Jenkins v

State, 167 Ga. App. 840, 308 S.E.2d 14 (1983) (decided under former O.C.G.A. § 17-7-210). If evidence of in-custody statements was newly discovered and was revealed to defense counsel as soon as practicable after its discovery and defense counsel was then afforded an opportunity to question the witness outside the presence of the jury, the trial court’s decision that the evidence was governed by subsection (e) of former O.C.G.A. § 17-7-210 was not erroneous. Broomall v. State, 260 Ga. 220, 391 S.E.2d 918 (1990) (decided under former O.C.G.A. § 17-7-210). Late disclosure of newly discovered evidence. — Defendant’s request for a mistrial after receiving new evidence five days before trial was properly denied as the state turned over the information as soon as the information was discovered, the defendant failed to request a continuance, and the evidence was part of the res gestae of the charged crime. Goggins v. State, 330 Ga. App. 350, 767 S.E.2d 753 (2014). No prejudice shown in denial of continuance. — Trial court did not abuse 1467 State’s Duty to Comply (Cont’d) the court’s discretion in denying the appellant’s motion for a continuance based on the state untimely serving a portion of a witness’s custodial interview three days prior to trial because the appellant’s contention that proper cross-examination questioning was prevented was unsupported by the evidence and the appellant did not present the testimony of any potential witnesses or offer any other evidence to show that any prejudice resulted from the denial of the motion. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591 (2019). Production within reasonable time. — If a request for a statement has been timely made, production of that statement one day before trial is not production within a reasonable time. Smith v. State, 181 Ga. App. 595, 353 S.E.2d 35 (1987) (decided under former O.C.G.A. § 17-7-210). Since after a timely request by the defendant, the state failed to supply the defendant with a written copy of the defendant’s in-custody confession at least ten days prior to trial, the defendant’s motion in limine seeking to exclude the confession should have been granted. Livingston v. State, 222 Ga. App. 298, 474 S.E.2d 1 (1996). It was reversible error for the state on the morning of the trial to provide defense counsel with notice regarding the introduction of the defendant’s statement that contradicted counsel’s planned defense. Baker v. State, 238 Ga. App. 285, 518 S.E.2d 455 (1999). Rights of the accused to reasonable pretrial access to evidence are not subject to the vagaries of a police department ‘‘policy’’ not to develop evidentiary photographs until the day before trial. Thompson v. State, 240 Ga. App. 26, 521 S.E.2d 876 (1999). Because it was apparent that the prosecutors acted in good faith by immediately mailing a copy of the report on a scientific test to the defendant once the prosecutors received the report themselves, absent any evidence of bad faith, the trial court did not err in denying the defendant’s motion in limine to exclude evidence of the 17-16-4 test. Berry v. State, 246 Ga. App. 9, 539 S.E.2d 516 (2000). Trial court did not err in admitting the defendant’s statement upon seeing the informant at the jail that the informant was the person ‘‘that busted him,’’ even though the statement was supposed to be disclosed ten days prior to trial and was not disclosed to the defense until the trial was in progress as the statement was newly discovered evidence; the state disclosed the statement as soon as practicable after learning about the statement, and the defendant did not show that the state acted in bad faith regarding discovery and disclosure of the statement. Dixon v. State, 252 Ga. App. 385, 556 S.E.2d 480 (2001). ‘‘Reasonable time’’ for making a request is to be determined by considering the facts and circumstances of each case. Smith v. State, 181 Ga. App. 595, 353 S.E.2d 35 (1987) (decided under former O.C.G.A. § 17-7-210). Request made shortly after obtaining counsel held timely. — Because it was impossible for the defendant to submit a timely request in accordance with former O.C.G.A. § 17-7-210 because the defendant had no representation by counsel until a week before trial, the defendant’s request six days before trial was within a reasonable time even though made within ten days of trial. Pealor v. State, 165 Ga. App. 387, 299 S.E.2d 904 (1983) (decided under former O.C.G.A. § 17-7-210). Defendant’s request for a statement, filed within five days of retaining defense counsel but less than ten days prior to trial, was a reasonable time in which to make the request. Smith v. State, 181 Ga. App. 595, 353 S.E.2d 35 (1987) (decided under former O.C.G.A. § 17-7-210). Defendant notified of substance of statement. — Purpose of former O.C.G.A. § 17-7-210 was satisfied when, even though there was no direct reference by the state that the defendant made an oral statement to a police officer and that the state intended to rely solely on the oral statement, the defendant was fully notified by the state of the substance of the oral statement the state indeed did use in the trial of the case. Lewis v. State, 1468 183 Ga. App. 41, 357 S.E.2d 862 (1987). Statements not used by state. — Penalty for failure of the prosecution to serve a defendant timely with a copy of inculpatory in custody statements is the exclusion and suppression of the statements from use in the prosecution’s case-in-chief or in rebuttal, but if the state made no attempt to use the indicated statements as a result of cross-examination of an officer by defense counsel, although a police officer testified as to the defendant’s age and education, the obvious purpose of former O.C.G.A. § 17-7-210 was satisfied. Hilburn v. State, 166 Ga. App. 357, 304 S.E.2d 480 (1983) (decided under former O.C.G.A. § 17-7-210). Upon failure of the prosecution to comply with the defendant’s timely written request for a copy of written or oral statement given by the defendant while in police custody, the statement is not used by the prosecution at all and the trial court gives the jury corrective instructions to disregard any question on this matter, the trial court need not grant a mistrial. Lee v. State, 166 Ga. App. 644, 305 S.E.2d 175 (1983) (decided under former O.C.G.A. § 17-7-210). Photographs. — State was not required to take the initiative and ‘‘furnish’’ the defense with copies of photographs; the state’s obligation was fulfilled by making the photographs available to the defense to inspect and copy. McSears v. State, 226 Ga. App. 90, 485 S.E.2d 589 (1997). If the state failed to produce photographs ten days before trial, but the defendant rejected the trial court’s offer of a continuance, and if 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). Trial court did not abuse the court’s discretion in reopening the evidence and allowing the state to introduce photographs as rebuttal evidence since the evidence did not become relevant until the defendant’s defense was presented. Potter v. State, 272 Ga. 430, 530 S.E.2d 725 (2000). 17-16-4 State’s failure to produce the photographs of the victim ten days before trial was not a violation of O.C.G.A. § 17-16-4(a)(3) and the trial court did not err in admitting the photographs because the defendant did not present any evidence of bad faith on the part of the state and the photographs were no more than cumulative of the testimony of the victim to the effect that the defendant had beaten the victim in the head with a stick as well as the testimony of the other witnesses for the state. Davis v. State, 257 Ga. App. 500, 571 S.E.2d 497 (2002). When the prosecution did not provide the defendant a photograph of the victim’s injuries in pre-trial discovery, it was not error to admit the photograph at trial because, under O.C.G.A. § 17-16-4(a)(3), the prosecution was only required to allow the defendant to inspect and copy the photograph, and the defendant chose not to take advantage of an offer to inspect the photograph. Banks v. State, 269 Ga. App. 653, 605 S.E.2d 47 (2004). 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). If the testimony to which defendant objected merely was cumulative of testimony to which the defendant did not object concerning other oral and written in-custody statements and was not significantly different in substance from the defendant’s other oral and written statements, there was no error in the denial of the motion for mistrial. Gay v. State, 199 Ga. App. 80, 403 S.E.2d 895 (1991) (decided under former O.C.G.A. § 17-7-210). State’s failure to supply written copies of the defendants’ video taped statements was not reversible error since the statements on the videotape were merely cumulative of other previously rendered tes- 1469 State’s Duty to Comply (Cont’d) timony to which the defendants interposed no objection. Bowe v. State, 201 Ga. App. 127, 410 S.E.2d 765 (1991), overruled on other grounds, Watts v. State, 274 Ga. 373, 552 S.E.2d 823 (2001), overruled on other grounds, Watts v. State, 261 Ga. App. 230, 582 S.E.2d 186 (2003) (decided under former O.C.G.A. § 17-7-210). Reversal not required unless error contributed to verdict. — Admission of a defendant’s statement in violation of subsection (c) of former O.C.G.A. § 17-7-210 did not require reversal unless it was highly probable that the error contributed to the verdict. Davis v. State, 198 Ga. App. 375, 401 S.E.2d 581 (1991) (decided under former O.C.G.A. § 17-7-210). Ineffective assistance of counsel for failing to challenge sufficiency of notice. — Defendant failed to show trial counsel’s performance was deficient for failing to challenge the sufficiency of the state’s notice of intent to seek punishment as a recidivist because there was no evidence in the record that the state failed to provide a copy of the criminal history report, nor was there any evidence that the defendant and counsel were unaware of the specific felony convictions listed in the criminal history record. Williams v. State, 326 Ga. App. 784, 757 S.E.2d 448 (2014). Miranda-waiver form. — State-withheld signed Miranda-waiver form which could not be construed as incriminating did not fall within the ambit of former O.C.G.A. § 17-7-210 and thus did not need to be furnished to a defendant. Brady v. State, 206 Ga. App. 497, 426 S.E.2d 15 (1992) (decided under former O.C.G.A. § 17-7-210). Failure to comply held harmless. — State’s failure to furnish a written copy of the defendant’s oral, in-custody statement upon request at least ten days prior to trial was harmless error since the victim positively identified the defendant as the perpetrator of the crimes and the defendant presented no evidence in the defendant’s defense. Russell v. State, 183 Ga. App. 209, 358 S.E.2d 631 (1987). State’s failure to timely provide the de- 17-16-4 fendant with a written copy of the defendant’s in-custody statement was harmless error since the evidence against the defendant was overwhelming. Coney v. State, 198 Ga. App. 272, 401 S.E.2d 304 (1991) (decided under former O.C.G.A. § 17-7-210). Failure of the state to provide the defendant with a knife before trial did not require the court to exclude the knife from evidence since the defendant made no showing that the defendant was prejudiced and since no continuance was requested to cure any prejudice which may have precipitated as a result of the state’s failure to comply. Tucker v. State, 222 Ga. App. 517, 474 S.E.2d 696 (1996); Parrott v. State, 240 Ga. App. 173, 523 S.E.2d 29 (1999); Roberts v. State, 244 Ga. App. 330, 534 S.E.2d 526 (2000). Trial court did not have authority, under O.C.G.A. § 17-16-4, to exercise discretion and exclude the defendant’s incriminating statement from evidence. Defendant made no showing of prejudice by the state’s failure to make the defendant’s custodial statement available prior to the trial, and the defendant did not ask for a continuance. Bell v. State, 224 Ga. App. 191, 480 S.E.2d 241 (1997); Knight v. State, 239 Ga. App. 710, 521 S.E.2d 851 (1999). Because the defendant made no showing at trial that the defendant was prejudiced by the state’s failure to make a scientific report available before trial, the trial court did not err in allowing the state’s use of the report. Aleman v. State, 224 Ga. App. 391, 480 S.E.2d 393 (1997). Since defense counsel admitted at trial that the notice of intent to present similar transaction evidence informed the defendant that the defendant had been convicted of a similar transaction because the notice recited that the state intended to introduce certain documents, including ‘‘disposition, guilty by trial,’’ the fact that a copy of the conviction was not included did not affect the adequacy of the notice because no prejudice to the defendant was shown, and harm as well as error must be shown to warrant reversal. Arnold v. State, 236 Ga. App. 380, 511 S.E.2d 219, aff ’d, 271 Ga. 780, 523 S.E.2d 14 (1999). Although the state violated O.C.G.A. 1470 § 17-16-4(a)(3) because discoverable evidence of a photographic line-up was in the state’s possession but not disclosed within the applicable statutory time period, the defendant could not show that the defendant suffered harm as a result of the late disclosure; thus, the trial court did not abuse the court’s discretion in refusing to grant a mistrial. Jones v. State, 276 Ga. App. 728, 624 S.E.2d 275 (2005). Trial court did not abuse the court’s discretion by refusing to exclude the medical examiner as a witness after the state failed to include the examiner’s name on a witness list and provide the defense with the autopsy report as the defendant interviewed the examiner, the trial was continued to allow a gunshot residue test to be completed, and the defendant failed to show prejudice. Tarpley v. State, 298 Ga. 442, 782 S.E.2d 642 (2016). Defendant failed to show prejudice from the state’s failure to provide timely notice of an expert’s particular opinion as the expert was included on the state’s witness list, the expert’s report was provided to defense counsel prior to trial, and the defendant made no showing of what additional evidence the defendant would have presented or how the undisclosed opinion would have changed the defense strategy. Murphy v. State, 299 Ga. 238, 787 S.E.2d 721 (2016). Admission of 9-1-1 tape admitted. — Because defense counsel had the opportunity to listen to the tape before allowing the tape’s admission into evidence, the trial court acted within the court’s discretion in allowing the 9-1-1 tape into evidence. Rooks v. State, 238 Ga. App. 177, 518 S.E.2d 179 (1999). Admission of evidence held reversible error. — Admission of a detective’s testimony regarding the defendant’s custodial statement in violation of subsection (c) of former O.C.G.A. § 17-7-210 was not harmless error and required reversal of the defendant’s conviction of theft by receiving stolen property since the challenged statement directly contradicted the defendant’s trial testimony that the defendant thought the property belonged to an acquaintance. Davis v. State, 198 Ga. App. 375, 401 S.E.2d 581 (1991) (decided under former O.C.G.A. § 17-7-210). 17-16-4 Admission of evidence concerning an incriminating in-custody statement which a statutory rape the defendant made to police during their investigation of a prior rape was reversible error due to the state’s failure to produce the statement in response to the defendant’s request, notwithstanding the state’s contention that the state was not required to provide the defendant with a copy of the statement because the statement did not concern the offense for which the defendant was on trial. Byars v. State, 198 Ga. App. 793, 403 S.E.2d 82 (1991) (decided under former O.C.G.A. § 17-7-210). Even though the state did not receive a scientific report until four days before trial, a continuance was warranted for the state’s failure to provide the defendant with a copy ten days before trial, and denial of a motion therefor was reversible error. Brady v. State, 233 Ga. App. 287, 503 S.E.2d 906 (1998). State’s discovery obligations met. — As the trial court found no due process violation in the release of the defendant’s pickup truck, allegedly involved in a murder, to the lienholder, due to a lack of bad faith on the part of the state and a lack of exculpatory value in the truck, and for the same reasons, the trial court also determined that the state did not violate the state’s discovery obligations, the trial court did not err in denying the defendant’s motion to dismiss or to exclude evidence. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414, cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002). 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). Four boxes of documents were properly admitted into evidence despite the defendant’s claim that the documents had not 1471 State’s Duty to Comply (Cont’d) been made available during discovery because the documents had been provided to previous trial counsel and counsel and an associate were given a break during trial to review the documents. Raymond v. State, 322 Ga. App. 404, 745 S.E.2d 689 (2013). Trial court did not err in denying defendant’s motion for a new trial based on the prosecution’s failure to disclose the existence of certain documents because the prosecutor gave notice to the defendant that the physical objects were available for inspection, copying, or photographing and O.C.G.A. § 17-16-4(a)(3)(A) did not require the state to take the initiative and furnish the defense with copies of physical evidence. Ananaba v. State, 325 Ga. App. 829, 755 S.E.2d 225 (2014). Plain language of O.C.G.A. § 17-16-4(a)(3)(A) does not require the state to take the initiative and furnish the defense with copies of physical evidence; the state fulfills the state’s obligation by making the evidence available to the defense to inspect and copy. Ananaba v. State, 325 Ga. App. 829, 755 S.E.2d 225 (2014). Trial court did not err in refusing to grant a mistrial based on the state’s failure to disclose a therapist’s notes until just before trial began as the state shared the notes shortly after receiving the notes, the defendant asserted no bad faith on the part of the state, the defendant was granted a short continuance to review the materials, and the defendant had notice that the therapist might testify two weeks before trial and could have retained an expert to counter the therapist’s testimony. Reinhard v. State, 331 Ga. App. 235, 770 S.E.2d 314 (2015). Because there was no evidence the emergency room doctor who treated the defendant made an oral or partially oral report, the state was under no duty to reduce to writing a non-existent oral report. Williams v. State, 302 Ga. 474, 807 S.E.2d 350 (2017). Time of Receipt of Statements Waiver of ten-day period. — Since the defendant gave no indication that the 17-16-4 defendant’s motion to suppress the defendant’s statements at the crime scene was intended to encompass the time limitations of this section, nor did the defendant make any attempt to explain why the motion was not filed in time to allow ten days for compliance, the ten-day time limitation must be considered waived. Thomas v. State, 163 Ga. App. 151, 293 S.E.2d 540 (1982) (decided under former Code 1933, § 27-1302). Since the defendant made a proper and timely request for production of the defendant’s pretrial statement but was not served with a copy of such statement until the scheduled trial date, after the jury was selected but not sworn, any error in admission of the statement was waived since the defendant refused the offer of another jury more than ten days after receiving the statement. Todd v. State, 163 Ga. App. 814, 294 S.E.2d 714 (1982) (decided under former Code 1933, § 27-1302). Harmless error in late disclosure of Facebook posts. — Late disclosure of Facebook messages sent by the defendant did not necessitate reversal as no bad faith or prejudice was shown. Hawkins v. State, 304 Ga. 299, 818 S.E.2d 513 (2018). Harmless error. — 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). Substitution of defense counsel. — Because defense counsel succeeded prior defense counsel five days before trial and requested statements under this section three days before trial, and because the statements were received the day before trial, the trial court did not err in overruling the defense’s objection to the introduction of the defendant’s pretrial statements on the ground that the statements had not been furnished ten days before trial. McCannon v. State, 161 Ga. App. 685, 288 S.E.2d 663 (1982) (decided under former Code 1933, § 27-1302). English transcription to Spanish defendant. — Failure to provide the de- 1472 fendant with a copy of the defendant’s statement in Spanish at least ten days prior to trial did not require suppression of an English transcription of the statement which had been timely provided to the defendant since the defendant was clearly notified by the state of the substance of the statement the state anticipated using against the defendant. Windelberg v. State, 257 Ga. 289, 357 S.E.2d 583 (1987) (decided under former O.C.G.A. § 17-7-210). Late disclosure of witness statement not done in bad faith. — Due to interpretation difficulties, the state did not know that the defendant held a knife during an armed robbery until the Thursday before trial. As the state’s disclosure to the defendant of this newly discovered evidence by at least the following Monday complied with O.C.G.A. § 17-16-4(c), the state did not act in bad faith, and the defendant was not prejudiced by the late disclosure; thus, evidence of the knife was properly admitted. Herieia v. State, 297 Ga. App. 872, 678 S.E.2d 548 (2009). Trial court did not err by refusing to exclude evidence of the state’s expert witness due to the state failing to provide a written summary of the expert’s findings no later than ten days before trial, pursuant to O.C.G.A. § 17-16-4(a)(4), because the defendant failed to show either prejudice or bad faith on the part of the state, and the defendant did not seek a recess or continuance or request any other remedy authorized by O.C.G.A. § 17-16-6, except to object to the expert’s qualifications. Hodges v. State, 319 Ga. App. 657, 738 S.E.2d 111 (2013). Oral additional recollections by a caseworker. — With regard to a defendant’s convictions on two counts of cruelty to children, the trial court did not err by allowing a caseworker to testify to additional recollections the caseworker realized were not contained in the report that was prepared following an interview with the defendant as the information that the defendant asserted that the defendant should have received before trial did not involve a written statement, a written summary of a statement, or a contemporaneous recording of a statement by the caseworker; therefore, the recollections 17-16-4 did not constitute a ‘‘statement of a witness’’ under O.C.G.A. § 17-16-1(2), and the state was not obligated to produce the information prior to trial under O.C.G.A. § 17-16-7. Hinds v.