307 Ga. 651 FINAL COPY
S19A1427. SWIMS v. THE STATE.
BETHEL, Justice.
A Walker County jury found Jesse Lee Swims guilty of malice
murder and other crimes in connection with the death of Deborah
“Debbie” Leigh Clemenson.1 Swims appeals, contending that the
trial court erred in denying his motion for mistrial. For the reasons
stated below, we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
1 The crimes occurred on June 26, 1999. On October 5, 2004, Swims was
indicted by a Walker County grand jury for: (1) malice murder; (2) felony murder; and (3) aggravated assault, each in connection with the death of Clemenson. At a jury trial held in December 2005, Swims was found guilty of all counts. Swims was sentenced to life imprisonment for malice murder. The trial court purported to merge Counts 2 and 3 with Count 1, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Swims filed a motion for new trial through new counsel on December 20, 2005. A motion for new trial was also filed on Swims’s behalf by his trial counsel on December 27, 2005. The trial court set a hearing for both motions and ordered both new counsel and trial counsel to appear. Swims’s new counsel then amended his motion on October 24, 2017. After a hearing on November 1, 2017, the trial court denied the motion for new trial on November 7, 2017. Swims then filed a timely notice of appeal, and the case was docketed in this Court for the August 2019 term and submitted for a decision on the briefs. evidence presented at trial showed that Clemenson was last seen on
the evening of Saturday, June 26, 1999. Janet Clemenson,
Clemenson’s mother, testified that around 6:30 or 7:00 that evening,
Clemenson helped her bring groceries into their house and put them
away before returning outside to her friends. Janet last saw
Clemenson as Clemenson was getting into a “darker older model
car” with a “long front end.” Janet tried to yell for Clemenson not to
leave, but the car was already driving away by the time she got to
the front door. Joseph Holt, Clemenson’s next-door neighbor,
testified that, on that same night, he also saw Clemenson crossing
the street to get into an “early eighties two tone Thunderbird.” Holt
recognized the driver of the vehicle as Adam Hamrick, but could not
identify the vehicle’s passenger.
Hamrick testified that on the day Clemenson disappeared, he
was with Swims and Swims’s sister, Ruby, at Swims’s parents’
house. Hamrick testified that he argued with Ruby and that she left
her parents’ house. After Ruby left, Swims told Hamrick he had a
cooler of beer and some marijuana and that Hamrick could spend
2 the day with him. Swims and Hamrick drove around town smoking
marijuana and drinking beer in Hamrick’s car, an older model, two-
tone Thunderbird. After driving around for a while, Swims asked
Hamrick to take him to a girl’s house that Swims knew so he could
try to “get me some,” referring to sex. Hamrick and Swims drove to
a pool hall that was across from Clemenson’s house. Swims went
inside the pool hall and returned to the car with Clemenson. Swims
and Clemenson previously knew each other from watching the
Super Bowl at another individual’s house. Swims, Hamrick, and
Clemenson then continued to ride around town while smoking and
drinking.
Eventually, Swims suggested they drive up to John’s
Mountain. Once there, Swims directed Hamrick down a long dirt
road until they reached a barricade. At the barricade, Hamrick
stopped the vehicle, and Swims got back in the front passenger’s
seat. Swims told Hamrick that he had been in the back seat with
Clemenson trying “to do things with her.” Swims told Hamrick that
Clemenson was too nervous to do anything while Hamrick was in
3 the car and that Swims was going to take Clemenson outside with
him to “try to get some.” Swims handed Hamrick some marijuana
and told him to roll some joints to have ready when Swims returned.
After about 15 to 20 minutes, Swims returned to the vehicle
without Clemenson. Swims had Clemenson’s clothes balled up.
Hamrick asked why Clemenson was not with Swims, and Swims
responded that he took Clemenson in the woods and tried to “get
some from [her]” and when she refused, Swims raped and killed her.
Swims held a knife to Hamrick’s throat and told him if he said
anything, Swims would kill him or have him killed.
Swims told Hamrick to drive to the nearby Conasauga River so
Swims could dispose of the clothes and the knife. As they approached
the bridge over the river, other vehicles were around, so Swims told
Hamrick to go down the road and turn around. On the way back over
the bridge, Swims threw the clothes and knife out of the vehicle and
into the river.
On July 17, 1999, military personnel located a partially
decomposed body in a section of the Chattahoochee National Forest
4 within Walker County. The body was unclothed other than shoes
and socks. The cause of death was determined to be “homicide or
violence associated with a rectangular perforated injury of the
sternum not otherwise specified.” At first, the identity of the body
was unknown. However, the shoes found on the body were consistent
with a pair of shoes Clemenson had borrowed from a friend. Fiber
testing revealed that fibers taken from the shoes matched fibers of
the floorboard carpeting of Hamrick’s vehicle. A DNA comparison
between samples from the body and samples from Clemenson’s
toothbrush confirmed that the body was Clemenson’s.
In August 1999, investigators approached Hamrick about the
case while he was in West Virginia, where he, Swims, and Ruby had
moved sometime after the events on John’s Mountain.2 After
speaking with Hamrick, investigators located Swims in West
2 Hamrick testified that when he was first questioned about Clemenson’s
disappearance, he was not truthful with the investigators because he was scared of Swims. However, Hamrick testified that he eventually told investigators the truth about the case in later interviews. Hamrick was charged with and pleaded guilty to giving a false statement and concealing the death of another in connection with Clemenson’s case. 5 Virginia and spoke with Swims about the case. Investigators showed
Swims the reward poster for the case, but Swims acted surprised
and stated he did not know Clemenson.
Initially, Swims told investigators that he had been with
Hamrick on only two occasions, one evening partying on John’s
Mountain, and then going swimming at Carters Lake together the
next day. After further questioning, Swims told investigators there
was another instance when he was with Hamrick. Swims stated that
Hamrick had been in a fight with his girlfriend, Swims’s sister Ruby,
and that Hamrick and Swims went first to the house of Swims’s boss
to drink beer and smoke marijuana, then to Swims’s cousin’s house,
and finally back to the house of Swims’s boss. The investigator
testified at trial that Swims’s last story was similar to one of the
stories Hamrick initially told the officers.
In 2005, while awaiting trial in the Walker County Jail for
Clemenson’s murder, Swims spoke to Chelsey Owens, another
inmate in the jail, about attempting to escape incarceration. Owens
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307 Ga. 651 FINAL COPY
S19A1427. SWIMS v. THE STATE.
BETHEL, Justice.
A Walker County jury found Jesse Lee Swims guilty of malice
murder and other crimes in connection with the death of Deborah
“Debbie” Leigh Clemenson.1 Swims appeals, contending that the
trial court erred in denying his motion for mistrial. For the reasons
stated below, we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
1 The crimes occurred on June 26, 1999. On October 5, 2004, Swims was
indicted by a Walker County grand jury for: (1) malice murder; (2) felony murder; and (3) aggravated assault, each in connection with the death of Clemenson. At a jury trial held in December 2005, Swims was found guilty of all counts. Swims was sentenced to life imprisonment for malice murder. The trial court purported to merge Counts 2 and 3 with Count 1, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Swims filed a motion for new trial through new counsel on December 20, 2005. A motion for new trial was also filed on Swims’s behalf by his trial counsel on December 27, 2005. The trial court set a hearing for both motions and ordered both new counsel and trial counsel to appear. Swims’s new counsel then amended his motion on October 24, 2017. After a hearing on November 1, 2017, the trial court denied the motion for new trial on November 7, 2017. Swims then filed a timely notice of appeal, and the case was docketed in this Court for the August 2019 term and submitted for a decision on the briefs. evidence presented at trial showed that Clemenson was last seen on
the evening of Saturday, June 26, 1999. Janet Clemenson,
Clemenson’s mother, testified that around 6:30 or 7:00 that evening,
Clemenson helped her bring groceries into their house and put them
away before returning outside to her friends. Janet last saw
Clemenson as Clemenson was getting into a “darker older model
car” with a “long front end.” Janet tried to yell for Clemenson not to
leave, but the car was already driving away by the time she got to
the front door. Joseph Holt, Clemenson’s next-door neighbor,
testified that, on that same night, he also saw Clemenson crossing
the street to get into an “early eighties two tone Thunderbird.” Holt
recognized the driver of the vehicle as Adam Hamrick, but could not
identify the vehicle’s passenger.
Hamrick testified that on the day Clemenson disappeared, he
was with Swims and Swims’s sister, Ruby, at Swims’s parents’
house. Hamrick testified that he argued with Ruby and that she left
her parents’ house. After Ruby left, Swims told Hamrick he had a
cooler of beer and some marijuana and that Hamrick could spend
2 the day with him. Swims and Hamrick drove around town smoking
marijuana and drinking beer in Hamrick’s car, an older model, two-
tone Thunderbird. After driving around for a while, Swims asked
Hamrick to take him to a girl’s house that Swims knew so he could
try to “get me some,” referring to sex. Hamrick and Swims drove to
a pool hall that was across from Clemenson’s house. Swims went
inside the pool hall and returned to the car with Clemenson. Swims
and Clemenson previously knew each other from watching the
Super Bowl at another individual’s house. Swims, Hamrick, and
Clemenson then continued to ride around town while smoking and
drinking.
Eventually, Swims suggested they drive up to John’s
Mountain. Once there, Swims directed Hamrick down a long dirt
road until they reached a barricade. At the barricade, Hamrick
stopped the vehicle, and Swims got back in the front passenger’s
seat. Swims told Hamrick that he had been in the back seat with
Clemenson trying “to do things with her.” Swims told Hamrick that
Clemenson was too nervous to do anything while Hamrick was in
3 the car and that Swims was going to take Clemenson outside with
him to “try to get some.” Swims handed Hamrick some marijuana
and told him to roll some joints to have ready when Swims returned.
After about 15 to 20 minutes, Swims returned to the vehicle
without Clemenson. Swims had Clemenson’s clothes balled up.
Hamrick asked why Clemenson was not with Swims, and Swims
responded that he took Clemenson in the woods and tried to “get
some from [her]” and when she refused, Swims raped and killed her.
Swims held a knife to Hamrick’s throat and told him if he said
anything, Swims would kill him or have him killed.
Swims told Hamrick to drive to the nearby Conasauga River so
Swims could dispose of the clothes and the knife. As they approached
the bridge over the river, other vehicles were around, so Swims told
Hamrick to go down the road and turn around. On the way back over
the bridge, Swims threw the clothes and knife out of the vehicle and
into the river.
On July 17, 1999, military personnel located a partially
decomposed body in a section of the Chattahoochee National Forest
4 within Walker County. The body was unclothed other than shoes
and socks. The cause of death was determined to be “homicide or
violence associated with a rectangular perforated injury of the
sternum not otherwise specified.” At first, the identity of the body
was unknown. However, the shoes found on the body were consistent
with a pair of shoes Clemenson had borrowed from a friend. Fiber
testing revealed that fibers taken from the shoes matched fibers of
the floorboard carpeting of Hamrick’s vehicle. A DNA comparison
between samples from the body and samples from Clemenson’s
toothbrush confirmed that the body was Clemenson’s.
In August 1999, investigators approached Hamrick about the
case while he was in West Virginia, where he, Swims, and Ruby had
moved sometime after the events on John’s Mountain.2 After
speaking with Hamrick, investigators located Swims in West
2 Hamrick testified that when he was first questioned about Clemenson’s
disappearance, he was not truthful with the investigators because he was scared of Swims. However, Hamrick testified that he eventually told investigators the truth about the case in later interviews. Hamrick was charged with and pleaded guilty to giving a false statement and concealing the death of another in connection with Clemenson’s case. 5 Virginia and spoke with Swims about the case. Investigators showed
Swims the reward poster for the case, but Swims acted surprised
and stated he did not know Clemenson.
Initially, Swims told investigators that he had been with
Hamrick on only two occasions, one evening partying on John’s
Mountain, and then going swimming at Carters Lake together the
next day. After further questioning, Swims told investigators there
was another instance when he was with Hamrick. Swims stated that
Hamrick had been in a fight with his girlfriend, Swims’s sister Ruby,
and that Hamrick and Swims went first to the house of Swims’s boss
to drink beer and smoke marijuana, then to Swims’s cousin’s house,
and finally back to the house of Swims’s boss. The investigator
testified at trial that Swims’s last story was similar to one of the
stories Hamrick initially told the officers.
In 2005, while awaiting trial in the Walker County Jail for
Clemenson’s murder, Swims spoke to Chelsey Owens, another
inmate in the jail, about attempting to escape incarceration. Owens
testified that Swims wanted him to hold a corporal at the jail while
6 Swims stabbed the corporal a few times so that the staff at the jail
would let them leave. Knowing Swims was charged with a girl’s
murder, Owens asked Swims if he killed that girl, to which Swims
responded, “why do you think I want out of here so bad.”
Although Swims has not challenged the sufficiency of the
evidence, it is our customary practice to review the sufficiency of the
evidence in murder cases, and we have done so here. After reviewing
the record of Swims’s trial, we conclude that the evidence presented
against him was sufficient to authorize a rational jury to find beyond
a reasonable doubt that Swims was guilty of malice murder. See
Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SCt 2781, 61 LE2d
560) (1979); see also Brown v. State, 302 Ga. 454, 456 (1) (b) (807
SE2d 369) (2017) (“It was for the jury to determine the credibility of
the witnesses and to resolve any conflicts or inconsistencies in the
evidence.” (citation and punctuation omitted)).
2. In his only enumeration of error, Swims contends that the
trial court erred in denying his motion for mistrial after his
character was improperly placed into evidence during Chelsey
7 Owens’s testimony. When the State asked Owens if Swims offered
any reasoning for why he wanted to escape, Owens responded:
I asked [Swims] why would he do that, I said, why would you want to do that, [Swims] said, he had told me because they did not honor his fast and speedy trial. He was looking at getting off on a technicality because they didn’t honor that. He didn’t have that for his defense. He said he was doing time, he had a lot of time in West Virginia that he wasn’t never going to get out.
Swims’s trial counsel immediately asked to approach the bench and
moved for a mistrial. The trial court judge overruled Swims’s
objection and denied his motion. The State resumed its direct
examination of Owens, who testified that Swims provided another
possible motivation for attempting an escape — that Swims had
murdered Clemenson: “I asked him, did y’all kill that child and he
told me . . . why do you think I want out of here so bad.”
“Generally, evidence of an independent offense committed by a
defendant is inadmissible and irrelevant in a trial for a different
crime, unless the evidence is substantially relevant for some purpose
other than to show a probability that the defendant committed the
crime on trial because he has a criminal character.” (Citation and
8 punctuation omitted.) Rivera v. State, 295 Ga. 380, 382 (2) (761 SE2d
30) (2014). See also former OCGA § 24-2-2.3 Whether “to grant a
mistrial is within the discretion of the trial court and will not be
disturbed on appeal unless there is a showing that a mistrial is
essential to the preservation of the right to a fair trial.” (Citation
and punctuation omitted.) Hartsfield v. State, 294 Ga. 883, 886 (2)
(757 SE2d 90) (2014). Typically,
a trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.
(Citation and punctuation omitted.) Smith v. State, 302 Ga. 699, 702
(3) (808 SE2d 692) (2017).
“[A] passing reference to a defendant’s incarceration does not
place his character in evidence.” Lewis v. State, 287 Ga. 210, 212 (3)
(695 SE2d 224) (2010). Furthermore, Owens’s passing reference to
Swims’s incarceration in West Virginia for an unstated crime was
3 Because Swims’s trial occurred in 2005, Georgia’s prior Evidence Code
applied to his case. 9 an unexpected answer to the question asked by the prosecutor, who
was attempting to establish that Clemenson’s murder was the
reason Swims “want[ed] out of [jail] so bad.” See Walker v. State, 282
Ga. 703, 705 (2) (653 SE2d 468) (2007) (“[A] nonresponsive answer
that impacts negatively on a defendant’s character does not
improperly place his character in issue.” (citation and punctuation
omitted)). After Swims’s mistrial was denied, the State did not
inquire further into Swims’s crimes in West Virginia beyond a single
confirmation that his incarceration there also served as motive for
escape.4 The State then moved on to questions intended to elicit
evidence of Swims’s confession to Owens that he killed Clemenson.
Therefore, the trial court did not abuse its discretion.
On appeal, Swims also argues that the trial court abused its
discretion by not sua sponte issuing curative instructions to the jury
in lieu of granting a mistrial. However, Swims did not request such
instructions after the denial of his motion. “Failure to give an
4 The parties’ closing arguments are not a part of the record below, and
Swims does not assert that the State referred to this evidence in closing arguments. 10 unrequested curative instruction does not create reversible error.”
Miller v. State, 295 Ga. 769, 776 (3) (a) (764 SE2d 135) (2014).
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 13, 2020. Murder. Walker Superior Court. Before Judge Thompson. Jennifer E. Hildebrand, for appellant.
11 Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.