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Date: 05-03-2021

Case Style:

STATE OF OHIO vs. ALAMIN MUHAMMADEL

Case Number: C-190683

Judge: Robert C. Winkler

Court: IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Plaintiff's Attorney: Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Meagan D. Woodall, Assistant Prosecuting Attorney

Defendant's Attorney:


Criminal Defense Lawyer Directory


Description:

Cincinnati, Ohio - Criminal defense attorney represented Alamin Muhammadel with appealing the judgment of the Hamilton County Municipal Court convicting him of assault



This appeal involves a prosecution for a misdemeanor assault that
commenced for speedy-trial purposes on October 17, 2017. On that day, Cincinnati
Police Officer Alphonso Staples responded to the scene in the central business
district of Cincinnati to assist Pamela Martin. She contended that Muhammadel had
punched and kicked her, causing injury to her hand, before disappearing. In
addition to searching for Muhammadel that day, Officer Staples filed a complaint
and obtained an arrest warrant. The arrest warrant contains detailed identification
information such as Muhammadel’s date of birth and control number, but lists his
address as “no home,” consistent with information from the police data base and
Martin.
{¶3} After October 17, 2017, Officer Staples did not pursue Muhammadel.
The Cincinnati Police Department had protocols in place for investigators to
continue the pursuit of homeless defendants, but he could not confirm that those
protocols were followed. One protocol involved sending notice about the warrant to
the local homeless shelter, into which officers were restricted from entering.
{¶4} About ten months after Muhammadel was charged with assault, a
second individual accused Muhammadel of aggravated menacing. Cincinnati Police OHIO FIRST DISTRICT COURT OF APPEALS
3
Officer Zachary Kress responded to that scene and obtained a warrant for
Muhammadel’s arrest. He was unable to find an address for Muhammadel in the
police data base or from the victim, who relayed only that Muhammadel frequented
the Price Hill neighborhood of Cincinnati. A few months after obtaining the
aggravated-menacing warrant, Officer Kress specifically looked for Muhammadel on
three separate shifts. He also ran an updated search of Muhammadel’s name and
control number through the police data base, but found no additional location
information. Unable to find Muhammadel despite these efforts, Officer Kress
submitted the warrant to the subpoena officers. He could confirm no further efforts
to apprehend Muhammadel, other than he and his fellow officers “just ke[eping]
[their] eyes outs to locate him.”
{¶5} Apparently, those efforts were eventually successful. On October 16,
2019, almost two years after the assault complaint was filed, Muhammadel was
arrested for the offenses.
{¶6} Soon after his arrest, Muhammadel moved to dismiss both
complaints, claiming the delay between the filing of formal charges and his arrest
was due to a lack of police diligence that resulted in a violation of the speedy-trial
provisions of the United States and Ohio Constitutions. In support, he relied on the
four-factor “Barker” test applied to evaluate Sixth-Amendment-based speedy-trial
claims and claims under Ohio’s Speedy Trial Clause. See Barker v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Long, Slip Opinion No. 2020-
Ohio-5363, ¶ 13-14.
{¶7} Evidence offered at the joint hearing on the motions to dismiss was
limited to testimony from the two Cincinnati police officers who signed the warrants
and Martin, the victim in the assault case. The officers explained their efforts to OHIO FIRST DISTRICT COURT OF APPEALS
4
apprehend Muhammadel and the inability of the police to enter the Drop Inn Center,
the local homeless shelter, to look for individuals. Martin indicated that she never
knew Muhammadel to have a stable residence over the many years she knew him.
{¶8} Muhammadel did not testify. Further, he did not present evidence of
a location where he could have been found for service of the warrants during the twoyear period at issue. Defense counsel argued, however, that the police officers had
improperly used Muhammadel’s homelessness as an excuse to forgo diligent efforts
to apprehend him. The state argued the Barker factors weighed against a speedytrial-right violation, characterizing the delay as reasonable considering
Muhammadel’s lack of a stable residence.
{¶9} When the trial court asked defense counsel about prejudice caused
by the delay, defense counsel responded that the delay had led to the loss of a police
body-worn camera recording and the ability to interview a witness. The trial court
denied the motion, unpersuaded by the claim of actual evidentiary prejudice and
emphasizing that Muhammadel was “not readily able to [be] f[ou]nd because he
d[id]n’t have an address.” Subsequently, Muhammadel pleaded no contest to the
assault charge, and the court dismissed the aggravated-menacing charge for want of
prosecution.
Constitutional Right to a Speedy Trial
{¶10} The issue raised in Muhammadel’s sole assignment of error is
whether the two-year delay between the filing of the assault complaint and his arrest
violated his constitutional right to a speedy trial. To determine whether a particular
delay is constitutionally reasonable, a court must balance four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33 OHIO FIRST DISTRICT COURT OF APPEALS
5
L.Ed.2d 101, quoted in Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686,
120 L.Ed.2d 520 (1992).
{¶11} The Barker factors are related and must be considered together,
along with such other circumstances as may be relevant to protecting the purposes of
the constitutional speedy-trial guarantee. See Barker at 533. That guarantee is
designed “ ‘(1) to prevent undue and oppressive incarceration prior to trial, (2) to
minimize anxiety and concern accompanying public accusation and (3) to limit the
possibilities that long delay will impair the ability of an accused to defend himself.’ ”
Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), quoting
United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
{¶12} Review of a speedy-trial claim involves a mixed question of law and
fact. Therefore, we defer to the trial court’s factual findings if they are supported by
competent, credible evidence, but we review the application of the law to those
facts de novo. See Long, Slip Opinion No. 2020-Ohio-5363, at ¶ 15.
Length of the Delay
{¶13} The length-of-the-delay inquiry serves as a threshold inquiry that a
defendant must satisfy before triggering further analysis under the Barker factors.
Generally, as a delay between formal accusation and arrest approaches one year, the
delay triggers further analysis. See Doggett, 505 U.S. at 662, 112 S.Ct. 2686, 120
L.Ed.2d 520, fn. 1.; Long at ¶ 19. In this appellate district, a delay of nine months or
more in a misdemeanor-assault case gives prima facie merit to a claim of denial of
the constitution-based right to a speedy trial and requires the court to analyze the
three remaining Barker factors to determine if reversal is warranted. State v. Sears,
166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.). OHIO FIRST DISTRICT COURT OF APPEALS
6
Consistent with this precedent, the state has never disputed that the two-year delay
in this case triggered analysis under the remaining three Barker factors.
{¶14} Although the length of the delay triggers further analysis, the first
factor weighs only negligibly for Muhammadel because he was not incarcerated or
otherwise restrained of his liberty during the delay and did not know of the pending
complaint. See State v. Bush, 1st Dist. Hamilton No. C-190094, 2020-Ohio-1229, ¶
15, citing State v. Triplett, 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (1997), and State
v. Keaton, 10th Dist. Franklin No. 16AP-716, 2017-Ohio-7036.
Reason for the Delay
{¶15} The second Barker factor focuses on the state’s explanation for the
delay. State v. Jackson, 2016-Ohio-5196, 68 N.E3d 1278, ¶ 11 (1st Dist.). The state
has the burden of ensuring a speedy trial, but a pretrial delay is “often both
inevitable and wholly justifiable.” Doggett, 505 U.S. at 656, 112 S.Ct. 2686, 120
L.Ed.2d 520, quoted in Sears at ¶ 13. This inquiry, thus, examines the source of the
delay, and whether delay tied to the government was “[]necessary” and thus,
“[]justifiable,” or whether it “might reasonably have been avoided.” Dickey v.
Florida, 398 U.S. 30, 51-52, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J.,
concurring); Sears at ¶ 13. See Doggett at 652-653 (“For six years, the
Government’s investigators made no serious effort to test their progressively more
questionable assumption that Doggett was living abroad, and, had they done so,
they could have found him within minutes.”).
{¶16} Different reasons for delay are afforded “different weights.” Barker,
407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101. A deliberate delay by the government
weighs heavily against the state. Id. Delay resulting from a neutral reason such as OHIO FIRST DISTRICT COURT OF APPEALS
7
negligent conduct of the government weighs less heavily. Id. Delay that is justifiable
and reasonable in time generally does not weigh against the state at all. Id.
{¶17} Intertwined with this analysis is consideration of whether the
defendant shares any responsibility for the delay. See Triplett, 78 Ohio St.3d at 570,
679 N.E.2d 290. (A defendant’s “slipperiness” contributing to the delay weighs
“heavily against” the defendant, even when the police are “underzealous” in
bringing a defendant to justice.).
{¶18} Muhammadel argues the evidence at the hearing showed the source
of the delay was Officer Staples’s “negligence” in failing to use more diligent efforts to
apprehend him. Undoubtedly, the police have a duty to use serious efforts to
apprehend the accused, even those without a stable address. See Doggett, 505 U.S.
at 653, 112 S.Ct. 2686, 120 L.Ed.2d 520; United States v. Velazquez, 749 F.3d 161,
179-180 (3d Cir.2014). The difficulty with Muhammadel’s negligence argument is
the absence of evidence to support a conclusion that more diligent efforts likely
would have led to an earlier arrest.
{¶19} The state presented evidence that Muhammadel lacked a stable
address where he could be found and this lack of address, along with the restrictions
of the Drop Inn Center, impeded his apprehension. Muhammadel did not challenge
this evidence and the trial court accepted it. Lacking evidence of where
Muhammadel could have been found, one cannot conclude with much certainty that
Muhammadel would have been arrested sooner with more police diligence.
{¶20} Muhammadel now challenges the state’s claim that he lacked an
address for apprehension, but his late efforts are unavailing. He cites defense
counsel’s representation, at the bond reduction hearing, that Muhammadel had
become employed and obtained stable housing at some point before his arrest. But OHIO FIRST DISTRICT COURT OF APPEALS
8
defense counsel’s representation is too vague to make any difference to our analysis
in this case. The trial court was unpersuaded by defense counsel’s representation
and rejected the bond reduction request, a position advocated by the prosecuting
witness Martin, who appeared at the hearing and told the court that Muhammadel
“has a very good way of eluding people,” based on her long history of dealing with
him.
{¶21} Muhammadel also invites this court to perform our own search on
websites such as PeopleFinders.com or the Hamilton County Clerk of Courts to
discover ostensible addresses where the police could have looked for him during the
delay. While information from these websites, if timely presented in the trial court,
may have aided our decision, this court cannot add to the trial court record when
deciding this appeal. State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),
paragraph one of the syllabus.
{¶22} Finally, Muhammadel argues that the state had the burden to show
that his “nomadic lifestyle” would have made the government’s efforts “unfruitful”
even if the police had been “diligent.” But if we accept Muhammadel’s argument, we
would be placing an unwarranted burden on the state to prove what it undisputedly
did not know and Muhammadel did—his whereabouts.
{¶23} Ultimately, we conclude that the trial court’s findings that
Muhammadel lacked an address and was not readily available to be found are
supported by competent, credible evidence and, therefore, we accept them when
considering the reason for the delay.
{¶24} Although we accept the trial court’s factual findings, we cannot
condone the lack of police effort here by characterizing the entire delay as justified.
Conversely, we cannot characterize the state’s conduct as a deliberate attempt to OHIO FIRST DISTRICT COURT OF APPEALS
9
delay Muhammadel’s trial to gain a tactical advantage. An officer looked for
Muhammadel on the date of the assault, elicited some location information from the
victim, obtained and filed an arrest warrant that contains Muhammadel’s
identification information such as his control number in addition to a physical
description, and assumed others would take over the search. This record does not
implicate bad faith and Muhammadel has never suggested bad faith.
{¶25} Missing from this case, too, is an argument by the state that
Muhammadel was attempting to avoid apprehension. Moreover, the state recognizes
that Muhammadel cannot be blamed for the delay due to his lack of a stable address.
{¶26} Without some evidence that more diligent efforts would have
resulted in an earlier trial, we conclude the state’s reason for the lengthy delay is a
“neutral reason” that weighs against the state, but not heavily. See Barker, 407 U.S.
531, 92 S.Ct. 2182, 33 L.Ed.2d 101. (“A more neutral reason” weighs less heavily for a
violation, but must be considered as part of the analysis “since the ultimate
responsibility for such circumstances must rest with the government rather than the
defendant.”).
Assertion of Speedy-Trial Rights
{¶27} The third Baker factor examines the defendant’s assertion of the
speedy-trial right. Here, there was no evidence that Muhammadel knew of the
complaint before his arrest. Further, he promptly moved to dismiss the case after his
arrest. Thus, Muhammadel argues this factor should weigh in his favor. We agree
with Muhammadel, and note the state’s agreement, too.
Prejudice Caused by the Delay
{¶28} The final Barker factor considers whether Muhammadel suffered
prejudice from the delay. Muhammadel claimed actual prejudice to his defense at OHIO FIRST DISTRICT COURT OF APPEALS
10
the hearing on the motion to dismiss. The trial court found his assertions
inadequate to warrant dismissal.
{¶29} On appeal, Muhammadel maintains that he demonstrated actual
impairment to his defense and, for the first time, he contends prejudice to his
defense should be presumed.
{¶30} Prejudice to the defense is the “most serious” interest protected by
the speedy-trial right, yet it is often difficult to prove. Barker, 407 U.S. at 532, 92
S.Ct. 2182, 33 L.Ed.2d 101. Moreover, “[e]xcessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove, or for that
matter, identify.” Doggett, 505 U.S. at 656, 112 S.Ct. 2686, 120 L.Ed.2d 520. Thus,
in some cases evidentiary prejudice will be presumed.
{¶31} “In determining at what point prejudice is presumed so as to relieve
the defendant of showing actual prejudice to her or his defense, courts focus on the
culpability of the state in failing to bring the defendant to trial.” Bush, 1st Dist.
Hamilton No. C-190094, 2020-Ohio-1229, at ¶ 22.
{¶32} In Doggett, the United States Supreme Court held that an eight-anda-half-year delay between an indictment and arrest on federal drug charges was
presumptively prejudicial due to “the Government’s egregious persistence in failing
to prosecute Doggett.” Doggett at 656. After explaining how law enforcement could
have located Doggett “within minutes” exerting minimal effort, the Court concluded
that Doggett would have gone to trial six years earlier if not for “the Government’s
inexcusable oversights.” Id. at 657.
{¶33} Consistent with Doggett, this court has presumed prejudice where a
lack of police persistence caused an unnecessary and long delay. In Jackson, we
presumed prejudice in a case involving a four-year delay, noting that the state failed OHIO FIRST DISTRICT COURT OF APPEALS
11
to explain how, if its efforts were diligent, it was unaware the defendant spent 18
months of a four-year delay in a state correctional facility. Jackson, 2016-Ohio-5196,
68 N.E.3d 1278, at ¶ 13.
{¶34} In State v. Pierce, we presumed prejudice in a case involving a delay
of about 15 months, which is less than the two-year delay in this case. State v.
Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 2, 17. But, when
examining the state’s culpability for the delay, we were unable to “definitively” rule
out that the state had “acted intentionally to thwart service of the indictment.” Id. at
¶ 12.
{¶35} Similarly, in Sears, this court presumed that a criminal defendant
was prejudiced by a delay of only nine months where the state failed to make any
effort to notify the defendant of the complaint. Sears, 116 Ohio App.3d 166, 2005-
Ohio-5963, 849 N.E.2d 1060, at ¶ 16. We emphasized, too, that the state never
suggested it had a problem locating the defendant, who had resided at the same
address during the challenged delay, and the police had defendant’s social security
number, date of birth, and correct address with the exception of the last digit of the
zip code. Id. at ¶ 3-4, 14.
{¶36} Conversely, in Bush, this court did not presume prejudice because
the state offered evidence that it had made “periodic and regular efforts” to locate
the defendant at his known addresses during a 21-and-one-half month delay
between indictment and arrest. Bush, 1st Dist. Hamilton No. C-190094, 2020-
Ohio-1229, at ¶ 27. After considering the facts in context and in comparison to
other cases, we concluded that the delay was not “so egregious as to presume
prejudice.” Id. OHIO FIRST DISTRICT COURT OF APPEALS
12
{¶37} The state argues this case does not warrant a presumption of
prejudice considering the state’s efforts to locate Muhammadel, the length of the
delay, and the absence of location evidence. We agree.
{¶38} As previously noted, this case involves a lack of police persistence
that we do not condone. The record, however, does not contain facts allowing us to
conclude with any confidence that the police would have located Muhammadel
sooner with more diligence. Considering the culpability of the state in light of the
long but not extreme delay, we decline to find the circumstances of the delay here so
egregious as to cross over the point where a presumption of prejudice is warranted.
See Bush at ¶ 27.
{¶39} Next we review whether Muhammadel made any affirmative
showing of prejudice. Muhammadel did not claim the delay weakened his ability to
raise specific defenses or elicit specific testimony. He claimed only that he lost the
opportunity to preserve any recording from a police-worn body camera, to
“interview” a “witness” listed on the “police officer’s report” and, that, resultantly,
“all of the physical evidence in this case has been lost.”
{¶40} The trial court found these contentions insufficient to warrant relief,
overruling the motion to dismiss without affording the state an opportunity to
challenge them. The state now argues that defense counsel’s assertions of prejudice
were speculative and unsupported by the record. And the state rebuts the claim of
prejudice, noting the state’s filed discovery response shows Muhammadel was
provided the police incident report and that Martin’s appearance at the hearing on
the motion to dismiss shows she was available for trial.
{¶41} We conclude that Muhammadel failed to show particularized
prejudice. For instance, Officer Staples, who arrived at the scene of the assault after OHIO FIRST DISTRICT COURT OF APPEALS
13
Muhammadel’s departure, was not asked at the hearing on the speedy-trial motion if
his body-worn camera was activated when he assisted Martin at the scene. Thus, the
record does not suggest that the recording, typically retained for a limited time,
captured anything relevant to Muhammadel’s defense, even for impeachment
purposes. Further, while Muhammadel showed that he was not able to interview a
state’s witness earlier, he did not show the witness was deceased or otherwise
unavailable for an interview or a trial.
{¶42} Absent prejudice, this factor weighs against Muhammadel.

Outcome: “ ‘[T]he right of a speedy trial is necessarily relative. It is consistent
with delays and depends upon circumstances. It secures rights to a defendant. It
does not preclude the rights of public justice.’ ” Barker, 407 U.S. at 522, 92 S.Ct.
2182, 33 L.Ed.2d 101, quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49
L.Ed. 950 (1905). After applying the Barker balancing test to the circumstances in
this case, we conclude that Muhammadel’s constitutional speedy-trial right was not
violated. Muhammadel timely moved to dismiss the assault complaint, but
considering the tenuous link between the state’s efforts in pursuing him and the two year post-accusation delay, and the absence of any particularized prejudice, we hold the trial court did not err in denying his motion to dismiss. Consequently, we
overrule the assignment of error and affirm the trial court’s judgment.

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