Cosen v. State
| Decision Date | 18 September 2013 |
| Docket Number | No. CR-12-913,CR-12-913 |
| Parties | MAURICE COSEN APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
2013 Ark. App. 507
MAURICE COSEN APPELLANT
v.
STATE OF ARKANSAS APPELLEE
No. CR-12-913
ARKANSAS COURT OF APPEALS DIVISION II
Opinion Delivered SEPTEMBER 18, 2013
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.
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
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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
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