Criminal conviction reversed due to prosecution's improper closing argument.  [Added 6/16/09]

    At closing argument in Defendant's criminal trial the prosecution made three arguments that Defendant found objectionable.  Defendant's motion for mistrial based on the cumulative effect of these arguments was denied.  Defendant appealed.

    The Third DCA reversed.  First, the prosecutor stated that Defendant was found by police in the act of flushing drugs down the toilet.  The appellate court concluded that there was no evidence in the record to support this statement.  "Although certainly colorful and highly probative had there been such evidence, the prosecutor’s statement violated the prohibition against making comments that could not be reasonably inferred from the evidence."  Second, the prosecutor twice referred to the crime taking place next to an elementary school.  The problem, however, was that the charge of selling drugs within 1000 feet of a school had previously been dropped.  Third, the prosecutor "improperly appealed to the jury’s community sensibilities by arguing how unfair it was to Miami- Dade County that people were trafficking in narcotics."  Such an argument consistently has been held to be improper.

    The court concluded:  "Although taking each of the prosecutors’ improper comments during closing argument by themselves might not be so prejudicial as to warrant a mistrial, certainly the cumulative effect of these three improper comments required the granting of a mistrial to ensure that [Defendant] received a fair trial.  Thus, the trial court abused its discretion in denying the motion for mistrial based on the cumulative prejudice from these improper comments in closing argument, plus the error described in part II of this opinion [the prosecution's violation of a motion in limine]."  Fleurimond v. State, __ So.3d ___ (Fla. 3d DCA, No. 3D-07-2183, 5/27/2009).