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.
“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.