias injured his shoulder that night and is on leave recuperating from surgery. He described the last five months as a “living hell.” He said he was sorry for Livingston’s family.

“It’s the worst feeling in the world,” he said. “I didn’t have any choice.”

He questioned the district attorney’s attempt to indict him.

“There was nothing malicious that happened,” Kehagias said. “Why is the DA gonna let this dance out?”

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