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A motion to dismiss first-degree murder and related charges against Anthony David Mercado, the young man accused of last February’s shooting death of his grandmother at their Cape Charles home, was denied Monday in Northampton Circuit Court.
Defense lawyer Patrick Bales claimed 25-year-old Mercado was denied due process as officers did not take him to a hospital or arrange for a blood test after his arrest, despite that one officer repeatedly said the defendant appeared to be “higher than heck” by drugs and that Mercado had told them he was taking “an antibiotic for rat poison.”
Bales said that failure to obtain the evidence could keep his client from showing “his need for self-defense.” Bales said Mercado had rare side effects of the drug Bactrim, that caused him to have hallucinations and confusion. He said not collecting evidence is comparable to losing it. Bales said his client could not obtain the evidence himself because he has been in custody since just after 73-year-old Jane Grigsby McKinley was shot to death at the Tazewell Street residence.
Watch previous coverage: Cape Charles man charged with first-degree murder of his grandmother
The lawyer said the officers should have known that something medically or psychologically was wrong. “We can’t show that the drug that caused it was in his system, but it was found in his room with his belongings,” Bales said. “As a result, … his defense is extremely hampered.”
“The remedy is dismissal of the charge,” Bales continued. The lawyer said an alternative would be to instruct a jury that not preserving the evidence should not be held against the defendant.
Judge Lynwood W. Lewis Jr. said, “There was no proof that the action was deliberate or that there was any evidence of bad faith in regard to the police. Nothing that would be worthy of a dismissal.” He referred to it as a “failure to harvest from some alternative universe.” Lewis did not appear to consider Bales’ alternative.
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Commonwealth’s Attorney Jack Thornton said, “The evidence today is that this is an extremely rare issue.” He argued “officers were not required to make a blood draw … trying to put that on the officer is basically telling him how to handle his case. This is not what the law is. The young man did not ask for a blood test or say that he was intoxicated. Officers are not trained to recognize antibiotics.”
A toxicology expert testified that Bactrim is used for bacterial infections and that people are not commonly tested for using it. Bactrim “is not a drug of abuse or recreation,” she said.
It is often used to fight things like urinary tract, middle ear, bronchitis, Pneumonia, and shingles infections. The expert also said they would not be able to tell if someone had been overdosed, what concentration would affect an individual, or if he was impaired. “I wouldn’t know how this drug is affecting this individual.”
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She also explained that a hallucination is a sensory experience that appears real to the individual but is not real. “It can affect any of our senses.”
According to the internet, “The most common Bactrim side effects are nausea, diarrhea, and skin changes. Bactrim can also cause rare side effects such as severe skin reactions, electrolyte and blood glucose changes, and low platelet levels.”
Both sides agreed to continue the trial, which had been set for Dec. 3 and 4. “DNA evidence is still ongoing,” Bales told the judge. A new date was not set.
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When police met Mercado on the stairs of the house on the day of the shooting, records state he told the authorities “He had just shot someone who entered his house and she was upstairs and not alive.” Officer T. Lynch of the Cape Charles Police Department wrote, “I found the body of his grandma upstairs. He was later interviewed (and) he told us he shot her multiple times as she was stepping away from him.”
The file also showed that Mercado had been living with the victim for three or four months. Drug possession was one of the initial charges against him. The white powder, confiscated during the investigation and first thought to be cocaine, contained the antibiotic, and those charges were dropped.
In 2012, a 23-year-old Virginia Beach police officer wasn’t prosecuted for allegedly stabbing two Atlantic firefighters and shooting at another during an off-duty episode that occurred near Hallwood. The volunteers went to a traffic accident and found a vehicle had run off the road and struck a tree.
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The defendant in that case, blamed his bizarre behavior on the antibiotic Biaxin, which he was taking for a respiratory infection. It was believed he was suffering from “involuntary intoxication.” He became obsessed with the number four and a girlfriend who lived up north, among other things. He called his parents to report his agitation and was told to get some sleep. Instead, he left his home and traveled up Lankford Highway. He was sent for a psych exam, later filed a lawsuit against the pharmaceutical company, and eventually went back to work.
