dissenting. I disagree with the majority on the issue of the “night vision” statement and respectfully dissent. This case should be reversed and remanded for a new trial. What is at issue here is whether Charles Barnes has been convicted through a judicial process that is defective in some fundamental respect, in this case, through prosecutorial misconduct. Contrary to the majority’s view, the issue is not simply one of sufficiency of the evidence viewed through harmless error. The credibility of the judicial system is in question.
Barnes had filed a motion to suppress the “night vision” statement and requested a hearing. The trial began without a hearing on the motion. The following occurred during opening statement by the prosecuting attorney:
— Many investigators came to the scene as you can imagine, and Stan Witt will tell you that upon, that upon his investigation of the murder which lasted, I believe it was about seventeen months until Charles Barnes was charged, he’ll tell you that while investigating these murders, that Charles Barnes asked at some point to speak with the officers and Mr. Weaver was involved in that also. And he told them that he had had, quote a vision.
By Mr. Kissee: Judge, we object. May we approach the bench?
By The Court: Yeah.
(Thereupon the following is held at the bench out of the hearing of the jury.)
By Mr. Kissee: Your honor, as we’d talked before we came back in here, we have a motion pending to suppress this and we requested a Denno hearing, and we were not granted that so we object to the prosecutor being able to bring this out in front of the jury.
By The Court: Overruled. We’ll have it after the opening tomorrow and if we suppress it, he won’t talk about it.
(Thereupon the following is held in open court in the hearing of the jury.)
By Mr. Lambert: He will, Charles Barnes asked to speak to the officers, and he told them that he had a vision about the bloody murder of two older ladies near Ash Flat, —
During the next day of trial, the judge held a Denno hearing. No testimony was given during the hearing. Barnes alleged that the “vision” statement was inadmissable because at the time of the statement, he was represented by counsel. The State alleged that Barnes initiated the contact with the officers. The trial judge ruled that the vision statement was inadmissable because Barnes had a lawyer and the lawyer was not notified. No inquiry was made as to whether Barnes initiated the contact with the officers before making the statement.
It was clearly error for the prosecution in opening statement to tell the jury about Barnes’s “vision” statement prior to the trial court conducting a Denno hearing and ruling the statement inadmissible. The majority holds that this was harmless error in affirming the convictions. The majority sets out the admissible evidence tending to show Barnes was the assailant. The admitted evidence introduced through Dunn, Roberts, and the polygraph statement is relevant on the issue of whether Barnes was the assailant. However, the “vision” statement recounted to the jury by the prosecutor in his opening statement and found inadmissible below is of a profoundly different character than any other piece of evidence offered. The “vision” statement had the impact of being not only a confession, but one that was far more prejudicial than even a typical confession. By recounting the statement that Barnes was having a vision “about the bloody murder of two old ladies near Ash Flat,” the prosecutor was conveying very strong evidence, compelling evidence, that Barnes was so distraught over the brutal murders he had committed that his sleep was being invaded by remorse and regret born of guilt that manifested as visions of carnage as his tortured mind compelled him to revisit the scene of his horrible crime. The statement is as damning as any one might imagine. Its introduction in opening is an understandably astute strategic move by the prosecution; however, its use is disappointing where the prosecutor knew its admissibility was in issue. The prosecutor knew a Denno hearing on that very issue was yet to be held. In spite of this knowledge, the events in opening show most clearly the prosecutor’s intent to get this statement before the jury. Not only did he mention a vision by Barnes, but immediately after objection to that mention, and after the trial court advised that he would conduct the Denno hearing the next day, the prosecutor then told the jury the content of the “vision” statement.
The majority relies on Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998), in support of their harmless-error analysis. I respectfully submit that Landreth simply is not on point. The court in Landreth relied on the harmless-error doctrine. A harmless-error inquiry is appropriate only when the trial was not fundamentally unfair. Pope v. Illinois, 481 U.S. 497 (1987); Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). See also, Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). Under discussion in Landreth was whether, after discarding testimony tainted by a comment in closing argument, intended to bring to the jury’s attention that the defendant did not testify, there remained overwhelming evidence of guilt which rendered the improper comment harmless beyond a reasonable doubt. Thus, in Landreth, the issue was one of sufficiency of the evidence. This court found that only part of the evidence was tainted by the statement in closing argument, and that even if that tainted evidence were discarded, evidence of overwhelming guilt remained. Obviously, the jury in Landreth was aware that the defendant had not testified even before the prosecutor made the remark.
The present case is not comparable to Landreth. Here, the ury was told in opening, at the very outset of the case, that Barnes had in effect confessed to the murder. Not a shred of evidence had been introduced when the prosecutor intentionally told the jury about a statement that he knew might not be admissible. Every piece of evidence on which the majority relies naturally followed the opening statement. How could the jury not be tainted in its entirety by the opening statement? Once the highly prejudicial confession was detailed to the jury, the evidence that followed simply reinforced the conclusion of guilt intentionally placed in the jurors’s minds by the prosecutor in opening statement. Thus, the issue in the case before us is one of fundamental fairness. To find as the majority now does is to substitute its judgment for that of the jury, which this court has stated it will not do. Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989). To find as this court has, it must review the evidence and conclude, that had it been sitting as the jury, Barnes would have been convicted. This is so because the entire jury was tainted and may not be relied on. In the present case, the temptation to delve into analysis of sufficiency of the evidence blinds us to the real issue — one of elemental trial error — which, rather than impacting the weight of the evidence, is one so grievous that the judicial process has been fundamentally flawed and only re-adjudication of guilt will cure the error.
Likewise, the cite by the majority to Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993), is of no avail. Therein, again, an alleged error by the prosecution in closing, whereby he warned what would happen in Malvern if the defendant were not convicted, did not taint the entire trial. An analysis similar to that in Landreth was undertaken, which is no more applicable to this case than was Landreth. In our case, the bell was rung during the opening statement, and the instruction at the end of the trial could not unring the bell in the minds of the jury.
The majority finds the prosecutor’s error is harmless error, that the evidence shows beyond a reasonable doubt that Barnes and Roberts were together on the day they murdered the two elderly women, and that they did so for money. That conclusion begs the issue. The issue is whether the defendant has been convicted through a judicial process that is defective through prosecutorial misconduct.
In the context of a discussion of allowing retrial as a remedy for trial error, the United States Supreme Court stated:
In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a Judicial process which is defective in some fundamental respect, eg. incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a readjudication of his guilt free from error, Just as society maintains a valid concern for insuring that the guilty are punished.
United States v. Burks, 437 U.S. 1, 5 (1978). See also, Davis v. State, 33 Ark. App. 198, 804 S.W.2d 373 (1991). This court has long held that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury, whether true or not, that have not been proved. The desire for success should never induce the prosecutor to endeavor to obtain a conviction by arguments except those that are based upon the evidence in the case. Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985). Under these circumstances, this court has stated it “is bound to reverse.” Timmons, 286 Ark. at 44. This court has many times reversed judgments of conviction where the prosecutor made prejudicial statements that had no basis in the evidence presented. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987); Simmons and Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). To be mentioned in opening, the evidence must be admissible. Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994); House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959). In Clark v. State, 256 Ark. 658, 662, 509 S.W.2d 812 (1974), this court stated:
An opening statement is limited to a ‘brief statement of the evidence on which the state relies,’ Ark. Stat. Ann. 43-2110 (Repl. 1964), and the issues to be tried. Karr v. State, 227 Ark. 777, 301 S.W.2d 442 (1957). No asserted fact should be stated by the prosecutor unless it is material evidence on the part of the state. Smith v. State, 205 Ark. 1075, 172 S.W.2d 249 (1943).
Here, it is clear the reference to the “vision” statement was not permissible. In Smith, supra, this court discussed a detailed reference to a confession by the prosecuting attorney in opening statement and why reversal was required where the statement was later found inadmissible. This court stated:
Now back to the opening statement: when the prosecuting attorney made his opening statement to the jury, he knew (by virtue of the defendant’s plea of not guilty, if in no other way) that the confession had been repudiated by the defendant. In detailing the confession to the jury in his opening statement, over the defendant’s objection, the prosecuting attorney took the responsibility of the consequence of the later adverse ruling on the admissibility of the confession. Of course, the prosecuting attorney did not know in advance what the court would rule on the admissibility of the confession; but reversible error was committed in this case in detailing an alleged confession over the defendant’s objections when the confession was later held to be inadmissible.
Smith, 205 Ark. at 1081. The events recounted in Smith are almost indistinguishable from those of the case before us. The difference is only that in our case the prosecuting attorney knew for a certainty the confession was being challenged. The facts of the case before us thus cry out even more for reversal. Just as in Smith, the prosecuting attorney detailed the confession to the jury at his own peril.
I must also note that as the majority begins its analysis of harmless error, they state, “While the correctness of the trial court’s ruling on the statement’s admissibility is questionable. ...” My review of the abstract fails to reveal any basis on which the issue may be considered by this court. The prosecuting attorney failed to develop the record sufficiently and thereby precludes review. The issue of the admissibility of the statement simply is not before this court. What might occur in this regard if a retrial were provided is unclear. Presumably, the State would put on witnesses in support of its assertions of admissibility or provide some other evidence of its admissibility.
We have in this case a prosecuting attorney who proceeded in opening statement to detail a statement to the jury even though he knew it was to be the subject of a Denno hearing. The statement was a compelling confession. Again, Smith, supra, is instructive. The Smith case and this case both involved a heinous crime. In Smith, it was the murder of a small child, and in our case the murder of two elderly ladies. The court stated:
There was a sweet little innocent girl, a vile and heinous crime, a confession detailed by the prosecuting attorney, then the jury left for a day to draw on its own imagination as to what was going on in chambers; the result follows inevitably that no juror could eradicate from his mind what the prosecutor said in detailing the confession. Just as ink cannot be erased from snow, so the alleged confession, as detailed by the prosecuting attorney, could not be erased from the minds of the jury in this case; and the trial court made no effort to eradicate the said confession from the minds of the jury even after the confession was held inadmissible.
Smith, 205 Ark. at 1081. In the present case, as in Smith, there was an objection to the opening statement, and again, just as in Smith, there was no instruction by the trial court that the jury should disregard the “vision” statement, even after the determination the confession was inadmissible. The instruction given at the end of trial that statements of counsel were not evidence did not cure this error. The issue before this court is whether Barnes has been convicted through a judicial process which is defective in some fundamental respect, in this case, through prosecutorial misconduct. The facts make it clear this is so. The holding in Smith makes a reversal mandatory in this case. This court stated long ago, that a prosecutor acts in a quasi-judicial capacity, and that it is his duty to see that a criminal defendant receives a fair and impartial trial. Adams v. State, 176 Ark. 916, 5 S.W.2d 946 (1928); Holder v. State, 58 Ark. 473, 25 S.W. 279 (1894). A prosecutor may not discuss in his opening statement a confession that is the subject of a Denno hearing yet to be held. In Holder, supra, this court stated, “To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of the law should never be prostituted to such a purpose.” This case should be reversed and remanded for a new trial. To hold otherwise is to communicate to prosecutors that this court will use the harmless-error doctrine to annul prosecutorial misconduct, even where such misconduct involves reciting to the jury in opening statement a confession which has not yet been found admissible, and where the prosecutor knows a hearing on that subject is scheduled and might well result in the exclusion of the confession. This court has previously held that a prosecutor mentions such a confession in opening statement at his own peril. Under the majority’s holding, this appears to no longer be the case. This is contrary to our prior holdings. This court has consistendy held over many years that only admissible evidence may be mentioned by the prosecutor in opening statement. Rank, supra; Houser, supra. This is a dangerous precedent. Rather than allow the State the benefit of its misconduct, it should be required to return to the trial court and obtain admission of the statement. The facts tend to show that might well be the outcome upon remand.
65 S.W.3d 389 Corbin and Thornton, JJ., join in this dissent.