RODRIC D. COHNS APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE FAULKNER COUNTY CIRCUIT COURT, [NO. 23CR-12-1324]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
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.
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, 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.
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.
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
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.
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.
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
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
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.
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 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.
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.
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.
According to Mr. Bogan, ...