309 So.3d 1169
Miss. Ct. App.2021Background
- Jorge Aday‑Cazorla was indicted on four counts of sexual battery and one count of gratification of lust; trial began March 11, 2019.
- During voir dire the prosecutor twice referred to the alleged acts as "the crime" or that "these crimes happened," prompting objection and (after the second remark) a motion for mistrial by defense counsel.
- The prosecutor later attempted to cure the statements during voir dire by calling them "alleged," apologizing, and reiterating the presumption of innocence to venire members.
- Defense counsel did not move for a mistrial after the first remark and, after the second, did not obtain an on‑the‑record ruling on his mistrial motion before the trial concluded.
- Jury instructions reiterated presumption of innocence and burden of proof; the jury acquitted on two counts and convicted on three counts; defendant's posttrial motion for new trial was denied.
- On appeal Aday‑Cazorla argued the court erred by failing to give a curative instruction and by implicitly denying his contemporaneous motion for mistrial.
Issues
| Issue | Aday‑Cazorla's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the court erred by failing to give a curative instruction and by implicitly denying a mistrial after the prosecutor's voir‑dire comments | The prosecutor's statements that "the crime occurred" and "these crimes happened" were prejudicial and warranted a mistrial or curative instruction | Any misstatements were cured by the prosecutor's follow‑up clarifications and by the court's jury instructions; defense failed to preserve the claim by not obtaining a ruling | Affirmed. No abuse of discretion. Issues were waived/procedurally barred for failure to obtain a ruling; any prejudice was cured by voir‑dire clarifications and the final jury instructions |
Key Cases Cited
- Young v. State, 281 So. 3d 179 (Miss. Ct. App. 2019) (standard of review for mistrial—abuse of discretion)
- Ambrose v. State, 254 So. 3d 77 (Miss. 2018) (mistrial required only for substantial and irreparable prejudice)
- Hutto v. State, 227 So. 3d 963 (Miss. 2017) (errors warranting mistrial must substantially and irreparably prejudice the defendant)
- Garrett v. State, 956 So. 2d 229 (Miss. Ct. App. 2006) (trial judge afforded discretion in mistrial decisions)
- Ronk v. State, 172 So. 3d 1112 (Miss. 2015) (failure to make contemporaneous objection waives error)
- Cole v. State, 525 So. 2d 365 (Miss. 1987) (same—contemporaneous objection rule)
- Martin v. State, 354 So. 2d 1114 (Miss. 1978) (party must obtain a ruling on motions or waiver results)
- Willie v. State, 585 So. 2d 660 (Miss. 1991) (no ruling on motion generally bars appellate review)
- Johnson v. State, 475 So. 2d 1136 (Miss. 1985) (presumption that jurors follow court instructions)
- Walker v. State, 299 So. 3d 759 (Miss. 2020) (emphasizing necessity of obtaining definitive, on‑the‑record rulings to preserve error)