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A drug dealer reiterated Friday that he shot and killed a homeless man on Christmas Eve three years ago only because the man made a sudden movement, causing the dealer to fear for his life.

But the self-defense claim didn't keep a federal judge from adding five years to an otherwise standard 10-year sentence faced by Terry Jerome Pitts, 31, of North Little Rock, who pleaded guilty in August to a federal charge of discharging a firearm in furtherance of a drug-trafficking crime.

Pitts initially was charged in state court with first-degree murder in the death of 39-year-old Miguel Diaz, but the state charge wasn't pursued after the federal charge was filed.

"This is a murky and challenging set of circumstances," U.S. District Judge D. Price Marshall Jr. said in handing down the sentence -- which is five years more than the statutory minimum sought by Pitts' attorney, David Cannon, and five years less than the 20-year sentence sought by Assistant U.S. Attorney Michael Gordon.

According to North Little Rock homicide detective Michael Givens, who is also part of a Bureau of Alcohol, Tobacco, Firearms and Explosives task force and was the lead investigator in the case, the murky situation unfolded inside the house at 2720 E. Broadway in North Little Rock about 10:30 p.m. Dec. 24, 2014.

Givens testified that there was no electricity in the house, where Pitts' brother lived, but that after police arrived, there was still a candle flickering on a coffee table in the dark living room. Pitts told police that he had been sitting on the couch, next to his pistol, preparing a bag of marijuana to sell to Diaz, when he saw Diaz reach for his right side.

Fearing that Diaz was reaching for a gun as part of a plan to rob Pitts, Pitts said he pulled his own .22-caliber pistol and the men tussled, with Diaz trying to knock Pitts' gun out of the way. The gun went off during the struggle, Pitts said.

Givens said Diaz was shot in the right side of his head and appeared to have fallen straight back from a standing position, landing partly in a nearby kitchen, a small flashlight tucked into his left hand.

A very small single-shot .22-caliber pistol that belonged to Diaz, and that his friends later said he carried for protection, was found lying about 2 feet behind his head. It had one bullet in the chamber, but no magazine to supply other bullets. A holster was found on his right hip.

Gordon asked the judge to double the mandatory minimum sentence for Pitts and to order Pitts to pay restitution of $1,593.55 to Diaz's mother in California for his cremation.

But Cannon argued that "Mr. Diaz was not a victim because it was his actions that led to the events which resulted in Mr. Diaz's death."

Cannon said in a sentencing memo that Diaz had approached Pitts as he sat outside the house in a vehicle. Diaz wanted to buy cocaine, but Pitts only had marijuana, Cannon said the police investigation showed. He said the men then went inside the house.

After the shooting, he said, Pitts fled, leaving behind his marijuana and his gun, but he sent a family member to retrieve both items before police were called.

Calling Diaz "the aggressor," Cannon argued in the memo, "Had Mr. Diaz not reached for his weapon, the transaction would most likely have been completed with both parties walking away happy. Mr. Diaz instead chose to do what can only be speculated to, as try and rob Mr. Pitts of his marijuana and money. Unfortunately, his choices led to his death."

Gordon, however, argued that the 10-year penalty recommended by sentencing guidelines for the gun crime "does not account whatsoever for the aggravating facts involved in the commission of his crime (namely, that Pitts killed another person during the crime and then enlisted the help of others to conceal the crime) and also does not consider Pitts' lengthy criminal history (including the fact that he was on parole when he committed the instant offense)."

Gordon complained that the "one-size-fits-all" punishment didn't consider the specifics of Pitts' crime, but the guidelines provide enhancements for other crimes that result in death.

Gordon said that according to Pitts' pre-sentence report, he has accumulated several felony and misdemeanor convictions for offenses including robbery, drug possession, theft and fleeing, since the age of 18. Gordon said records showed Pitts also has had his probation and parole revoked numerous times for committing new crimes and absconding, and was on parole when the shooting happened.

Through an interpreter, the judge talked with Diaz's mother by telephone and let attorneys for both sides question her. She said Miguel was her only child and had lived near her in California for many years. He had gone to Little Rock less than a year before he was killed to look for a job in construction with his friends. He had been planning to visit her during at Christmas, she said.

"I was waiting that night to receive a call telling me when he was going to come," she said. But instead, she said, she received a call Christmas morning telling her that her son had been killed.

Marshall said he had seen a video of the police interview with Pitts after the shooting, in preparation for a suppression hearing that was canceled when Pitts decided to plead guilty, and that he had read a letter Pitts wrote to the court.

He also asked attorneys what punishment Pitts would have been likely to receive if he had been prosecuted in state court on a murder charge. Cannon said he thought Pitts faced "at best" a manslaughter conviction in state court, "which tops out at 10 years."

When Cannon emphasized that Diaz had "reached for his right hip," according to Pitts, Marshall asked the attorney, "What if your money's in your back pocket?"

Cannon replied that anyone who is buying drugs should be aware that a sudden move would make another person "jumpy," and should explain what they are doing.

"Do we really think that Mr. Diaz, a homeless guy, walks into this house with a single-shot small-caliber handgun, sees Mr. Pitts with a gun and decides he's going to use his one shot?" Gordon asked rhetorically, adding, "That's not the gun you use for a robbery."

Marshall said that despite the murkiness of the situation, "what is clear is that Mr. Diaz ended up dead." Considering that and Pitts' extensive criminal history, he said, he believed 15 years was a just punishment.

Marshall also ordered Pitts to pay restitution to Diaz's mother, and to serve three years on supervised release after prison.

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Metro on 01/20/2018

Print Headline: Self-defense claim fails; drug dealer gets 15 years for 2014 slaying

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