CHARLOTTE, N.C. _ Mecklenburg County District Attorney Andrew Murray said Friday he won't seek charges against an undercover Charlotte-Mecklenburg police officer who shot and killed a motorist in January.
The officer, whose name has not been released, was justified in shooting Josue Javier Diaz, 28, on Jan. 26, Murray wrote in his finding.
"In this case, the evidence clearly supports the conclusion that Diaz was armed with a firearm and aggressively approaching (the officer) when the officer fired his weapon," Murray wrote. "Consequently, (the officer) was completely justified in using deadly force to stop the attack and prevent his own death."
The shooting took place on Albemarle Road in east Charlotte. Police said his truck sideswiped the officer's unmarked vehicle, then stopped. Diaz got out of the car, police said, and fired a pistol at the officer and the officer fired back, striking him. Physical evidence, Murray wrote, could not determine who fired first.
"He was either gonna shoot me or I was gonna shoot him," the officer later told detectives.
Diaz was shot six times to the chest, abdomen and hand, all on the left side of his body, an autopsy report showed. Toxicology tests found cocaine in Diaz's blood.
Police said investigators recovered a .22-caliber revolver at the scene and identified a bullet hole and projectile in the vehicle the officer had been driving. Police said at the time that it appeared to be a road-rage incident.
Some witnesses had contradicted the police account.
Juan Jose Silverio _ who identified himself to police as Javier Valiente _ said Diaz's gun remained in the glove compartment and that Diaz had gotten out to talk to the other driver. Police said Silverio gave a different account to detectives.
Murray's 120-page report includes police interviews with the undercover officer, a passenger in Diaz's truck and witnesses. Key findings of the report:
_The officer's account of being side-wiped on Albemarle Road was corroborated by telephone and radio traffic at the time. The officer said he followed the other driver until his truck abruptly stopped, their vehicles touching.
"I jump out and immediately he jumps out," the officer told detectives, "he says something to me in Spanish like 'I'm gonna tell you something' and that's when I see the silver, looks to me like a four-shooter .22 and he cocks it back, I wasn't sure if it was single action or a double action so it's probably a single action. So he pull it back and as he's raising it, I drew, I engage. I think he got a shot off, I'm not a hundred percent sure."
Police said they found a small .22-caliber revolver within arm's reach of Diaz. It had fired four rounds in the cylinder. The door of the undercover officer's SUV had been hit by a projectile consistent with a .22-caliber bullet.
_Javier Valiente, a passenger in Diaz's truck, gave conflicting accounts to police and the media about the incident. Valiente first denied that Diaz had sideswiped the officer's unmarked SUV, the report said, then admitted Diaz hit the officer's vehicle and kept going.
Valiente told detectives that when both vehicles stopped, the SUV driver shouted that he was a police officer and that Diaz got out of his vehicle with his gun "in his pocket." He told police he could not tell whether Diaz had a gun when he was shot.
Valiente had told the Observer that the officer started to fire when Diaz got out of his vehicle, and said Diaz's gun stayed in the glove compartment the entire time.
_Some witness accounts "are inconsistent with the physical and scientific evidence," the report says. Witnesses told different accounts of which man fired first, for instance, a conclusion police said is impossible to draw from physical evidence.
The medical examiner who examined Diaz's body found that his wounds were not consistent with Diaz being seated in his truck when he was shot, as some witnesses asserted.
_Diaz wore tattoos across his hands that identified him as a member of the Surenos 13 gang. His cellphone photographs showed him with known gang members and at least 10 gang members as contacts.
The officer didn't know Diaz was a gang member before the shooting, the report said.
