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2013 Ark. App. 507
Susan Williams ARKANSAS COURT OF APPEALS
2019.01.02
DIVISION II
15:17:37 -06'00' No. CR-12-913
Opinion Delivered SEPTEMBER 18, 2013
MAURICE COSEN APPEAL FROM THE JEFFERSON
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-11-140-5]
V.
HONORABLE JODI RAINES
DENNIS, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
Maurice Cosen was tried by a jury and found guilty of two counts of aggravated
assault and two counts of terroristic threatening. The charges arose from a shooting
incident outside a club called Three Gables in the early morning hours of March 19, 2011.
Cosen was sentenced to concurrent sentences totaling fifteen years. As his sole point of
appeal, he contends that the trial court abused its discretion in excluding ballistic evidence,
which he argues implicated a third party even though it did not exclude Cosen. We
affirm.
Background
There is no challenge to the sufficiency of the evidence in this case. Although
there was conflicting testimony about whether Cosen was inside or outside of the club on
the night in question, the jury clearly believed the witnesses who placed him outside of
Cite as 2013 Ark. App. 507
the club, in the parking lot, shooting a gun. The sole issue relates to an evidentiary ruling
by the trial court before the trial began.
In a pretrial oral motion, the State asked the trial court to prohibit the defense from
introducing any evidence related to shell casings, and related ballistic evidence, retrieved
from Three Gables during a subsequent crime-scene investigation of a shooting that
occurred at that location approximately three weeks after the incident at issue here. The
State acknowledged that the shell casings retrieved from the later shooting matched those
retrieved on March 19 in the investigation of the instant case. Defense counsel contended
that the gun and shell casings were not connected to Cosen; that they belonged to a man
named Benny Johnson. The State argued that the evidence was not exculpatory,
contending that just because others had the gun did not exclude Cosen from having it on
the night in question, and that unless Cosen was trying to blame Benny Johnson, the
evidence should not be admitted where there was no evidence that another party was
guilty. Cosen’s position was that the State had not been able to tie the gun to him and
that evidence tying it to Benny Johnson and a shooting three weeks later at the same
location should be allowed. Cosen argued that the instant case was distinguishable from
Zinger v. State, 313 Ark. 70,
852 S.W.2d 320 (1993), that here “we do have the casings,”
and “the gun in the hand of another individual.” At the close of these arguments, the trial
court stated: “If they take the stand and say they saw Benny Johnson there that night . . .
But, it’s going to have to get linked that this other person actually committed this crime.
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It can’t be just an inference. We are not going to mention in opening statements anything
about the shell casings matching.”
During the actual trial, the State presented Cathy Ruhl, a crime-scene technician
for the Pine Bluff Police Department who responded to the March 19 shooting incident
at Three Gables. She testified about what she found upon arriving at the scene, including
five expended cartridges that the lab report showed were fired from the same weapon.
The report was introduced without defense objection.
On cross-examination, the State began objecting before defense counsel completed
its first question, which, during the bench conference that followed, counsel stated was
going to be: “Where did she ever associate those cartridges with any gun associated with
this defendant?” The trial court responded, “You can do that, of course.” Defense
counsel then stated, “Judge, I think I’m really entitled to ask that next question: And, did
she ever associate it with anyone?” The following colloquy then occurred among defense
counsel, the prosecutor, and the trial court:
THE COURT: We didn’t finish arguing that, [defense counsel].
[DEFENSE COUNSEL]: Okay.
[PROSECUTOR]: I thought that he had conceded that he was not —
THE COURT: You said you gave that up. If you are wanting to
change that, we need to go back and —
[DEFENSE COUNSEL]: Okay. Well, I will just ask that question right now.
THE COURT: No. I’m happy to do that.
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[DEFENSE COUNSEL]: Okay. No. No.
THE COURT: Whatever—okay.
Defense counsel asked Ms. Ruhl, “Did you ever have an occasion to associate
those cartridges—the .38 or the .45, either one of them—with any gun that was associated
with this defendant?” Ruhl responded, “We didn’t find a weapon at the scene.” Defense
counsel stated that was not his question. The State objected. Defense counsel asked
Ruhl, “Did you ever have an occasion to associate those cartridges with any gun that was
ever—.” The prosecutor asked to approach the bench and, at the bench, contended that
Ruhl did not understand the question and was afraid to say what she knew she was not
supposed to say. The following colloquy occurred at that point:
THE COURT: Well, she—my information is that she—there’s
no—there’s nothing linking this—those things to this
man. Well, then why wouldn’t her answer be no?
[DEFENSE COUNSEL]: That’s what I mean.
[PROSECUTOR]: Well, I mean—I think if she—if she’s understanding
the question—I mean, this is all designed to just make
it look bad, but I just don’t want her to say, Yes, it was
associated with another case where these shell casings
match. I mean that is an association.
THE COURT: Hopefully, she will listen to the question and answer
the question asked.
[PROSECUTOR]: But there is an association.
THE COURT: That’s not what he asked though. Not with this
defendant.
[DEFENSE COUNSEL]: I didn’t ask that.
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[PROSECUTOR]: Well—
THE COURT: That’s my understanding.
[PROSECUTOR]: Okay.
The bench conference concluded and defense counsel asked Ruhl, “Did you ever
associate any of those cartridges that were found with any weapon or gun that was
associated with this defendant?” Ruhl responded, “No.” Ruhl was then excused, and the
State rested its case.
Discussion
We first address the State’s contention that Cosen’s point of appeal was not
properly preserved and cannot be addressed in this appeal because Cosen: 1) failed to
proffer evidence placing the gun in Johnson’s possession at any time and at any place;
2) failed to obtain a clear ruling from the trial court; and 3) abandoned his initial objection
to exclusion of the evidence. We disagree. The trial court’s ruling was clear—the
evidence was not coming in unless Cosen could somehow link Johnson to the March 19
crime. Moreover, there was not a clear abandonment of the issue; rather, Cosen
abandoned pursuing that line of questioning because he could not provide the link upon
which the trial court conditioned admission of the evidence. The issue presented was
adequately preserved for our review.
The trial court allowed Ruhl to testify that no gun was found in the March 19
incident at issue here and that no evidence was found that associated the cartridges that
were found to Cosen. The evidence that the trial court excluded was certain ballistic
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evidence. The evidence established that a second set of cartridges and a gun, which were
part of a later crime-scene investigation of another shooting that took place at the same
location three weeks after the March 19 incident, were connected to the cartridges found
on March 19; that is, the cartridges from both incidents were tied to one gun that was
found to be in the possession of a man named Benny Johnson following the subsequent
shooting.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Buford v. State, 2010 Ark. App. 638. We find no abuse of discretion
here. In Zinger v. State,
313 Ark. 70,
852 S.W.2d 320 (1993), our supreme court
reviewed a lower court ruling that excluded evidence about a similar murder that
occurred in Louisiana, about thirty miles from the crime scene at issue in that case. Our
supreme court affirmed the trial court’s ruling, explaining:
The trial court refused to allow Officer Jimmy Morgan to testify about a
similar murder which occurred in Cullen, Louisiana, approximately thirty miles
from Magnolia. Zinger and Risher wanted to use the testimony to convince the
jury that the person who committed the crime in Louisiana might also have
murdered Holley.
Proffered testimony indicated the Louisiana victim had been beaten and
stabbed several times and left in a position similar to that of Holley. There was also
evidence of an attempted clean-up after the Louisiana incident and that the victim
and the assailant knew each other and that it was a drug-related offense. The
murder weapons used in Louisiana, a hammer and pair of scissors, were found at
the scene of the crime.
To address this issue, we must consider under what circumstances evidence
incriminating others is relevant to prove a defendant did not commit the crime
charged. In Killian v. State, 184 Ark. 239,
42 S.W.2d 12 (1931), and West v. State,
255 Ark. 668,
501 S.W.2d 771 (1973), the defendants attempted to introduce
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testimony that other parties had been charged with the offense for which they were
being tried. In each case, we upheld the trial court’s refusal to allow the testimony
because there was no evidence showing the other party was guilty.
Addressing this precise issue, the Supreme Court of North Carolina stated:
A defendant may introduce evidence tending to show that someone other
than the defendant committed the crime charged, but such evidence is
inadmissible unless it points directly to the guilt of the third party. Evidence
which does no more than create an inference or conjecture as to another’s
guilt is inadmissible.
State v. Wilson, 367 S.E.2d 589 (N.C. 1988). The Supreme Court of California has
recognized that a defendant has the right to present evidence of third party
culpability but stated:
[T]he rule does not require that any evidence, however remote, must
be admitted to show a third party’s possible culpability . . . [E]vidence of
mere motive or opportunity to commit the crime in another person,
without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence linking the
third person to the actual perpetration of the crime.
People v. Kaurish, 802 P.2d 278 (Cal. 1990).
Although there are some similarities between the crimes committed in
Louisiana and Arkansas, there was no evidence presented connecting the Louisiana
suspect to the Holley murder. The trial court was not even given the name of the
Louisiana suspect or whether he or she had any connection to Holley. There was
neither direct nor circumstantial evidence connecting the Louisiana perpetrator to
the Arkansas crime, other than a few similarities found in the two crime scenes, and
we cannot conclude the trial court abused his discretion in refusing to allow the
evidence to be admitted.
313 Ark. at 75–76, 852 S.W.2d at 323.
Birts v. State, 2012 Ark. 348, and Armstrong v. State,
373 Ark. 347,
284 S.W.3d 1
(2008), were both decided after the United States Supreme Court case of Holmes v. South
Carolina,
547 U.S. 319 (2006), and upheld the Zinger analysis.
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Here, Cosen presented nothing to connect Benny Johnson to the March 19
incident. There was no testimony that he was even present at the club or on the parking
lot that night. The fact that Benny Johnson had the gun in his possession three weeks
later in a subsequent shooting, without more to connect Benny Johnson with the March
19 incident, does not convince us that the trial court abused its discretion in refusing to
allow this evidence to be admitted in Cosen’s trial.
Affirmed.
GLADWIN, C.J., and WYNNE, J., agree.
Morehead Law Firm, by: Robert F. Morehead, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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