Can Death Sentence Be Reversed Due to Lack of Proportionality and Prosecutor's Use of Egregious Examples of Misconduct ?

In Urbin v. State, 714 So.2d 411 (Fla. 1998), the court reversed the sentence of death based on a lack of proportionality. The court also noted that the prosecutor engaged in a closing argument that was one of the most egregious examples of misconduct that we had seen, including ridiculing actions of the defendant's mother, using variants of the word "execution" at least nine times, and repeatedly dehumanizing the defendant and inviting the jury to disregard the law. See id. at 420-22. The prosecutor's conduct in the instant case, while erroneous, does not rise to the deplorable level of Urbin. The court distinguish Rhodes v. State, 547 So.2d 1201 (Fla. 1989), and Garron v. State, 528 So.2d 353 (Fla. 1988), on the same basis. In Rhodes, the prosecutor compared the defendant to a vampire without justification, improperly argued that the heinous atrocious and cruel (HAC) aggravator applied based on the defendant's actions after the body was dead, and clearly misstated the law with regard to a mandatory twenty-five year sentence for first-degree murder. The events in the instant case are not comparable. In Garron, the frequency and egregiousness of the comments justified reversal of the defendant's death sentence and remand for a new trial. The prosecutor in Garron repeatedly misstated the law and injected emotion and fear into the trial "in such a way as to render the whole proceeding meaningless." Garron, 528 So.2d at 359. While unfortunate, the prosecutor's remarks and behavior at issue in the instant case are not as egregious as those of the prosecutor in Garron.