Cruse v. State , 13 Fla. L. Weekly 714 ( 1988 )

ZEHMER, Judge

(dissenting).

The record in this case contains at least four different instances during which the prosecuting attorney made impermissible argument concerning appellant’s defense of self-defense. On at least two of these occasions, appropriate objection was made and overruled. In my view, the comments on the two occasions objected to by appellant were so grossly improper that it was clear error for the court not to sustain the objections to such comments. I, therefore, hold the view that the prosecutor’s conduct in this case, reading the objected to comments with the remaining objectionable statements in the record, so affected the outcome of this trial that the defendant was deprived of the right to a fair and impartial trial. The state has not shown to my satisfaction that these errors were harmless beyond a reasonable doubt under the test in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, I would reverse and remand for a new trial.