Barnes v. State

Charles STATE of BARNES v. Arkansas CR 00-1062 of Arkansas Court Supreme delivered September

Opinion on denial of [Supplemental rehearing opinion delivered 2001. November *] * Corbin, Thornton, Hannah, dissent. JJ., Tom and Kissee, Garner Dean for Larry appellant. Gen., Holt, Mark Pryor, Att’y by: Kent G. Ass’t Gen. and Att’y Gen.,

David R. Sr. Ass’t Raupp, Att’y appellee. Tom Glaze, Charles Barnes was convicted of capi- Justice. tal murder and sentenced to death for the 1997 of killings Eula Whidock. He nine Dorothy raises none points appeal, of which has merit. issue, For his first challenges sufficiency evidence, that his conviction contending only unsupported by substantial evidence it because was based on the statement solely Roberts, state and his own inculpatory Melanie an accomplice, evidence, to the sufficiency In challenge ments. reviewing to the State most favorable in a view the evidence light we Branscumv. the verdict. the evidence supports consider if affirm a conviction State, 21, 148 We 43 S.W.3d (2001). State, v. it. Carmichael evidence exists to support substantial 598, 225 (2000). 12 S.W.3d Where, however, to the suffi the is limited challenge confession, the defendant’s the evidence corroborating of ciency our Ann. 16-89-111(d) (1987), Ark. Code review is by governed § defendant, made in of a unless that confession which provides “[a] conviction, with court, a unless not warrant accompanied will open 338 was committed.” that the offense Tinsley other proof for other 342, This S.W.2d 898 requirement Ark. 993 rule, mandates the delicti referred to as sometimes corpus proof, Id. In other and more. the offense occurred nothing that proof words, rule, must (1) delicti State prove under corpus and that the a crime (2) or harm constituting existence of injury Id. criminal activity. (citing harm was caused someone’s by or injury Ferrell v. 455, It is not (1996)). Ark. the crime further connection between to establish any necessary and the 643, Id.-, Rucker v. defendant. particular whether, we must determine 447 (1995)). Accordingly, S.W.2d confession, demon the evidence Barnes’s aside extrajudicial setting murder committed someone. strates that the crime of capital series of at trial showed following The evidence introduced Office Sheriff’s On Sharp County events. August and welfare check on Eula Dorothy a call a received requesting Whitlock, at their mobile home were mother and daughter, who of Ash Flat. Sheriff Dwayne located 6.2 miles south Deputy doors were and found that both went to the residence Flolcomb locked, the home was on the west end of but the bedroom window end on the east of went to one of windows Holcomb open. in, room; was turned he saw the furniture when he looked living Eula, of He also saw the body and house was in disarray. over then forced the trailer door the floor. Holcomb age lying inside, he found the body 70-year-old and went where open women had the bedroom. Both in the outside Dorothy wounds hallway both women and necks. on their heads Autopsies had died of blunt sharp-force multiple showed Dorothy neck, caused most a skull fracture the head and including injuries hatchet, wounds to her well as cutting as stabbing likely by neck, her head and force Eula died of blunt injuries neck. and a fractured “near transection” including jaw complete vertebral cervical body. 7, 1998, Dale Weaver and Stidman On May investigators Joe

went interview at the After the inmates Van Burén County Jail. left, Melanie Roberts asked fellow Diana inmates investigators Gates, Bowman, if Susan and Alexandria Fore Weaver and Stidman had asked them about the murders of at Ásh Flat. two ladies elderly then Roberts told Gates she and her Charles then-boyfriend, Barnes, had committed the and murders. She also told one burglary of the matrons at the that she and Barnes jail had killed Stidman, Whitlocks. her interview with Weaver and Rob- During erts details of crime scene that the had not provided police made the fact that one of the had bodies been public, including covered with a blanket. information, the basis of

On this Arkansas State Police officers went to interview Barnes at the Unit of the Arkansas Brickey’s Corrections, of where was he time on an Department serving unrelated Barnes denied in the charge. Although involvement Roberts, he admitted that he had been his with killings, girlfriend, on the in also said day He that it was had question. been possible trailer, been, inside the Whitlocks’ but if he had he had to have been sleepwalking. evidence, In addition to the above the State also introduced the Dunn, of Charles a fellow inmate at testimony Unit. Brickey’s

Dunn testified that Barnes told him that he and a named girl Melanie with got murders of two away ladies. Dunn elderly stated, “He was me how went in and them telling they chopped up axe, with an and that the most that he them from was money got like and $43 five bucket of silver. ... I believe he gallon sterling [a] said one them was like 96 old and the other years one was like 76 that, or like were either something mother and sister or they mother and Dunn’s daughter.” corroborated evi- testimony by dence found at the crime scene: both women’s had been purses closets, rooms, and boxes had emptied, been ransacked. jewelry Barnes contends that his conviction was unsupported by substantial evidence because it was based on the statement of solely Roberts, an Melanie and his own state- accomplice, inculpatory that, ments. He also under Ark. Code Ann. 16-89- argues § a “conviction be 111(e)(1) 1997), cannot had . . . (Repl. upon of testimony unless corroborated evidence other accomplice by to connect the defendant with of the tending commission offense.” rule, delicti when considered light corpus Clearly, facts, with similar Mills merit. In a case is without

this argument Mills 910 S.W.2d 682 (1995), appellant to two fel that, uncorroborated confessions other than his argued shots. This inmates, that he fired the fatal there was no low proof delicti that under his holding corpus court argument, rejected that Mills confessed and rule, to have needed only the State proved case, we have In the instant died a result of a homicide. the victim as Dunn, Melanie Roberts’s confession to Barnes’s confession Barnes, and the medical examiner’s testimony implication The evidence was a result of homicide. clearly the victims died as verdicts. sufficient to sustain guilty Barnes that the trial on argues For his second appeal, point when, to a mistrial during opening court erred refusing grant statements, made a reference to a statement gave the State a “vision” the curious remark that he had in which he made police ladies near Ash Flat.” murder of two older about “the bloody comment counsel during Barnes’s objected prosecutor’s statements, motion to that he had sup- noting pending opening had not held a Denno and that the court yet hearing press and told counsel that The court overruled the motion. objection morning. would have the hearing following they suppression of trial. a Denno the next day The held hearing during judge inadmissible that his “vision” statement was Barnes contended he made the state- he was counsel when because represented had initiated the contact that Barnes ment. The State responded officers, such, need counsel to have and as there was no with the time, the ruled that the comment been involved. At that judge under- inadmissible because it was the “vision” was about “[his] that if ... in Arkansas he’s lawyer, you got notify standing got as to Barnes had The made no whether the lawyer.” judge inquiry the officers before the comment. initiated contact with making the fact Barnes that he was On argues prejudiced appeal, “vision,” his heard the statement about that the jury prosecutor’s statement, the trial court later the and even the though suppressed with the fol- been done.1 The State had responds damage already first, the there was no because three lowing arguments: prejudice 1 to Barnes’s that the made his reference While the dissent contends hearing had to be held on the at a time when he knew that a Denno “vision” statement yet hearing he to obtain the it was the defendant’s burden statement, admissibility including the two motions to motions, filed than more pretrial thirty requested. begin until 2000. The trial did not 8, his statement that were filed on February suppress

101 admissible; second, the trial court did not statement was actually abuse in motion for mistrial because the its discretion the denying be a remand most to which Barnes would be entitled would third, error which resulted from another Denno hearing; the statement was harmless. prosecutor’s opening the of the trial on the

While correctness court’s ruling the statement’s is we decide issue under admissibility questionable, the harmless-error rule. A situation itself in similar Lan presented State, 12, There, dreth v. (1998). defendant, Landreth, had to three the fact that confessed people Galaher; had murdered the State also had Daisy evidence physical Landreth with the On crime. Landreth linking appeal, argued made refer prosecutor, during closing arguments, improperly ence to the that he fact had not testified his own defense. Noting that the comment was this court never prosecutor’s impermissible, conviction, theless affirmed Landreth’s as follows: stating v.

In Chapman California, U.S. 386 18 Court Supreme declared that references to a defendant’sfailure to violate testify self-incrimination, Fifth Amendment against privilege but can be error if harmless it is beyond shown reasonable doubt that the error did not influence the verdict. Practical [Citation omitted.] of the test Chapman application involves excising improper remarks and examining remaining evidence determine if it can be shown a reasonable beyond doubt that error did not v. 299 Ark. influence verdict. Logan 773 S.W.2d413 (1989). Landreth, at 18 v. Ark. (quoting Bradley S.W.2d 425 The (1995)). harmless-error rule extends to other con stitutional violations as well. See Riggs S.W.3d 305 (1999) (harmless-error rule context of an applied Fulminante, see also confession); Arizona v. involuntary 499 U.S. 279 giving thus get hearing 23, 2000, him over two weeks to scheduled. February Further, although suggests the dissent that there faith was bad on the the trial part prosecutor, finding. court made no such large Moreover, while Barnes’s counsel had filed a number of it is motions, not from the or the abstract record that Barnes reminded the apparent trial court on the trial hearing that the pending; Denno indeed, Barnes did day not yet make a comment to this effect until after the reference to “vision” statement prosecutor’s in opening arguments. Landreth, tainted comment about we discard the after As evi “vision,” there was overwhelming conclude that we Barnes’s The State discussed above. presented Barnes’s as dence of guilt, Dunn, well as Melanie Rob as Barnes made to Clifford confession crime of undisclosed her confession knowledge erts’s encompassing in the murders. information Barnes Again, and scene implicating on the of Whitlock he was with Roberts day Barnes admitted below, Barnes addition, more will be discussed fully In as murders. been that he could have statement himself made incriminating was, trailer, he was This but if he Whitlocks’ sleepwalking.2 in the and Rob doubt that Barnes a reasonable evidence showed beyond murdered the two elderly on day they erts were together the court women, also note that that did so for We money. they are not evidence. In of counsel that statements instructed jury this court 863 S.W.2d Littlepage to the cured error. a similar admonition jury possible held that reasons, comment about hold that the For these we prosecutor’s reversible error. statement did not constitute Barnes’s the trial court should have is that Barnes’s third point appeal when the State failed to or a continuance declared a mistrial granted statement, made Barnes in the form of disclose an incriminating Roberts, was cross-examin- Melanie until a letter to prosecutor cross-exami- the defense’s case-in-chief. During Barnes during ing nation, to his communication with Barnes as the State questioned if he had written while was jail, asking particularly Roberts letter, he did not send her a but letter. Barnes her a replied Barnes a asked and showed piece when the again prosecutor said did.” At that he said he point, prosecutor “probably paper, ,in court. Defense counsel like to read the letter that he would outside the and the held a hearing judge objected, immediately he had said hearing, During jury’s presence. Nevertheless, before trial. defense the letter the weekend received on the that withholding moved for a mistrial grounds counsel for The court denied the motion was a violation. letter discovery mistrial, to discuss the letter counsel a ten minute break but gave recess, the letter the court ruled that Barnes. After that brief with admissible, conceded that he had and Barnes was subsequently it. written sleepwalking refuted the officers’ version of his During his testimony, “the have asserting said was that could that what he had

statement, way [he] actually The resolution of these sleepwalking, if there was been [he didn’t] sleepwalk.” [he] e.g. jury to decide. conflicting See, was a events, however, versions of question Solomonv.

103 trial court have excluded Barnes that the should argues it. the letter and the from How mentioning prevented ever, he not contend he was the does how letter’s by prejudiced introduction. We have held that when the State fails to provide burden information the is on the to during discovery, appellant show that the omission was sufficient to undermine the confidence State, 491, in the v. Ark. outcome trial. 325 930 Esmeyer S.W.2d 302 exist when does not the (1996). Prejudice, though, defendant has access already to information that State did Here, letter, not disclose. Id. because Barnes wrote the he knew of existence, its and cannot claim to have been prejudiced State’s late disclosure of it. addition, In court will this not prejudice presume where the See, State, offers of it. no Tuckerv. appellant proof e.g., 244, 336 Ark. 983 S.W.2d 956 On this we note (1999). point, Barnes failed to abstract in the letter in a case in question, involved, which neither death a life nor sentence is we penalty issue; however, would to decline address the as Barnes was sen death, tenced to we have looked to record and read the letter to determine if was See Watsonv. prejudiced. letter, In we are unable reading to Further, conclude that Barnes was its introduction. prejudiced by before the trial court that he was merely argued prejudiced However, because the State him in a fie about the letter. caught we are to hold that a defendant should be unwilling to permitted benefit from his own fabrication. Barnes shows no prejudice, our review reveals none. the trial court Finally, granted Barnes’s for a request continuance to discuss the letter with counsel. Ark. Under R. 19.7, Crim. P. if the court learns that a has failed to party comply rule, with a the court discovery exercise of several may options, It continuance. is within the including granting trial court’s dis cretion to decide which sanction 334 employ. Rychtarik S.W.2d Reed v. (1998); Here, S.W.2d 34 (1993). continuance, because Barnes obtained which was one of the forms of relief he he cannot be said requested, to have suffered prejudice. Barnes next that the trial court argues erred his denying motion for mistrial the State’s during its closing arguments. During State made the argument, comments: following bed, you Can imagine horror did going you notice video, did hear the you background of the crickets chirping? the background, were chirping notice that? Crickets

Did anyone sound. But can you imag- What a peaceful the methodical sound. window, in your then somebody bursting that sound and ing bed, a hatchet. come over the swinging almost having literally rule,” and the basis of the “golden Barnes immediately objected but denied the motion for the trial court sustained objection, mistrial. that the denial of the mistrial now contends Barnes error, that the prosecutor “repeatedly motion contending in the the to themselves position to jurors place persuade attempted out that the rule” This court has “golden of the victims.” pointed to because it tends subvert objectivity is inadmissible argument 293, State, “It (1994). Ark. 877 S.W.2d 583 of the v. 317 jury. King from their as an to dissuade jurors duty weigh is seen the attempt the case from the of a and instead to view standpoint evidence Moss, Ins. v. 109 or Id. Co. (citing Metropolitan

litigant party.” Life 1937)). S.W.2d 1035 (Tex. However, a drastic that should be a mistrial is remedy the trial itself has the fundamental fairness of ordered when 317 Ark. at 297. An admonition to been affected. manifestly King, unless it is so cures a statement patently jury usually prejudicial be that could not served by continuing inflammatory justice However, is the factors we consider on trial. Id. among appeal a instruction or admo whether the defendant cautionary requested and the failure of defense nition to jury, request State, Ark. the mistrial motion. v. 328 admonition Bragg may negate State, 799, 613, v. 318 Ark. 889 946 S.W.2d 654 (1997) (citing Boyd an admoni It is also true that the failure to S.W.2d 20 (1994)). give is not error where none is tion or instruction requested. cautionary mistrial, Here, a he did not Id. Barnes request although requested so, failed to he cannot now assert an admonition to the jury. Having on this prejudice point. that a number For his fifth argues grue point, At admitted into evidence. some were erroneously photographs out, trial, of the asked the court to had keep many photographs did not were inflammatory, they repetitive, contending the victims. The court conducted photo-by- accurately portray indeed rule offensive and did review of the allegedly pictures,

photo were inadmissible. of them many to the sound is a matter left The admission photographs State, 339 Ark. 3 S.W.3d the trial court. v. discretion of Riggs

105 When are (1999). photographs helpful explain testimony, are admissible. Id. Williamsv. they 38, ordinarily (citing Further, the mere fact (1995)). that a photo not, alone, is or is cumulative is suffi graph inflammatory standing cient reason to exclude it. v. 869 S.W.2d Weger Even most (1994). be admis gruesome photographs may sible if assistthe trier of fact in they following ways: by issue, on some shedding element of the light by proving necessary case, a witness to by more cor enabling testify effectively, by or to better roborating testimony, by understand the enabling jurors Id. Other are testimony. to show the acceptable condition purposes bodies, of the victims’ or location of the probable type injuries, and the in which the bodies were discovered. position Jones discretion, S.W.3d 449 Absent an abuse of this court will not reverse a trial court for admitting photographs into evidence. Id. Here, admittedly were used revolting photographs by examiner,

the medical Peretti, Dr. Frank in his discussion of the suffered injuries died; however, Whitlocks and how they because the were used to illustrate photos his explain testimony, and to show the nature and wounds, extent of the women’s court did not abuse its discretion them by into evidence. admitting addition, In the crime scene both the photographs loca depicted found, tion which the bodies had been as well as the fact that the house had such, been ransacked. As were relevant not they for above, the listed but also to purposes both the prove felony burglary element and the element of the murder capital that charge requiring the be done under killing circumstances extreme indif manifesting Thus, ference to human life.3 we conclude that the trial court did not err with to the admission of the respect photographs. Next, Barnes asserts that the trial court erred in his denying motion to the statement he suppress to gave officers after police those officers conducted a examination on polygraph him.4 At the conclusion of the exam, 19, 1999, conducted on polygraph May 3 charged Barnes was under Ark. 5-10-101(a)(1) Code Ann. (Repl. 1997), which § states, in relevant commits parts murder if he person “com capital burglary mits . . . . . . and in the course of and in furtherance of the or in immediate felony, flight he therefrom, or an causes the death of under accomplice circumstances any person manifesting extreme indifference to the value of human life.” 4 gave Barnes the statement at issue here after the conclusion polygraph argument examination. The does not raise, we do not address, appeal any question regarding the introduction of the polygraph results of the exam, which of course are inadmissible. SeeArk. Code (Repl. 1999); Ann. 12-12-704 § Ramaker v. 345 Ark. 225, there that he was inside the Barnes stated that “was possibility trailer; however, was, he had to have been if he sleep- [Whitlocks’] The trial court held a Denno of February hearing walking.” introduce and later ruled that the State could Barnes’s statement. First, Barnes this on two fronts. On challenges ruling appeal, that the did not turn over materials con

he State discovery urges examination, which him of the cerning deprived polygraph the officer who elicited cross-examine effectively opportunity the statement from him. Clark Citing App. he contends that materials 764 S.W.2d discover furnished in sufficient time defense must be requested them, that, beneficial of and he claims because the use State permit did not him the examiner’s until the give report day polygraph he did not have time to so he could hearing, analyze reports an effective conduct cross-examination.

This court has held that it is reversible error when a fails to with a defendant’s prosecutor comply timely request information, when that failure results in disclosure prejudice that defendant. Lee v. S.W.3d 553 (2000). information, When fails to burden is on provide to show that the omission was sufficient to defendant/appellant undermine confidence in the outcome of the trial. Id. Barnes fails brief, to make this In his showing. merely alleges prejudice occurred, but he makes no definite statement as to how he was addition, In cross-examined Ron thoroughly prejudiced. exam, the officer who administered Stayton, the Denno polygraph during exam, about the administration of hearing polygraph whether had informed Barnes of his to the anyone rights prior exam, and whether information had been to the provided prosecutor.

Further, this not does warrant reversal because point the trial court did not err in the motion to When denying suppress. a trial we review court’s on a motion to we review ruling suppress, in the the evidence most favorable to the State and make an light determination based of the circum independent totality upon State, 184, stances. v. 340 Ark. 8 S.W.3d 538 (2000) Steggall (citing State, 515, State, v. 998 S.W.2d 738 v. (1999); Bangs 335 Ark. Wright Further, 983 S.W.2d 397 this court will (1998)). reverse a trial court’s on a motion to if the ruling suppress ruling voluntariness, was erroneous. Id. In this court clearly determining looks to whether the statement and waiver were the result of free coercion, intimidation,

and deliberate choice rather than State, Ill, 339 Ark. deception. Riggs Here, Dale Weaver testified at the Denno Investigator hearing that he read Barnes his Miranda and that Barnes waived his rights, and asserted his to talk to the rights Weaver said willingness police. threats, that he did not make or coerce Barnes in any promises, manner, and did Barnes not to be intoxicated and seemed appear of his capable Stan Witt also understanding rights. Investigator testified that he was the second of the two present interviews during Barnes, with and that Weaver informed him that he had read Barnes his Miranda Ron rights. testified that he Finally, Stayton exam, administered the interview; as well aas polygraph pretest also noted that Barnes informed him that he had (Barnes) already been read his rights. Barnes offered no or other evidence to refute testimony that see presented by Friend v. such, S.W.2d 275 and as the trial court’s decision not to the statement was suppress not erroneous. clearly For his seventh point the court appeal, argues erred in his to the overruling objection cross-examina- prosecutor’s tion, which he during Barnes’s brought up convictions for prior residential and theft of burglary When Barnes acknowl- property. crimes, edged having these earlier pled guilty the prosecutor asked, “And do want to tell the you ladies and gentlemen of the ladies jury age whose home you Defense burglarized?” counsel objected court, to the immediately, saying “That’s and the court stated improper,” “Overruled. The simply, 404(b).” then had Barnes into some detail about the go earlier crime, in which he the home burglarized of an elderly lady. On Barnes contends that appeal, this evidence was not admissible under Ark. R. Evid. 404(b), that the mere fact arguing that he to an earlier pled guilty irrelevant, burglary because the two crimes were not similar. In matters to the admission of relating evidence under Arkansas Rules of Evidence a trial 404(b), court’s is entitled to ruling and will not be great weight reversed absent an abuse of discretion. Cook v. 45 S.W.3d 820 course, (2001). Rule 404(b), provides of other “[e]vidence crimes, or acts is wrongs, not admissible the character of a prove in order to show that he person acted in therewith. It conformity however, be may, motive, admissible for other such as purposes, proof intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident.” 108 Evidence offered under Rule must be 404(b) independently

relevant, thus to make the existence of fact having tendency or that is of determination of action more consequence Cook, less than it would be without the evidence. 345 Ark. probable 338, State, 152, at 270 v. 952 S.W.2d 110 McGehee (citing The list of in Rule is (1999)). 404(b) exceptions inadmissibility list, instead, not an exclusive but it is of representative types circumstances under which evidence of other crimes or or wrongs acts would be relevant and admissible. Id. Williamsv. (citing 591, 602, 343 Ark. 36 S.W.3d (2001)). that the State introduced this

Although argues evidence to his modus we conclude instead that the prove operandi,5 State was about Barnes’s as of his asking prior burglaries proof motive, case, and in the as the Whitlocks’ preparation, present plan home had also been ransacked and In Sasser v. burglarized. this court stated as follows:

The between the degree similarity circumstances of prior crimes and the crime for admission of present evidence required under Rule is a 404(b) determination that affords considerable to the trial and with the leeway judge, may vary which purpose the evidence is admitted. See 1 B. Mueller & Laird C. Christopher Federal Evidence Kirkpatrick, n. 4 and text accompanying § (2d ed. be 1994) (“To criminal acts must probative, prior require crime, intent similar to that it is required charged although said that the usually crime need not resemble the prior closely crime.”); W McCormick on charged Strong, Evidence John 190, n. 31 and text ed. (4th 1992) (“The similari- accompanying § ties between the act and the extrinsic acts charged [admitted show the act was not charged acciden- performed inadvertendy, or without need tally, involuntarily, not be as guilty knowledge] extensive and as is ... show modus striking required [to operandi]”). Sasser, Thus, 321 Ark. at 447. although degree similarity between the earlier crime and the one was not present striking, nevertheless, instances, in both Barnes broke into the homes of Thus, women in order to rob them. the evidence of his elderly conviction was relevant to that he show the same prior possessed — — intent, motive, is, to rob as he did in the earlier plan methodology must be so 1) both acts must be committed with the same or To offer 669, 894 S.W.2d 564 404(b) unique evidence to that both acts can be prove modus strikingly operandi, attributed similar two requirements to one methodology; individual. must be met: Diffee 2) case, and the trial court did not abuse its discretion permitting delve into line to this questioning. Barnes’s on is that the trial court erred in eighth point appeal him a continuance with refusing grant respect testimony of Clifford Dunn. Barnes moved for a continuance on Febru- orally 14, 2000, that the State had not notified him until ary alleging 7 that it would be Dunn to Clifford about February calling testify Barnes’s confession. The defense had also filed a for motion discov- sanctions with to the State’s of that infor- ery respect withholding mation; motion, in that Barnes asserted that the did State not him awith of Dunn’s statement until provide At the 8. transcript February motion, on the State that Dunn’s state- hearing replied ment was set out in the affidavit of cause filed specifically probable with information Barnes with along felony charging capital that, murder. The State also noted months before the motion was filed, there had been a listed in indi- report, specifically discovery, Further, Dunn would be a witness. cating the prosecutor pointed out that his office maintained an and that Barnes’s open-file policy, had been welcome to come attorneys needed at copy anything they time. The court denied the motion for continuance. A trial court’s decision to or a continuance grant deny discretion, is within its sound and that decision will not be reversed absent an abuse of discretion to a denial of amounting justice. Diricksonv. Further, 329 Ark. it is (1997). burden to demonstrate how he appellant’s prejudiced by denial of the continuance. Davis v. 885 S.W.2d When a motion for continuance is based on a lack of time to we will consider the prepare, of the circumstances. totality Id.

Flere, defense counsel admitted that he had been aware of Dunn’s existence from the and stated that he very had beginning, made a “tactical decision” as to how to with the case proceed had not listed Mr. “knowing Dunn.” Barnes knew about [the State] called, that Dunn be possibility and thus he might cannot now be heard to that the situation did not out the complain play way See hoped. 28 S.W.3d Stephens 260 (2000) (a defendant is not entitled alone as a rely substitute discovery for Because thorough investigation). Barnes has not demonstrated how he was this court cannot conclude that prejudiced, the trial court’s denial of the continuance was in error. Barnes that the trial court should have

Finally, argues granted him a continuance in order to obtain additional mental evalua- tion after Melanie Roberts testified that Barnes had a “split person- Roberts, murders, had who to the ality.” previously pled guilty recanted her confession on the stand and claimed that she and however, Barnes did not kill the The Whitlocks. prosecutor, her with her statement in which she confessed to impeached prior statement, in that she recounted how Barnes occasion- police; called himself “Chaz”6 and threatened and abused ally her. physically her asked another mental evalua-

During testimony, tion and a continuance “until that issue can be addressed aby if to see we have a mental or defect psychiatrist based disease defense which was not covered in the first upon split personality examination.” trial, the time of Barnes had By two other already undergone evaluations, mental both of which' him as diagnosed sociopathic, addition, but otherwise trial. In he had also filed capable standing Defect,” a “Motion to Withdraw Notice of Mental Disease of which he stated that he did not the mental fitness determi- dispute nation and to withdraw the filed sought notice that his previously Further, mental condition would be an issue in the trial. Roberts’s statement, in which she alluded to Barnes’s had “split personality,” on, been availableto defense counsel thus early giving ample time to this facet of the case. investigate we review the trial court’s denial

Again, of a continuance to determine if there was an abuse of discretion. Given the circum above, stances described and also the fact that further given mental evaluations after the first one under Ark. Code required Ann. 5-2-305 are with the 1997) trial (Repl. “discretionary § court,” see Dyer S.W.3d 724 we cannot that the trial court abused its discretion in say denying Barnes’s last-minute motion for a continuance to seek another yet mental evaluation. In accordance with 4-3 Rule of the Arkansas (h) Supreme Rules, Court of the record before us has been transcript reviewed for adverse but not rulings objected by appellant argued on and no reversible errors were found. appeal, reasons,

For the Barnes’s conviction and sentence are foregoing affirmed. hereby

6 “Chaz” was the name which Roberts referred to Barnes’s “other” by personality. dissent. and JJ., Hannah, Corbin, Thornton, I with disagree majority Justice, dissenting. Jim Hannah, of the vision” statement on the issue “night respectfully trial. reversed and remanded for a new This case should be dissent. convicted here is Barnes has been What is at issue whether Charles defective in some fundamental that is through judicial process case, misconduct. Contrary in this through prosecutorial respect, the view, of the the issue is not one of majority’s simply sufficiency harmless error. The evidence viewed through credibility is in judicial system question. state-

Barnes had filed a motion to vision” suppress “night ment and The trial without a hearing. began hearing requested the motion. The occurred statement following during opening attorney: prosecuting

— came to the scene as can Many investigators you imagine, Stan Witt will tell that you his upon, upon investigation lasted, murder which I believe it was about seventeen months until Charles Barnes was he’ll tell charged, you while investigating murders, these that Charles Barnes asked at some point speak with the officers and Mr. Weaver was involved in that also. And he had, told them that he had a vision. quote By Mr. Kissee: we we Judge, object. May approach bench?

By The Court: Yeah. the is held at the bench out of the (Thereupon following hearing jury.) By honor, Mr. Kissee: Your as we’d talked before we came here,

back in we have a motion to this and we pending suppress a Denno and requested we were not that so we hearing, granted to the object able to out in prosecutor being bring this front of the jury.

By The Court: Overruled. We’ll have it after the opening it, tomorrow and if we he won’t talk about it. suppress the is held in the court in (Thereupon following open hearing of the jury.) By will, Mr. Lambert: He Charles Barnes asked to speak officers, told them that he had a vision about the bloody —Flat, murder of two older ladies near Ash trial, the next of held a Denno During day judge hearing. No was that the testimony given during hearing. alleged “vision” statement was inadmissable because at the time of the statement, he was counsel. The State represented by alleged Barnes initiated the contact with the officers. The trial ruled judge vision statement was inadmissable because Barnes had a and the was lawyer not notified. No was made as lawyer inquiry whether Barnes initiated the contact with the officers before mak- the statement. ing It was error for the statement clearly prosecution opening tell the about Barnes’s “vision” statement jury to the trial prior court a Denno conducting statement inad- hearing ruling missible. The holds that this was harmless error in majority the convictions. The affirming sets out the admissible majority evidence to show Barnes was the tending assailant. The admitted Dunn, Roberts, evidence introduced and the through polygraph statement is relevant on the issue of whether Barnes was assail- However, ant. the “vision” statement recounted to the jury by in his statement and found prosecutor opening inadmissible below is aof different character than other profoundly of evidence any piece offered. The “vision” statement had the not impact being confession, but one that was far more than even a prejudicial typical confession. the statement that By recounting Barnes was having Flat,” vision “about the murder of two old bloody ladies near Ash evidence, was prosecutor conveying very strong compelling evidence, that Barnes was so over the brutal murders he distraught had committed that his invaded remorse and sleep being by born of that manifested as regret guilt visions of as his carnage tortured mind him to revisit the scene of his horrible compelled crime. The statement is as as one Its damning might imagine. introduction in is an astute move opening understandably strategic however, its use is prosecution; where the disappointing knew its was in issue. The

prosecutor knew admissibility a Denno on that issue was to be hearing held. In very yet spite this the events in show most knowledge, opening clearly prose- cutor’s intent to this statement before the get Not did he jury. Barnes, mention a vision but by after to that immediately objection mention, and after the trial court advised that he would conduct the Denno the next the then told the hearing day, the prosecutor jury content of the “vision” statement.

113 State, 12, v. 331 Ark. The relies on Landreth majority I in of their harmless-error S.W.2d 434 (1998), analysis. support court is not on The submit Landreth simply point. respectfully A harmless-error in relied on the harmless-error doctrine. Landreth the trial was not is when fundamentally inquiry appropriate only State, Illinois, unfair. 384, v. Allen v. (1987); 481 U.S. 497 Pope also, v. 315 Ark. 838 S.W.2d 346 See (1992). Hagen whether, Under discussion in Landrethwas (1993). 864 S.W.2d after tainted a comment in discarding testimony by closing argu ment, that the defendant intended to to the attention bring jury’s did not there remained evidence of testify, overwhelming guilt which rendered the comment harmless a reason improper beyond Thus, Landreth, in of of the able doubt. issue was one sufficiency evidence. This court found that of the evidence was only part tainted the statement in and that if that even by closing argument, discarded, tainted evidence were evidence of overwhelming guilt remained. in Landreth was aware that the Obviously, jury defendant had not testified even before the made the prosecutor remark. Here, The is case not to Landreth. present comparable ury case,

was told at the outset of the that Barnes had opening, very in effect confessed murder. Not a shred of evidence had been introduced when the told the about a intentionally prosecutor jury statement that he knew not be admissible. of might Every piece evidence on which the relies followed the majority naturally open statement. How could the not be tainted in its ing jury entirety by statement? Once the confession was opening highly prejudicial detailed to the the evidence that followed reinforced jury, simply the conclusion of in the minds guilt intentionally placed jurors’s Thus, statement. the issue in the case opening before us one is of fundamental fairness. To find as the majority now does is to substitute for that of the which judgment jury, its this court has stated it will not do. Parkerv. has, S.W.2d 156 To find as this court it must review the conclude, evidence and that had it been as the sitting jury, would have been convicted. This is so because the entire jury case, tainted and not be relied on. In the may present tempta tion to delve into evidence blinds us to analysis sufficiency — — which, the real issue one of elemental trial error rather than evidence, is one so that the impacting weight grievous has been judicial flawed and process fundamentally only re-adjudi cation of will cure the error. guilt Likewise, the cite by majority Littlepage Therein, is of no avail. again, 114 error he warned alleged prosecution closing, whereby

what in Malvern if would the defendant were not con- happen victed, did not taint the entire trial. An similar that in analysis undertaken, Landreth was which is no more to this case applicable case, than In was Landreth. our the bell was rung during open- statement, and the instruction the end at of the trial could not ing the bell in the minds of the unring jury. error,

The finds the error is that harmless majority prosecutor’s the evidence shows a reasonable doubt that Barnes and beyond Roberts were murdered the two together day they elderly women, and that did so for That conclusion they money. begs issue. The issue is whether the defendant has been convicted a that is defective through judicial process through prosecutorial misconduct. In the context of a discussion of retrial as a allowing remedy error, trial the United States Court Supreme stated: short, error,

In reversalfor trial as from distinguished evidentiary does not constitute a decision to the effect insufficiency, such, failed to its government case. As it prove implies nothing Rather, with to the respect or innocence of the guilt defendant. it is a determination that a defendant has been convicted a through which is defectivein process some fundamental respect, eg. Judicial evidence, instructions, incorrect or incorrect receipt rejection or occurs, misconduct. prosecutorial When this the accused has a interest in strong obtaining readjudication of his free from guilt error, as society maintains valid concern for that the insuring Just are guilty punished. Burks, 1, also, United States v. 5 (1978). State, 437 U.S. See Davis v. 198, 33 Ark. 804 S.W.2d 373 This court has held App. (1991). long that a should not be prosecuting attorney tempted appeal or make statements to the prejudices, pervert testimony, jury, not, whether true or that have not been The desire for proved. success should never induce the to endeavor to obtain a prosecutor conviction those that are based by arguments except upon State, 42, evidence in the case. Timmons v. 286 Ark. 688 S.W.2d 944 circumstances, Under these (1985). this court has stated it “is bound Timmons, to reverse.” 286 Ark. at 44. This court has times many reversed of conviction where the made judgments preju dicial statements had no basis in the evidence Garza presented. State, 175, v. 735 S.W.2d 702 Simmons and v. (1987); Flippo State, Ark. 233 S.W.2d 346 197 To be mentioned in (1961). the evidence must be admissible. Rank v. opening,

115 Ark. House v. (1994); 658, 662, In 509 S.W.2d S.W.2d Clark 812 this court stated:

An limited of the evi statement is to a ‘brief statement opening relies,’ dence on which the state Ark. Ann. Stat. 43-2110 (Repl. 1964), and the issues to be tried. Karr v. S.W.2d 442 fact be stated (1957). No asserted should by prose it cutor unless is material evidence on the of the state. Smith v. part S.W.2d 249 Here, it is clear the reference to the “vision” statement was not Smith, In this court a discussed detailed reference permissible. supra, a confession in statement by prosecuting attorney opening reversal was where the statement was later found why required inadmissible. This court stated:

Now back to the statement: when the opening attor- prosecuting made his ney statement to the he opening jury, knew virtue of (by the defendant’s of not if in plea no other that the guilty, way) confession had been the defendant. In repudiated by detailing statement, confession to in his jury over the defend- opening ant’s objection, took the prosecuting attorney of responsibility consequence of later adverse on the ruling of admissibility course, the confession. Of did not prosecuting attorney know in advance what the court would rule on the admissibility confession; but reversible error was committed in this case in confession detailing alleged over the defendant’s objections when the confession was later held to be inadmissible. Smith, at The 1081. events recounted in Smith are almost from those of the case indistinguishable before us. The difference is that in our case the knew for a prosecuting attorney certainty the confession was The facts of the being case before challenged. us thus out Smith, even more for reversal. cry as the prosecuting in Just detailed the confession to the attorney at his own jury peril. I must also note that as the its majority begins analysis error, state, harmless “While the correctness of the they trial court’s on the statement’s ruling is ...” admissibility questionable. My review of the abstract fails to reveal basis on which the issue be considered may this court. The by failed to prosecuting attorney the record develop review. The sufficiently thereby precludes issue of the of the statement admissibility is not before this simply court. What occur in this if might a retrial were regard is provided unclear. the State would on witnesses in Presumably, put support its assertions of or some other evidence of its admissibility provide admissibility. in this a

We have case who prosecuting attorney proceeded to detail a even statement statement to opening jury though knew it was to be the of a Denno The statement subject hearing. Smith, was a confession. is instructive. The Again, compelling supra, Smith, and this case both a Smith case involved heinous crime. In it child, was the murder of a small and in case our the murder of two ladies. The court stated: elderly crime,

There little sweet innocent a vile and heinous girl, confession detailed then the prosecuting attorney, jury left for a draw day to on its own as to what was imagination going chambers; the result follows that no could eradi- inevitably juror cate from his mind what the said in the confes- detailing snow, sion. ink as cannot be erased from so the confes- alleged Just sion, as detailed by could not be erased prosecuting attorney, case; from the minds of the in this and the trial jury court made no effort to eradicate the said confession from the minds of the jury even after the confession held inadmissible. Smith, case, 205 Ark. at 1081. In the Smith, as in there was present statement, Smith, to and objection as in opening again, just there was no instruction the trial court that the should by jury statement, the “vision” even after the determination the disregard confession was inadmissible. The instruction at the end of given

trial that statements counsel were not evidence did not cure this error. The issue before this court is whether Barnes has been convicted a which is defective in through judicial some process case, fundamental in this misconduct. respect, through prosecutorial The facts make it clear this is so. The in Smith makes a holding reversal in this case. This court stated mandatory that a long ago, acts in a and that it is his prosecutor quasi-judicial capacity, duty see that a criminal defendant receives a fair and trial. impartial Adams v. S.W.2d 946 Holder v. (1928); 25 S.W. 279 A not discuss in prosecutor may his statement a that is the confession of a opening Denno subject Holder, stated, to be held. In this court hearing yet “To supra, convict and a the influence of punish person through prejudice is as in its as the of a caprice pernicious consequences escape guilty man. The forms of the law should never be to such a prostituted case This should be reversed and remanded purpose.” new trial. To hold otherwise is to communicate that this prosecutors court will use the harmless-error doctrine to annul prosecutorial misconduct, even where such misconduct involves to the reciting in statement a confession which has not been

jury opening yet admissible, found and where the knows prosecutor hearing is scheduled and well result in the exclusion subject might the confession. This court has held that a previously prosecutor mentions such a at confession statement his own opening peril. Under this no be the case. majority’s holding, appears longer This is to our This court has contrary prior holdings. consistendy held over admissible evidence be men- many years may tioned Rank, Houser, statement. opening supra; This is a Rather than allow State supra. dangerous precedent. misconduct, the benefit of its it be should to return to the required trial court and obtain admission of the statement. The facts tend to show that well be the outcome remand. might upon

Corbin Thornton, in this dissent. JJ., join

SUPPLEMENTAL OPINION ON DENIAL OF

REHEARING CR 00-1062 Court of Arkansas

Supreme delivered November Opinion 117-A Kissee,

Tom Garner and Dean for Larry appellant. Gen., Gen., Mark David R. Att’y Ass’t Pryor, by: Raupp, Att’y for appellee. Tom Glaze, Charles has Barnes petitioned Justice. case, in this that the rehearing court’s contending opinion 27, 2001, delivered Barnes v. September S.W.3d 271 contained errors of fact and law. con- Barnes tends that the court misstated that Barnes asserted the sixth his We wrote point appeal. did State not him the give polygraph such, examiner’s until the and as he did report day hearing, not have time to so he could analyze conduct an effec- reports however, tive cross-examination. In his states petition, materials, he never received other than polygraph report itself, note, either before trial or during We suppression hearing. that the record reflects Barnes received not though, report, sheet, list, but also the examiner’s data polygraph question two of handwritten notes. pages

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

In held this court that the failure State’s to supra, disclose the results of a examination to defendant polygraph to amounted trial to a violation of v. prior 373 U.S. Brady Maryland, There, the defendant Yates had (1963). advised the specifically trial court that his reason the disclosure of primary requesting material was to officer at the polygraph impeach examining held Our court that Yates suppression hearing. was prejudiced because, trial, from the of his it was critical very for him beginning to evaluate the circumstances under which his examina polygraph tion was administered and which the officer’s upon examining were conclusions based. there Because were about the the questions obtained, under circumstances which Yates’s confession was trial have ruled might several if judge differently instances Yates, truth were known. Ark. at 86-87. here, the court to reach a similar conclusion urges that because he underwent seven- to insisting interro eight-hour test, gation needed polygraph were to tapes recordings determine the circumstances the voluntariness of the surrounding course, statement. Of when court this reviews a court’s trial denial of a motion we review the evidence in the suppress, most light favorable State and make determination independent based of the circumstances. upon totality Steggall Further, this court will reverse a trial court’s if motion ruling suppress ruling clearly erroneous. Id. 117-C Here, that, we conclude the additional materials although discoverable, were Barnes has offered to demon sought nothing

strate a link between violation any discovery regarding poly materials and the voluntariness or involuntariness of his state graph ment. While he that he needed materials to have an posits them, examine he offers no additional as to expert argument whether or how such an could have shown that his statement expert Further, neither of his other two reasons for need involuntary. materials, above, noted has on the voluntariness ing any bearing Thus, of his statement. we that our Barnes’s reject argument opin ion contains errors of law.

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

For these we Barnes’s deny petition rehearing. Corbin, Hannah, Thornton, and would JJ„ grant. I would Justice, Barnes’s dissenting. grant peti Jim Hannah, case, tion for In this State its rehearing. opening statement told about Barnes’s vision” statement jury “night to the trial court Barnes’s motion to prior hearing suppress statement. The next the trial held a Denno day judge hearing found the vision” statement inadmissable. The “night majority affirmed the lower court based on of the evidence sufficiency viewed harmless error to Landreth v. through pursuant 960 S.W.2d 434 (1998).

117-D Landreth, of Elliot v. than the case Rather mentioned In Elliot the State is S.W.2d 362 (1998), controlling. statement. Following in its Elliot’s conviction opening felony prior not to con- admonished the trial court jury Elliott’s objection, the law. In State’s trouble with rejecting sider Elliott’s prior evidence revers- argument harmless error and sufficiency Elliot, we stated: ing remanding case, error in his attorney’s In the instant the prosecuting a one. the Assuming cannot be labeled slight statement opening told the the part, deliberately best intentions on prosecutor’s the trial of during guilt phase before evidence jury presenting any Thus, assault and bank robbery. that Elliott had been convicted of case, the the State labeled the of State’s from commencement criminal, one of the constitu removing Elliott a habitual thereby — in a case a right benefits afforded all defendants criminal tional Allard, 318, 283 Ark. at to fair and See 675 S.W.2d jury. a impartial trial, read to the of the court clerk (where, jury at 830 at beginning indictment, which included two additional the aggravated-robbery in Allard a by receiving against separate of theft charges pending trial here tried to admonish the in case). jury Although judge error, cure the this is not the sort of error that can be to attempt are mindful of this court’s decision in v. Stanley so cured. Seeid. We State, 310, where the (1996), 324 Ark. 920 S.W.2d 835 State’s in statement included a reference to “other offenses opening held error did not another and this court county,” prejudicial existed as to Stanley’s guilt. occur because evidence overwhelming There, however, the State never other or specified Stanley’s charges offenses, held that an admonition could have ameliorated the so we Allard, Here, reference. like the situation in the jury prosecutor’s of and the was left jury was told Elliott’s convictions specific felony with no doubt from the time the trial commenced that defendant Elliott was a habitual felon. Because the State’s error was egregious trial, at outset we conclude a reasonable of cannot beyond did not doubt that the remark contribute to Elliott’s prosecutor’s Thus, remand this conviction. we reverse and point. Elliot, 335 Ark. at 392-393. Elliott, in In told the attorney deliberately jury prosecuting convictions, had statement that the defendant opening prior felony not and the trial admonished the to consider Elliott’s judge jury the trial court admonished trouble with the law. Even

prior though stated, in his this court error jury, prosecuting attorney’s “[T]he one,” cannot be labeled a and that Elliot statement slight opening 117-E “denied one of the

was constitutional benefits afforded all defend — Elliot, criminal a fair ants in cases right impartial jury.” us, In the case before there nowas admonition. The intent by supra. was confession less before no place jury than the convictions in Elliott. It take damning would prior felony but review of this case for cursory anyone recognize immediately that the “vision” statement evi most piece powerful This dence. is so because the lack of evidence. especially physical Thus, the to use the statement in would temptation likely opening However, it be is known black-letter law that to great. commonly be in mentioned the evidence must be v. admissible. Rank opening, Mouser v. 216 (1994); When S.W.2d a confession has not been of a Denno subject it mentions hearing, prosecuting attorney at his own Had the statement later been found to opening peril. admissible, be then there Rank, would have been no error. supra. However, the statement was found The inadmissible. discussion Smith S.W.2d is on point. Therein, this court stated:

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

Smith, 205 Ark. at 1084. Such the case is before us. The confession was found inadmissible. The course have wiser would been for the to in Barnes prosecuting attorney join Denno seeking hearing to trial. prior The trial court was to hold a Denno on the obliged hearing of the “vision” admissibility statement. Ark. Code 16-89- Ann.§ Due that 107(b)(1) (1987). a defendant is to process entitled requires “a fair and a reliable hearing determination on the issue of volunta riness, a determination uninfluenced the truth or by falsity 1, confession.” State v. Ark. 337 987 Sheppard, S.W.2d 677 (1999) 368, Denno, v. 378 U.S. 377 v. (citing (1964) (citing Rogers Jackson Richmond,365 U.S. 534 A (1961)). hearing requested by Still, to trial. The and the court prior were aware of prosecutor this. the trial was commenced with no Denno on the “vision” hearing Then, statement. stated to the opening, prosecutor jury had, Barnes had told “he had a vision.” This police quote drew which was overruled with a objection, comment judge the Denno would be held the next afternoon and that “if we hearing

117-F then went back it, talk it.” The he won’t about prosecutor suppress and stated: to his opening he told will, to the officers and Barnes asked to He Charles speak ladies murder of two older bloody about them he had a vision Flat,— near Ash critical and most damning thus most The placed before the without judi- of the “vision” statement jury aspects under the federal constitution review as due cial required by process Moreover, Constitution, 2 8. the trial under the Art. Arkansas § court failed to any. provide Smith, be this court’s this case should According holding harmless error. reversed. The have relied majority mistakenly upon held is over This court has that where evidence routinely guilt and the error we can declare error harmless whelming slight, State, 86, and affirm. Bledsoev. 344 Ark. 39 S.W.3d 760 See (2001). State, 479, also, Kidd v. 330 Ark. 955 S.W.2d 505 (1997); Abernathy State, 61, However, v. 325 Ark. 925 380 this court (1996). S.W.2d be has indicated that the harmless-error rule would not clearly State, when a fundamental is violated. v. 338 right Kennedy applied 125, State, 384, Ark. Allen v. 838 (1999); S.W.2d 606 Ark. harm S.W.2d 346 To conclude that a constitutional error is (1992). reversal, less and does not mandate this court must conclude beyond a reasonable doubt that the error did not to the verdict. contribute 111, also, v. 3 S.W.3d 305 See v. (1999). Riggs Jones State, 336 Ark. S.W.2d 432 Schalskiv. Allen, 907 S.W.2d 693 Vannv. (1995); supra; (1992); 386 U.S. 18 California, Chapman It is difficult to see how one that the error did might argue not contribute the verdict in a fundamental The failure to in way. hold a Denno and then allow over the reference hearing objection statement to a confession that is later found inad opening disputed missible is well error. The statement was beyond slight highly preju dicial, Barnes was of the murder of stating plagued by nightmares his victims. The bell was The knew from the rung. jury beginning trial that Barnes had made the vision” statement. “night could erase Barnes’s vision” from the statement Nothing “night minds as heard the evidence That bell trial. jury’s they during was not and could not be denied due Barnes was unrung. process be was denied This should impartial jury. petition granted. in this dissent. JJ., join Thornton,

Corbin

Case Details

Case Name: Barnes v. State

Court Name: Supreme Court of Arkansas

Date Published: Sep 27, 2001

Citation: 55 S.W.3d 271

Docket Number: CR 00-1062

Court Abbreviation: Ark.