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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-17-256

RODRIC D. COHNS                                    Opinion Delivered   May 18, 2017

                                APPELLANT          APPEAL FROM THE FAULKNER
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 23CR-12-1324]
STATE OF ARKANSAS
                                                   HONORABLE CHARLES E.
                                  APPELLEE         CLAWSON, JUDGE

                                                   DISSENTING OPINION ON DENIAL
                                                   OF PETITION FOR REVIEW.


                             JOSEPHINE LINKER HART, Justice

       I dissent from the denial of review in this case because rejecting appellant’s petition

for review effectively allows the court of appeals to avoid a difficult double-jeopardy issue by

making its own factual finding—which is false—that appellant consented to the mistrial. The

circuit court had denied appellant’s motion to dismiss based on double jeopardy on entirely

different grounds—there was “overruling necessity.”

       In appellant’s aggravated-robbery trial, the principal issue was whether the police had the

right man. Appellant was seized in the parking lot outside the convenience store that he allegedly

robbed. He was immediately taken to the clerk, who could not visually identify appellant as the

perpetrator but asserted that he recognized his voice. Grainy video footage showed that the robber

had a paper towel in his hand. There were scraps of paper towel found in a jacket that was seized

from appellant.
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       Appellant’s trial counsel, Willard Proctor, an African American, stated on the record that

his trial strategy was to attack the police investigation as shoddy. Before the jury was brought in

on the second day of trial, Attorney Proctor examined the jacket. He discovered a small red straw

in one of the pockets. He kept this discovery to himself and waited for the trial to resume.

       After getting the arresting officer to confirm that the police had thoroughly checked the

pockets of the coat and logged into evidence everything that they had found, Attorney Proctor asked

the officer to check the pockets. The officer discovered the small red straw. The defense had its

Perry Mason moment—shoddy police work was exposed. The State asked to speak to the circuit

judge in chambers.

       The State accused Attorney Proctor of planting the evidence. Attorney Proctor denied it,

stating that he discovered the straw that morning when he was preparing to cross-examine the

arresting officer. The circuit judge broached the subject of a mistrial. Attorney Proctor

unequivocally objected to the mistrial. The State expressed concern about double jeopardy and

asked for time to research the subject. Research consisted of calling the Attorney General’s office.

When the prosecutor returned, he claimed that the Attorney General’s office recommended having

a hearing to decide whether defense counsel had planted the evidence.

       Although the prosecutor asserted that the State’s “not doing anything to goad the Defense

or this court into asking for a mistrial” and that “[t]he State is not requesting a mistrial,” it

nonetheless stated that it intended to call as witnesses everyone who had handled the jacket,

including the arresting officer, the court reporter, an evidence tech, the court security officer who

observed defense counsel examining the jacket, and Attorney Proctor himself. Additionally, the




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prosecutor said he would have to review the courtroom video. He further asserted that “the State

is going to have to make a determination and view in [sic] whether or not there’s any criminal

conduct that’s occurred in this matter.” The prosecutor boldly proclaimed, “I absolutely think

[Attorney Proctor] planted that.”

       The circuit court blamed Attorney Proctor for not telling the court that he had discovered

the straw. It stated that it had authority to grant a mistrial with the belief that double jeopardy

would not bar retrial and that it was “up to the Supreme Court to tell me I’m wrong.” (R. 847) The

circuit court gave both sides an opportunity to be heard.

       In remarks that the State and the court of appeals construe as agreeing to the mistrial,

Attorney Proctor stated:

       Well, Your Honor, I’m now in a position based upon the lie, flat out lie, that Mr. Braswell
       just said about me, that I’m about to be you know, that’s a fact. That’s a lie. I did not place
       that there. But I’m in a position—they’re threatening me with the prosecutor here to —with
       criminal charges, which is insane. So there’s no way in the world that I can even go
       forward. How could I go forward in a trial where you’ve got the prosecuting attorney
       saying that he may potentially file charges against me.

Attorney Proctor asked to make a record on his opposition to the circuit court’s ruling that he had

an opportunity to inform the court before using the newly discovered straw on cross-examination.

       There is no consent to a mistrial here. Attorney Proctor was only opposing the prosecutor’s

stated intention to conduct a minitrial on the allegations that he had planted evidence. In his

petition for review, appellant argues this very point: Attorney Proctor objected to the mistrial and

never withdrew his objection.

       It is indefensible that the court of appeals changed the facts to avoid a difficult issue. I have

no words for the majority that let it get away with it. Accordingly, I dissent from the majority’s



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decision not to take this case on review.




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