
    Extra AUGUSTINE, a/k/a Extra Augustin, Appellant, v. STATE of Florida, Appellee.
    No. 86-3030.
    District Court of Appeal of Florida, Second District.
    April 1, 1988.
    
      James Marion Moorman, Public Defender, and Laura Griffin, Asst. Public Defender, Bartow, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HALL, Judge.

Extra Augustine appeals from his judgment and sentence for possession of cocaine and possession of narcotic paraphernalia. We affirm his conviction and sentence but remand for correction of the final judgment.

On April 24, 1986, at approximately seven-thirty in the evening, the appellant, a Haitian who only speaks Creole, was riding a ten-speed bicycle on a paved street when he was flagged down by two auxilliary deputy sheriffs in a patrol car traveling in the opposite direction. The deputies, Michael Teed and Harry Johnson, intended to warn the appellant that he should not be riding a bicycle without headlights or taillights as night was beginning to fall.

The appellant continued past the patrol car about twenty feet and circled back around. In the meantime, Deputy Teed got out of the car and walked to the rear of the vehicle. Since the appellant’s bicycle had poor brakes, the appellant had difficulty stopping it and ran directly into the patrol car’s bumper. As the appellant was falling Deputy Teed saw him throw “something” under the left side of the patrol car. Deputy Teed looked under the car to see what the appellant had thrown and found a matchbox behind the left tire.

At about this time Deputy Sheriff Donald Biggs, who had been patrolling the area, happened to see the deputies and the appellant stopped in the road and a small crowd of people on the right side of the road and decided to investigate. When Deputy Biggs arrived at the scene Deputy Teed handed him the matchbox which was found to contain several grams of rock cocaine. The appellant was arrested and, upon being searched, was found to be carrying three hundred fifty-seven dollars.

The appellant was charged with possession of a controlled substance with intent to sell or deliver in violation of section 893.13, Florida Statutes (1985), and possession of narcotic paraphernalia in violation of section 893.147, Florida Statutes (1985). At trial the court granted the appellant’s motion to reduce the charge of possession with intent to sell, a second degree felony, to a charge of simple possession, a third degree felony.

During his redirect examination of Deputy Johnson the prosecutor asked whether anyone was holding on to the appellant after Deputy Teed found the matchbox under the patrol car. Deputy Johnson answered:

I think after we noticed—we got the box, we didn’t have ahold of him. He was just standing there. And Teed showed the box, which Don Biggs had arrived at that time, and we opened the box while he was there. And we asked him what it was, was that his and stuff. He didn’t say nothing.

The defense then moved for a mistrial on the ground that this was a comment on the appellant’s right to remain silent. The trial court denied the motion.

The jury found the appellant guilty of simple possession and possession of paraphernalia.

On appeal the appellant argues that at the time he was questioned he was in custody and, although he had not yet been given Miranda warnings, he had the right to remain silent and it was reversible error for the witness to refer to his silence. The state argues the appellant was not yet in custody, and therefore, there was no due process violation.

Florida courts have adopted a very liberal rule for determining whether a comment constitutes a comment on the accused’s silence: “any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). However, such a comment is not reversible error per se. Rather, the comment is subject to the harmless error test, which

places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction, [citation omitted.] Application of the test not only requires a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

491 So.2d at 1138.

In DiGuilio the impermissible evidence put before the jury was testimony that the defendant failed to offer any plausible explanation at the time of his arrest for his suspicious presence in the midst of a drug deal. The testimony further highlighted that DiGuilio was not testifying at trial and had still offered no plausible explanation for his presence at the scene. The permissible evidence implicating the defendant was otherwise weak. Under those circumstances the supreme court concluded the error was not harmless and constituted reversible error.

The permissible evidence in the instant case revealed that: (1) the appellant had something in his right hand, which he threw as his bicycle collided with the patrol car; (2) the deputy saw him toss the object under the car and recovered the matchbox containing rock cocaine; and (3) the appellant had three hundred fifty-seven dollars cash on his person and was unemployed. In addition, unlike the defendant in DiGuilio, the appellant testified before the jury, through an interpreter, as to his version of the facts. Specifically, the appellant stated that he had never seen the matchbox until it was presented as evidence at the trial. The appellant also testified that he does not speak or understand any English.

As in DiGuilio, the impermissible evidence put before the jury was the comment on the failure of the appellant to respond to a question of an officer. However, in the instant case it was apparent to the jury that the appellant did not speak or understand English and, therefore, could not respond to the question. It is therefore difficult for this court to say that the comment on the appellant’s silence in response to a question the appellant did not understand led the jury to conclude that the appellant failed to offer a plausible explanation of his innocence. Therefore, we do not believe the officer’s testimony that the appellant did not respond to his question reached the level of being a constitutionally impermissible comment on the appellant’s silence.

Even if we were to consider the comment to be impermissible, in view of the fact that the permissible evidence impli-eating the appellant was strong and there is no possibility that the comment could have contributed to the conviction, we find the error was harmless and, therefore, does not constitute reversible error.

Finally, as the appellant points out, the trial court granted the appellant’s motion to reduce the charge of possession with intent to sell to simple possession and the scoresheet was calculated based on simple possession; however, the final judgment reflects a conviction for possession of a controlled substance with intent to sell, rather than possession.

We find no merit in the appellant’s other argument. Accordingly, we affirm the appellant’s conviction but remand for correction of the final judgment to reflect that the appellant was convicted of possession of a controlled substance.

FRANK, J., concurs in result only.

SCHOONOVER, A.C.J., dissents with opinion.

SCHOONOVER, Acting Chief Judge,

dissenting.

I must respectfully dissent from the majority’s decision to affirm the appellant’s conviction. At the risk of repeating some of the facts already supplied in the majority opinion, I submit the following information from the record in order to fully explain the reasons why I am compelled to disagree with the majority.

On the evening in question, Deputies Teed and Johnson were in a marked car patrolling an area in Florence Villa in connection with a special drug enforcement assignment. At the time of this incident, there were thirty or forty people coming and going on the street, including the appellant on his bicycle. Deputy Johnson, driver of the patrol car, attempted to flag the appellant down and yelled at him to stop. Once Deputy Johnson stopped the patrol car, the people who had been milling around converged on the vehicle. The appellant had difficulty stopping his bicycle and had gone about twenty feet past the patrol car before he was able to stop and turn around.

Deputy Teed exited the patrol car and went to the back of the vehicle. He testified that he thought the appellant might not have been planning to stop and that he was going to run the appellant down. The deputies agreed, however, that the appellant had made no attempt to flee. Deputy Teed further testified that on the appellant’s returning to the patrol car, the appellant ran his bicycle into the left rear of the vehicle and that he saw the appellant throw “something” under the car as if he was trying to get rid of it. Deputy Teed could not tell what had been thrown, and no other witness testified to having seen the appellant throw anything.

Upon looking under the patrol car, Deputy Teed found a matchbox behind the left rear tire. Although the exact sequence of events is less than clear from the record, Deputy Johnson had by this time also exited the patrol car, and soon after the appellant hit the patrol ear with his bicycle, Deputy Biggs arrived at the scene. Deputy Teed testified that he immediately handed the matchbox to Deputy Biggs and “showed him what I had found.” According to Deputy Teed, Officer Biggs then asked the appellant to put his hands on the rear of the car, and they made the appellant “take everything out of his pockets and searched him for weapons and stuff”. Three hundred fifty-seven dollars and eighty cents was found on the appellant and seized for evidence. According to Deputy Bigg’s testimony, however, some money was already lying on the trunk of the patrol car by the time he had turned his attention from the matchbox to the appellant.

When the deputies were shown the matchbox and its contents at trial, they testified that based on their training and experience, the contents of the box appeared to be rock cocaine. Thus, I assume that when the deputies viewed the contents of the matchbox prior to the appellant’s arrest, they believed the contents to be rock cocaine at that time as well.

The appellant testified that he did not throw anything under the patrol car or have anything in his hands when he came up to the vehicle. He denied having seen the matchbox prior to trial and offered an explanation as to why he had the large sum of money in his pockets.

As for the majority’s determination that the appellant spoke only Creole and was unable to speak or understand any English, my examination of the record led me to a different conclusion. An interpreter was required for the trial; however, the record reflects that when the appellant and his interpreter were sworn in, it was “made known that the said EXTRA AUGUS-TIN[E] does not speak English sufficiently well to testify before the Court.” Furthermore, although the record reflects that when the appellant was asked at trial whether he understood some English, he replied, “No,” his own testimony indicates otherwise. During direct examination of the appellant, he was asked whether he recalled the deputy stopping him. He responded, “When I was driving the bike, he put out his hand, he said stop.” The appellant also testified that one of the deputies asked him to take everything out of his pockets. Moreover, the transcript reveals that in some instances, the appellant testified directly instead of responding to all inquiries through the interpreter. Also, in arguing against the appellant’s motion for mistrial, the state only argued that the inquiry was made prior to any type of arrest or custody situation, not that the appellant could not respond because he neither spoke nor understood English.

The majority’s determination that the comment under consideration “did not reach the level of being a constitutionally impermissible comment on the appellant’s silence” seems to be based on their conclusion that the appellant spoke only Creole and did not speak or understand any English. That conclusion was also the majority’s basis for attempting to distinguish the impermissible comment here from the comment considered harmful in DiGuilio. Because the record reflects that the appellant had a limited ability to speak and understand English, I cannot agree with the majority’s conclusion that it was apparent to the jury that the appellant did not speak or understand English and, therefore, could not respond to the question.

Regardless of the appellant’s ability to speak or understand English, however, any testimony concerning a suspect’s silence when detained by law enforcement officers is constitutionally prohibited. Tindall v. State, 395 So.2d 289 (Fla. 5th DCA 1981). By the time the appellant was allegedly shown the matchbox and asked whether it was his, he was “in custody” because he had become the focus of the deputies’ investigation, he was not free to leave, and after the deputies had viewed what they apparently believed to be cocaine in the matchbox, they had probable cause to arrest him. See State v. Whitfield, 444 So.2d 1154, 1156 n. 2 (Fla. 2d DCA 1984). Here, it is unnecessary to apply the “fairly susceptible” test to the testimony “He didn’t say nothing” because in the context in which the comment was made, it is clearly a direct comment on the appellant’s silence. See David v. State, 369 So.2d 943 (Fla.1979). As such, the admission of the comment is constitutional error subject to the harmless error test. See DiGuilio.

After a close examination of the permissible evidence on which the jury could have legitimately relied as well as the impermissible evidence which might have possibly influenced the jury, even when all the evidence is viewed in the light most favorable to the state, I cannot say that the state has met its heavy burden of establishing beyond a reasonable doubt that the comment on the appellant’s silence did not affect the verdict. See DiGuilio.

The only evidence connecting the appellant with the matchbox is purely circumstantial. Although Deputy Biggs testified that there was a small crowd on the right side of the road when he arrived, he did not arrive until after the appellant had collided with the patrol car. Deputy Teed, on the other hand, testified that as soon as the patrol car stopped the thirty or forty people who had been milling around “swoop[ed] down ... they converged [on] the car.” Thus, there is at least a reasonable possibility that anyone in the crowd could have dropped the matchbox or thrown it under the patrol car. Furthermore, only one witness testified that he saw the appellant throw anything, and even that witness did not see what was thrown. Additionally, the record suggests that the deputies quickly looked under the car. Once they saw and retrieved the matchbox, no further effort was made to conduct a more thorough search to see if there might be any other objects under the car. Therefore, assuming that the appellant threw something, there remains a reasonable possibility that he threw something other than the matchbox. When the circumstantial nature of the evidence is considered along with the cursory nature of the search under the patrol car, I cannot agree with the majority’s conclusion that the permissible evidence implicating the appellant is strong.

Moreover, unlike the defendant in DiGuilio, the appellant here testified on his own behalf and thereby placed his credibility in issue. This increases the likelihood that the comment on the appellant’s prior silence affected the jury’s verdict as the appellant’s only chance of being found not guilty of the charges against him was for the jury to believe his version of the facts. Since the appellant’s credibility was critical, I cannot agree with the majority’s conclusion that there is no possibility that the impermissible comment on the appellant’s silence contributed to the verdict.

In DiGuilio, the supreme court recognized that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict. The likelihood that a comment deprived a defendant of a fair trial is increased where, as here, the only evidence of guilt is circumstantial, the comment on silence is direct, and the defendant’s credibility is at issue.

After carefully considering all the circumstances of this case, I do not believe the state has met its burden of showing the error was harmless. Therefore, I would reverse the conviction and remand for a new trial. 
      
      . In Long v. State, 494 So.2d 213 (Fla.1986), the court receded from its application of the per se reversible error rule to comments on a defendant’s silence, but not from its observation that there is no need to resort to possible interpretations when the reference to a defendant’s silence is direct.
     