dissenting.
I regret that I must dissent from the portion of the opinion of the court contained in Section VI. Our rules state:
Disclosure and Confidentiality. When a plea agreement or any term thereof is accepted, the agreement or such term shall become part of the record. However, if no agreement is reached, or if the agreement is revoked, rejected by the court, or withdrawn or if the judgment is later vacated or reversed, neither the plea discussion nor any resulting agreement, plea or judgment, nor statements made at a hearing on the plea, shall be admissible against the defendant in any criminal or civil action or administrative proceeding.
Ariz.R.Crim.P. 17.4(f), 17 A.R.S.
In determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case, we have stated the rule to be:
Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks.
Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d 312, 317 (1936), quoted with approval in State v. Landrum, 112 Ariz. 555, 561, 544 P.2d 664, 670 (1976). The prosecutor’s remarks clearly brought to the jury’s attention matters proscribed by rule. The remarks were particularly egregious because the jury was considering verdicts of aggravated and simple assault. If the jury believed that the defendant had tried to make a plea bargain with the state, this belief could well have caused the scale to be tipped in favor of aggravated as opposed to *16simple assault. The remarks called to the jurors’ attention were matters they should not have considered, and we cannot say they were not influenced by the statements. See Landrum, 112 Ariz. at 561, 544 P.2d at 664. This was prejudicial error.
I also believe that these remarks were fundamental error. I agree with the majority’s statement that fundamental error is error that goes to the heart of defendant’s case or takes from him a right essential to his defense. State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). I believe that these remarks are just as damaging as remarks designed to call to the jury’s attention the fact that defendant did not take the stand and testify. Considering the facts of this case they may be of even greater damage to the defendant.
Because of the prosecutor’s statement regarding the plea bargain, I would reverse and remand for a new trial.