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Date: 01-13-2021

Case Style:

Jorge Carlos Aday-Cazorla a/k/a Jorge Aday Cazorla a/k/a Aday Cazorla v. State of Mississippi

Case Number: 2019-KA-00933-COA

Judge: Anthony N. Lawrence



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Jackson, MS - Criminal defense attorney represented Jorge Aday-Cazorla with asserting 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.

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, AdayCazorla 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
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
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
(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.
¶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).
¶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 instructions by the circuit court at the close
of trial to further reinforce the applicable law and their duty as jurors. Jury Instruction
Number 1 stated in part:
When you took your place in the courtroom, you made an oath to follow and
apply the instructions of the Court regarding the law. . . . You are to apply the
law to the facts and in that way decide the case. The evidence that you are to
consider consists of the testimony and statements of the witnesses, any
stipulations made by the attorneys, and any exhibits admitted into evidence.
Jury Instruction Number 2 stated in part:
The law presumes every person charged with the commission of a crime to be
innocent. This presumption places upon the State of Mississippi the burden
of proving the Defendant guilty of every material element of the crime with
which he is charged. Before you can return a verdict of guilty, the State must
prove that the Defendant is guilty beyond a reasonable doubt. The Defendant
is not required to prove his innocence.
The jury was instructed on the applicable law, and “[i]t is presumed that jurors follow the
instructions of the court.” Johnson v. State, 475 So. 2d 1136, 1142 (Miss. 1985) (citing
Payne v. State, 462 So. 2d 902, 904 (Miss. 1984)). “To presume otherwise would be to
render the jury system inoperable.” Id. In this case, there is nothing in the record to indicate
that the jurors did not follow the law or that Aday-Cazorla suffered any prejudice as a result
of the State’s comments. Moreover, a poll of the jury showed that their verdict was
unanimous. There was no showing of substantial or irreparable prejudice to substantiate
Aday-Cazorla’s motion for a mistrial or any showing that the few words uttered in this case,
among many by the State, would require the need to give the jury a curative instruction. The
defense never asked for any sort of curative instruction, and the law given to the jury by the
court in the form of jury instructions certainly served a curative purpose if any prejudice had

Outcome: After review, we find that the circuit court did not abuse its discretion for failing to give the jury a curative instruction immediately following the defense counsel’s
contemporaneous objection and implicitly denying his motion for a mistrial.

Therefore, the circuit court’s judgment is affirmed.

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