Spencer v

State, 296 Ga. App. 828, 676 S.E.2d 274 (2009). Defendant failed to show prejudice as a result of the trial court’s failure to exclude testimony of the surviving victim based on an alleged discovery violation because, inter alia, the defendant did not seek a recess or continuance or seek any other remedy under O.C.G.A. § 17-16-6. Falay v. State, 320 Ga. App. 781, 740 S.E.2d 738 (2013). Remediation by post-trial grant of habeas corpus. — Convicted of capital murder, the defendant’s habeas corpus petition was granted, the conviction was reversed, and the defendant was awarded a new trial because the defendant prevailed on the Brady claim that the state failed to disclose to the defendant that the 17-16-6 state had paid a confidential informant money for information that led to the defendant’s conviction; the payment of money was exculpatory since the payment indicated that the informant could be impeached since the informant had a motive to lie. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005). Procedural bars not found. — Defendant’s habeas corpus petition based upon failure to obtain Brady information was not procedurally barred since the defendant tried to obtain that information from the state but was not able to obtain the information until discovery in conjunction with the habeas corpus hearings. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005). State met discovery obligations. — Because: (1) the defendant did not object to the admissibility of three cash invoices on the ground that the state failed to produce the invoices during discovery; and (2) the state produced a jail inventory list as soon as was practicable, the defendant denied an offer for a continuance, and never presented any evidence of prejudice based on its admission, no violation of O.C.G.A. § 17-16-4 occurred requiring sanctions against the state under O.C.G.A. § 17-16-6. Bennett v. State, 289 Ga. App. 110, 657 S.E.2d 6 (2008). No error in refusing to exclude evidence. — Trial court did not abuse the court’s broad discretion under O.C.G.A. § 17-16-6 in fashioning an appropriate remedy and in refusing the harsh remedy of evidence exclusion for the untimeliness of discovery because a codefendant’s testimony was not at variance with the testimony at the defendant’s first trial, though it was couched in different terms; the trial court allowed the defense to interview the agent off the record before the agent took the stand and to introduce the transcript of the agent’s prior testimony. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012). Expert opinion not provided within ten days. — Although the defendant argued that a neurosurgeon’s opinion should have been excluded because the state failed to provide notice of the neurosurgeon’s opinion regarding Shaken Baby Syndrome ten days prior to trial as required by the reciprocal discovery stat- 1504 ute, the defendant failed to show that the defendant was prejudiced by the state’s non-disclosure of the neurosurgeon’s opinion, warranting an exclusion of the testimony as two of the state’s expert witnesses had already testified regarding Shaken Baby Syndrome, defense counsel was on notice that the Shaken Baby Syndrome theory could be put forward by the state through those experts, and the defense presented its own expert at trial as rebuttal expert testimony. Wyatt v. State, 300 Ga. 509, 796 S.E.2d 701 (2017). Cited in Baker v. State, 238 Ga. App. 285, 518 S.E.2d 455 (1999); Sullivan v. State, 242 Ga. App. 839, 531 S.E.2d 367 (2000); Fairbanks v. State, 242 Ga. App. 830, 531 S.E.2d 381 (2000); Johnson v. State, 247 Ga. App. 660, 544 S.E.2d 496 (2001); Carter v. State, 253 Ga. App. 795, 560 S.E.2d 697 (2002); Parks v. State, 275 Ga. 320, 565 S.E.2d 447 (2002); Cordy v. State, 257 Ga. App. 726, 572 S.E.2d 73 (2002); Grier v. State, 276 Ga. App. 655, 624 S.E.2d 149 (2005); Muhammad v. State, 282 Ga. 247, 647 S.E.2d 560 (2007); Vega v. State, 285 Ga. 32, 673 S.E.2d 223 (2009); Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436 (2009); Day v. State, 302 Ga. App. 883, 691 S.E.2d 920 (2010); Leger v. State, 291 Ga. 584, 732 S.E.2d 53 (2012); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017). Use of Media Failure to give prior notice of letters. — Because the state did not gain possession of letters that were entered into evidence until after the beginning of the trial and because the letters were not relevant until the defendant testified, the state did not violate the criminal discovery statute by failing to give prior notice of the letters. Moreover, the record showed that the defendant did not present any evidence showing that the state acted in bad faith in failing to provide the defense attorney with the letters earlier or that the defendant was prejudiced by the state’s failure to provide the letters to the defendant’s attorney at an earlier time; consequently, the trial court did not abuse the court’s discretion in denying the defendant’s motion to exclude the letters 17-16-6 from evidence at trial. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003). Admission of CDs when no bad faith by state. — Trial court did not err in admitting into evidence the CDs retrieved from inside a CD changer seized from the defendant’s home since: (1) the state timely disclosed the CD changer, which contained the CDs, and the prosecutor asserted that the prosecutor told defense counsel prior to trial that the CDs might be inside; (2) even if there was a discovery violation, the defendant failed to show bad faith by the prosecutor and prejudice; and (3) the defendant failed to request a continuance to cure any prejudice that might have resulted from the state’s failure to comply with the reciprocal discovery requirements under O.C.G.A. § 17-16-4. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004). Admission of photographs. — Photo developer’s cropping procedure eliminated one the defendant’s cap from a photo; the state had the photo developed again, but the newly-developed photo, which showed the cap, was not provided to the defendants until the first day of jury selection. As the state did not act in bad faith, and alerted both the defendants and the court as soon as the state became aware of the problem, the trial court did not err in admitting the photo. Culler v. State, 277 Ga. 717, 594 S.E.2d 631 (2004). Inadvertent omission of videotaped statements. — Defendant’s new trial motion under O.C.G.A. § 5-5-22 was properly denied as the fact that the state failed to turn over two videotaped statements from the defendant’s sons, arising from criminal charges due to a domestic dispute, was based on inadvertence rather than bad faith, there was unimpeached eyewitness testimony from other witnesses that was sufficient to support the defendant’s convictions pursuant to former O.C.G.A. § 24-4-8 (see O.C.G.A. § 24-14-8), and there was no showing that the defendant suffered the kind of prejudice that undermined confidence in the outcome of the trial; accordingly, the defendant’s Brady rights were not violated and there was no violation of O.C.G.A. §§ 17-16-6 and 17-16-7. Ely v. State, 275 1505 Use of Media (Cont’d) Ga. App. 708, 621 S.E.2d 811 (2005). No bad faith for exclusion of video and photographic pornographic images. — In the absence of bad faith on the part of the state, as well as prejudice to the defendant, the trial court erred in excluding from evidence a videotape and photographs of child pornographic images taken from the defendant’s computer as a sanction for the state’s failure to comply with a court-ordered discovery deadline. State v. Jones, 283 Ga. App. 539, 642 S.E.2d 183 (2007). Review of audiotape of witnesses. — Because the record supported the trial court’s ruling that the state did not act in bad faith with regard to disclosure of a witness’s statement, the severe remedies that the defendant sought under O.C.G.A. § 17-16-6 were not applicable; the defendant had other audiotaped statements of the witness and had interviewed the witness and obtained an affidavit from the witness before trial, and the trial court granted the defendant an overnight continuance to review the additional statement before cross-examining the witness. Jones v. State, 290 Ga. 576, 722 S.E.2d 853 (2012). Disclosure of 911 tape. — Even if the state had been required to disclose a 911 tape prior to trial, the tape’s admission was not reversible error as the defendant failed to show that the state acted in bad faith as neither the prosecutor nor the investigator knew about the tape’s existence before the start of the trial. Adams v. State, 340 Ga. App. 1, 795 S.E.2d 330 (2016). Failure to request relief. — Defendant was not entitled to relief based on an alleged violation of O.C.G.A. § 17-16-4 and failure to remedy the violation under O.C.G.A. § 17-16-6 because the state turned over the subject records immediately after receiving the records and counsel did not move for a continuance, but the trial court gave counsel additional time to review the records Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664 (2020). Handwritten statement cumulative of audio statement. — Failure of the trial court to turn over a handwritten 17-16-6 statement of the victim in an assault case did not require a mistrial since the statement was merely cumulative of an audio tape of the victim’s remarks and the court granted a continuance to allow the defendant to review the statement. Blankenship v. State, 229 Ga. App. 793, 494 S.E.2d 758 (1998). No harm in admitting videotapes. — Because no specific evidence was cited, and no explanation was offered showing how the lack of evidence offered by a forensic examiner in opposition to the two challenged videotapes prejudiced the defense, and the defendant failed to show that any delay in production was in bad faith, no abuse of discretion resulted from admission of the videotapes. Milton v. State, 280 Ga. App. 179, 633 S.E.2d 606 (2006). No prejudice from admission of audiotape. — Even if defense counsel had objected to the admission of an audiotape, the trial court would not have erred in permitting the audiotape to be played at trial as: (1) the defendant failed to object to the tape’s admission at trial on the ground that the state failed to comply with discovery requirements; (2) the record disclosed that, during trial, the state made the defendant a copy of the audiotape, and permitted the defendant to listen to the audiotape during an overnight recess in the trial; and (3) the next day, the state did not play the tape, but had the investigator who conducted the taped interview testify only about the parts of the witness’s statement that were inconsistent with that witness’s trial testimony; hence, the defendant failed to show prejudice resulting from the admission of the audiotape. McNeal v. State, 281 Ga. 427, 637 S.E.2d 375 (2006). No harm shown in admission of photographs. — Since the state failed to produce photographs ten days before trial, but the defendant rejected the trial court’s offer of a continuance, and since the photographs were merely cumulative of other evidence, there was no prejudice to the defendant shown and no abuse of discretion in admitting the photographs. Brown v. State, 236 Ga. App. 478, 512 S.E.2d 369 (1999). Even though the prosecutor did not give 1506 17-16-6 the defendant sufficient notice of the existence of certain photographs, the defendant was not prejudiced by the admission of the photographs at trial. Corbin v. State, 240 Ga. App. 788, 525 S.E.2d 365 (1999). In a prosecution for aggravated assault with intent to rape, the fact that the state failed to produce photos of the victim’s injuries ten days before trial, as required by O.C.G.A. § 17-16-4(a)(3), was not grounds for reversal as the defendant did not ask for a continuance, did not show prejudice, and did not show that the state acted in bad faith. Murray v. State, 293 Ga. App. 516, 667 S.E.2d 382 (2008). No harm in admission of booking photographs. — Murder defendant’s claim that the defendant was prejudiced by being unable to prepare for the damaging evidence of a booking photograph showing the defendant wearing clothes that were later shown to have the deceased’s blood on them was rejected because the photograph was cumulative of other evidence, including testimony regarding the defendant’s clothing and the clothing itself. Carson v. State, 843 S.E.2d 421, No. S20A0288, 2020 Ga. LEXIS 348 (2020). No harm arising out of delay in submission of audiotape. — Since defense counsel was unable to state any harm from the delay in being permitted access to an audiotape presented at trial by the state, the trial court did not err in refusing to exclude the tape from evidence. Sledge v. State, 223 Ga. App. 488, 477 S.E.2d 898 (1996). Undiscovered audiotape evidence not introduced at trial. — Even if the defendant could show a violation of the discovery rule because a copy of an audiotape of the defendant’s confession was not provided to the defendant’s attorney, the defendant could show no harm because the tape was not introduced into evidence. Bertholf v. State, 224 Ga. App. 831, 482 S.E.2d 469 (1997). Admission of photograph detailing injuries. — With regard to the defendant’s domestic violence convictions, the trial court did not err in denying the admission into evidence of a photograph detailing the defendant’s injuries based on failing to provide inspection of the photograph because any error by the trial court in excluding the photograph was harmless since the photograph was cumulative of both the defendant’s testimony that the wife scratched the defendant as well as the wife’s testimony that the wife tried to scratch the defendant. Palmer v. State, 330 Ga. App. 679, 769 S.E.2d 107 (2015). Failure to grant continuance for viewing videotapes. — Trial court did not abuse the court’s discretion by refusing to grant a continuance to allow the defendant to review a police videotape of the defendant’s arrest since the state failed to timely provide the tape during discovery, but the defendant did not show how the defendant was prejudiced by the delay, and, in addition, the court accommodated most of the defendant’s concerns by allowing the defendant additional time to review the tape, by prohibiting the state from introducing the tape and allowing the defendant to introduce the tape at the defendant’s discretion, and by making the state’s witnesses available for cross-examination throughout the trial. Peeples v. State, 234 Ga. App. 454, 507 S.E.2d 197 (1998). Wiretap communications. — Trial court did not err in admitting statements the defendant’s coconspirators made during the commission of a crime because the defendant did not allege or show bad faith under O.C.G.A. § 17-16-6 and did not request a continuance upon learning of the alleged discovery violation; the defendant proceeded under the reciprocal discovery provisions of O.C.G.A. § 17-16-1 et seq., and audiotapes of wiretap communications that transpired between a confidential informant and the coconspirators were not introduced at trial since the state relied upon U.S. Drug Enforcement Administration agents’ testimony describing the communications. Kohler v. State, 300 Ga. App. 692, 686 S.E.2d 328 (2009). Application No bad faith in handling expert’s ballistics report. — Since a trial court found that there was no bad faith on the part of the state based on the failure of an expert’s report to address testing done on a second bullet hole in the victim’s shirt, 1507 Application (Cont’d) exclusion of the evidence was not a viable option so trial counsel’s decision to pursue a mistrial instead was reasonable. Bales v. State, 277 Ga. 713, 594 S.E.2d 644 (2004). No misconduct in admission of DNA result. — Trial court did not abuse the court’s discretion in refusing to exclude the DNA results from testing of a bloody knife and tee-shirt in the defendant’s trial for murder, which the state sought to introduce three days into the state’s case-in-chief, since the state had just received the results and defense counsel acknowledged at the hearing on the defendant’s motion for a new trial that there was no evidence of prosecutorial misconduct and it was undisputed that the defendant was afforded an opportunity to interview the witnesses. Cockrell v. State, 281 Ga. 536, 640 S.E.2d 262 (2007). Service of notice of report adequate. — With regard to a the defendant’s trial on various drug charges, the trial court did not err by refusing to exclude the evidence of a crime lab report for the methamphetamine allegedly sold based upon defense counsel not receiving a copy of the report as the record showed that the prosecution provided the defense with a certificate of service showing that the state served defense counsel with the crime lab results and the certificate of service also included the handwritten note that defense counsel was free to inspect the report at any time. The prosecution was not obligated to serve a copy of the lab report upon the defense and the defendant failed to prove bad faith on the part of the state and prejudice to the defense. Rogers v. State, 298 Ga. App. 895, 681 S.E.2d 693 (2009). Provision of fingerprint reports. — Trial court did not err in admitting testimony and evidence relating to the second and third reports of an investigator who compared the latent fingerprints taken from the scene of the crime with the defendant’s fingerprints and confirmed a match of the defendant’s fingers because the state did not act in bad faith by failing to provide the second and third reports to the defendant prior to trial; the second report was provided to the defendant in 17-16-6 discovery from the state, and the third report revealed newly discovered evidence, which the state did not discover until the investigator enlarged the defendant’s fingerprint on charts in the investigator’s preparation for trial, and as soon as the state received the third report from the state’s investigator, the state provided the report to the defendant pursuant to O.C.G.A. § 17-16-4(c). Mallory v. State, 306 Ga. App. 684, 703 S.E.2d 120 (2010). Trial court did not err by failing to exclude two fingerprint cards which had not been produced in discovery. Romero v. State, 247 Ga. App. 724, 545 S.E.2d 103 (2001). Broad latitude in questioning late identified witness. — Under O.C.G.A. § 17-16-6, the trial court had discretion to exclude an inmate witness upon a showing of prejudice to the state and bad faith by the defense. Implicit in the trial court’s decision that the court was permitted to exclude the inmate from testifying is the determination that prejudice and bad faith were shown; however, these determinations were not made and the prosecutor was properly given broad latitude in cross examining the inmate witness. Walker v. State, 268 Ga. App. 669, 602 S.E.2d 351 (2004). Exclusion of witness was error. — Exclusion of a the defendant’s alibi witness was error, although the defendant failed to give the state the required ten-days’ notice pursuant to O.C.G.A. § 17-16-5(a), as there was no finding of bad faith by the defendant or prejudice to the state under O.C.G.A. § 17-16-6. Ware v. State, 298 Ga. App. 232, 679 S.E.2d 797 (2009). Trial court erred in excluding a witness’s testimony based solely on the fact that the witness was not listed on the defendant’s witness list because the defendant was entitled to rely on the state’s supplemental witness list as a document furnished to the defendant pursuant to the Criminal Discovery Act, O.C.G.A. § 17-16-10 and was not required to also list the witness on the defendant’s own witness list in order to call the witness as a witness at trial; when the trial court excluded the testimony, it was not aware that the witness had been identified by 1508 the state on the state’s supplemental witness list, but when ruling on the state’s objection to the witness because of an alleged discovery violation on the part of the defense. The trial court did not require the state to make the requisite showing of prejudice and bad faith on the part of the defendant as required by the Act, O.C.G.A. § 17-16-6, and the state could not have shown prejudice or bad faith on the part of the defendant because the state admitted that it had the witness’s report and had researched the validity of the specific tests utilized by the witness, and the error was not harmless since it could not be said that the testimony would not have made a difference in the outcome of what the trial court described as a ‘‘very, very close case.’’ Webb v. State, 300 Ga. App. 611, 685 S.E.2d 498 (2009). Trial court erred in excluding testimony from two witnesses who came forward after the trial had started, because defense counsel could not have disclosed them prior to trial due to a lack of knowledge that they existed, and thus, there was no bad faith on the part of defense counsel. Mitchell v. State, 326 Ga. App. 899, 755 S.E.2d 308 (2014). Same evidence used at probation revocation and trial. — Trial court did not err by admitting the state’s evidence despite various alleged discovery violations because the state disclosed all of the state’s evidence to the defendant and provided the defendant with the indictment and witness list during a probation revocation hearing 24 days prior to trial, and the defendant was informed at the revocation hearing that the evidence was the same as the evidence would be at the defendant’s impending criminal trial; further, there was no evidence of bad faith on the part of the state. Fields v. State, 310 Ga. App. 455, 714 S.E.2d 45 (2011). No bad faith in destruction of blood samples. — Trial court did not abuse the court’s discretion in denying the defendant’s claim that the destruction of blood samples constituted a failure by the state to comply with the reciprocal discovery requirements pursuant to O.C.G.A. § 17-16-4 when the defendant failed to show that the state acted in bad faith. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012). 17-16-6 No bad faith in providing gang evidence. — Trial court did not err in denying the defendant’s motion to exclude gang evidence that was provided to the defense on the Friday before and the morning of trial because the trial court found that the prosecutor had not acted in bad faith with regards to the state’s statutory discovery obligations, but instead acted promptly as the prosecutor received new evidence; the defendant was not prejudiced by receiving the evidence on the eve of trial; and the late-disclosed evidence did not alter the defendant’s theory of defense, which was and continued to be the assertion that, despite the defendant’s relationship with the co-indictees, the defendant was merely present with them and did not aid and abet the attempted robbery. Cushenberry v. State, 300 Ga. 190, 794 S.E.2d 165 (2016). No bad faith in failure to produce jail medical records. — In an aggravated assault case, because there was no showing that the defense’s discovery violation in failing to produce jail medical records showing the defendant’s injuries was in bad faith as required by O.C.G.A. § 17-16-6, the trial court erred in excluding the records, and the error was not harmless given the defendant’s testimony that the shooting occurred during a physical confrontation with the defendant’s boyfriend and the prosecutor’s emphasis on the lack of evidence of the defendant’s injuries. Phillips v. State, 347 Ga. App. 147, 817 S.E.2d 711 (2018). Failure to provide report within ten days prior to trial. — Since the state did not receive and deliver a scientific report until four days before trial, permitting defense counsel to inspect the report during that time was not adequate, and a continuance was warranted. Brady v. State, 233 Ga. App. 287, 503 S.E.2d 906 (1998). Exclusion of expert’s testimony. — Defendant failed to show that the defendant was prejudiced by trial counsel’s failure to seek the exclusion of an expert’s testimony as a sanction for the state’s violation of O.C.G.A. § 17-16-6 because the trial court did not abuse the court’s discretion by excluding, as a remedy, any specific testimony about the three victims. 1509 Application (Cont’d) Love v. State, 349 Ga. App. 741, 824 S.E.2d 745 (2019). Service of scientific reports not required for admission. — Defendant’s ineffective assistance of counsel claim failed based on defense counsel failing to object to the testimony of a firearms examiner concerning the results of their ballistics examination because the testimony complained of was elicited by a co-defendant during cross-examination and not by the state so the state had no obligation to provide the defendant with notice of the firearms examiner’s opinion and the defendant also failed to show any prejudice or bad faith. Bryant v. State, 296 Ga. 456, 769 S.E.2d 57 (2015). Trial court abused discretion excluding informal notes of investigator. — Trial court abused the court’s discretion in imposing the extreme sanction of evidence exclusion for the state’s failure to produce the investigator’s notes because the record did not show that the investigator’s informal notes, which the state could not produce, were subject to discovery under any of the provisions of Georgia’s Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015). Exclusion proper due to defendant’s failure to preserve evidence. — In a first degree homicide by vehicle case, the exclusion of evidence that the car the defendant was driving had a possible mechanical malfunction was proper as the defendant violated the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., by acting in bad faith in failing to preserve the car for inspection by the state because defense counsel induced the court’s order to preserve the car by assuring the court that the defendant’s father owned the car and that the car was being preserved for inspection, but those assurances were not true; thus, defense counsel’s action was designed to ensure that the court had no opportunity to take additional steps to preserve the car for inspection by the state and to obtain a tactical advantage for the defendant. Moceri v. State, 338 Ga. App. 329, 788 17-16-6 S.E.2d 899 (2016), cert. denied, No. S17C0095, 2017 Ga. LEXIS 210 (Ga. 2017). Failure to provide birth dates of witnesses. — Trial court did not abuse the court’s discretion under O.C.G.A. § 17-16-6 in permitting witnesses to testify whose birth dates were not provided to the defendant at least ten days before the trial as required under O.C.G.A. § 17-16-8 since: (1) the defendant did not request that the trial court exclude the witnesses’ testimony; (2) the witnesses’ birth dates were provided to the defense during trial; (3) the defense did not request a continuance to attempt to cure any prejudice from the failure to have the birth dates before trial; and (4) the defense had the opportunity to interview the witnesses before trial. Ehle v. State, 275 Ga. 560, 570 S.E.2d 284 (2002). Mistrial warranted for conduct of defense counsel.. — Trial court did not err in granting the state’s motion for a mistrial as the defendant’s failure to disclose all of the defendant’s alibi witnesses after the state demanded that the defendant do so, coupled with defense counsel’s mentioning in opening statement several witnesses who could place the defendant in another state at the time of the murders for which the defendant was on trial, warranted granting the mistrial because a ruling otherwise would violate the state’s right to a fair trial and reward the defendant for the misconduct of the defendant’s counsel. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003). Failure to disclose Brady information. — Defendant did not have to show that the defendant would have been acquitted if the defendant had been able to obtain the Brady information; the defendant simply had to show, and did show, that the state’s evidentiary suppression undermined confidence in the outcome of the trial. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005). Exclusion of telephone log and credit card receipt proper. — Trial court did not abuse the court’s discretion in excluding a telephone log and credit card receipt the defendant produced two weeks after the start of the trial given the finding that the defendant acted in bad 1510 faith in failing to provide discovery and that a continuance would unfairly burden the court and the state. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Testimony properly admitted. — Despite the fact that the state failed to notify the defendant of a similar transaction action witness more than ten days before trial, the admission of the testimony was not erroneous as the prosecutor indicated that the defense was informed of the witness as soon as the prosecutor got the evidence and defense counsel was given an opportunity to interview the witness prior to the witness’s testimony. Johnson v. State, 322 Ga. App. 612, 744 S.E.2d 903 (2013). Appeals Showing of harm required for reversal of conviction. — Defendant could not rely on the erroneous exclusion of the defendant’s witness as a basis for reversal of the defendant’s conviction on appeal without an offer of proof in the trial record concerning the testimony the defendant expected the witness to give. Hill v. State, 232 Ga. App. 561, 502 S.E.2d 505 (1998). In order to trigger the harsh sanction of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the state. Brown v. State, 236 Ga. App. 478, 512 S.E.2d 369 (1999). Since the defendant made no showing that the state improperly withheld evidence from the defendant or acted in bad faith so as to trigger the imposition of any of the sanctions authorized by O.C.G.A. § 17-6-6, the defendant failed to sustain the defendant’s appellate burden of establishing how the defendant was harmed by the trial court’s ruling regarding the defendant’s failure to properly provide written notice to the prosecution under O.C.G.A. § 17-16-2(a). Miller v. State, 235 Ga. App. 724, 510 S.E.2d 560 (1999), ap- 17-16-6 peal dismissed, 264 Ga. App. 801, 592 S.E.2d 450 (2003); Davis v. State, 240 Ga. App. 301, 522 S.E.2d 729 (1999). Fact that the defendant’s first taped interview, in which the defendant admitted furnishing a gun to a minor, was not provided to the defendant until nine days before trial, was harmless error because nothing in the material surprised the defendant as the defendant testified to the same information at the minor’s trial. Rollinson v. State, 276 Ga. App. 375, 623 S.E.2d 211 (2005). Harmless error. — Trial court’s exclusion from evidence of two letters sent by a codefendant, after the codefendant’s arrest, to the defendant’s alibi witness, in which the codefendant recanted the custodial statements identifying the defendant as a participant in a store robbery, on the ground that the letters were not timely disclosed to the prosecution pursuant to O.C.G.A. § 17-16-4, even though the trial court made no specific finding that the defendant acted in bad faith and that the prosecution was prejudiced thereby, was harmless error, if any, as evidence was merely cumulative because the codefendant recanted the codefendant’s custodial statement at trial. Brown v. State, 268 Ga. App. 24, 601 S.E.2d 405 (2004). Objection waived. — Defendant waived the right to object to the introduction of a tape recording at trial by failing to object timely and expressly on the grounds that the introduction of the evidence would constitute a violation of any specific provision of the discovery statutes. Arrington v. State, 224 Ga. App. 676, 482 S.E.2d 400 (1997). Failure to request relief. — Trial court did not err in allowing a witness to testify since the defendant did not request relief available under O.C.G.A. § 17-7-6, but merely stated that the defendant objected on the basis that the defendant was not properly served under the discovery statutes. Williams v. State, 226 Ga. App. 313, 485 S.E.2d 837 (1997).