Swinson v. State ( 2021 )


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  • 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
    27
    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
    28
    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.
    29