☢ test - Í

DNA testing by State Crime Lab where the results were only provided to the DA at trial and were promptly provided to defense counsel, who was afforded the opportunity to interview the witness. Defense counsel acknowledges that there was no prosecutorial bad faith. Hall v. State, 282 Ga.App. 562, 639 S.E.2d 341 (November 2, 2006). Defendant can’t complain about failure to produce discovery absent a showing that defendant has elected to participate in discovery. “Here, however, Hall does not show that he elected to proceed under the reciprocal discovery statute, what materials were withheld, or how their availability might have changed the outcome of his trial. Without such a showing, ‘the assignment of error is so incomplete as to preclude its consideration by this court.’ Thomas v. State, 224 Ga.App. 816, 817(1) (482 S.E.2d 472) (1997).” Brown v. State, 281 Ga.App. 557, 636 S.E.2d 717 (September 13, 2006). Trial court properly denied defense motion to exclude documents not produced in discovery. Store security personnel provided documents to prosecutor on eve of defendant’s shoplifting trial; defense counsel acknowledged that prosecutor did not act in bad faith. Defense counsel announced ready for trial and did not request continuance. “‘[A] defendant is obliged to request a continuance to cure any prejudice which may have resulted from the [s]tate’s failure to comply with the requirements of the reciprocal discovery act.’ [Cits.] Having announced ready for trial, Brown cannot now argue that the trial court abused its discretion in failing to order the ‘extreme remedy’ of exclusion of the evidence. [Cits.]” Braswell v. State, 281 Ga.App. 500, 636 S.E.2d 689 (September 7, 2006). No error where trial court refused “to exclude evidence of his breath test results because the State failed to comply with the discovery provisions of OCGA § 17-16- 23(b).” Evidence of scientific tests was not formally tendered as part of discovery, but was previously tendered at motion to suppress hearing, and counsel was able to thoroughly cross-examine the officer on the documents and present argument thereon. Yet counsel made no effort to obtain formal discovery, opting instead to wait until the trial jury was impaneled, then moving to exclude the evidence. “‘The law does not favor exclusionary rules; they hinder the search for truth.’ Mowery [ v. State, 234 Ga.App. 801, 802 (507 S.E.2d 821) (1998)]. As in Mowery, Braswell’s ‘counsel was not seeking to avoid surprise or prepare for trial. The timing of his motion, which was made after the jury was sworn, demonstrates it was made as part of a strategy to ambush or trap the State.’ Id. In view of the conduct of Braswell’s counsel, the earlier availability of the documents, and his failure to request a continuance, the trial court did not abuse its discretion in refusing to exclude the test results. Id. at 803.” Johnson v. State, 281 Ga.App. 455, 636 S.E.2d 178 (September 6, 2006). Defendant’s conviction for possession of cocaine with intent to distribute reversed; defendant received ineffective assistance of counsel where counsel failed to object to evidence of a statement he allegedly made to officers (admitting ownership of the cocaine) which was not previously disclosed in discovery. “ A trial court is authorized to grant a mistrial when the State violates its discovery obligations and the defendant shows prejudice and bad faith. Gore v. State, 277 Ga.App. 635, 640(3) (627 S.E.2d 198) (2006). In this case, there is ample evidence of bad faith on the part of the State. The record demonstrates that the prosecutor intentionally elicited testimony about the defendant’s admission, and the police officer testified that he notified the district attorney about the admission long before the trial. … Based on the egregious discovery violation by the State in this case, compounded by the false testimony that notice had been given to defense counsel in the motion to suppress hearing, we conclude that, if the State’s discovery violation had been brought to the trial court’s attention, a failure to order a mistrial would have been an abuse of discretion. Any other result would provide ‘the State with no present or future incentive to ensure full compliance with its discovery obligations. [Cit.]’ Marshall v. State, 230 Ga.App. 116, 119(2) (495 S.E.2d 585) (1998).” Overruled “[t]o the extent that it can be read to require a showing of bad faith and prejudice in order to grant a mistrial upon a discovery violation,” Johnson v. State, 328 Ga.App. 702, 760 S.E.2d 682 (July 15, 2014) (whole court opinion). Milton v. State, 280 Ga.App. 179, 633 S.E.2d 606 (June 28, 2006). Defendant was not entitled to mistrial on his child molestation trial even though video recordings of DFCS-directed interviews with the victims were not disclosed to him prior to trial, as defendant failed to show prejudice. “The DFCS case worker could not recall whether she had notified the prosecutor’s office, and the prosecuting attorney stated that, before trial, he had not been told of the tapes or even the interviews. As the state concedes, knowledge of the videotapes must be imputed to it. [Cit.] And where the state fails to meet its discovery obligations, trial courts are vested with broad discretion to fashion a remedy. [Cit.] ‘[T]he court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.’ OCGA § 17-16-6. In this