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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,
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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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