SAN JOSE — Jurors are deliberating a murder charge against a defendant who killed an 81-year-old man two years ago in a chance encounter that ended with a vicious blindside assault, spurred by the brief shining of a flashlight while the victim was on a routine night walk in his South San Jose neighborhood.
Amiel Joey Mirador, 35, has been on trial for the March 27, 2022 attack near Avenida Grande and Via Romera, a neighborhood nestled between Bernal Road and Santa Teresa Boulevard. The man who died, Allen Douglas Dournaee, never knew his assailant before he was punched from behind while retreating from Mirador, as was shown in surveillance video from the night of the attack.
There is no dispute that Mirador, intoxicated and having been in fights with his two older brothers in the preceding hour, killed Dournaee. But prosecution and defense attorneys have sparred in court over whether Mirador had murderous intent when he punched Dournaee in the back of the head, then twice more after the victim fell face-down onto a concrete sidewalk.
Deputy District Attorney Hannah Bertrando asserted that Mirador, after Dournaee shined a flashlight on him from across the street, could have just left the area instead of advancing on then attacking Dournaee.
“Why doesn’t he just go home? Because he made a choice. He was acting intentionally,” Bertrando said during her closing arguments Tuesday. “He was looking for a fight.”
Mirador’s attorney, Deputy Public Defender Bichara Endrawos, said the facts of the case support a lesser conviction and that the prosecution failed to prove the malice required for the second-degree murder conviction it was seeking.
Endrawos argued that Mirador did not set out to kill the victim nor did he have a ready way to know how old Dournaee was, a key point of contention for an accompanying elder abuse charge for which Mirador was also tried.
“The only crime that fits the facts of the case is an involuntary manslaughter,” Endrawos said Tuesday. “There was no intent to kill.”
Mirador himself took the stand and claimed that he confronted Dournaee because he would not stop shining the flashlight at him, which he said made him scared for his safety. He admitted to lying to witnesses, emergency personnel and police about his role in Dournaee’s injuries, which he said came from being overwhelmed by fear in the immediate aftermath.
Bertrando said Mirador was lying as part of a broader scheme to avoid culpability for a murder. Endrawos said Mirador’s lies after the fact had no bearing on his intentions when he punched the victim.
San Jose police investigators, both in a police report and during trial testimony, contend that around 8 p.m. the night of March 27, 2022, Mirador was on the opposite side of the street from Dournaee, who was out on a night walk near his home. At some point Dournaee shined his flashlight at Mirador.
Home-security footage from a nearby home shows Dournaee turn and walk away from Mirador, who crossed the street to close the distance and punched Dournaee in the back of the head, knocking him to the ground. Mirador then punched a prone Dournaee in the head again, then a few seconds later, after looking around, wound up and punched him a third time.
Dournaee never regained consciousness, and he died 12 days later from severe head injuries. But in the immediate aftermath of the attack, Mirador called 911 and later claimed that he found Dournaee on the ground after tripping on him, a story that the video footage quickly debunked.
Evidence introduced at trial that was not widely known beforehand featured testimony from two of Mirador’s older brothers. They told jurors that about an hour before the fatal attack and just a few blocks away, Mirador had shown up at a family home and was spurned by his eldest brother, who in the course of a subsequent argument punched Mirador in the face. The brother was apparently upset with Mirador for coming home from work drunk and over an unspecified debt; the quarrel prompted a police response that ended with no arrests.
Another older brother then sought to drive Mirador home, but that ride ended with another physical altercation in which the driving brother slapped Mirador, who then punched and broke the car’s windshield before getting out.
Bertrando argued to jurors that this was a prologue to an agitated and wound-up Mirador fatally attacking Dournaee. She described the first blow as a “sucker punch” that knocked out Dournaee and left him unable to brace for a fall that led to catastrophic injuries to his face and brain.
“The second and third (punches) are kill shots,” Bertrando said.
Endrawos said such an argument was asking jurors to make a considerable leap of logic from criminal negligence to the implied malice needed to support a murder conviction. He contends that Mirador was not angry but instead was emotional after the dust-ups with his brothers, and that the jury should not treat his punches as murderous acts given the context of the subsequent fall.
Dournaee’s official cause of death was attributed to “complications of blunt force injury of head,” but did not distinguish whether the blows or the fall were more at fault.
“He wasn’t trying to kill with those punches,” Endrawos said. “This was a horrible tragedy, but it was a freak accident.”
The attorneys also debated whether Mirador knew he was attacking an elderly man, a contention that underpins the secondary elder abuse charge. Bertrando asserted that there was “time and opportunity for (Mirador) to have seen Allen’s face,” and know he was approaching a particularly vulnerable person.
Endrawos said the confluence of Dournaee wearing a hat and COVID mask on his face, as well as Mirador being partially blinded by the flashlight shining in his direction, supports the idea the defendant did not know the victim’s age until afterward.
This is a developing story. Check back for updates.