The Blade
TOLEDO, Ohio — A Lucas County judge Friday squelched an attempt by accused arsonist Ray Abou-Arab to prevent the videotape that purportedly links him to the deadly fire to be used as evidence in his trial.
Common Pleas Judge Frederick McDonald denied two motions to suppress evidence: one for the surveillance video obtained from the Magnolia Street building where two Toledo firefighters died battling the blaze and another for statements Mr. Abou-Arab made to police after the fire.
Mr. Abou-Arab, 61, of 1311 Sierra Dr., Oregon, is charged with two counts of aggravated murder, each with death penalty specifications; two counts of murder; eight counts of aggravated arson, and one count of tampering with evidence stemming from the fire a year ago that killed Toledo fire Pvts. Stephen Machcinski, 42, and James Dickman, 31, who died fighting the blaze.
The judge, who issued his rulings on his final day of work before retirement, found that police acted lawfully when they interrogated Mr. Abou-Arab and when they obtained video from the crime scene.
Judge McDonald said Toledo police did not violate Mr. Abou-Arab’s rights when they interviewed him Jan. 26, 2014, the day of the deadly fire, but did not read him his Miranda warning because at that time he was a witness, not a suspect.
He further said that after surveillance video obtained from the scene caused police to consider him a suspect in the case, detectives on Jan. 27 properly read him his Miranda warning, which informs a suspect they have the right to remain silent and a right to a lawyer.
While defense attorneys alleged Mr. Abou-Arab repeatedly told police he wanted to call his lawyer during the Jan. 27 interviews, Judge McDonald found that the statements he made — “I should ask my lawyer” and “I think I want to call my lawyer” — were “no less ambiguous and equivocal than similar statements that have been held too indefinite to constitute a request for counsel.”
Courts have found that suspects must “unambiguously” request a lawyer, he wrote.
While defense attorneys also contended the videotape was the property of Mr. Abou-Arab, who owned the building, and was taken without his consent, Judge McDonald disagreed.
Mr. Abou-Arab had sold the store that was adjacent to the apartments that burned to Ali Abdou, the judge wrote, and Mr. Abdou had given police consent to confiscate the video equipment and tapes.
“Mr. Abdou owned the store and had exclusive access to the space he leased from [Mr. Abou-Arab],” Judge McDonald wrote. “He had sole possession of the VCR and complete control over its use. The state has proven by clear and convincing evidence that Mr. Abdou had actual authority to consent to the search of the store and the seizure of the VCR.”
Among the other motions addressed Friday, Judge McDonald denied Mr. Abou-Arab’s request to drop the death penalty specifications.
A gag order in the case prevented prosecutors and lawyers from commenting.
Mr. Abou-Arab’s case is set for a pretrial hearing Feb. 19 before incoming Common Pleas Judge Ian English. A trial date has not been set.
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