Hutchens v. State

469 So. 2d 924 (1985)

William Frank HUTCHENS, Appellant,
v.
The STATE of Florida, Appellee.

No. 84-551.

District Court of Appeal of Florida, Third District.

May 28, 1985.

Joel Kaplan, Miami, for appellant.

Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

We reverse the defendant's conviction and remand the cause for a new trial. We hold that the trial judge erred in allowing the jury (which, without dispute, was made up of two persons who understood Spanish and four who did not) to listen to approximately forty minutes of a tape recording in Spanish, which recording purported to recount conversations relevant to the charges in this case between an undercover drug agent and others (sometimes the defendant) without having such recording translated into English for the jurors by an interpreter sworn to give a faithful and accurate translation, despite the defendant's clear, but overruled, request that he do so. See Kelly v. State, 96 Fla. 348, 118 So. 1 (1928). Even if, as the State suggests, a translation of the recording would reveal that the conversations thereon are totally admissible, we nonetheless must conclude that the potential of some members of the jury interpreting the otherwise incomprehensible testimony for other members of the jury is so fraught with the danger of prejudice that what is actually on the recording can serve only to exacerbate the prejudice.

Reversed and remanded for a new trial.