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case, the court offered the defense an opportunity to view the videotapes, and defense counsel accepted. After viewing the videotapes, defense counsel moved for a mistrial on the ground that ‘had the forensic examiner who did those tapes been here and we had been able to get that person here, there is evidence that we could have obtained that we cannot obtain without it.’ But no specific evidence has been cited; nor has there been any explanation showing how the lack of any such evidence prejudiced the defense. Moreover, defense counsel advanced no argument to the trial court that the delay was in bad faith, but stated, ‘I’m not trying to assess any blame as to, you know, why they didn’t come to light....’ Under these circumstances, we find no abuse of discretion by the trial court in permitting the state to introduce the videotapes into evidence, after having provided the defense an opportunity to examine them. See Tucker v. State, 222 Ga.App. 517, 518-519(3), 474 S.E.2d 696 (1996) (where defendant made no showing that he was prejudiced as a result of the state’s failure to make certain evidence available to him prior to trial, the trial court was without authority under OCGA § 17-16-6 to exercise discretion and exclude the evidence from trial); see also Barrow v. State, 269 Ga.App. 635, 637(3), 605 S.E.2d 67 (2004).” Accord, In re: T.O.J. , 295 Ga.App. 343, 672 S.E.2d 14 (December 18, 2008) (counsel allowed to review photographic line-ups produced for first time at juvenile hearing; remedy was adequate, and “extreme sanction” of exclusion not required), particularly where counsel agreed opportunity to review was adequate). Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (June 12, 2006). “There is no merit to Buttram’s assertion that he was entitled to a mistrial for the State’s violation of OCGA § 17-16-7 for withholding an oral statement by [victim] Tara, where the statement was not recorded or otherwise committed to writing. See Burgess v. State, 276 Ga. 185(2) (576 S.E.2d 863) (2003); Phagan v. State, 268 Ga. 272(11) (486 S.E.2d 876) (1997).” Gore v. State, 277 Ga.App. 635, 627 S.E.2d 198 (February 15, 2006). No discovery violation where State failed to disclose statement defendant made to officer which was not “in response to interrogation.” Defendant was charged with child cruelty for failure to seek treatment for her child’s serious burns. Defendant [Walton] “objected to the trial testimony of an officer, who called Walton from the emergency room of the hospital to ask her to come to the hospital to be with her injured child. The officer testified that Walton responded she did not want to come to the hospital, explaining ‘If I come up there, I know DFACS and I know I’m going to be arrested.’” “Such a natural request to the mother of an injured child would not appear to constitute questioning that the officer should have known was reasonably likely to elicit an incriminating response from the mother.” Analogized to cases determining what constitutes “custodial interrogation” for purposes of Miranda /voluntariness analysis. Overruled based on language “ stating that ‘even if the State had breached its discovery obligation, OCGA § 17–16–6 authorizes a mistrial only if the defendant shows prejudice and bad faith,’” Johnson v. State , 328 Ga.App. 702, 760 S.E.2d 682 (July 15, 2014) (whole court opinion).). Gabriel v. State, 280 Ga. 237, 626 S.E.2d 491 (February 13, 2006). “‘Generally a defendant has a duty to request a continuance to cure any prejudice which may have resulted from the State’s failure to comply with the requirements of OCGA § 17-16-1 et seq.’ State v. Dickerson, 273 Ga. 408, 411(2), 542 S.E.2d 487 (2001). [other cits.]” Having failed to do so, defendant was not entitled to mistrial for failure to produce photographs. Accord, Brown v. State , 281 Ga.App. 557, 636 S.E.2d 717 (September 13, 2006) (failure to produce private store security reports). Jones v. State, 276 Ga.App. 728, 624 S.E.2d 275 (December 7, 2005). Detective failed to tell prosecutors that he had shown witness a photographic lineup and witness had been unable to identify defendant, facts which came out on the stand during cross-examination by defense counsel. Held, trial court properly ruled that the discovery/ Brady violation was harmless inasmuch as the evidence came out at trial, anyway. Officer’s possession of the photographs was imputed to the state. “‘Possession, custody, or control of the state or prosecution’ means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.’ OCGA § 17-16- 1(1).” Distinguished from cases where surprise revelation at trial was prejudicial. “[T]his is not a case where the untimely disclosed evidence was incriminatory in nature or ‘contradicted [the defendant’s] planned defense’ in a manner that required the defendant to reformulate his trial strategy at the last minute. Compare Livingston v. State, 266 Ga. 501, 502- 503(1) (467 S.E.2d 886) (1996) (State’s failure to disclose evidence meant that defense counsel ‘did not have a meaningful opportunity to examine the evidence against [the defendant]’) (emphasis supplied); Baker v. State, 238 Ga.App. 285, 286(1) (518 S.E.2d 455) (1999) (State’s untimely disclosure that it planned to introduce evidence of defendant’s prior statement that he shot out of self defense was prejudicial, when it contradicted the defendant’s planned defense that he was not the perpetrator of the shooting).” Accord, Mauldin v. State , 313 Ga.App. 228, 721 S.E.2d 182 (December 7, 2011) ( quoting Jones, “The failure to grant a mistrial based on a discovery violation committed by the State constitutes reversible error only if the violation harmed the defendant's ability to prepare and present his defense or otherwise deprived him of a fair trial.”).
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