NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAYDA AILEEN FORTUNE, Appellant.

No. 1 CA-CR 19-0635 

Appeal from the Superior Court in Coconino County

No. S0300CR201700839

The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff

By Brad Bransky

Counsel for Appellant

FILED 9-1-2020
STATE v. FORTUNE

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2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann

joined.

C A M P B E L L, Judge:

¶1 Jayda Fortune appeals her conviction and sentence for 

manslaughter. She argues the superior court erred by denying her Batson

challenge and motion for mistrial. For the following reasons, we affirm.

BACKGROUND1

¶2 Gathered in a motel room for an evening “hang out,” a group 

of eight teenagers and young adults drank alcohol and socialized. As the 

evening progressed, two girls, Mirelle Gorman and Fortune, accused the 

victim of inappropriately touching them. Angered by the alleged 

unwelcome advances, Gorman and Fortune repeatedly punched and 

kicked the victim in the face and head while he laid on a bed, too intoxicated

to defend himself. Two male attendees, Lawrence Sampson-Kahn and 

Kayson Russell, also punched and/or kicked the victim at least once, 

knocking him to the floor. 

¶3 After the physical altercation, Gorman, Fortune, SampsonKahn, and Russell left the motel. The rest of the group spent the night in the 

room, with the victim left on the floor. When the victim was nonresponsive 

the next morning, the remaining attendees called 9-1-1. Once medical 

personnel arrived, they pronounced the victim dead. 

¶4 The State charged Fortune with second-degree murder.

2 The 

State also alleged several aggravating factors. At trial, the State presented

evidence that blood found on Fortune’s shoe belonged to the victim. The 

State also introduced the medical examiner’s findings that the victim died 

1 We view the facts in the light most favorable to sustaining the 

verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2 Although the State also charged Fortune with underage 

consumption of alcohol, she does not contest that conviction on appeal.
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3

from a subdural hematoma on the left side of his brain, caused by multiple 

blunt force injuries to his face and head. 

¶5 A jury found Fortune not guilty of second-degree murder but 

guilty of the lesser-included offense of manslaughter. After Fortune waived 

her right to a jury determination of aggravating factors, the superior court 

found she: (1) committed the offense with accomplices, and (2) caused 

emotional and financial harm to the victim’s family. Nonetheless, finding 

several mitigating factors as well, the court sentenced Fortune to a 

mitigated term of four years’ imprisonment. Fortune timely appealed. 

DISCUSSION

I. Denial of Batson Challenge

¶6 Arguing the superior court improperly denied her Batson

challenge, Fortune contends the prosecutor engaged in purposeful religious 

discrimination by exercising a peremptory strike to remove a pastor from 

the venire panel. See Batson v. Kentucky, 476 U.S. 79 (1986).

¶7 Use of peremptory strikes to exclude potential jurors solely 

based upon race, gender, or some other protected characteristic violates the 

Equal Protection Clause of the Fourteenth Amendment. Flowers v. 

Mississippi, 139 S. Ct. 2228, 2242–43 (2019); State v. Lucas, 199 Ariz. 366, 368, 

¶ 7 (App. 2001). “To successfully challenge a peremptory strike, a party 

must set forth a prima facie case of purposeful discrimination by showing 

that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.” State v. Paleo, 200 Ariz. 42, 43, ¶ 6 (2001) (internal 

quotation omitted). “The burden of production then shifts to the opponent 

who must explain adequately the . . . exclusion.” Id. (internal quotation 

omitted). “The court then evaluates the facts to determine whether a party 

engaged in purposeful discrimination.” Id. at 44. “Throughout the process, 

the burden of persuasion remains on the party alleging discrimination.” Id. 

¶8 We will uphold the denial of a Batson challenge absent clear 

error. State v. Newell, 212 Ariz. 389, 400, ¶ 52 (2006). Moreover, we will 

affirm the superior court’s decision “if it is correct for any reason, even if 

that reason was not considered” by the court. Glaze v. Marcus, 151 Ariz. 538, 

540 (App. 1986).

¶9 During voir dire, Juror No. 14 reported that both she and her 

husband are pastors at a local Methodist church. Before the jury was 

empaneled, defense counsel objected to the State’s use of a peremptory 

strike to remove Juror No. 14, arguing the prosecutor’s motivation in 
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exercising the strike was religious discrimination. In response, the 

prosecutor acknowledged that he struck Juror No. 14, in part, because she 

was a pastor and he believed her occupation could create “an issue with 

sympathy or forgiveness.” The prosecutor also stated, however, that 

another attorney in the prosecutor’s office knew Juror No. 14 personally 

and regarded her as “very liberal” and “inclined to make up her own rules.” 

At that point, the superior court denied the motion, finding Juror No. 14

did not fall within “a class of protected persons that might raise a colorable 

claim for [Batson]” and therefore the State had no need to provide a “neutral 

reason” for striking her. 

¶10 In Arizona, Batson has been extended to protect against 

discriminatory jury selection practices “based upon religious membership 

or affiliation.” State v. Purcell, 199 Ariz. 319, 326, ¶ 25 (App. 2001). But in a 

similar case, the Arizona Supreme Court concluded that a prosecutor’s 

exercise of a peremptory strike to remove a pastor based on a concern that 

“pastors are forgiving” was a neutral reason that, coupled with other bases 

for removal, “more than satisfie[d] Batson.” State v. Martinez, 196 Ariz. 451, 

456, ¶¶ 15–17 (2000) (analogizing pastors to social workers and concluding 

“there would [be] no question about the validity of [a] strike” to exclude a 

social worker as too “forgiving”). 

¶11 Applying Martinez here, the State did not strike Juror No. 14 

because she is Christian. Instead, the State struck the juror, in part, because 

she is a pastor and, by occupation, may be predisposed to extend

forgiveness or absolution. The superior court did not clearly err by finding 

the State’s peremptory strike did not violate Batson. 

II. Denial of Motion for Mistrial

¶12 Fortune contends the superior court improperly denied her 

motion for mistrial. Specifically, she asserts the court should have declared 

a mistrial after repeated emotional outbursts from members of the victim’s 

family.

¶13 A mistrial is “the most dramatic remedy for trial error” and

should be granted only when “justice will be thwarted unless the jury is 

discharged and a new trial granted.” State v. Adamson, 136 Ariz. 250, 262 

(1983). Because the superior court is “in the best position to determine 

whether a particular incident calls for a mistrial,” we uphold its decision to 

grant or deny a motion for mistrial absent a clear abuse of discretion. State 

v. Koch, 138 Ariz. 99, 101 (1983); see also State v. Jones, 197 Ariz. 290, 304, ¶ 32 

(2000). 
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¶14 After the prosecutor concluded his opening statement, 

defense counsel moved for a mistrial, citing “three separate” instances 

when the victim’s representatives “audibl[y] cr[ied] and gasp[ed]” in front 

of the jury. In response, the prosecutor acknowledged hearing a single, 

“stifled cry” and urged the court to simply instruct the jury “about 

sympathy and to disregard any kind of reactions.” While agreeing with 

defense counsel that “there was some weeping or crying . . . on at least two 

occasions,” the court did not observe any reaction from the jurors and 

denied the motion for mistrial. Although the court stated that it would 

provide “a curative instruction,” as requested by the prosecutor, it did not 

do so. Instead, the court only provided a sympathy instruction as part of 

the final jury instructions, admonishing the jurors “not to be swayed by 

mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, 

or public feeling.” 

¶15 The day after the jury rendered its verdict, Juror No. 2 

submitted a letter to the superior court. Detailing the deliberation process, 

the juror stated that she was “deeply affected” by the “wailing” of a victim’s 

representative during opening statements, claiming it “tainted” her 

decision to find Fortune guilty of manslaughter rather than negligent 

homicide.

¶16 Citing Juror No. 2’s post-trial statements, Fortune argues the 

superior court incorrectly found that no juror was affected by the emotional 

outbursts and therefore erroneously denied the motion for mistrial. It is 

well-settled, however, that a jury verdict cannot be impeached by a juror 

who agreed in open court to the verdict. State v. Kiper, 181 Ariz. 62, 68 (App. 

1994). Once a verdict is announced in open court and the jury is polled with 

no dissent registered, a verdict becomes final and is “not subject to further 

reconsideration by the jurors.” Id. at 68–69. 

¶17 Here, Fortune does not dispute, and the record clearly 

reflects, that each juror affirmed the accuracy of the manslaughter verdict 

in open court. Although a court may consider a juror’s testimony or 

affidavit when a verdict is challenged based on certain juror misconduct, 

none of the enumerated exceptions apply in this case. See Ariz. R. Crim. P. 

24.1(c)(3), (d) (permitting a court to receive testimony or an affidavit 

concerning juror misconduct, but prohibiting testimony or an affidavit 

relating “to the subjective motives or mental processes leading a juror to 

agree or disagree with the verdict”). 

¶18 To the extent Fortune argues that the superior court should 

have questioned the jurors after opening statements to determine whether 
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they were affected by the emotional outbursts, we note she did not request 

such a remedy. See Koch, 138 Ariz. at 101 (“The trial judge is able to sense 

the atmosphere of the trial, the manner in which the objectionable statement 

was made, and the possible effect it had on the jury and the trial.”).

Moreover, while the court initially stated it would provide a curative 

instruction on sympathy and did not do so, the record reflects that the court 

admonished the jurors not to be influenced by sympathy in both its 

preliminary and final instructions. On this record, the superior court acted 

well within its discretion by denying Fortune’s motion for mistrial.

CONCLUSION

¶19 For the foregoing reasons, we affirm.