STATE OF OHIO v. MICHAEL MACK
No. 100965
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 30, 2014
[Cite as State v. Mack, 2014-Ohio-4817.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-575712-A
JUDGMENT: AFFIRMED
BEFORE: Jones, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 30, 2014
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Brett Hammond
Denise J. Salerno
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
John Spellacy
John J. Spellacy & Associates
526 Superior Avenue, N.E.
1540 Leader Building
Cleveland, Ohio 44114
{1} Plaintiff-appellant, the state of Ohio, appeals from the trial court‘s January 2014 judgment granting defendant-appellee‘s, Michael Mack, motion to dismiss the indictment due to preindictment delay. We affirm.
{2} In June 2013, Mack was charged with the alleged June 1993 rape of the allegеd victim.1 Mack filed a motion to dismiss the indictment, and the trial court held a hearing. At the hearing, the trial court read the statement оf facts from Mack‘s brief, and asked the assistant prosecuting attorney if she agreed with the statement. Taking into account thе state‘s objections, the record establishes the following:
- At the time of the alleged offense, the alleged victim was 27 yeаrs old and Mack was 16 years old.
- The alleged victim and Mack knew each other; the alleged victim and Mack‘s mother werе neighbors and friendly with each other.
- The alleged victim immediately reported the alleged crime; she went to the hospital where a rape kit was administered. She also initially identified Mack as her rapist.
- Three detectives were assigned to invеstigate the case. As of the time of the hearing, the whereabouts of the three detectives were unknown.2
- The case wеnt “cold” because the alleged victim did not cooperate.
- A 911 call allegedly made by the victim was no longer avаilable.
- In 2013, the state received notification from the Bureau of Criminal Investigations (BCI) that it matched Mack‘s DNA to the hospital specimen the alleged victim provided. The notification was provided as part of the Ohio Attorney General‘s Sexual Assаult Kit Initiative.
{4} When asked by the court about the alleged November 2013 admission of the alleged victim, the assistant prosecuting attorney refused to confirm or deny it, citing Ohio‘s rape shield law.
{5} At the hearing, Mack contended that one of the many injustices in this case was that the alleged victim was not being prosecuted for the crimes she allegedly committed against him (statutory rape of a minor and/or unlawful sexual conduct with a minor),3 but he was now being charged as an adult with a crime that he allegedly committed when he was a juvenile, in a situation where his identity had always been known.
{6} The trial court granted Mаck‘s motion to dismiss, finding the indictment against him “very alarming” and “absolutely outrageous.”
{7} In reviewing a decision on a motion to dismiss for preindictment delay, we accord deference to the trial court‘s findings of fact but engage in a de novo review of the trial court‘s application of those facts to the law. State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 10, citing State v. Henley, 8th Dist. Cuyahoga No. 86591, 2006-Ohio-2728.
{8} The Due Process Clause provides, in part, that “no person shall * * * be deprived of life, liberty or property without due process of law.” “An unjustifiable delay between the commission of an оffense and a defendant‘s indictment * * * which results in actual prejudice to the defendant, is a violation of the right to due process of law * * *” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus.
This court has previously stated that preindictment delay constitutes a violation of the constitutional guarantees of due process of law where the delay ‘violates those “fundamental conceptions of justice which lie at the bаse of our civil and political institutions,“’ and ‘which define the community‘s sense of fair play and decency.’ United States v. Lovasco (1977), 431 U.S. 783, 790, 52 L.Ed.2d 752, 97 S.Ct. 2044 (citations omitted). This determination first requires the defendant to demonstrate that a lengthy pre-indictment delay resulted in actual prejudice to him. Id., аt 789. Secondly, the reason for the delay must be weighed against the prejudice arising out of it. Id., at 790. See, also, State v. Luck, supra, syllabus.
State v. Doksa, 113 Ohio App.3d 277, 280, 680 N.E.2d 1043 (8th Dist.1996).
{10} Prejudice may be established wherе the defendant contends that the delay resulted in the loss of witness testimony, lost memory or spoiled or destroyed evidencе. Id. at 281. Here, the responding officers and two of the three investigating detectives were unavailable and other evidenсe (the 911 call) was unavailable. Further, Mack was being prosecuted for a crime that he allegedly committed as a juvenile, despite his identity always being known. We agree with Mack that he demonstrated actual prejudice.
{11} Thus, we must next consider thе state‘s reason for the delay: the lack of cooperation by the alleged victim. We do not find this reason to outwеigh the prejudice to Mack. As this court has held, “the delay may be found unjustifiable * * * when the state effectively ceases the аctive investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation ceased.”
{12} In light of the above, the state‘s sole assignment of error is overruled.
{13} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleаs court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR