SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
CR 00-1062
Supreme Court of Arkansas
Opinion delivered November 8, 2001
Tom Garner and Larry Dean Kissee, for appellant. Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee. Tom Glaze, Justice.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. 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 (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.
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, Elliot 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, Elliot 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 Elliot 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 (1991).
For these reasons, we deny Barnes’s petition for rehearing.
Corbin, Thornton, and Hannah, JJ„ would grant.