Aday-Cazorla v. State

• Decision Date: 12 January 2021
• Docket Number: NO. 2019-KA-00933-COA,2019-KA-00933-COA
• Citation: 309 So.3d 1169
• Parties: Jorge Carlos ADAY-CAZORLA a/k/a Jorge Aday Cazorla a/k/a Aday Cazorla, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

309 So.3d 1169

Jorge Carlos ADAY-CAZORLA a/k/a Jorge Aday Cazorla a/k/a Aday Cazorla, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-00933-COA

Court of Appeals of Mississippi.

January 12, 2021

ATTORNEY FOR APPELLANT: RICHARD POOLE NOEL III

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, Jackson

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On March 12, 2018, Jorge Aday-Cazorla was indicted in the Rankin County Circuit Court for four counts of sexual battery pursuant to Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) and one count of gratification of lust pursuant to Mississippi Code Annotated section 97-5-23(1) (Rev. 2014).¹ On May 25, 2018, Aday-Cazorla waived arraignment and pled "not guilty" to all five counts. After a two-day jury trial, which began on March 11, 2019, Aday-Cazorla was acquitted of Counts I and II but was convicted of Counts III, IV, and V. On May 6, 2019, Aday-Cazorla was sentenced to serve three thirtyyear terms in the custody of the Mississippi Department of Corrections (MDOC), with the sentences set to run concurrently. Aday-Cazorla essentially raises one issue on appeal. He asserts that the circuit court erred by failing to give the jury a curative instruction regarding the State's alleged prejudicial statements during voir dire and by implicitly denying his contemporaneous motion for a mistrial. Finding no error, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. At the beginning of trial, during the voir dire process, the State made two alleged prejudicial statements that are the crux of the issue on appeal. On March 11, 2019, Aday-Cazorla proceeded to trial on four counts of sexual battery and one count of gratification of lust in the Rankin County Circuit Court.

A. First Statement

¶3. The State's first alleged prejudicial statement was made when the State addressed the prospective jurors during voir dire. The first statement and the following exchange of comments between the attorneys and the court is quoted as follows:

Ms. Purnell: The crime of gratification of lust occurs when an adult touches or handles or rubs a child under the age of 16 to gratify their lust.

Mr. Reeves: Can we approach the bench?

(On-the record bench conference.)

Mr. Reeves: I think a – don't take this the wrong way. I object to using the word "the crime occurred." He's not been convicted of anything. To say the crime occurred, that's not proper at this point in the trial. He stands innocent until proven guilty.

The Court: I'm not sure she said it that way.

Mr. Reeves: She said when the crime occurred.

The Court: You just say the elements of the crime and not when the crime occurred.

Mr. Reeves: Alleged.

The Court: Yeah. Just say gratification of lust and not the crime of.

Mr. Reeves: I've got a question. Why would the State go into the elements at this point? It's voir dire. That's your job.

The Court: I'll do that, but I think she's got a question she's going to ask based on those elements.

Ms. Purnell: Yes sir. I want them to know what it's about.

(End of bench conference.)

Defense counsel did not make a motion for a mistrial at this point in the trial. The State continued with the voir dire process. The circuit court did not give the jury any curative instructions as a result of the first statement.

B. Second Statement

¶4. The State's second alleged prejudicial statement was made later in the voir dire process and approximately thirty-three questions after potential jurors were asked about their beliefs regarding the truthfulness of victims of sexual abuse and the timeliness of the disclosure of their abuse. The second statement and the following exchange of comments between the attorneys and the court is quoted as follows:

Ms. Purnell: Thank you. In this case you're not going to hear any testimony of any injuries to the victim. These crimes happened between 2013 and 2015. It was not until 2017 they were disclosed.

Mr. Reeves: I object to saying these crimes happened. My client is innocent until proven guilty. I object to that.

The Court: Is that what you said?

Ms. Purnell: Yes, sir.

Mr. Reeves: Judge, I move for a mistrial.

The Court: Any response?

Mr. Reeves: It's the second time it's happened.

The Court: Let's don't do it again.

Ms. Purnell: I'm sorry.

(End of bench conference[.])

The court did not give a ruling on defense counsel's motion for mistrial, nor did defense counsel press the court for a ruling. Further, the court did not later give the jury any curative instructions as a result of the State's comment.

¶5. After the second bench conference, the State made several follow-up statements in the subsequent voir dire examination in attempt to cure any misinformation given to the prospective jurors as follows:

Ms. Purnell: The alleged crimes happened between 2013 and 2015, and it was two years later they disclosed. Are there any of you who feel like in order for [there] to have been a crime you have to have evidence of an injury? It's perfectly fine if you feel that way. I'm telling you now there's not going to be any testimony about any injuries. Are there any of you that would require testimony of an injury for you to be fair and impartial in a case?

(No responses.)

Ms. Purnell: Anybody?

(No responses.)

Ms. Purnell: Do you all understand that at the beginning of every trial the defendant is presumed innocent? And I apologize for saying crime. It was an alleged crime. Right now he's presumed innocent. Do you understand that?

(General affirmative indications.)

Ms. Purnell: And it's the State's job to present the case to you. But everybody that has been found guilty of a crime has been presumed innocent at the beginning. Do you all understand that?

(General affirmative indications.)

(Emphasis added.)

¶6. The trial continued, and after two days, Aday-Cazorla was acquitted of Counts I and II but was convicted of Counts III, IV, and V. A poll of the jury indicated that the returned verdict was unanimous. On June 4, 2019, Aday-Cazorla filed a motion for new trial, which was denied on June 6, 2019. Aday-Cazorla filed a notice of appeal on June 5, 2019.

STANDARD OF REVIEW

¶7. " ‘The standard of review for the denial of a mistrial is abuse of discretion.’ " Young v. State , 281 So. 3d 179, 186 (¶29) (Miss. Ct. App. 2019) (citing Ambrose v. State , 254 So. 3d 77, 116 (¶112) (Miss. 2018) ). " ‘A trial judge need declare a mistrial only when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case.’ " Id . (citing Hutto v. State , 227 So. 3d 963, 984 (¶66) (Miss. 2017) ). "The trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect." Garrett v. State , 956 So. 2d 229, 233 (¶13) (Miss. Ct. App. 2006).

ANALYSIS

¶8. Aday-Cazorla argues that the circuit court erred by denying his contemporaneous motion for a mistrial made after the State's second alleged prejudicial statement. Further, he argues that the circuit court erred by failing to instruct the jury on the alleged misstatement of the law.

¶9. The Mississippi Rules of Criminal Procedure provide a remedy for parties who believe their case has been prejudiced by the misconduct of another party, a party's attorney, or anyone acting at their behest. Mississippi Rule of Criminal Procedure 23.5 states:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside of the courtroom, misconduct by a party, a party's attorney(s), or someone acting at the behest of a party or a party's attorney(s), resulting in substantial and irreparable prejudice to the movant's case.

Upon motion of a party or its own motion, the court may declare a mistrial if:

(a) The trial cannot proceed in conformity with the law; or

(b) It appears there is no reasonable probability of the jury's agreement upon a verdict.

¶10. Aday-Cazorla's attorney failed to make a contemporaneous motion for a mistrial after the State's first alleged prejudicial statement. "If no contemporaneous objection is made, the error, if any, is waived." Ronk v. State , 172 So. 3d 1112,1134 (¶51) (Miss. 2015) (quoting Cole v. State , 525 So. 2d 365, 369 (Miss. 1987) ). Therefore, any argument regarding the State's first statement is procedurally barred.

¶11. After the State's second alleged prejudicial statement, Aday-Cazorla's attorney objected and made a contemporaneous motion for mistrial. But no ruling was obtained from the circuit court in relation to his motion. "It is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same." Martin v. State , 354 So. 2d 1114, 1119 (Miss. 1978). "Generally, when a trial court has not ruled on a motion, a defendant is procedurally barred on appeal from claiming error." Willie v. State , 585 So. 2d 660, 671 (Miss. 1991), overruled on other grounds by King v. State , 784 So. 2d 884, 889-90 (¶¶21, 23) (Miss. 2001). Therefore, any argument on the issue of the State's second statement is procedurally barred.

¶12. Notwithstanding the procedural bar, Aday-Cazorla's argument is without merit. The jury was fully advised and instructed on the proper application of law through jury instructions given by the circuit court at the conclusion of trial and had heard the State's curative statements. Following defense counsel's contemporaneous motion for a mistrial, the State made follow-up statements to the prospective jurors to ensure they understood the importance of the presumption of innocence. In its follow-up statements, the State referred to "alleged crimes" and apologized for its previous use of the word "crimes." Further, the State reiterated the fact that Aday-Cazorla was innocent until proven guilty, and the prospective jurors indicated general appreciation of that proposition.

¶13. Finally, the jury was given multiple jury...