Judge William Fuente has declared a mistrial in the murder trial of Richard McTear, the Tampa man accused of throwing a baby from a moving car.

Fuente announced his decision Tuesday morning, agreeing with a defense attorney that McTear could no longer receive a fair trial because of a remark made by the baby's mother during testimony Monday.

McTear, 25, is charged with first-degree murder, aggravated child abuse and other offenses in the 2009 death of Emanuel Murray, a 3-month-old who was found dead by the side of Interstate 275 near Fowler Avenue.

The state can retry McTear, but no date for a new trial was announced Tuesday. Because the trial was a death penalty case, attorneys needed a week just to seat a jury. So at minimum, there will be a long delay.

Jasmine Bedwell, the baby's mother, took the stand on the first day of testimony Monday to describe how McTear, her ex-boyfriend, attacked her and inflicted Emanuel's fatal injuries.

The problem was, she said something the court ruled earlier could not be said in front of the jury.

Under questioning from Hillsborough Assistant State Attorney Ron Gale, Bedwell said McTear told her over the phone "he was going to come over and shoot my baby in the face and ... was going to kill both of us."

McTear's attorney Assistant Public Defender Mike Peacock, immediately moved for a mistrial.

"It clearly was the obligation of the state to make sure that their witnesses were aware of all orders with regard to testimony," Peacock said later.

Fuente said Monday he was "on the horns of a dilemma" about how to proceed in the case, which has already in the court system for four years. He sent the jury home and said he would rule in the morning after hearing from the attorneys again.

The parties took the matter again around 8:30 a.m. Tuesday.

McTear was not the baby's father. Emanuel's father was in state prison at the time of the child's death.

During opening statements Monday, Gale told the jury that McTear, who was 21 at the time, flew into a rage on the morning of May 5, 2009 after seeing Bedwell, then 17, return home with another man.

McTear attacked Bedwell and poured a can of soda in Emanuel's face, Gale said. When Emanuel began to cry, Gale said, McTear picked up the car seat he was seated in and hurled it across the room.

Gale said McTear then grabbed the baby and took off.

Although the Emanuel had "road rash" injuries consistent with being thrown from a moving car, he died from "severe and multiple skull fractures," Gale told the jury.