BARNES v. STATE (2001)

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Charles Barnes has petitioned for rehearing in this case, contending that the court's opinion delivered September 27, 2001, Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001), contained errors of fact and law.   Barnes contends that the court misstated his sixth point on appeal.   We wrote that Barnes asserted the State did not give him the polygraph examiner's report until the day of the hearing, and as such, he did not have time to analyze the reports so he could conduct an effective cross-examination.   In his petition, however, Barnes states that he never received any materials, other than the polygraph report itself, either before trial or during the suppression hearing.   We note, though, that the record reflects Barnes received not only the report, but also the polygraph examiner's data sheet, a question list, and two pages of handwritten notes.

 Barnes also takes issue with our holding on this same point, wherein we concluded that he “merely alleges that prejudice occurred [as a result of the State's failure to disclose the results of the polygraph examination], but he makes no definite statement as to how he was prejudiced.”  Barnes, 346 Ark. at 106, 55 S.W.3d 271.   Barnes points out that he raised several specific arguments in his reply brief to illustrate how he was prejudiced.   Relying on Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990), he argues that he was entitled to a copy of the recording made of the polygraph so he could have an expert review the materials to prepare for cross-examination;  he also urges that he needed the materials to determine the impact of the statement on his case and to negate the impact of the statement offered by Clifford Dunn, who related to the jury that Barnes confessed his involvement in the murders.

In Yates, supra, this court held that the State's failure to disclose the results of a polygraph examination to the defendant prior to trial amounted to a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).   There, the defendant Yates had specifically advised the trial court that his primary reason for requesting the disclosure of the polygraph material was to impeach the examining officer at the suppression hearing.   Our court held that Yates was prejudiced because, from the very beginning of his trial, it was critical for him to evaluate the circumstances under which his polygraph examination was administered and upon which the examining officer's conclusions were based.   Because there were questions about the circumstances under which Yates's confession was obtained, the trial judge might have ruled differently in several instances if the truth were known.  Yates, 303 Ark. at 86-87, 794 S.W.2d 133.

Barnes urges the court to reach a similar conclusion here, insisting that because he underwent a seven- to eight-hour interrogation and polygraph test, the tapes and recordings were needed to determine the circumstances surrounding the voluntariness of the statement.   Of course, when this court reviews a trial court's denial of a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances.  Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).   Further, this court will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous.  Id.

Here, we conclude that, although the additional materials he sought were discoverable, Barnes has offered nothing to demonstrate a link between any discovery violation regarding the polygraph materials and the voluntariness or involuntariness of his statement.   While he posits that he needed the materials to have an expert examine them, he offers no additional argument as to whether or how such an expert could have shown that his statement was involuntary.   Further, neither of his other two reasons for needing the materials, noted above, has any bearing on the voluntariness of his statement.   Thus, we reject Barnes's argument that our opinion contains errors of law.

As a final point, we note that the dissent has reasserted its opinion that our harmless-error ruling with respect to Barnes's “vision” statement is in error.   To this, we make two responses.   First, Barnes's petition for rehearing dealt only with a footnote to that point, which has since been deleted from the opinion.   Second, the dissent raises a new case, Elliott v. State, 335 Ark. 387, 984 S.W.2d 362 (1998), which was not raised or argued by any party prior to this supplemental opinion.   Neither Barnes nor the State mentioned this case at trial, on appeal, or in the petition for rehearing.   Irrespective, Elliott involved a situation where the State in opening remarks mentioned that the defendant had prior convictions, thus suggesting he was a habitual offender.   Additionally, we note that we must disagree with the dissent's assertion that the “vision” statement was “the most powerful piece of evidence” presented during Barnes's trial.   The State produced Barnes's confession to Clifford Dunn, as well as the confession of Barnes's accomplice, Melanie Roberts.   This is not an Elliott situation.   Simply put, we hold steadfast to our decision that the prosecutor's comment regarding Barnes's “vision” was harmless error.   See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

For these reasons, we deny Barnes's petition for rehearing.

I would grant Barnes's petition for rehearing.   In this case, the State in its opening statement told the jury about Barnes's “night vision” statement prior to the trial court hearing Barnes's motion to suppress the statement.   The next day the trial judge held a Denno hearing and found the “night vision” statement inadmissable.   The majority affirmed the lower court based on sufficiency of the evidence viewed through harmless error pursuant to Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

Rather than Landreth, the case of Elliott v. State, 335 Ark. 387, 984 S.W.2d 362 (1998), is controlling.   In Elliott the State mentioned Elliott's prior felony conviction in its opening statement.   Following Elliott's objection, the trial court admonished the jury not to consider Elliott's prior trouble with the law.   In rejecting the State's harmless error and sufficiency of the evidence argument in reversing and remanding Elliott, we stated:

In the instant case, the prosecuting attorney's error in his opening statement cannot be labeled a slight one.   Assuming the best intentions on the prosecutor's part, he deliberately told the jury before presenting any evidence during the guilt phase of trial that Elliott had been convicted of assault and bank robbery.   Thus, from the commencement of the State's case, the State labeled Elliott a habitual criminal, thereby removing one of the constitutional benefits afforded all defendants in a criminal case-a right to a fair and impartial jury.   See Allard [v. State], 283 Ark. [317] at 318, 675 S.W.2d [829] at 830 [ (1984) ] (where, at beginning of trial, the court clerk read to the jury the aggravated-robbery indictment, which included two additional charges of theft by receiving pending against Allard in a separate case).   Although the trial judge here tried to admonish the jury in an attempt to cure the error, this is not the sort of error that can be so cured.   See id.   We are mindful of this court's decision in Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996), where the State's opening statement included a reference to “other offenses in another county,” and this court held prejudicial error did not occur because overwhelming evidence existed as to Stanley's guilt.   There, however, the State never specified Stanley's other charges or offenses, so we held that an admonition could have ameliorated the prosecutor's reference.   Here, like the situation in Allard, the jury was told of Elliott's specific felony convictions and the jury was left with no doubt from the time the trial commenced that defendant Elliott was a habitual felon.   Because the State's error was egregious at the outset of the trial, we cannot conclude beyond a reasonable doubt that the prosecutor's remark did not contribute to Elliott's conviction.   Thus, we reverse and remand on this point.

Elliott, 335 Ark. at 392-393, 984 S.W.2d 362.

In Elliott, the prosecuting attorney deliberately told the jury in opening statement that the defendant had prior felony convictions, and the trial judge admonished the jury not to consider Elliott's prior trouble with the law.   Even though the trial court admonished the jury, this court stated, “[T]he prosecuting attorney's error in his opening statement cannot be labeled a slight one,” and that Elliott was “denied one of the constitutional benefits afforded all defendants in criminal cases-a right to a fair and impartial jury.”  Elliott, supra.   In the case before us, there was no admonition.   The intent by the prosecutor was to place before the jury a confession no less damning than the prior felony convictions in Elliott.   It would take but cursory review of this case for anyone to recognize immediately that the “vision” statement was the most powerful piece of evidence.   This is especially so because of the lack of physical evidence.   Thus, the temptation to use the statement in opening would likely be great.   However, it is commonly known black-letter law that to be mentioned in opening, the evidence must be admissible.  Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994);  Mouser v. State, 216 Ark. 965, 228 S.W.2d 472 (1950).   When a confession has not been the subject of a Denno hearing, the prosecuting attorney mentions it in opening at his own peril.   Had the statement later been found to be admissible, then there would have been no error.  Rank, supra.   However, the statement was found inadmissible.   The discussion in Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943), is on point.   Therein, this court stated:

Therefore we hold that reversible error was committed in this case because of the reference to the alleged confession in opening statement by the prosecuting attorney over the objection of the defendant, and without any cautionary instruction of the court, and because the confession was inadmissible at all times.

Smith, 205 Ark. at 1084, 172 S.W.2d 248.   Such is the case before us.   The confession was found inadmissible.   The wiser course would have been for the prosecuting attorney to join Barnes in seeking the Denno hearing prior to the trial.

The trial court was obliged to hold a Denno hearing on the admissibility of the “vision” statement.   Ark.Code Ann. § 16-89-107(b)(1) (1987).   Due process requires that a defendant is entitled to “a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.”  State v. Sheppard, 337 Ark. 1, 987 S.W.2d 677 (1999) (citing to Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) citing Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)).   A hearing was requested by Barnes prior to trial.   The prosecutor and the court were aware of this.   Still, the trial was commenced with no Denno hearing on the “vision” statement.   Then, in opening, the prosecutor stated to the jury that Barnes had told police “he had had, quote a vision.”   This drew an objection, which was overruled with a comment by the judge that the Denno hearing would be held the next afternoon and that “if we suppress it, he won't talk about it.”   The prosecutor then went back to his opening and stated:

He will, Charles Barnes asked to speak to the officers and he told them he had a vision about the bloody murder of two older ladies near Ash Flat,-

The prosecutor thus placed the most critical and most damning aspects of the “vision” statement before the jury without any judicial review as required by due process under the federal constitution and under the Arkansas Constitution, Art. 2 § 8. Moreover, the trial court failed to provide any.

According to this court's holding in Smith, this case should be reversed.   The majority have mistakenly relied upon harmless error.   This court has routinely held that where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm.  Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001).   See also, Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997);  Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996).   However, this court has clearly indicated that the harmless-error rule would not be applied when a fundamental right is violated.  Kennedy v. State, 338 Ark. 125, 991 S.W.2d 606 (1999);  Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992).   To conclude that a constitutional error is harmless and does not mandate reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict.  Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999).   See also, Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995);  Allen, supra;  Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992);  Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).   It is difficult to see how one might argue that the error did not contribute to the verdict in a fundamental way.   The failure to hold a Denno hearing and then allow over objection the reference in opening statement to a disputed confession that is later found inadmissible is well beyond slight error.   The statement was highly prejudicial, stating Barnes was plagued by nightmares of the murder of his victims.   The bell was rung.   The jury knew from the beginning of the trial that Barnes had made the “night vision” statement.   Nothing could erase Barnes's “night vision” statement from the jury's minds as they heard the evidence during the trial.   That bell was not and could not be unrung.   Barnes was denied due process in that he was denied an impartial jury.   This petition should be granted.

TOM GLAZE, Justice.

SCORBIN, THORNTON, and HANNAH, JJ., would grant.