Swims v. State, 307 Ga. 651

On June 26, 1999 Deborah Clemenson disappeared; her partially decomposed body was found July 17, 1999 in Walker County and identified by dental/DNA and clothing/fiber evidence linked to Hamrick’s car.
Jesse Lee Swims was indicted in 2004 for malice murder, felony murder, and aggravated assault; convicted by a Walker County jury in December 2005 and sentenced to life for malice murder; other counts were merged or vacated.
Key eyewitness and forensic evidence: Hamrick testified that Swims took Clemenson from a car, later returned alone saying he raped and killed her, and admitted disposing of clothing/knife in a river; fibers from the body’s shoes matched Hamrick’s car carpet.
Swims initially gave inconsistent statements to investigators and later, while jailed in 2005, told inmate Chelsey Owens that he wanted to escape because his speedy-trial right had been denied and (in a separate remark) asked rhetorically, “why do you think I want out of here so bad,” implying he killed the girl.
At trial Owens testified to those jailhouse remarks; defense moved for mistrial after an answer referencing Swims’ incarceration in West Virginia and motive for escape; the trial court denied the mistrial and did not give an unrequested curative instruction.
Swims appealed solely arguing the trial court abused its discretion by denying his motion for mistrial based on Owens’s testimony placing Swims’s character/other crimes before the jury; the Georgia Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of mistrial was error after inmate’s testimony referenced Swims’ other incarceration and implied other crimes	Swims: Owens’ testimony improperly placed other crimes/character before jury and warranted mistrial or curative instruction	State: the reference was a passing, nonresponsive answer and the prosecution did not press the West Virginia matter further; the testimony about confession to killing the victim was admissible and material	Court: No abuse of discretion; passing reference to incarceration did not place character in evidence and denial of mistrial was proper
Whether trial court should sua sponte give curative jury instructions after the remark	Swims: court should have given curative instructions when remark occurred	State: no request was made and court was not required to give unrequested instruction	Court: Failure to give an unrequested curative instruction is not reversible error

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
Brown v. State, 302 Ga. 454 (2017) (deference to jury on witness credibility)
Malcolm v. State, 263 Ga. 369 (1993) (operation of law regarding merger/vacatur of counts)
Rivera v. State, 295 Ga. 380 (2014) (inadmissibility of independent-offense evidence to show character)
Hartsfield v. State, 294 Ga. 883 (2014) (mistrial denial reviewed for abuse of discretion)
Smith v. State, 302 Ga. 699 (2017) (factors for reviewing denial of mistrial based on bad-character evidence)
Lewis v. State, 287 Ga. 210 (2010) (passing reference to incarceration does not place character in evidence)
Walker v. State, 282 Ga. 703 (2007) (nonresponsive answers that negatively impact character are not necessarily improper)
Miller v. State, 295 Ga. 769 (2014) (failure to give an unrequested curative instruction is not reversible error)