dissenting. 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 Elliot v. State, 335 Ark. 387, 984 S.W.2d 362 (1998), is controlling. In Elliot the State mentioned Elliot’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 Elliot, 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, 283 Ark. at 318, 675 S.W.2d at 830 (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.
Elliot, 335 Ark. at 392-393.
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 Elliot was “denied one of the constitutional benefits afforded all defendants in criminal cases — a right to a fair and impartial jury.” Elliot, 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 249 (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. 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 (1964) (citing Rogers v. Richmond, 365 U.S. 534 (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 (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.
Corbin and Thornton, JJ., join in this dissent.