Swinson v. State

¶1In the Supreme Court of Georgia

¶2 Decided: March 1, 2021

¶3 S21A0396. SWINSON v. THE STATE.

¶4 MCMILLIAN, Justice.

¶5 Dan Toni Swinson appeals his convictions on two counts of

¶6malice murder in connection with the shooting deaths of Heber

¶7Jettie Bennett, Jr., and Eliace Marie Smith. 1 On appeal, he asserts

¶8that the evidence was insufficient to support his convictions; that

¶9the trial court erred in denying his motion to suppress evidence

¶10 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

¶11based, in part, on a warrantless request for cell site information

¶12under the Stored Communications Act, 18 USC § 2701 et seq. (the

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

¶14mistrial after a witness testified about his incarceration on an

¶15unrelated charge. Swinson also asserts ineffective assistance of

¶16counsel on a number of grounds. We affirm.

¶17 1. Swinson first argues that the State failed to present

¶18sufficient evidence to allow any rational trier of fact to find beyond

¶19a reasonable doubt the essential elements of malice murder. 2 He

¶20asserts that the evidence at trial, which was all circumstantial, did

¶21not exclude his defense that “Mexicans” murdered Bennett and

¶22Smith.

¶23 Where, as here, a conviction is based on circumstantial

¶24 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

¶25hypothesis of guilt, but shall exclude every other reasonable

¶26hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

¶27Whether an alternative hypothesis is reasonable or whether the

¶28circumstantial evidence excludes every reasonable hypothesis save

¶29that of guilt is left to the jury, and this Court “will not disturb that

¶30finding unless it is insupportable as a matter of law.” Johnson v.

¶31State, 307 Ga. 44, 48 (2) (834 SE2d 83) (2019). Moreover, in

¶32reviewing the sufficiency of the evidence as a matter of

¶33constitutional due process, this Court views the evidence in the light

¶34most favorable to the verdict to determine whether any rational trier

¶35of fact could have found the essential elements of the crime beyond

¶36a reasonable doubt, see Jackson v. Virginia, 443 U. S. 307, 319 (99

¶37SCt 2781, 61 LE2d 560) (1979), and any conflicts in the evidence are

¶38left to the province of the jury. See Walker v. State, 296 Ga. 161, 163

¶39(1) (766 SE2d 28) (2014).

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

¶41following. In 2013, Swinson stored a white Honda Civic containing

¶42 3 $100,000 in money and drugs at a friend’s house in Ware County,

¶43outside of Waycross. After someone broke into the car and took the

¶44money and drugs, Swinson stated that he was going to kill or

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

¶46his relatives Bennett and Smith, along with a younger relative, 3 as

¶47the ones who broke into Swinson’s car, Swinson asked the friend for

¶48Bennett and Smith’s address, and the friend gave Swinson a slip of

¶49paper with the address written on it.

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

¶51Gene and Alva Reeves lived next door to them. At about 2:00 p.m.

¶52on June 30, 2013, the Reeveses left their home to take their

¶53grandchildren swimming. When they returned at around 3:45 to

¶544:00 p.m., they saw a gold-colored SUV parked at Bennett and

¶55Smith’s house with both of its front doors open. Gene saw two men

¶56on the deck of the house, one noticeably taller than the other. Alva

¶57only saw one of the men as he was walking into the house. Later,

¶58 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

¶59as being in his mid-twenties to mid-thirties and around six feet tall.

¶60She also testified that Swinson “definitely could be” the man she saw

¶61that day.

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

¶63returned home, the gold SUV was gone. Later that evening, the

¶64Reeveses noticed that the door to Bennett and Smith’s house was

¶65open while their air conditioner was running, but when they

¶66knocked on the door and called out, no one answered. The next

¶67morning, the Reeveses observed that the door to Bennett and

¶68Smith’s shed was open, which was unusual because Smith, who kept

¶69antiques inside the shed, always locked it at night. When the

¶70Reeveses went next door to check on Bennett and Smith, they found

¶71the pair dead inside their home and called police.

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

¶73bodies, one of the burners on the stove on, the oven door open, and

¶74evidence of a fire in the laundry room. Law enforcement also found

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

¶76 5 later identified as being consistent with contact gunshots, meaning

¶77that the muzzle of the firearm had been pressed against the surface

¶78of the pillow. A GBI medical examiner testified that Smith died from

¶79gunshot wounds to the head and Bennett died from multiple

¶80gunshots. The medical examiner also located three .380 bullets

¶81during her autopsies of the victims’ bodies.

¶82 Swinson’s girlfriend testified that Swinson left their house

¶83early on the morning of June 30, 2013, and cell phone records and

¶84testimony introduced at trial showed that cell phones belonging to

¶85Swinson and his son, Jamahrey Swinson, moved from Waycross in

¶86Ware County to Donalsonville in Seminole County, and back, that

¶87day. The records showed Swinson leaving Ware County at around

¶889:00 a.m. and returning by 7:45 p.m. that night.

¶89 The State also presented evidence showing that Swinson called

¶90his friend that day to get Bennett and Smith’s address again, and

¶91although the friend no longer had the address, the friend provided a

¶92description of their cars at Swinson’s request. The same day,

¶93Swinson asked his girlfriend to text him Bennett and Smith’s

¶94 6 address, which she did. Swinson’s girlfriend also testified that she

¶95owned a gold Chevrolet Tahoe that Swinson had permission to drive.

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

¶97and he arrived at the interview in his girlfriend’s gold Chevrolet

¶98Tahoe. During that interview, Swinson stated that Bennett and

¶99Smith had stolen drugs and money out of his car, but the drugs and

¶100money belonged to Mexican drug dealers for whom he sold cocaine.

¶101Swinson admitted that he obtained a handwritten address for

¶102Bennett and Smith, but he said he gave it to his drug-dealing

¶103associates, one of whom entered the address into a cell phone and

¶104burned the paper with the address on it. However, a search of the

¶105house Swinson shared with his girlfriend turned up a sheet of paper

¶106with the victims’ street in Seminole County written on it, as well as

¶107a .380 bullet of the same brand as casings found at the victims’

¶108home. 4

¶109 Swinson also admitted getting the colors of the victims’ cars

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

¶111must have belonged to Swinson. 7 from his friend but said he gave it to “the Mexicans.” However,

¶112Swinson’s cell phone data showed that after he called his friend on

¶113the day of the murders, he made no other outgoing calls from his cell

¶114phone until 7:58 p.m. Although Swinson claimed he was in Waycross

¶115the entire day watching his new baby, his girlfriend testified that

¶116she did not think Swinson watched their child that day because she

¶117went to her mother’s house at about 10:00 a.m. after Swinson left

¶118and stayed there until Swinson returned home that evening.

¶119Additionally, the men that Swinson identified as the Mexican drug

¶120dealers with whom he dealt were determined by law enforcement to

¶121have either been incarcerated at the time of, or to have been

¶122deported prior to, the murders.

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

¶124Swinson’s claim that Mexican drug dealers murdered Bennett and

¶125Smith and could have found, instead, that Swinson’s defense was

¶126excluded by the evidence. We conclude, therefore, that the evidence

¶127presented at trial was sufficient as a matter of Georgia statutory law

¶128and constitutional due process to authorize a rational jury to find

¶129 8 Swinson guilty beyond a reasonable doubt of the two counts of

¶130malice murder. See Jackson, 443 U.S. at 319 (III) (B); OCGA § 24-

¶13114-6.5

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

¶133data 6 the State obtained from AT&T without a warrant under the

¶134SCA. First, he argues that the trial court erred in denying his motion

¶135to suppress cell phone evidence gathered by the State pursuant to a

¶136search warrant served on AT&T, which was based, in part, on the

¶137earlier obtained cell-site data. Swinson also argues that his trial

¶138counsel provided ineffective assistance of counsel in failing “to

¶139 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,

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

¶141 [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.

¶142Id. at *11 n.3. 9 properly file” a motion to suppress evidence obtained as a result of

¶143that warrantless request to AT&T under the SCA. We see no merit

¶144to either argument.

¶145 The record demonstrates that Swinson’s trial counsel filed a

¶146pretrial motion to suppress his cell phone records and other evidence

¶147obtained by the GBI as a result of a search warrant served on AT&T.

¶148That motion cited information obtained from an earlier warrantless

¶149request to AT&T by the GBI based on exigent circumstances

¶150pursuant to 18 USC § 2702 (c) (4). In response to that warrantless

¶151request, AT&T provided 16 pages of records which included, among

¶152other things, cell-site data reflecting that Swinson’s cell phone used

¶153cell phone towers between Ware and Seminole Counties on the day

¶154of the murders.

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

¶156the sole witness was the GBI agent who made the exigent

¶157circumstances request on July 2, 2013. Swinson’s counsel argued

¶158that the cell-site data, and any evidence subsequently obtained from

¶159it, should be suppressed because the State was required to obtain a

¶160 10 search warrant before AT&T could furnish the data. The trial court

¶161denied the motion to suppress, however, finding that the telephone

¶162records pertaining to his cell phone were owned by AT&T, and

¶163Swinson did not have a reasonable expectation of privacy in those

¶164records; thus, he lacked standing to challenge the release of the

¶165records to the GBI, citing this Court’s opinion in Registe v. State, 292

¶166Ga. 154, 156 (734 SE2d 19) (2012). The trial court further concluded

¶167that suppression of the evidence was not a remedy available under

¶168applicable federal and state law and that AT&T complied with the

¶169law in producing the cell phone records.

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

¶171motion to suppress because the United States Supreme Court held

¶172in Carpenter v. United States, __ U.S. __, __ (I) (A) (138 SCt 2206,

¶173201 LE2d 507) (2018), that “accessing seven days of [historical cell-

¶174site data] constitutes a Fourth Amendment search,” id. at ___ (III)

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

¶176 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

¶177 11 such information from a third-party telephone carrier. Because the

¶178cell-site data in this case was obtained without a search warrant,

¶179Swinson asserts that Carpenter requires us to reverse the trial

¶180court’s denial of his motion to suppress.8

¶181 However, Carpenter was decided almost three years after the

¶182trial court issued its order denying Swinson’s motion. At the time of

¶183the order,

¶184 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.

¶185Lofton v. State, 2021 Ga. LEXIS 28, at *13 (Case No. S20A1101,

¶186decided Feb. 15, 2021). See also Registe, 292 Ga. at 156 (holding that

¶187period 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

¶188court’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

¶189phone records, defendants generally lacked standing to challenge

¶190the release of such records under the Fourth Amendment), overruled

¶191by Carpenter, __ U.S. __ at __ (III) (A). Moreover, the SCA authorizes

¶192a service provider such as AT&T to voluntarily provide certain

¶193records to a governmental entity “if the provider has a good-faith

¶194belief that an emergency poses a risk of death or serious physical

¶195injury that requires disclosure without delay. See Lofton, 2021 Ga.

¶196LEXIS 28, at *13. See also 18 USC § 2702 (c) (4).

¶197 The evidence at the suppression hearing showed that when

¶198requesting Swinson’s records, the GBI agent represented to AT&T

¶199that the exigent circumstances supporting the request were a

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

¶201is currently armed and dangerous.” The GBI made the request at

¶2027:41 p.m. on July 2, 2013. As the trial court found, at that time, GBI

¶203agents were concerned for the life of the third person involved in

¶204stealing Swinson’s money and drugs. The agents were aware that

¶205Swinson had threatened to kill or torture the people who stole from

¶206 13 him; two of the three people identified to him as being involved in

¶207the theft had been murdered two days earlier; the third person

¶208involved stated that he feared for his life and thought Swinson was

¶209going to kill him; and Swinson was not yet in custody. 9

¶210 Under these circumstances, we conclude that law

¶211enforcement’s request for Swinson’s cell phone records and AT&T’s

¶212release of this documentation were based on “a good faith belief that

¶213[the] voluntary disclosure of the requested records was authorized

¶214under the SCA and binding appellate precedent at the time.” Lofton,

¶2152021 Ga. LEXIS 28, at *16-17. See also Registe, 292 Ga. at 156-57.

¶216Thus, it was objectively reasonable for the GBI to rely on the SCA

¶217and then-existing appellate precedent to request the most recent

¶218four days of cell phone records for a double-homicide suspect on the

¶219day after the murder was discovered, while the suspect was still at

¶220large, and where a potential threat of harm to a third victim existed.

¶221See Lofton, 2021 Ga. LEXIS 28, at *22.

¶222 Although Swinson asserts that we should nevertheless extend

¶223 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

¶224of the warrantless request to AT&T, we recently rejected a similar

¶225argument in Lofton. As we explained in that case, even if we were to

¶226apply Carpenter here, reversal of the trial court’s order is not

¶227required

¶228 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.

¶229Lofton, 2021 Ga. LEXIS 28, at *20 (citations and punctuation

¶230omitted). See also Davis v. United States, 564 U.S. 229, 236-38 (II)

¶231(131 SCt 2419, 180 LE2d 285) (2011). Here, we have concluded that

¶232the GBI was acting in good faith when, based on exigent

¶233circumstances, it requested that AT&T provide Swinson’s cell phone

¶234records, which included the cell-site data. Therefore, we conclude, as

¶235in Lofton, that

¶236 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.

¶2372021 Ga. LEXIS 28, at *23. Accordingly, we affirm the trial court’s

¶238denial of Swinson’s motion to suppress.

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

¶240provided ineffective assistance by failing to properly file the motion

¶241to suppress. To succeed on this claim, Swinson must demonstrate

¶242both that his trial counsel performed deficiently and that, in the

¶243absence of counsel’s deficient performance, a reasonable probability

¶244exists that the outcome at trial would have been different. See

¶245Strickland v. Washington, 466 U.S. 668, 687-95 (III) (104 SCt 2052,

¶24680 LE2d 674) (1984). To establish the first prong of the Strickland

¶247test, a defendant must show that trial counsel performed at trial “in

¶248an objectively unreasonable way, considering all of the

¶249circumstances and in light of prevailing professional norms.” Shaw

¶250v. State, 307 Ga. 233, 249 (6) (835 SE2d 279) (2019) (citation

¶251 16 omitted). And the reasonable probability of a different outcome

¶252required to meet the prejudice prong “is a probability sufficient to

¶253undermine confidence in the outcome.” Strickland, 466 U.S. at 694

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

¶255we need not consider the other part. See Hawkins v. State, 306 Ga.

¶256809, 812 (2) (833 SE2d 522) (2019).

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

¶258and argued the motion to suppress the cell-site data provided by

¶259AT&T, then the trial court would have granted it. However, trial

¶260counsel essentially made the arguments later accepted in Carpenter,

¶261but which had been rejected in Registe, and Swinson does not

¶262identify any other arguments that his trial counsel should have

¶263made. Swinson, therefore, has not shown that his counsel performed

¶264deficiently, and his ineffective assistance of counsel claim on this

¶265ground fails. See Esprit v. State, 305 Ga. 429, 438 (2) (c) (826 SE2d

¶2667) (2019) (“A criminal defense attorney does not perform deficiently

¶267when he fails to advance a legal theory that would require an

¶268extension of existing precedents and the adoption of an unproven

¶269 17 theory of law.” (citation and punctuation omitted)).

¶270 3. Swinson also contends that his trial counsel provided

¶271ineffective assistance in failing to adequately cross-examine Alva

¶272Reeves about her testimony that Swinson “could definitely be” the

¶273man she saw on the day of the murders.

¶274 The record demonstrates that Swinson’s trial counsel cross-

¶275examined Alva extensively at trial. In addition to asking questions

¶276regarding her eyesight, the weather conditions, and the distance

¶277from which she observed the man on the day of murders, counsel

¶278also probed Alva regarding her failure to pick anyone out of a

¶279photographic line-up shown to her by law enforcement before trial.

¶280Moreover, during cross-examination, trial counsel obtained

¶281admissions from Alva aimed at undercutting her in-court

¶282identification, including that she knew that Swinson was the man

¶283on trial for the murders and that she had seen his photograph in the

¶284newspaper before trial. Trial counsel also pressed Alva on her

¶285inability to “know” that Swinson was the person whom she saw, and

¶286Alva conceded that Swinson only fit the description.

¶287 18  At the hearing on the motion for new trial, trial counsel

¶288testified that one reason he made the decision not to question Alva

¶289further on her testimony that Swinson could be the man she saw

¶290was because he had received information before trial that she might

¶291change her testimony to be more certain of whom she saw that day.

¶292Because Alva did not testify that Swinson was definitely the man

¶293she saw, only that he could be, trial counsel decided to leave the jury

¶294with Alva’s speculation, rather than to pursue further questioning

¶295that might cause her to make a more positive identification.

¶296 A strong presumption exists that a trial counsel’s performance

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

¶298counsel’s decisions were made in the exercise of reasonable

¶299professional judgment.” Marshall v. State, 297 Ga. 445, 448 (2) (774

¶300SE2d 675) (2015) (citations and punctuation omitted). To establish

¶301that his counsel’s performance was deficient, Swinson must

¶302overcome this presumption by showing “that no reasonable lawyer

¶303would have done what his lawyer did, or would have failed to do

¶304what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (2) (787

¶305 19 SE2d 221) (2016). “In particular, decisions regarding trial tactics

¶306and strategy may form the basis for an ineffectiveness claim only if

¶307they were so patently unreasonable that no competent attorney

¶308would have followed such a course.” Id. (citation and punctuation

¶309omitted). “Decisions about what particular questions to ask on cross-

¶310examination are quintessential trial strategy and will rarely

¶311constitute ineffective assistance of counsel.” Davis v. State, 306 Ga.

¶312140, 146 (3) (e) (829 SE2d 321) (2019) (citation and punctuation

¶313omitted). Because we cannot say that trial counsel’s strategy

¶314regarding Alva’s testimony was so unreasonable that no competent

¶315attorney would have chosen the same strategy, we conclude that

¶316Swinson has failed to establish ineffective assistance of counsel on

¶317this ground.

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

¶319cross-examination of Alva, Swinson asserts that newly discovered

¶320evidence from Jamahrey Swinson’s plea hearing contradicted her in-

¶321court identification of Swinson. He argues that the trial court

¶322therefore erred in denying his motion for new trial because a

¶323 20 substantial likelihood of a different verdict exists if the jury had

¶324heard and considered Jamahrey’s evidence. 10

¶325 Jamahrey was indicted separately from Swinson in connection

¶326with the murders. After Swinson was convicted of the crimes,

¶327Jamahrey entered into a plea agreement in which he pleaded guilty

¶328to concealing the death of another and was sentenced to five years

¶329of probation. Jamahrey made an allocution in connection with that

¶330plea,11 and Swinson called Jamahrey as a witness at the hearing on

¶331his motion for new trial. Jamahrey testified that during his plea

¶332allocution, he said that he was the man Alva saw on the day of the

¶333murders and that while he was interacting with her, he heard a

¶334gunshot. However, when questioned further, Jamahrey stated that

¶335he did not stand by the testimony he gave during his allocution;

¶336rather, he said his testimony at the plea hearing consisted of what

¶337his lawyer and the district attorney told him to say. Then, after the

¶338 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.

¶339 21 trial court advised Jamahrey that he could be subject to a felony

¶340charge of perjury if he changed the testimony he previously gave

¶341under oath, Jamahrey chose to assert his right against self-

¶342incrimination under the Fifth Amendment to the United States

¶343Constitution in response to any further questions about the

¶344circumstances surrounding the crimes.

¶345 For a new trial to be granted based on newly discovered

¶346evidence, the moving party must show:

¶347 (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.

¶348Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980)

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

¶350show how Jamahrey’s testimony fits within these requirements, and

¶351we conclude that it would not have been an abuse of discretion for

¶352the trial court to determine, at a minimum, that Swinson cannot

¶353 22 establish the third Timberlake factor, requiring that the evidence be

¶354so material that it would probably produce a different verdict. 12 Even

¶355if the jury accepted as true Jamahrey’s testimony that he was the

¶356man Alva saw that day and that he heard a gunshot while in her

¶357presence, that evidence does not undermine the State’s theory of the

¶358case. In fact, this testimony would be consistent with the cell phone

¶359evidence showing that Swinson and Jamahrey traveled together to

¶360Seminole County on the day of the murders and Gene Reeves’s

¶361testimony that two men were present at the victims’ home that day.

¶362Moreover, in light of this evidence, Jamahrey’s testimony raises an

¶363inference that Swinson, not Jamahrey, shot the victims.

¶364Accordingly, we find no merit to Swinson’s argument on this ground.

¶365 5. Swinson next asserts that the trial court committed

¶366reversible error by failing to grant his motion for a mistrial

¶367regarding inadmissible testimony about his prior criminal history.

¶368Swinson also contends that his trial counsel provided ineffective

¶369 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

¶370mention of Swinson’s prior criminal history.

¶371 After Swinson’s friend testified about the circumstances

¶372involving the car Swinson kept on the friend’s property, the State

¶373called the friend’s wife as a witness to testify about her knowledge

¶374of Swinson’s storage of the car. During the cross-examination of the

¶375friend’s wife, Swinson’s trial counsel asked what had prompted the

¶376witness on one occasion to ask Swinson if he was putting money and

¶377drugs in the car. She replied that she had observed that Swinson

¶378had tattoos that reminded her of the tattoos her son had gotten in

¶379prison, so she asked Swinson if he had been to prison or jail, to which

¶380Swinson replied that he had “a long time ago.” Swinson’s trial

¶381counsel then moved for a mistrial, noting that the answer was

¶382nonresponsive. The trial court ultimately denied the motion for

¶383mistrial; instructed the friend’s wife not to mention “anything about

¶384prison by anyone, particularly the defendant”; and instructed the

¶385jury to disregard the witness’s answer to defense counsel’s question

¶386as being non-responsive and not to consider it in any way in

¶387 24 rendering the verdict.

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

¶389court’s sound discretion, and the trial court’s exercise of that

¶390discretion will not be disturbed on appeal unless a mistrial is

¶391essential to preserve the defendant’s right to a fair trial.” Hill v.

¶392State, __ Ga. __, __ (6) (850 SE2d 110) (2020) (citation and

¶393punctuation omitted). See also Billings v. State, 293 Ga. 99, 106 (7)

¶394(745 SE2d 583) (2013). Here, the testimony referring to Swinson’s

¶395prior prison time came during cross-examination in an answer that

¶396was not directly responsive to trial counsel’s question. Under such

¶397circumstances, the nonresponsive and fleeting reference to

¶398Swinson’s prior time in prison does not improperly place his

¶399character in issue. See Wade v. State, 304 Ga. 5, 10 (3) (815 SE2d

¶400875) (2018) (fleeting, nonresponsive reference to defendant’s prior

¶401incarceration did not place his character at issue). Additionally, the

¶402trial court directed the jury to disregard the testimony and not to

¶403consider it in any way during their deliberations, and courts

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

¶405 25 Coleman v. State, 301 Ga. 720, 722 (3) (804 SE2d 24) (2017).

¶406 Under these circumstances, we cannot say that a mistrial was

¶407necessary to preserve Swinson’s right to a fair trial, and thus we

¶408discern no abuse of discretion by the trial court in denying Swinson’s

¶409motion on this ground. See Thrift v. State, __ Ga. __, __ (3) (a) (852

¶410SE2d 560) (2020) (no abuse of discretion in denying motion for

¶411mistrial based on nonresponsive answer to question); Wade, 304 Ga.

¶412at 10 (3) (same); Graves v. State, 298 Ga. 551, 555 (3) (783 SE2d 891)

¶413(2016) (same).

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

¶415he received ineffective assistance of counsel based on trial counsel’s

¶416failure to file a motion in limine to exclude any references to his

¶417criminal history. At the hearing on the motion for new trial, trial

¶418counsel was asked whether he considered filing a motion in limine

¶419to prevent the State from eliciting any testimony about Swinson’s

¶420prior criminal history. Counsel replied that he did not, but he

¶421indicated that filing a motion in limine might have given Swinson

¶422an additional ground upon which to base his motion for a mistrial in

¶423 26 response to the friend’s wife testimony. He also agreed that evidence

¶424of Swinson’s prior prison time could potentially prove prejudicial.

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

¶426testimony in question; rather, it came in the form of a nonresponsive

¶427answer to the defense’s cross-examination. His trial counsel then

¶428immediately moved for a mistrial, which resulted in the trial court’s

¶429instruction to the jury to disregard the witness’s testimony.

¶430Therefore, Swinson cannot show that the filing of that motion would

¶431have prevented the witness’s nonresponsive testimony or resulted in

¶432the grant of a mistrial under the circumstances. Because Swinson

¶433cannot show that his counsel performed deficiently by failing to file

¶434the motion in limine or that he was prejudiced within the meaning

¶435of Strickland, his claim of ineffective assistance of counsel on this

¶436ground fails. See Lupoe v. State, 300 Ga. 233, 244 (6) (794 SE2d 67)

¶437(2016) (no ineffective assistance of counsel based on failure to file a

¶438motion in limine where counsel objected at trial to the introduction

¶439of the challenged evidence).

¶440 6. Finally, Swinson argues that his trial counsel provided

¶441 27 ineffective assistance in failing to file a motion in limine to exclude

¶442the portion of Swinson’s recorded statement to law enforcement in

¶443which he requested an attorney. Swinson notes that trial counsel

¶444and the prosecutor spent considerable time at trial discussing which

¶445portions of Swinson’s statement should be redacted when it was

¶446played for the jury, but trial counsel did not ask that Swinson’s

¶447request for counsel be excluded.

¶448 Although trial counsel conceded at the hearing on the motion

¶449for new trial that a good argument might be made for seeking to

¶450exclude that portion of Swinson’s interview, he noted that in the

¶451portion of the statement containing the request, Swinson also told

¶452law enforcement that he cherished life and did not take other

¶453people’s lives, which trial counsel believed could give the jury a

¶454different appreciation of who Swinson was. Moreover, trial counsel

¶455explained that in deciding which portions of the statement to

¶456exclude, he was concerned that if too much of the statement were

¶457redacted, which apparently was effectuated in court by stopping and

¶458fast forwarding the recording past the redacted portions, the jury

¶459 28 would think that the defense was hiding something incriminating.

¶460Therefore, trial counsel chose to leave the disputed portion of the

¶461statement in, thinking Swinson would perhaps benefit more than he

¶462would lose by doing so.

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

¶464not to redact Swinson’s request for counsel was a matter of trial

¶465strategy, and Swinson has failed to show that trial counsel’s strategy

¶466was so patently unreasonable that it constituted deficient

¶467performance under Strickland. See McNair v. State, 296 Ga. 181,

¶468184 (2) (b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no

¶469matter how mistaken in hindsight, are almost never adequate

¶470grounds for finding trial counsel ineffective. . . .” (citation and

¶471punctuation omitted)).

¶472 Judgment affirmed. All the Justices concur.

¶473 29