The defense lawyer for Virgilio Aguilar Mendez, the 18-year-old migrant held for over eight months on an aggravated manslaughter of an officer charge in the death of a St. Johns County deputy, is calling his arrest “legally insufficient,” describing his arrest report as containing misrepresentations of fact and misapplications of the law, and citing the medical examiner’s report to conclude that the death of the deputy was unrelated to the arrest.
Assistant Public Defender Rosemarie Peoples presents those arguments in a Jan. 17 amended motion to have Mendez released from jail either on his own recognizance or on a maximum bond of $5,000. He is currently being held at the Volusia Branch Jail on no bond on the manslaughter charge, and on $50,000 bond on a charge of resisting with violence, which Peoples says is also unsupported by the evidence.
Mendez, who crossed undocumented into te United States when he was 17 years old, was arrested by federal authorities and released to his family before finding agricultural work in the St. Augustine area. While he was eating dinner and speaking to his mother by phone outside the Super 8 motel where he was staying last May 19, St. Johns County Sheriff’s deputy Michael Kunovich approached him after finding his presence there suspicious. Mendez doesn’t speak English. He gestured about eating and staying at the motel. The deputy attempted to searched him. Mendez, uncomprehending, resisted, though not violently, and was eventually overpowered by several deputies and tased. Later in his patrol car, Kunovich suffered a heart attack and died at the hospital.
At the end of December Circuit Judge R. Lee Smith ruled that Mendez was incompetent to stand trial. Smith agreed with expert witnesses that Mendez had no ability to understand the charges against him or communicate with his lawyers, nor did he have the capability to learn what was unfolding around him and why. He is receiving treatment from SMA Healthcare while in jail, in an attempt to restore competency. Since his incompetence is largely an intellectual disability, it’s not clear whether, or when, he could be restored to competency.
Either way, his lawyer is arguing that he should not be in jail, though if he were released, he would immediately be take into federal custody.
The motion Peoples filed is little short of an indictment of the prosecution’s case, and a preview of the contradictions the jury would be faced with between video evidence and jury instructions about what aggravated manslaughter means, and what is required for a conviction under that standard.
“The defendant cannot be guilty of Aggravated Manslaughter by causing a death because of a merely negligent act,” jury instructions in that regard read. “But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant.” The instructions go on to detail how flagrant.
“With the above jury instruction in mind, this Court cannot ignore the State’s complete inability to demonstrate that Aguilar Mendez’s actions were likely to cause death or great bodily harm,” Peoples’ motion reads. “At no point were Aguilar Mendez’s action sufficient for a probable cause determination of culpable negligence wherein Aguilar Mendez did not act in a manner that resulted in great bodily harm or death. In short, Aguilar Mendez’s actions did not cause the death of the late Sgt. Kunovich.”
The medical examiner ruled that Kunovich’s manner of death was “natural,” with a “contributory cause of death physical exertion and possible emotional stress while apprehending a fleeing suspect.” The defense disputes that Mendez was fleeing: body cam footage sows him slowly walking a few steps toward the motel when Kunovich approached him in what was likely an instinctual reaction for a Guatemalan weary of anyone in uniform. But when Kunovich told him to stop, he stopped, turned around, and engaged with the deputy, or at least tried to.
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“Mendez was stopped without any reasonable articulable suspicion,” the defense argues. At the time of his first appearance in court, the judge did not have access to the medical examiner’s report or to the the body cam videos that have since become part of the record. There were only the arrest report and statements by St. Johns County Sheriff Robert Hardwick, who said in a statement to cameras that “all the suspect had to so is comply. Instead the suspect chose to try to remove a knife from his left hand pocket of his pants, and the struggle was on with Sg. Micheal Kunovich until the next deputy showed up 37 seconds later.”
But that is a mischaracterization of the evidence on video, the motion argues: “During this arrest, Virgilio in a definitive example of his non-violent state of mind and his limited English repeated the phrase ‘Sorry’ and ‘Familia’ (family),” the motion reads. “After suffering various choke holds, being kneed to his ribs and tased multiple times, Virgilio’s hands were cuffed. After being handcuffed, young Virgilio was face down and surrounded by numerous uniformed officers; then and only then, Virgilio retrieved and held a folded common pocket-knife in his clenched left hand. In the confusion of the arrest Virgilio committed no act of violence. He yelled ‘Sandia,’ (which means watermelon in Spanish), in efforts to explain the one tool in his possession was used to earn a living. At all times, the possession of the common pocket-knife by Virgilio was legal. At no time during the incident was any officer in danger, as the blade within the common pocketknife was never unfolded or exposed from his clenched hand.”
There is no evidence in any of the body cam footage that Mendez himself acted with the reckless disregard of the life of any officer, Peoples’ argues. The arrest report, the motion argues, “stands contradicted by the video recording of the arrest.”
Smith has not set a bond hearing date.
Pogo says
@Good God
Enough — already
https://www.google.com/search?q=nolle+prosequi+in+florida
bill says
thanks to this wicked administration the chaos will continue till they are deported
back thats if we get the right leader to lead america
JimboXYZ says
That’s probably what the Feds do, once this is over & done with on an unfortunate heart attack. It almost reminds me of the J6 Officers that died days later from whatever they did to themselves or the natural causes of a stroke ?
https://en.wikipedia.org/wiki/January_6_United_States_Capitol_attack#Results
Jim says
bill/JimboXYZ…..
Illegals didn’t start coming to the US under the Biden administration. And you might check this out… Biden’s admin has asked Congress for additional funds for the border for nearly a year and Congress hasn’t appropriated that money. Further, if I recall my government class correctly, Congress is responsible for enacting legislation to control immigration into this country. They’ve done nothing – it doesn’t matter whether the Republicans or Democrats are in charge, no legislation gets passed with the rules brought up to date and the funding to implement. (And, by the way, Trump didn’t built much of a wall, certainly not the 400 miles or so he claims….And the wall he did built got cut down just days after it was put into use and illegals just walked into this country. That’s a fact – check it out!)
As far a Jan. 6th, you might review that video(s) a little. Seems to me those officers that died (suicide or heart attack) spent hours in physical fights with Trump supporters who attacked them with bear and pepper spray as well as assorted weapons. Seems to me those were US citizens, not illegals and those police involved were severely shaken to be attacked by our own citizens. The kid in this incident didn’t offer much resistance at all and he was well outnumbered by the police, not to mention he’s a little guy. Further, if you watch the video, please explain to all of us why the confrontation took place at all. He wasn’t doing anything when the police approached him and he certainly didn’t do anything to trigger the response that it escalated to. If this had been a white guy I’ll bet the police would have driven by and not even stopped. Not speaking English isn’t a crime in the US (not yet anyway).
So you guys just continue to rant about the illegals and justify the actions of the Jan. 6 insurrectionists all you want. I guess that makes you feel better about yourselves.
Pat stote says
Jim you are 200% right in J6. The guys were US citizens and assaulted the Capitol Police Officers wounding 250 of them and one guy lost his eye. That was the most outrageous attack in our history. Thankfully, several are serving many years in prison.
As far as the young man goes that wants the tragedy beyond words. It was obvious there was no reason to question him, and it was also obvious that he did not understand what they were saying.
Oat stite says
Whatever they did to themselves. Are you kidding
Sherry says
@jimbo. . . defaming the officers that stopped a coup, and kept the Vice President and members of Congress safe during the horrific insurrection of Jan. 6th is beyond the pale, even for a brainwashed FOX cult member! Did you even read the page you posted? You should be incredibly ashamed. . . the trouble is that you are not! Despicable!
Hmmm says
This was a violation of constitutional amendments. Under law, law enforcement cant stop, detain, and frisk for no reason. At least here in Florida. Sitting outside of a motel doenst constitute the interaction. Regardless if he is an illegal immigrant or not. The police wouldn’t even know that unless they themselves broke the law. As unfortunate as it is, this man should not be held accountable for that. I dont understand why he’s still being held on those charges.
palmcoaster says
I totally agree with you this poor young man was not breaking any laws and was practically assaulted and tortured with teazzer and physical violence for not justified reason at all and he could not understand the commands given to him except that he was scared to death. He does nit belong in jail and should be released to his family that was exactly what he was saying all the time “familia, familia” “no tengo nada” meaning family, family I do not have anything, sorry sorry as begging for any error made. I care and respect our law enforcement but these officers abused this man. Furthermore he did nothing to the officer that had the cardiac arrest. His error was to be in the sidewalk other than in his room only. He could not understand the orders or why the violence and scared resisted.