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ARKANSAS COURT OF APPEALS
DIVISION III
No.CR-16-383
Opinion Delivered: March 15, 2017
RODRIC D. COHNS APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT,
[NO. 23CR-12-1324]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Rodric D. Cohns was convicted in a jury trial of aggravated robbery and
was sentenced to ten years in prison. Trial began twice in this case, with the trial court sua
sponte declaring a mistrial in the first trial, and the jury convicting Mr. Cohns after the
second trial. Mr. Cohns now appeals, raising two arguments for reversal. First, he argues
that the charge against him should have been dismissed because he was twice put in jeopardy
for the same offense in violation of Article 2, section 8, of the Arkansas Constitution.
Alternatively, Mr. Cohns contends that the trial court erred in denying his motion to
suppress his statement made to the victim at the scene of the crime while Mr. Cohns was in
police custody because a recording of the statement was not produced at trial. We affirm.
A robbery occurred at a Conway convenience store on the night of December 27,
2012. The perpetrator held a gun on the store clerk, Stephen Bogan, and demanded money.
Mr. Bogan grabbed the gun, and a struggle ensued. Mr. Bogan retreated to the office,
Cite as 2017 Ark. App. 177
locked himself in, and called the police. The perpetrator fled on foot. While the police
were still at the scene conducting their investigation, a car driven by Mr. Cohns pulled into
the convenience store with a flat tire. Mr. Cohns asked the police for assistance, and during
the encounter, the police looked through the windows of appellant’s car and saw a gun and
a two-toned grey jacket that resembled the jacket worn by the perpetrator as seen on the
convenience store’s surveillance video. The police suspected that Mr. Cohns had robbed
the convenience store and arrested him. After Mr. Cohns was arrested and placed in the
back of a patrol car, he had a conversation with the store clerk, and he allegedly apologized
to the clerk for committing the robbery. Mr. Cohns filed a pretrial motion to suppress the
alleged statement he made to the store clerk, pursuant to Rule 4.7 of the Arkansas Rules of
Criminal Procedure, contending that the statement should be suppressed because it was not
recorded.
At a pretrial suppression hearing, Officer Jim Barrett testified that he was one of the
officers who investigated the convenience-store robbery. He went to the scene that night
and talked with Mr. Bogan and watched the surveillance video. Officer Barrett stated that,
about twenty minutes after arriving at the convenience store, he observed Mr. Cohns pull
into the parking lot with a flat tire and ask for assistance. After noticing that Mr. Cohns
matched the description of the person on the surveillance video, and observing what
appeared to be incriminating items in Mr. Cohns’s vehicle, Officer Barrett and the other
officers decided to arrest him.
After Mr. Cohns was given his Miranda warnings, he told Officer Barrett that he was
not involved in the robbery. The store clerk, Mr. Bogan, subsequently went outside and
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identified Mr. Cohns as the perpetrator, stating that he recognized Mr. Cohns’s voice. Mr.
Cohns then asked to talk to Officer Barrett again, and according to Officer Barrett, Mr.
Cohns began to weep and stated that he was trying to get money to get back to Little Rock,
that he did not intend to hurt anyone, and that he was sorry he had scared the clerk. Officer
Barrett asked Mr. Cohns if he wanted to apologize to the clerk, and he said that he did.
Officer Barrett testified that his patrol car did not have recording equipment so he
called in another patrol car that was equipped with a video camera. Mr. Cohns was placed
in that patrol car, and a small microphone was placed on Mr. Bogan. Officer Barrett was
trying to get a recorded confession from Mr. Cohns. The police attempted to record the
ensuing conversation between Mr. Cohns and Mr. Bogan. Officer Barrett overheard the
conversation, and he testified that Mr. Cohns apologized to Mr. Bogan. Officer Barrett
testified that, inexplicably, the video recording contained only the first few seconds of the
conversation between Mr. Cohns and Mr. Bogan, and had failed to record the substance of
their conversation and the apology. After the suppression hearing, the trial court entered
an order denying appellant’s motion to suppress his statement to the store clerk.
At the initial jury trial, a situation arose during defense counsel’s cross-examination
of Officer Rachel Mistrille, who was one of the investigating officers on the night of the
robbery. Appellant’s counsel was attempting to establish that the officers’ investigation was
sloppy. Officer Mistrille testified that she was the officer who took the two-toned grey
jacket into custody, and she stated that everything in the pockets of the jacket was removed
at the police station. Appellant’s counsel then presented the jacket to Officer Mistrille and
asked her to go through the pockets. When Officer Mistrille went through the pockets of
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the jacket she found a red straw in one of the pockets, which Officer Mistrille said she had
never seen before. Appellant’s counsel then moved to introduce the straw into evidence,
the prosecutor objected, and a bench conference ensued.
During the bench conference, the prosecutor asserted that appellant’s counsel had
access to the jacket prior to trial, that the prosecutor had never seen the red straw before
trial, and that appellant’s counsel must have known the straw was there or he would not
have asked Officer Mistrille to look through the pockets. The prosecutor stated that he was
not necessarily accusing appellant’s counsel of putting the straw in the jacket, but he was
concerned about the fact that appellant’s counsel did not disclose prior to trial that he had
discovered new evidence. Appellant’s counsel admitted that he had inspected the jacket on
the morning before trial and found the red straw in the pocket. Appellant’s counsel denied
placing the straw in the pocket, and stated that he did not disclose the straw prior to trial as
a matter of trial strategy. The trial court suggested that the evidence was so tainted that it
was considering declaring a mistrial on its own motion. Appellant’s counsel stated that he
did not want a mistrial. The prosecutor stated that he would not ask for a mistrial for fear
that jeopardy had attached and the State might not be able to retry appellant if a mistrial was
declared on the State’s motion. The prosecutor stated, however, that a defendant cannot
cause his own mistrial and that he was unsure about the effect of the trial court’s declaring
a mistrial on its own motion. A break was then taken to allow the attorneys to research the
issue.
When the bench conference resumed, the prosecutor stated that the State was not
requesting a mistrial, but that the trial court was within its discretion to order a mistrial on
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its own if it found that there was new evidence that tainted the jury. The prosecutor further
indicated that he thought appellant’s counsel had planted the straw in the jacket because,
immediately before appellant’s counsel had possession of the jacket on the morning of trial,
one of the prosecutors put his hands in the jacket pockets and the pockets were empty. The
prosecutor said that the State would have to determine whether to prosecute appellant’s
counsel. Appellant’s counsel again denied placing the straw in the jacket pocket, and he
stated that “there is no way in the world that I can even go forward” due to the prosecutor’s
threat of criminal charges being brought against him. The trial court found that appellant’s
counsel had found the straw prior to trial but had failed to disclose it to the State so that its
evidentiary value could be explored by the State, and that the prejudicial effect could not
be remedied except by ordering a mistrial, which the trial court declared on its own motion.
After the mistrial was declared, Mr. Cohns filed a motion to dismiss, arguing that he
had objected to the mistrial and that the double-jeopardy clauses of both the United States
and Arkansas Constitutions prohibited the State from prosecuting him again for aggravated
robbery. The trial court denied the appellant’s motion to dismiss, finding that there was an
overruling necessity to declare the mistrial.
At the second jury trial, Mr. Bogan testified about the robbery. He stated that a man
had entered the store, handed him money to buy a drink, and pointed a gun at him after he
opened the cash register to make the transaction. After a struggle over the gun, Mr. Bogan
was able to flee to the office, lock himself inside, and call the police. Mr. Bogan stated that
when he encountered Mr. Cohns in police custody in the parking lot later that night,
Mr. Cohns’s voice sounded like the voice of the person who had committed the robbery.
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According to Mr. Bogan, they had a brief conversation and Mr. Cohns apologized to him
for threatening his life. After the trial, the jury convicted Mr. Cohns of aggravated robbery.
In this appeal, Mr. Cohns’s first argument is that the aggravated-robbery charge
should have been dismissed because he was twice put in jeopardy for the same offense. He
asserts that he objected to a mistrial during the first proceeding and that a mistrial was
unwarranted under the circumstances. Mr. Cohns contends that there was no requirement
that he disclose the existence of the red straw to the prosecution prior to trial, and that even
had there been such a requirement, an admonition to the jury would have cured any possible
prejudice. Mr. Cohns argues that, because there was no overruling necessity to terminate
the first trial, the charge against him should have been dismissed, and that the subsequent
prosecution resulted in a violation of his constitutional right against double jeopardy.
Article 2, section 8 of the Arkansas Constitution provides that no person shall be
twice put in jeopardy of life or liberty for the same offense. Pursuant to Arkansas Code
Annotated section 5-1-112(3) (Repl. 2013), a former prosecution is an affirmative defense
to a subsequent prosecution for the same offense if the former prosecution was terminated
without the express or implied consent of the defendant after the jury was sworn, unless the
termination was justified by overruling necessity. The ultimate decision by the trial court,
that the defendant’s protection against double jeopardy was not violated, is reviewed by the
appellate court de novo, with no deference to the trial court’s determination. Shelton v.
State, 2009 Ark. 388, 326 S.W.3d 429.
In this case we need not decide whether there was an overruling necessity to grant a
mistrial because it is evident from the record that Mr. Cohns consented to the termination
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of the trial. It is true that appellant’s counsel initially objected to the granting of a mistrial.
However, appellant’s counsel subsequently stated that “there is no way in the world that I
can go forward” in light of the prosecution’s threat of criminal charges against him. The
final comment made by appellant’s counsel before the trial court decided to declare a mistrial
was, “I don’t want to say anything else because of the threat of self-incrimination.”
The supreme court has long held that a defendant’s consent to the termination of the
trial can be either express or implied. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999).
If the defendant’s consent is evident, demonstration of an overruling necessity is not required
in order to avoid the affirmative defense of double jeopardy. Id. When defense counsel
refuses to consent to a mistrial but clearly indicates an unwillingness to continue the trial,
the defendant can be said to have consented to discontinuance of the trial. See People v.
Echavarria, 592 N.W.2d 737 (Mich. App. 1999). Under such circumstances, retrial is
permissible under double-jeopardy principles because consent constitutes a waiver of a
double-jeopardy claim. Id.
The record demonstrates that, although Mr. Cohns’s counsel did not agree to a
mistrial, he unequivocally stated that he could not go forward with the trial, which
evidenced his consent to terminate the proceedings. Therefore, we hold that there was no
constitutional double-jeopardy violation and that the trial court committed no error in
denying appellant’s motion to dismiss.
Mr. Cohns’s remaining argument is that the trial court erred in denying his motion
to suppress the in-custody statement he gave to the store clerk in the convenience-store
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parking lot. Mr. Cohns relies on Arkansas Rule of Criminal Procedure 4.7, which provides
in pertinent part:
(a) Whenever practical, a custodial interrogation at a jail, police station, or other
similar place, should be electronically recorded.
(b)(1) In determining the admissibility of any custodial statement, the court may
consider, together with all other relevant evidence and consistent with existing law,
whether an electronic recording was made; if not, why not; and whether any
recording is substantially accurate and not intentionally altered.
....
(c) An electronic recording must be preserved until the later of:
(1) The date on which the defendant’s conviction for any offense relating to the
statement is final and all direct and post-conviction proceedings are exhausted, or
(2) The date on which the prosecution for all offenses relating to the statement is
barred by law.
Pursuant to Rule 4.7(a), appellant argues that his statement to the store clerk should have
been recorded. Noting that the police in this case did actually take measures to record this
conversation, but the recording was not preserved, appellant also argues that subsection (c)
of the rule was violated. Mr. Cohns contends that, given that a recording was made that
was either exculpatory or inculpatory and was not preserved as required by law, the trial
court erred in failing to suppress the statement.
When we review a trial court’s ruling on a motion to suppress a statement, we make
an independent determination based on the totality of the circumstances. Anderson v. State,
2011 Ark. 461, 385 S.W.3d 214. We will reverse the trial court’s ruling only if it is clearly
against the preponderance of the evidence. Id.
We conclude that the trial court committed no error in denying Mr. Cohns’s motion
to suppress the statement he made to the store clerk. Rule 4.7(a) provides that, whenever
practical, a recording should be made if the interrogation occurred at a jail, police station, or
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other similar place. Even if the statement in this case had been taken at a jail or a police
station, or other similar place, Rule 4.7(a) does not necessarily require a recording as a
prerequisite to admissibility under such circumstances, but is simply a consideration for the
trial court under subsection (b). More importantly, as found by the trial court in this case,
Rule 4.7(a) was not implicated because the statement was taken at a convenience-store
parking lot and not at a place contemplated by the rule. Although the police did attempt,
unsuccessfully, to record the statement, there was no requirement that they do so. Under
these circumstances, we hold that the trial court’s refusal to suppress the statement was not
clearly against the preponderance of the evidence.
Affirmed.
HARRISON and BROWN, JJ., agree.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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