Defense Files Motion to Dismiss Manslaughter Charge Against Migrant in Arrest Followed by Deputy’s Heart Attack

Two weeks after all but accusing the St. Johns County Sheriff’s Office of fabricating parts of the account surrounding the arrest of 18-year-old Virgilio Aguilar Mendez, the migrant’s defense attorney has filed a motion to dismiss the manslaughter count against him, calling it “legally insufficient” and arguing that there’s no connection between Mendez and what led to the death of Sheriff’s deputy Michael Kunovich of a heart attack after the arrest.




If anything, the defense argues, any violence involved during the arrest of Mendez was the violence perpetrated by deputies against Mendez, rather than any violence perpetrated by Mendez himself. Mendez was overpowered by Kunovich and five other deputies and tased six times by Kunovich as he was handcuffed and placed in back of a patrol vehicle. After Mendez was handcuffed, Kunovich had no further contact with him.

Eight to 10 minutes passed before Kunovich collapsed, was taken to Flagler Hospital, and died there. The medical examiner ruled the death was of natural causes, attributing it to “atherosclerotic and hypertensive cardiovascular disease,” and calling it–in lay terms–a heart attack.

“Sgt. Kunovich’s death by natural causes (heart attack) after an arrest was not a reasonably foreseeable consequence of any action taken by Mr. Aguilar Mendez; therefore the manslaughter charge against him must be dismissed due to lack of legal causation,” the motion argues.

Mendez has been held at the Volusia Branch jail since te incident, which took place the night of May 19 outside the Super 8 Motel at 2550 State Road 16 in St. Augustine. Mendez was staying there with two roommates, migrants working in the fields outside St. Augustine. Mendez, a Guatemalan who does not speak English and speaks little Spanish, is of a Mayan background. He had had crossed into the United States illegally when he was 17, was seized by federal authorities then released to family. He made his way to work in St. Johns County.




He was on the phone with his mother the night of May 19, on the sidewalk in front of the Super 8 sign, when Kunovich drove up to him, and found his presence there suspicious. It was 9:04 p.m. Within moments Kunovich was attempting to frisk Mendez, who resisted, then to control him, as several other deputies eventually totaling five more arrived in quick succession. “While on the ground and being restrained by Deputy Higgins, Sgt. Kunovich deployed the taser six times against Mr. Aguilar Mendez,” according to the motion, which documents the six instances with corresponding time stamps from Kunovich’s body cam video.

After he was handcuffed, a common pocket-knife was seized from Mendez, who said he used it in the field. After Kunovich collapsed, he was given two doses of Narcan, the neutralizing agent, then taken to Flagler Hospital. Two deputies who were part of the arrest, and who were deposed by the state, said they “did not foresee the events of the arrest resulting in Sgt. Kunovich’s heart attack,” according to the motion, which cites the depositions’ relevant passages.

The motion, filed by Assistant Public Defender Rosemary Peoples, stresses that the facts surrounding the arrest and Kunovich’s death are not in dispute, and that relevant elements are taken from the state’s evidence. (Two weeks ago Peoples in a bond motion had disputed facts as presented by the sheriff during a news conference and allegations in Mendez’s arrest report that he had reached for his pocketknife offensively.)

The attorney cites two cases, one of them from the Fifth District Court of Appeal, as precedents undermining the state’s claim that manslaughter is the appropriate charge. In one case a man had burglarized a homeowner’s garage, stealing two bicycles. The homeowner was alerted by barking dogs, set chase, collapsed in the middle of the street and died. The burglar was charged with premeditated murder. The charge did not stick, as the court found it legally insufficient.




“Here Sgt. Kunovich did not engage in a foot chase; sadly, he died of natural causes,” Peoples argues. “Likewise, the body camera recording demonstrates the actions of the officers were the only violence present during the arrest of Aguilar Mendez. There was no action by Aguilar Mendez to satisfy the element of causation for the death of Sgt. Kunovich.”

In a second case–the one decided in the 5th District–a parishioner got in his car and chased after a man who’d stolen $110 from a church. The parishioner had a heart attack at the wheel, and died. The thief was charged with manslaughter, but the court found the charge invalid. In the Mendez case, Peoples argues, there’s even less of a cause and effect that could be established between whatever befell Mendez and what happened to Kunovich.

Circuit Judge R. Lee Smith ruled in late December that Mendez is incompetent to stand trial for now. A report from SAMA Healthcare is expected within 90 days of that ruling. Meanwhile, Mendez is receiving some treatment at the Volusia Branch Jail, but the defense has cast doubt on any possibility of competency restoration. Were he to be released from jail, he would immediately be taken into federal custody. No hearings have been scheduled–either in the defense’s motion for bond, or in its latest motion to dismiss the manslaughter charge. The latest motion does not address the other count Mendez faces, resisting arrest with violence.