Can Prosecutor's Comments Cause a New Trial ?
In order to ensure that the harmless error test has been met, an examination of the record is required. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
This entails not only a "close examination of the permissible evidence on which the jury could have legitimately relied," but also a careful review of the "impermissible evidence which might have possibly influenced" the jury recommendation. Id. at 1135.
In Anderson v. State, 18 So. 3d 501 (Fla. 2009), the court explained:
In order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. Id. at 518 (quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)).