Swinson v. State

In the Supreme Court of Georgia

Decided: March 1, 2021

S21A0396. SWINSON v. THE STATE.

MCMILLIAN, Justice.

Dan Toni Swinson appeals his convictions on two counts of

malice murder in connection with the shooting deaths of Heber

Jettie Bennett, Jr., and Eliace Marie Smith. 1 On appeal, he asserts

that the evidence was insufficient to support his convictions; that

the trial court erred in denying his motion to suppress evidence

1 Bennett and Smith were killed on June 30, 2013, and in connection
with their deaths, a Seminole County grand jury indicted Swinson on two
counts of malice murder, two counts of felony murder predicated on aggravated
assault, and two counts of aggravated assault. At a jury trial that took place
from August 24 to September 2, 2015, Swinson was convicted on all counts.
The trial court sentenced Swinson as a recidivist under OCGA § 17-10-7 (c) to
two consecutive life sentences without parole on the malice murder convictions.
The aggravated assault counts merged for sentencing, and the felony murder
counts were vacated by operation of law. Swinson’s trial counsel filed a motion
for new trial on September 25, 2015, which was amended by new counsel on
June 22, 2018. The trial court denied the amended motion for new trial on April
7, 2020, following an evidentiary hearing. Swinson filed a timely appeal, which
was docketed to the term of court beginning in December 2020 and submitted
for decision on the briefs.
obtained from a search warrant for his cell phone records, which was

based, in part, on a warrantless request for cell site information

under the Stored Communications Act, 18 USC § 2701 et seq. (the

“SCA”); and that the trial court erred in denying his motion for a

mistrial after a witness testified about his incarceration on an

unrelated charge. Swinson also asserts ineffective assistance of

counsel on a number of grounds. We affirm.

1. Swinson first argues that the State failed to present

sufficient evidence to allow any rational trier of fact to find beyond

a reasonable doubt the essential elements of malice murder. 2 He

asserts that the evidence at trial, which was all circumstantial, did

not exclude his defense that “Mexicans” murdered Bennett and

Smith.

Where, as here, a conviction is based on circumstantial

2 Although Swinson argues that the evidence was insufficient to support
his convictions on all of the charges in this case, because the felony murder
charges were vacated by operation of law and the aggravated assault counts
were merged into the murder convictions for sentencing purposes, his claims
about the sufficiency of the evidence to support those crimes are moot. See
Anderson v. State, 299 Ga. 193, 196 (1) n.4 (787 SE2d 202) (2016).
2
evidence, the evidence must “not only be consistent with the

hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

Whether an alternative hypothesis is reasonable or whether the

circumstantial evidence excludes every reasonable hypothesis save

that of guilt is left to the jury, and this Court “will not disturb that

finding unless it is insupportable as a matter of law.” Johnson v.

State, 307 Ga. 44, 48 (2) (834 SE2d 83) (2019). Moreover, in

reviewing the sufficiency of the evidence as a matter of

constitutional due process, this Court views the evidence in the light

most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt, see Jackson v. Virginia, 443 U. S. 307, 319 (99

SCt 2781, 61 LE2d 560) (1979), and any conflicts in the evidence are

left to the province of the jury. See Walker v. State, 296 Ga. 161, 163

(1) (766 SE2d 28) (2014).

So viewed, the evidence at Swinson’s trial showed the

following. In 2013, Swinson stored a white Honda Civic containing

3
$100,000 in money and drugs at a friend’s house in Ware County,

outside of Waycross. After someone broke into the car and took the

money and drugs, Swinson stated that he was going to kill or

“torture” the people who stole from him. When the friend identified

his relatives Bennett and Smith, along with a younger relative, 3 as

the ones who broke into Swinson’s car, Swinson asked the friend for

Bennett and Smith’s address, and the friend gave Swinson a slip of

paper with the address written on it.

At the time, Bennett and Smith lived in Seminole County, and

Gene and Alva Reeves lived next door to them. At about 2:00 p.m.

on June 30, 2013, the Reeveses left their home to take their

grandchildren swimming. When they returned at around 3:45 to

4:00 p.m., they saw a gold-colored SUV parked at Bennett and

Smith’s house with both of its front doors open. Gene saw two men

on the deck of the house, one noticeably taller than the other. Alva

only saw one of the men as he was walking into the house. Later,

3 Bennett was the friend’s uncle and Smith was the friend’s step-sister.
Bennett and Smith, who were unrelated, were involved in a romantic
relationship. The third relative was the friend’s step-nephew.
4
Alva saw the man she had seen earlier, whom she described at trial

as being in his mid-twenties to mid-thirties and around six feet tall.

She also testified that Swinson “definitely could be” the man she saw

that day.

The Reeveses then left on a short errand, and when they

returned home, the gold SUV was gone. Later that evening, the

Reeveses noticed that the door to Bennett and Smith’s house was

open while their air conditioner was running, but when they

knocked on the door and called out, no one answered. The next

morning, the Reeveses observed that the door to Bennett and

Smith’s shed was open, which was unusual because Smith, who kept

antiques inside the shed, always locked it at night. When the

Reeveses went next door to check on Bennett and Smith, they found

the pair dead inside their home and called police.

Law enforcement responded and found Bennett’s and Smith’s

bodies, one of the burners on the stove on, the oven door open, and

evidence of a fire in the laundry room. Law enforcement also found

.380 cartridge casings, one .380 bullet, and two pillows with marks

5
later identified as being consistent with contact gunshots, meaning

that the muzzle of the firearm had been pressed against the surface

of the pillow. A GBI medical examiner testified that Smith died from

gunshot wounds to the head and Bennett died from multiple

gunshots. The medical examiner also located three .380 bullets

during her autopsies of the victims’ bodies.

Swinson’s girlfriend testified that Swinson left their house

early on the morning of June 30, 2013, and cell phone records and

testimony introduced at trial showed that cell phones belonging to

Swinson and his son, Jamahrey Swinson, moved from Waycross in

Ware County to Donalsonville in Seminole County, and back, that

day. The records showed Swinson leaving Ware County at around

9:00 a.m. and returning by 7:45 p.m. that night.

The State also presented evidence showing that Swinson called

his friend that day to get Bennett and Smith’s address again, and

although the friend no longer had the address, the friend provided a

description of their cars at Swinson’s request. The same day,

Swinson asked his girlfriend to text him Bennett and Smith’s

6
address, which she did. Swinson’s girlfriend also testified that she

owned a gold Chevrolet Tahoe that Swinson had permission to drive.

Swinson was interviewed by law enforcement on July 2, 2013,

and he arrived at the interview in his girlfriend’s gold Chevrolet

Tahoe. During that interview, Swinson stated that Bennett and

Smith had stolen drugs and money out of his car, but the drugs and

money belonged to Mexican drug dealers for whom he sold cocaine.

Swinson admitted that he obtained a handwritten address for

Bennett and Smith, but he said he gave it to his drug-dealing

associates, one of whom entered the address into a cell phone and

burned the paper with the address on it. However, a search of the

house Swinson shared with his girlfriend turned up a sheet of paper

with the victims’ street in Seminole County written on it, as well as

a .380 bullet of the same brand as casings found at the victims’

home. 4

Swinson also admitted getting the colors of the victims’ cars

The girlfriend testified that the bullet did not belong to her and that it
4

must have belonged to Swinson.
7
from his friend but said he gave it to “the Mexicans.” However,

Swinson’s cell phone data showed that after he called his friend on

the day of the murders, he made no other outgoing calls from his cell

phone until 7:58 p.m. Although Swinson claimed he was in Waycross

the entire day watching his new baby, his girlfriend testified that

she did not think Swinson watched their child that day because she

went to her mother’s house at about 10:00 a.m. after Swinson left

and stayed there until Swinson returned home that evening.

Additionally, the men that Swinson identified as the Mexican drug

dealers with whom he dealt were determined by law enforcement to

have either been incarcerated at the time of, or to have been

deported prior to, the murders.

Based on this evidence, the jury was not required to believe

Swinson’s claim that Mexican drug dealers murdered Bennett and

Smith and could have found, instead, that Swinson’s defense was

excluded by the evidence. We conclude, therefore, that the evidence

presented at trial was sufficient as a matter of Georgia statutory law

and constitutional due process to authorize a rational jury to find

8
Swinson guilty beyond a reasonable doubt of the two counts of

malice murder. See Jackson, 443 U.S. at 319 (III) (B); OCGA § 24-

14-6.5

2. Swinson asserts two arguments with regard to the cell-site

data 6 the State obtained from AT&T without a warrant under the

SCA. First, he argues that the trial court erred in denying his motion

to suppress cell phone evidence gathered by the State pursuant to a

search warrant served on AT&T, which was based, in part, on the

earlier obtained cell-site data. Swinson also argues that his trial

counsel provided ineffective assistance of counsel in failing “to

5 Swinson asserted three separate enumerations of error raising the
general grounds under OCGA §§ 5-5-20 and 5-5-21, but he addressed these
enumerations as one in his appellate brief and argued only sufficiency of the
evidence.
6 As this Court recently explained in Lofton v. State, 2021 Ga. LEXIS 28,

(Case No. S20A1101, decided Feb. 15, 2021),

[a] “cell site” typically consists of either three or six directional
radio antennas mounted on a tower, light post, flagpole, church
steeple, or side of a building. . . . Each time a phone connects to a
cell site, the connection generates a time-stamped digital record in
the service provider’s account records that includes the particular
cell site and the specific antenna activated . . . ; such records are
known as cell-site location information.

Id. at *11 n.3.
9
properly file” a motion to suppress evidence obtained as a result of

that warrantless request to AT&T under the SCA. We see no merit

to either argument.

The record demonstrates that Swinson’s trial counsel filed a

pretrial motion to suppress his cell phone records and other evidence

obtained by the GBI as a result of a search warrant served on AT&T.

That motion cited information obtained from an earlier warrantless

request to AT&T by the GBI based on exigent circumstances

pursuant to 18 USC § 2702 (c) (4). In response to that warrantless

request, AT&T provided 16 pages of records which included, among

other things, cell-site data reflecting that Swinson’s cell phone used

cell phone towers between Ware and Seminole Counties on the day

of the murders.

The trial court held a hearing on the motion to suppress, and

the sole witness was the GBI agent who made the exigent

circumstances request on July 2, 2013. Swinson’s counsel argued

that the cell-site data, and any evidence subsequently obtained from

it, should be suppressed because the State was required to obtain a

10
search warrant before AT&T could furnish the data. The trial court

denied the motion to suppress, however, finding that the telephone

records pertaining to his cell phone were owned by AT&T, and

Swinson did not have a reasonable expectation of privacy in those

records; thus, he lacked standing to challenge the release of the

records to the GBI, citing this Court’s opinion in Registe v. State, 292

Ga. 154, 156 (734 SE2d 19) (2012). The trial court further concluded

that suppression of the evidence was not a remedy available under

applicable federal and state law and that AT&T complied with the

law in producing the cell phone records.

(a) Swinson argues that the trial court erred in denying his

motion to suppress because the United States Supreme Court held

in Carpenter v. United States, __ U.S. __, __ (I) (A) (138 SCt 2206,

201 LE2d 507) (2018), that “accessing seven days of [historical cell-

site data] constitutes a Fourth Amendment search,” id. at ___ (III)

& n.3, 7 and that a search warrant is generally required to obtain

7 We note that the holding in Carpenter was expressly limited to these
facts, and the Court did not reach the question of “whether there is a limited

11
such information from a third-party telephone carrier. Because the

cell-site data in this case was obtained without a search warrant,

Swinson asserts that Carpenter requires us to reverse the trial

court’s denial of his motion to suppress.8

However, Carpenter was decided almost three years after the

trial court issued its order denying Swinson’s motion. At the time of

the order,

no appellate precedent binding in Georgia courts held
that a request or demand by a governmental entity to a
cell phone service provider that the provider produce its
records related to a customer’s account constituted a
search under the Fourth Amendment. Under then
existing constitutional doctrine, a person generally lacked
a reasonable expectation of privacy in business records
owned and maintained by a third-party business.

Lofton v. State, 2021 Ga. LEXIS 28, at *13 (Case No. S20A1101,

decided Feb. 15, 2021). See also Registe, 292 Ga. at 156 (holding that

period for which the Government may obtain an individual’s historical [cell-
site data] free from Fourth Amendment scrutiny, and if so, how long that
period might be.” Carpenter, ___ U.S. at ___ (III) & n.3.
8 “In reviewing a ruling on a motion to suppress, we review the trial

court’s factual findings for clear error and its legal conclusions de novo[,] . . .
constru[ing] the evidentiary record in the light most favorable to the trial
court’s factual findings and judgment.” White v. State, 307 Ga. 601, 602 (2) (837
SE2d 838) (2020).
12
because defendants had no reasonable expectation of privacy in cell

phone records, defendants generally lacked standing to challenge

the release of such records under the Fourth Amendment), overruled

by Carpenter, __ U.S. __ at __ (III) (A). Moreover, the SCA authorizes

a service provider such as AT&T to voluntarily provide certain

records to a governmental entity “if the provider has a good-faith

belief that an emergency poses a risk of death or serious physical

injury that requires disclosure without delay. See Lofton, 2021 Ga.

LEXIS 28, at *13. See also 18 USC § 2702 (c) (4).

The evidence at the suppression hearing showed that when

requesting Swinson’s records, the GBI agent represented to AT&T

that the exigent circumstances supporting the request were a

“[d]ouble homicide in Seminole County, GA” and that the “[s]uspect

is currently armed and dangerous.” The GBI made the request at

7:41 p.m. on July 2, 2013. As the trial court found, at that time, GBI

agents were concerned for the life of the third person involved in

stealing Swinson’s money and drugs. The agents were aware that

Swinson had threatened to kill or torture the people who stole from

13
him; two of the three people identified to him as being involved in

the theft had been murdered two days earlier; the third person

involved stated that he feared for his life and thought Swinson was

going to kill him; and Swinson was not yet in custody. 9

Under these circumstances, we conclude that law

enforcement’s request for Swinson’s cell phone records and AT&T’s

release of this documentation were based on “a good faith belief that

[the] voluntary disclosure of the requested records was authorized

under the SCA and binding appellate precedent at the time.” Lofton,

2021 Ga. LEXIS 28, at *16-17. See also Registe, 292 Ga. at 156-57.

Thus, it was objectively reasonable for the GBI to rely on the SCA

and then-existing appellate precedent to request the most recent

four days of cell phone records for a double-homicide suspect on the

day after the murder was discovered, while the suspect was still at

large, and where a potential threat of harm to a third victim existed.

See Lofton, 2021 Ga. LEXIS 28, at *22.

Although Swinson asserts that we should nevertheless extend

9 Swinson was not arrested until around 10:00 p.m. that night.
14
the holding in Carpenter to exclude the evidence obtained as a result

of the warrantless request to AT&T, we recently rejected a similar

argument in Lofton. As we explained in that case, even if we were to

apply Carpenter here, reversal of the trial court’s order is not

required

unless exclusion would serve the purpose of deterring
future Fourth Amendment violations by law enforcement
officers, which is the sole purpose of the exclusionary rule.
For exclusion of evidence obtained in violation of the
Fourth Amendment to be appropriate, the deterrence
benefits of suppression must outweigh its heavy costs.
[And] when the police act with an objectively reasonable
good-faith belief that their conduct is lawful,. . . then
suppression fails to yield appreciable deterrence, and
exclusion is clearly unwarranted.

Lofton, 2021 Ga. LEXIS 28, at *20 (citations and punctuation

omitted). See also Davis v. United States, 564 U.S. 229, 236-38 (II)

(131 SCt 2419, 180 LE2d 285) (2011). Here, we have concluded that

the GBI was acting in good faith when, based on exigent

circumstances, it requested that AT&T provide Swinson’s cell phone

records, which included the cell-site data. Therefore, we conclude, as

in Lofton, that

15
 [b]ecause, at the time of [Swinson’s] trial, a federal
statute, 18 USC § 2702 (c) (4), and binding appellate
precedent, Registe, 292 Ga. at 157, authorized the
investigatory conduct at issue, reversing the trial court’s
decision in this case would have little, if any, additional
benefit in deterring future violations of the privacy
interests recognized in Carpenter.

2021 Ga. LEXIS 28, at *23. Accordingly, we affirm the trial court’s

denial of Swinson’s motion to suppress.

(b) We turn next to Swinson’s assertion that his trial counsel

provided ineffective assistance by failing to properly file the motion

to suppress. To succeed on this claim, Swinson must demonstrate

both that his trial counsel performed deficiently and that, in the

absence of counsel’s deficient performance, a reasonable probability

exists that the outcome at trial would have been different. See

Strickland v. Washington, 466 U.S. 668, 687-95 (III) (104 SCt 2052,

80 LE2d 674) (1984). To establish the first prong of the Strickland

test, a defendant must show that trial counsel performed at trial “in

an objectively unreasonable way, considering all of the

circumstances and in light of prevailing professional norms.” Shaw

v. State, 307 Ga. 233, 249 (6) (835 SE2d 279) (2019) (citation

16
omitted). And the reasonable probability of a different outcome

required to meet the prejudice prong “is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694

(III) (B). If Swinson fails to satisfy either part of the Strickland test,

we need not consider the other part. See Hawkins v. State, 306 Ga.

809, 812 (2) (833 SE2d 522) (2019).

Swinson asserts that if his trial counsel had “properly filed”

and argued the motion to suppress the cell-site data provided by

AT&T, then the trial court would have granted it. However, trial

counsel essentially made the arguments later accepted in Carpenter,

but which had been rejected in Registe, and Swinson does not

identify any other arguments that his trial counsel should have

made. Swinson, therefore, has not shown that his counsel performed

deficiently, and his ineffective assistance of counsel claim on this

ground fails. See Esprit v. State, 305 Ga. 429, 438 (2) (c) (826 SE2d

7) (2019) (“A criminal defense attorney does not perform deficiently

when he fails to advance a legal theory that would require an

extension of existing precedents and the adoption of an unproven

17
theory of law.” (citation and punctuation omitted)).

3. Swinson also contends that his trial counsel provided

ineffective assistance in failing to adequately cross-examine Alva

Reeves about her testimony that Swinson “could definitely be” the

man she saw on the day of the murders.

The record demonstrates that Swinson’s trial counsel cross-

examined Alva extensively at trial. In addition to asking questions

regarding her eyesight, the weather conditions, and the distance

from which she observed the man on the day of murders, counsel

also probed Alva regarding her failure to pick anyone out of a

photographic line-up shown to her by law enforcement before trial.

Moreover, during cross-examination, trial counsel obtained

admissions from Alva aimed at undercutting her in-court

identification, including that she knew that Swinson was the man

on trial for the murders and that she had seen his photograph in the

newspaper before trial. Trial counsel also pressed Alva on her

inability to “know” that Swinson was the person whom she saw, and

Alva conceded that Swinson only fit the description.

18
 At the hearing on the motion for new trial, trial counsel

testified that one reason he made the decision not to question Alva

further on her testimony that Swinson could be the man she saw

was because he had received information before trial that she might

change her testimony to be more certain of whom she saw that day.

Because Alva did not testify that Swinson was definitely the man

she saw, only that he could be, trial counsel decided to leave the jury

with Alva’s speculation, rather than to pursue further questioning

that might cause her to make a more positive identification.

A strong presumption exists that a trial counsel’s performance

“fell within a wide range of reasonable professional conduct and that

counsel’s decisions were made in the exercise of reasonable

professional judgment.” Marshall v. State, 297 Ga. 445, 448 (2) (774

SE2d 675) (2015) (citations and punctuation omitted). To establish

that his counsel’s performance was deficient, Swinson must

overcome this presumption by showing “that no reasonable lawyer

would have done what his lawyer did, or would have failed to do

what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (2) (787

19
SE2d 221) (2016). “In particular, decisions regarding trial tactics

and strategy may form the basis for an ineffectiveness claim only if

they were so patently unreasonable that no competent attorney

would have followed such a course.” Id. (citation and punctuation

omitted). “Decisions about what particular questions to ask on cross-

examination are quintessential trial strategy and will rarely

constitute ineffective assistance of counsel.” Davis v. State, 306 Ga.

140, 146 (3) (e) (829 SE2d 321) (2019) (citation and punctuation

omitted). Because we cannot say that trial counsel’s strategy

regarding Alva’s testimony was so unreasonable that no competent

attorney would have chosen the same strategy, we conclude that

Swinson has failed to establish ineffective assistance of counsel on

this ground.

4. In conjunction with his argument regarding trial counsel’s

cross-examination of Alva, Swinson asserts that newly discovered

evidence from Jamahrey Swinson’s plea hearing contradicted her in-

court identification of Swinson. He argues that the trial court

therefore erred in denying his motion for new trial because a

20
substantial likelihood of a different verdict exists if the jury had

heard and considered Jamahrey’s evidence. 10

Jamahrey was indicted separately from Swinson in connection

with the murders. After Swinson was convicted of the crimes,

Jamahrey entered into a plea agreement in which he pleaded guilty

to concealing the death of another and was sentenced to five years

of probation. Jamahrey made an allocution in connection with that

plea,11 and Swinson called Jamahrey as a witness at the hearing on

his motion for new trial. Jamahrey testified that during his plea

allocution, he said that he was the man Alva saw on the day of the

murders and that while he was interacting with her, he heard a

gunshot. However, when questioned further, Jamahrey stated that

he did not stand by the testimony he gave during his allocution;

rather, he said his testimony at the plea hearing consisted of what

his lawyer and the district attorney told him to say. Then, after the

10 Although Swinson raised this issue in his amended motion for new
trial and presented evidence in support at the hearing, the trial court did not
expressly address this ground in denying the motion for new trial.
11 The record does not contain a transcript of Jamahrey’s plea allocution.

21
trial court advised Jamahrey that he could be subject to a felony

charge of perjury if he changed the testimony he previously gave

under oath, Jamahrey chose to assert his right against self-

incrimination under the Fifth Amendment to the United States

Constitution in response to any further questions about the

circumstances surrounding the crimes.

For a new trial to be granted based on newly discovered

evidence, the moving party must show:

(1) that the evidence has come to his knowledge since the
trial; (2) that it was not owing to the want of due diligence
that he did not acquire it sooner; (3) that [the evidence] is
so material that it would probably produce a different
verdict; (4) that [the evidence] is not cumulative only; (5)
that the affidavit of the witness himself [was] procured or
its absence accounted for; and (6) that . . . the only effect
of the evidence will [not] be to impeach the credit of a
witness.

Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980)

(citations and punctuation omitted). Swinson has made no effort to

show how Jamahrey’s testimony fits within these requirements, and

we conclude that it would not have been an abuse of discretion for

the trial court to determine, at a minimum, that Swinson cannot

22
establish the third Timberlake factor, requiring that the evidence be

so material that it would probably produce a different verdict. 12 Even

if the jury accepted as true Jamahrey’s testimony that he was the

man Alva saw that day and that he heard a gunshot while in her

presence, that evidence does not undermine the State’s theory of the

case. In fact, this testimony would be consistent with the cell phone

evidence showing that Swinson and Jamahrey traveled together to

Seminole County on the day of the murders and Gene Reeves’s

testimony that two men were present at the victims’ home that day.

Moreover, in light of this evidence, Jamahrey’s testimony raises an

inference that Swinson, not Jamahrey, shot the victims.

Accordingly, we find no merit to Swinson’s argument on this ground.

5. Swinson next asserts that the trial court committed

reversible error by failing to grant his motion for a mistrial

regarding inadmissible testimony about his prior criminal history.

Swinson also contends that his trial counsel provided ineffective

12 See Gittens v. State, 307 Ga. 841, 850 (4) (838 SE2d 888) (2020)
(reviewing denial of motion for new trial based on newly discovered evidence
for an abuse of discretion).
23
assistance of counsel by failing to file a motion in limine to prohibit

mention of Swinson’s prior criminal history.

After Swinson’s friend testified about the circumstances

involving the car Swinson kept on the friend’s property, the State

called the friend’s wife as a witness to testify about her knowledge

of Swinson’s storage of the car. During the cross-examination of the

friend’s wife, Swinson’s trial counsel asked what had prompted the

witness on one occasion to ask Swinson if he was putting money and

drugs in the car. She replied that she had observed that Swinson

had tattoos that reminded her of the tattoos her son had gotten in

prison, so she asked Swinson if he had been to prison or jail, to which

Swinson replied that he had “a long time ago.” Swinson’s trial

counsel then moved for a mistrial, noting that the answer was

nonresponsive. The trial court ultimately denied the motion for

mistrial; instructed the friend’s wife not to mention “anything about

prison by anyone, particularly the defendant”; and instructed the

jury to disregard the witness’s answer to defense counsel’s question

as being non-responsive and not to consider it in any way in

24
rendering the verdict.

(a) “Whether to grant a motion for mistrial is within the trial

court’s sound discretion, and the trial court’s exercise of that

discretion will not be disturbed on appeal unless a mistrial is

essential to preserve the defendant’s right to a fair trial.” Hill v.

State, __ Ga. __, __ (6) (850 SE2d 110) (2020) (citation and

punctuation omitted). See also Billings v. State, 293 Ga. 99, 106 (7)

(745 SE2d 583) (2013). Here, the testimony referring to Swinson’s

prior prison time came during cross-examination in an answer that

was not directly responsive to trial counsel’s question. Under such

circumstances, the nonresponsive and fleeting reference to

Swinson’s prior time in prison does not improperly place his

character in issue. See Wade v. State, 304 Ga. 5, 10 (3) (815 SE2d

875) (2018) (fleeting, nonresponsive reference to defendant’s prior

incarceration did not place his character at issue). Additionally, the

trial court directed the jury to disregard the testimony and not to

consider it in any way during their deliberations, and courts

“ordinarily presume that a jury follows such [curative] instructions.”

25
Coleman v. State, 301 Ga. 720, 722 (3) (804 SE2d 24) (2017).

Under these circumstances, we cannot say that a mistrial was

necessary to preserve Swinson’s right to a fair trial, and thus we

discern no abuse of discretion by the trial court in denying Swinson’s

motion on this ground. See Thrift v. State, __ Ga. __, __ (3) (a) (852

SE2d 560) (2020) (no abuse of discretion in denying motion for

mistrial based on nonresponsive answer to question); Wade, 304 Ga.

at 10 (3) (same); Graves v. State, 298 Ga. 551, 555 (3) (783 SE2d 891)

(2016) (same).

(b) Likewise, we conclude that Swinson has failed to show that

he received ineffective assistance of counsel based on trial counsel’s

failure to file a motion in limine to exclude any references to his

criminal history. At the hearing on the motion for new trial, trial

counsel was asked whether he considered filing a motion in limine

to prevent the State from eliciting any testimony about Swinson’s

prior criminal history. Counsel replied that he did not, but he

indicated that filing a motion in limine might have given Swinson

an additional ground upon which to base his motion for a mistrial in

26
response to the friend’s wife testimony. He also agreed that evidence

of Swinson’s prior prison time could potentially prove prejudicial.

However, as discussed above, the State did not elicit the

testimony in question; rather, it came in the form of a nonresponsive

answer to the defense’s cross-examination. His trial counsel then

immediately moved for a mistrial, which resulted in the trial court’s

instruction to the jury to disregard the witness’s testimony.

Therefore, Swinson cannot show that the filing of that motion would

have prevented the witness’s nonresponsive testimony or resulted in

the grant of a mistrial under the circumstances. Because Swinson

cannot show that his counsel performed deficiently by failing to file

the motion in limine or that he was prejudiced within the meaning

of Strickland, his claim of ineffective assistance of counsel on this

ground fails. See Lupoe v. State, 300 Ga. 233, 244 (6) (794 SE2d 67)

(2016) (no ineffective assistance of counsel based on failure to file a

motion in limine where counsel objected at trial to the introduction

of the challenged evidence).

6. Finally, Swinson argues that his trial counsel provided

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ineffective assistance in failing to file a motion in limine to exclude

the portion of Swinson’s recorded statement to law enforcement in

which he requested an attorney. Swinson notes that trial counsel

and the prosecutor spent considerable time at trial discussing which

portions of Swinson’s statement should be redacted when it was

played for the jury, but trial counsel did not ask that Swinson’s

request for counsel be excluded.

Although trial counsel conceded at the hearing on the motion

for new trial that a good argument might be made for seeking to

exclude that portion of Swinson’s interview, he noted that in the

portion of the statement containing the request, Swinson also told

law enforcement that he cherished life and did not take other

people’s lives, which trial counsel believed could give the jury a

different appreciation of who Swinson was. Moreover, trial counsel

explained that in deciding which portions of the statement to

exclude, he was concerned that if too much of the statement were

redacted, which apparently was effectuated in court by stopping and

fast forwarding the recording past the redacted portions, the jury

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would think that the defense was hiding something incriminating.

Therefore, trial counsel chose to leave the disputed portion of the

statement in, thinking Swinson would perhaps benefit more than he

would lose by doing so.

Based on this record, we conclude that trial counsel’s decision

not to redact Swinson’s request for counsel was a matter of trial

strategy, and Swinson has failed to show that trial counsel’s strategy

was so patently unreasonable that it constituted deficient

performance under Strickland. See McNair v. State, 296 Ga. 181,

184 (2) (b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no

matter how mistaken in hindsight, are almost never adequate

grounds for finding trial counsel ineffective. . . .” (citation and

punctuation omitted)).

Judgment affirmed. All the Justices concur.

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