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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 18, 2018

v No. 339053

Macomb Circuit Court

ARSHAD HAMZA ALJAMAILAWI, LC No. 2016-001685-FH

Defendant-Appellant.

Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

Defendant, Arshad Aljamailawi, appeals as of right his jury trial convictions of assault 

with a dangerous weapon, MCL 750.82, and prisoner in possession of a weapon, MCL 

800.283(4). For the reasons stated in this opinion, we affirm.

I. BASIC FACTS

On November 30, 2014, a corrections officer at the Macomb Correctional Facility 

observed a commotion outside a day room. On investigation, he saw two prisoners standing 

face-to-face. One of the prisoners lunged forward making a punching or striking motion with his 

arm. The corrections officer identified that prisoner as Aljamailawi, and he testified that the 

other prisoner was bleeding. The officer yelled for Aljamailawi to stop. He observed that 

Aljamailawi had “something in his hand,” but he could not easily identify it. Aljamailawi 

dropped the item, which the corrections officer later retrieved from where Aljamailawi had been 

standing. The item was a “shank,” a weapon made “out of material” a prisoner “can find around 

the prison perimeters.” The corrections officer wrote a misconduct report regarding 

Aljamailawi, and, at a hearing on the incident, Aljamailawi did not claim a defense and pleaded 

guilty to possession of a weapon and assault with intent to do great bodily harm. Aljamailawi 

was charged with felonious assault and prisoner-in-possession, and, following a jury trial, he was 

convicted of both charges.

II. SPEEDY TRIAL

A. STANDARD OF REVIEW

Aljamailawi first argues that he was denied his constitutional right to a speedy trial 

because there was an approximately 29-month delay between the date of the offense and his trial. 
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It “is a mixed question of fact and law” whether a defendant was denied his right to a speedy 

trial. People v Waclawski, 286 Mich App 634, 664; 780 NW2d 321 (2009). “The factual 

findings are reviewed for clear error, while the constitutional issue is a question of law subject to 

review de novo.” Id.

B. ANALYSIS

The Michigan Constitution and the Sixth Amendment to the United States Constitution 

guarantee a defendant’s right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. The 

United States Supreme Court has held that a defendant’s Sixth Amendment right to a speedy trial 

attaches “when a defendant is arrested or formally accused.” Betterman v Montana, ___ US ___, 

___; 136 S Ct 1609, 1613; 194 L Ed 2d 723 (2016). The following four factors are balanced to 

determine whether a defendant’s right to a speedy trial has been violated: “(1) the length of 

delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to 

the defendant.” People v Williams, 475 Mich 245, 261-262; 716 NW2d 208 (2006). If the total 

delay is less than 18 months, the defendant carries the burden of demonstrating prejudice. 

Waclawski, 286 Mich App at 665. Prejudice is presumed after a delay of 18 months or more, 

and “the burden shifts to the prosecution to show that there was no injury.” Williams, 475 Mich 

at 262.

The prosecution argues that when calculating the length of the delay, this Court should 

only consider the length of the delay not attributable to Aljamailawi. In support, it relies on 

People v Holtzer, 255 Mich App 478, 492; 660 NW2d 405 (2003), where this Court stated that 

“if the delay not attributable to defendant exceeds eighteen months, prejudice is presumed.” 

However, that statement in Holtzer was implicitly overruled by our Supreme Court in Williams. 

In that case, our Supreme Court held that the length of the delay was over 19 months, so the 

delay was presumptively prejudicial. Williams, 475 Mich at 262. In calculating the length of the 

delay, the Williams Court made no distinction between delays attributable to the defense or the 

prosecution. Instead, when evaluating the second factor (i.e., the reason for the delay), the Court 

held that the delay between July 16, 2001 and October 12, 2001—spanning approximately three 

months—was attributable to the defendant, but it did not subtract that three-month period from 

the length of the delay. See id.; see also Waclawski, 286 Mich App at 658, 665 (applying the 

rule from Williams to calculate the total length of the delay at approximately 24 months despite 

the fact that around 7 1⁄2 months of the delay was attributable to the defendant). Accordingly, we 

conclude that to properly evaluate the first factor, a court must consider the total length of the 

delay without regard to the cause of the delay.

Next, we reject Aljamailawi’s contention that period between when the offense occurred

and the trial date constitutes the period of the delay. As explained by the United States Supreme 

Court, the right to a speedy trial does not attach until “a defendant is arrested or formally 

accused.” Betterman, ___ US at ___; 136 S Ct at 1613. Aljamailawi was not formally accused 

until his arraignment, which first occurred on May 20, 2015. The prosecution voluntarily 

dismissed the charges on September 28, 2015. The case was reauthorized on October 1, 2015, 

and Aljamailawi was arraigned for a second time on April 1, 2016. Thus, contrary to 

Aljamailawi’s argument on appeal, the date his right to a speedy trial started to run was either 

when he was first arraigned on May 20, 2015 or when he was arraigned for a second time on 

April 1, 2016.
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The prosecution argues and the trial court concluded that the date of the second 

arraignment—April 1, 2016—was the pertinent date to start calculating the length of the delay. 

However, in People v Wickham, 200 Mich App 106, 110; 503 NW2d 701 (1993), this Court 

addressed a similar argument:

The people argue that we should not consider the period between 

defendant’s arrest and the initial dismissal without prejudice in calculating the 

delay in this case. See United States v Atisha, 804 F2d 920 (CA 6, 1986), cert den 

479 US 1067 (1987). (The court considered only the constitutionality of the delay 

between the date the defendant was reindicted and the date he was first brought to 

trial.) But see United States v Colombo, 852 F2d 19 (CA 1, 1988), where the 

court distinguished between the situation where a charge is dismissed on the 

motion of a defendant and the situation where the government voluntarily 

dismisses charges. In the former situation, only the delay in the prosecution of the 

second indictment is relevant for Sixth Amendment purposes. In the latter 

situation, the time elapsed during the pendency of the first charge is not excluded. 

This issue has not been directly addressed by the appellate courts of this state. 

Although we prefer the rationale employed in Colombo, we need not decide the 

issue because we conclude that even considering the time elapsed before the 

initial dismissal in this case, defendant was not denied a speedy trial.

The Colombo Court reasoned that the accumulated time before the prosecution voluntarily 

dismisses charges should be considered for speedy trial purposes because, “otherwise, the 

[prosecution] would be able to nullify a defendant’s speedy trial right by the simple expedient of 

dismissing and reindicting whenever speedy trial time was running out on its prosecution.” 

Colombo, 852 F2d at 23-24. Applying the Colombo Court’s rationale to this case means that 

Aljamailawi’s right to a speedy trial attached on May 20, 2015, when he was first arraigned.

Aljamailawi’s trial began on May 16, 2017, which was 727 days, or 23 months and 26 days, after 

his first arraignment. Thus, the length of the delay in this case exceeded 18 months, so prejudice 

to Aljamailawi was presumed. A “presumptively prejudicial delay triggers an inquiry into the 

other factors to be considered in the balancing of the competing interests to determine whether a 

defendant has been deprived of the right to a speedy trial.” Williams, 475 Mich at 262 (quotation 

marks and citation omitted).

This Court must attribute each period of delay to either defendant or the prosecution. 

Waclawski, 286 Mich App at 666. “Unexplained delays are charged against the prosecution. 

Scheduling delays and docket congestion are also charged against the prosecution.” Id. 

(quotation marks and citation omitted). However, delays “inherent in the court system,” such as 

scheduling delays, “are given a neutral tint and are assigned only minimal weight in determining 

whether a defendant was denied a speedy trial.” Id. (quotation marks and citation omitted). 

Additionally, delays between a dismissal without prejudice and the reinstatement of the charge 
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“should not be attributed to either side because there was no charge pending against defendant 

during” that time. Wickham, 200 Mich App at 111.1

Thus, the approximately four-month period between May 20, 2015 and September 28, 

2015 should be attributed to the prosecution, as it is an unexplained delay. See Waclawski, 286 

Mich App at 666. However, the approximately six-month period between September 28, 2015 

and April 1, 2016 count against neither the prosecution nor Aljamailawi. Wickham, 200 Mich 

App at 111. Moreover, the delay between May 16, 2016 and May 16, 2017 is attributed almost 

solely to Aljamailawi. First, Aljamailawi requested a referral for a competency and criminal 

responsibility examination, which resulted in a delay from May 16, 2016 until January 20, 2017. 

At that time, Aljamailawi sought additional time to file a motion to quash, which he filed on 

January 11, 2017. Before the motion to quash was decided, on January 17, 2017, Aljamailawi 

filed a motion in limine to exclude certain evidence from trial. At a January 23, 2017 hearing, 

the defense also orally raised a due process challenge, which the court ordered briefing on. 

Because of the pending defense motions—some of which required supplemental briefing—and 

because the defense requested an additional 30 days to interview potential witnesses, the trial 

court rescheduled the jury trial that was scheduled for January 24, 2017. On February 23, 2017, 

the trial court denied the defense’s motion to quash. It denied the motion in limine on March 13, 

2017. Accordingly, the approximately ten-month delay between May 16, 2016 and March 13, 

2017 is properly attributable to the defense, as the delays were associated with the defense 

motions and requests.2

Further, on March 6, 2017, the defense filed another motion, this time seeking dismissal 

on the grounds that Aljamailawi’s right to a speedy trial had been violated. However, at a March 

13, 2017 pretrial, the court noted that the defense’s motion was deficient because it had failed to 

attribute the delays to either the prosecution or the defense. Accordingly, the defense requested 

two weeks to supplement its brief, and the prosecution sought three weeks to respond. As a 

result, the trial court set the trial for 60 days. Subsequently, on March 31, 2017, the trial court 

denied the speedy trial motion. The delay between March 13, 2017 and March 31, 2017, then, is 

properly attributed to Aljamailawi, as it was time spent on a defense motion. This amounts to an 

additional delay of approximately two weeks. Thereafter, on April 17, 2017, Aljamailawi 

reminded the court that it had yet to issue a ruling on his prearrest delay challenge. The court 

issued that ruling on May 4, 2017, which amounts to another period of approximately two weeks 

that is attributable to the defense.

 1 Delay caused by a successful interlocutory appeal is likewise not attributed to either party and 

is taken out of the calculation when determining the reasons for the delay. Waclawski, 286 Mich 

App at 667.

2 There are no allegations that the time the trial court took to respond to the defense motions was 

excessive or unreasonable and we do not discern any undue delay in the court’s response to the 

motions.
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In sum, it appears that of the 23 months, 6 months are not counted against either the 

defense or the prosecution. Of the remaining 17 months, over 11 months is attributed to time 

spent on defense requests and motions, whereas the remaining time is attributed to the 

prosecution. Given that the majority of the delay is attributed to the defense, this factor weighs 

against Aljamailawi’s claim that he was denied the right to a speedy trial.

Next, we consider that Aljamailawi did not assert his right to a speedy trial until March 6, 

2017, approximately two months before trial. This amounts to an approximately 21-month delay 

between his first arraignment and his request for a speedy trial. A trial court is permitted to 

weigh the third factor of the test “heavily against defendant” for failing to raise a speedy trial 

issue sooner. Williams, 475 Mich at 263. In this case, the trial court heavily weighed this factor 

against Aljamailawi. The trial court did not err in doing so. See id.

Finally, although prejudice is presumed in this case, it is a rebuttable presumption. The 

trial court found:

defendant relies on investigation notes from the prosecutor regarding prisoners 

who were present in a common-area when the incident occurred. See Exhibit D 

to Defendant’s Supplemental Brief. The notes list fourteen individuals believed 

to have been in the common-area at the time of the incident. The notes further 

provide that two witnesses recall the event. Records reveal that another inmate 

was at a different facility at the time. An additional inmate indicated he was 

never at the facility where the incident occurred, while another stated he was not 

in the dayroom at the time. Two other inmates have since been paroled and they 

did not respond to attempted contact. One of the prisoners has been deported to 

Mexico and another was killed by a gunshot wound in November 2016. Three 

inmates denied having knowledge of the stabbing. Another inmate stated he did 

not remember the incident and would not say anything even he did. A final 

inmate stated he had seen so many stabbings that he was unable to recall this 

specific incident.

Although there is evidence that witnesses who may have observed the 

incident are no longer available (due to death and deportation), there is no 

evidence that the prospective witnesses saw the event and/or would testify 

favorably for defendant. Even if defendant was granted some weight as to this 

prong, it is but one of four factors the Court must consider. As discussed above, 

the remaining three factors weigh significantly against defendant. As such, any 

minor weight that might be counted in defendant’s favor is insufficient to tip the 

scale in his favor regarding a speedy trial violation.

Thus, although the court erroneously concluded that prejudice was not presumed, it also 

concluded that any prejudice was minimal given the evidence before the court. On appeal, 

Aljamailawi does not challenge the court’s finding that any prejudice was minimal. Nor do we 

conclude that the trial court clearly erred by finding a lack of substantial prejudice arising from 

the delay.
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In sum, although the first and fourth factors minimally favor Aljamailawi’s claim, they 

are outweighed in this case by the reasons for the delay and his significant delay in demanding a 

speedy trial.

III. PREARREST DELAY

A. STANDARD OF REVIEW

Aljamailawi next argues that his right to due process was violated because the delay of 

his “arrest” led to a delay in bringing Aljamailawi to trial, which prejudiced his defense because 

potential witnesses were lost. Prearrest delay is a constitutional issue, which is reviewed de 

novo. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999).

B. ANALYSIS

There is no due process violation simply because there is a delay between the time an 

offense is committed and a defendant is arrested. People v Patton, 285 Mich App 229, 236; 775 

NW2d 610 (2009). Instead, the question “is whether the record presents evidence of prejudice 

resulting from the delay which violates a defendant’s right to procedural due process.” Id. 

(quotation marks and citation omitted). For a prearrest delay to constitute a due process 

violation, a defendant’s right to a fair trial must be actually and substantially prejudiced, and the 

prosecution must have intended “to gain a tactical advantage.” Id. at 237 (quotation marks and 

citation omitted). Substantial prejudice requires that a defendant’s ability to defend himself 

against the charges is meaningfully impaired “in such a manner that the outcome of the 

proceedings was likely affected.” Id. “[A]ctual and substantial prejudice requires more than 

generalized allegations.” Id. (quotation marks and citation omitted). If a defendant establishes 

that his defense was prejudiced, then the prosecution must “persuade the court that the reason for 

the delay sufficiently justified whatever prejudice resulted.” Id.

Aljamailawi claims that his defense was prejudiced because potential witnesses may have 

forgotten what happened during the almost six-month delay between the incident and his first 

arraignment, and the 29-month delay between the incident and his trial. Aljamailawi asserts that 

“[a]bsent the long delay in prosecuting this case, [potential] witnesses would have had fresher 

memories and may have provided testimony either exonerating [d]efendant from the alleged 

crimes,” or supporting his claim of self-defense. These “generalized allegations” are insufficient 

to establish actual and substantial prejudice. See id. Aljamailawi failed to name a single witness 

who would have been able to testify in his defense if the trial occurred sooner. Thus, he has

failed to demonstrate actual and substantial prejudice resulting from his “prearrest” delay, and, 

accordingly, his due process claim fails.

IV. ADMISSION OF EVIDENCE

A. STANDARD OF REVIEW

Finally, Aljamailawi argues that a nurse’s testimony regarding a prison injury commonly 

known as a “buck fifty” was inadmissible on relevancy grounds because a buck fifty injury was 

not at issue in this case. A trial court’s decision to admit evidence is reviewed for abuse of 

discretion. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). “A trial court abuses its 
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discretion when its decision falls outside the range of principled outcomes.” Id. (quotation marks 

and citation omitted).

B. ANALYSIS

The victim testified at Aljamailawi’s trial, but was uncooperative and did not provide any 

pertinent testimony. A corrections officer testified that victims who are prisoners often do not 

want to testify because they are afraid of being labeled a “snitch.” He explained that being 

“labeled a snitch in prison puts you in serious danger.” Such a label “follows you wherever you 

go,” even if you are transferred to a different prison. Later, the prosecution asked a nurse who 

evaluated Aljamailawi for injuries following the incident to define “a buck fifty”:

Q. And in regards to your experience at the prison now it’s almost six, 

seven years.

A. Correct.

Q. Have you come across people with injuries?

A. Yes.

Q. And is there something known as a buck fifty?

A. Yes.

Q. What is that?

A. That is when someone gets cut from their mouth all the way up to the 

ear.

Q. And what does that mean or reference? 

A. The reference is a buck fifty [because] it takes a hundred and fifty 

stitches to suture up the area from the mouth to the ear.

Aljamailawi’s’ lawyer objected, noting that this case does not involve a situation where a 

prisoner was cut from his mouth to his ear. The prosecution responded that the testimony was 

“relevant because it goes to the rationale behind what a buck fifty is[,] [and how it] is related to 

people who are considered snitches.” The court overruled the objection, but noted that the 

prosecution needed to lay a better foundation for the testimony. The prosecution then asked the 

nurse:

Q. . . . what is the reason [ ] people receive a buck fifty?

A. Typically, it’s when [they] snitch or tell on somebody else [because it] 

is a way of retaliation against that person for telling.

Q. And you’re aware of this because they tell you that’s the reason why 

[they] received the injury?
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A. Correct.

Q. So, is it common practice not to, if you know, for people not to tell on 

other people? 

A. More often than not. Yes.

Relevant evidence is “evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” MRE 401. As Aljamailawi acknowledges on appeal, he argued 

at trial that the victim’s refusal to testify against him “was evidence of [the victim’s] culpability,”

which Aljamailawi used to bolster his self-defense argument. The prosecution’s argument 

regarding the victim’s refusal to testify against Aljamailawi was that the victim, like many 

prisoners, feared the consequences of snitching. The nurse’s testimony about an injury known as 

a buck fifty was illustrative of why a prisoner may refuse to testify against his attacker. Her 

testimony was not offered to prove that the injury the victim suffered was actually a buck-fifty 

injury. The buck-fifty testimony was, thus, relevant to the issue of why the victim refused to 

testify cooperatively at trial, and the court did not abuse its discretion when it ruled that the 

testimony was admissible.

Affirmed.

/s/ Michael J. Kelly

/s/ Patrick M. Meter

/s/ Colleen A. O'Brien