Gari v. State, 77-2122

• Decision Date: 06 October 1978
• Docket Number: No. 77-2122,77-2122
• Citation: 364 So.2d 766
• Parties: Rodolfo GARI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 766

364 So.2d 766

Rodolfo GARI, Appellant, v. STATE of Florida, Appellee.

No. 77-2122.

District Court of Appeal of Florida, Second District.

Oct. 6, 1978.

Rehearing Denied Nov. 27, 1978.

Jack O. Johnson, Public Defender, Bartow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Chief Judge.

This is an appeal from a conviction of receiving stolen property.

A number of personal items were stolen from the trailer of Ida H. Gottshall. A few days later she accompanied Detective Napoli to appellant's store where she spotted several of her possessions which had been stolen. Napoli then placed appellant under arrest. The appellant spoke only Spanish, but Napoli could not speak Spanish even though he understood it when spoken. Therefore, he had Ms. Gottshall translate for him so that he could give appellant the Miranda rights and in order that he might interrogate appellant. Through Ms. Gottshall acting as an interpreter, appellant consented to a search of his entire store. As a result of the search additional possessions of Ms. Gottshall were found. During the course of the interrogation appellant wrote a statement in Spanish explaining how he came into possession of the stolen property.

During the direct examination of Detective Napoli the appellant's statement was introduced into evidence as a state exhibit. At the request of the state the court directed an interpreter to read the statement to the jury in English. After the state rested, appellant introduced as an exhibit a typed English translation of his statement. The only witness for the defense was appellant himself. Over appellant's objection, his counsel was not permitted to make the concluding argument to the jury.

Fla.R.Crim.P. 3.250 provides that if a defendant offers no testimony on his own behalf except his own he shall be entitled to the concluding argument before the jury. The erroneous denial of this right cannot be deemed harmless error. Raysor v. State, 272 So.2d 867 (Fla. 4th DCA 1973).

The determination of whether appellant's counsel was entitled to close depends upon the effect of appellant's introduction of the English translation of his statement. The state properly notes that, ordinarily, the introduction of documentary evidence by a defendant forfeits his right to make the concluding argument. Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Crosby v. State, 90 Fla. 381, 106 So. 741 (1925). However, we believe this case is controlled by the exception discussed in Lyttle v. State, 320 So.2d 424 (Fla. 2d DCA 1975).

In Lyttle, a state witness on direct examination mentioned a note sent by the defendant's mother to the defendant. At the request of the prosecuting attorney the witness then read the note verbatim in front of the jury. The state did not introduce the note into evidence. On cross-examination, after the defense again asked the witness to read the note, the defendant caused it to be introduced into evidence. On these facts we held that because the note had been identified and read to the jury in the state's case, it was actually part of the state's evidence even though the defendant himself later introduced the note into evidence.

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