O.C.G.A. § 17-16-7 (2019)

Annotations

Code Commission notes. - Pursuant

to Code Section 28-9-5, in 1994, ‘‘pretrial’’ was substituted for ‘‘pre-trial’’ in two places.

JUDICIAL DECISIONS Service of statements of witnesses not required. - Language of O.C.G.A. § 17-16-7 that statements of witnesses be produced does not require that such statements be furnished or served upon the defendant. Lawson v. State, 224 Ga. App. 645, 481 S.E.2d 856 (1997). Failure of the state to produce oral statements. - Failure of the state to produce oral and unrecorded statements made by the defendant’s brother to the police did not violate the state’s duty under O.C.G.A. § 17-16-7. State v. Scales, 209 Vt. 425, 206 A.3d 1263 (2019). Because there can be no ‘‘possession, custody, or control’’ of an oral statement, the state had no obligation to produce a statement which had been neither recorded nor committed to writing. Cox v. State, 242 Ga. App. 334, 528 S.E.2d 871 (2000). State had no obligation to produce a gesture described by the victim as having been made by the defendant, assuming it were possible to do so. Thomas v. State, 249 Ga. App. 556, 548 S.E.2d 71 (2001). Trial court did not err in denying the defendant’s motion for a mistrial based on the state’s alleged failure to comply with

the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., requirements as the plain terms of that law dictated that the defendant, who allegedly molested the defendant’s daughter, was not entitled to the oral, unrecorded statement the daughter provided to a police investigator as the state was required to produce statements within the state’s possession, custody, or control and the daughter’s unrecorded, oral statement did not qualify. Downs v. State, 257 Ga. App. 696, 572 S.E.2d 54 (2002). Because no notes were taken during pre-trial interviews with witnesses, the defendant failed to establish that O.C.G.A. §§ 17-16-1(1) and 17-16-7 had been violated by the state’s failure to produce the written notes. Hunt v. State, 278 Ga. 479, 604 S.E.2d 144 (2004). No merit existed as to the defendant’s assertion that a mistrial was warranted upon the state’s violation of O.C.G.A. § 17-16-7 for withholding an oral statement by the deceased victim because the statement was not recorded or otherwise committed to writing. Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (2006). Defendant was not entitled to a mistrial

for the state’s alleged violation of O.C.G.A. § 17-16-7 for withholding an oral statement by a witness because the state had merely interviewed the witness during the state’s investigation and any oral statement was not recorded or otherwise committed to writing. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008). 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 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. State, 296 Ga. App. 80, 673 S.E.2d 598 (2009). With regard to a defendant’s murder conviction, the defendant’s claim on appeal that the trial court erred by failing to strike, in its entirety, the testimony of the victim’s sibling’s friend based on the defendant’s assertion that the state violated O.C.G.A. § 17-16-7 was found meritless. The statute did not apply to the friend’s prior oral statement not recorded or memorialized in any way because it was not, in the words of the statute, ‘‘in the possession, custody, or control of the state or prosecution,’’ thus, the friend’s statement did not fall under the purview of the statute. Henley v. State, 285 Ga. 500, 678 S.E.2d 884, cert. denied, 558 U.S. 1076, 130 S. Ct. 800, 175 L. Ed. 2d 559 (2009). Since there was no evidence in the record that any of the testifying witnesses gave the police or the prosecution a written or recorded statement that was not produced to the defendant, there was no evidence that a discovery violation occurred with regard to witness statements. Although O.C.G.A. § 17-16-7 required the state to produce any statement of a witness that was in the possession or control

of the state, this requirement applied only to statements that had either been recorded or committed to writing. Walker v. State, 314 Ga. App. 714, 725 S.E.2d 771 (2012). Admission of a witness’s testimony regarding the defendant’s oral statement that someone had put something in the defendant’s drink was not error as the statement was oral and subject to the disclosure requirements of O.C.G.A. § 17-16-7 and, even assuming there had been error, it was harmless given the other evidence in the case. Simmons v. State, 321 Ga. App. 743, 743 S.E.2d 434 (2013). Statutory obligation of O.C.G.A. § 17-16-7 was not triggered when a witness merely made an oral statement and thus, the state was not obliged to inform the defendant that the victim had been taken for a medical exam until the state received written confirmation of the exam. Whatley v. State, 326 Ga. App. 81, 755 S.E.2d 885 (2014). No bad faith in failing to turn over 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 Ga. App. 708, 621 S.E.2d 811 (2005). State did not act in bad faith with regard to disclosure of witness statement. - 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 state-

ments 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). When a witness merely makes an oral statement, the obligation of O.C.G.A. § 17-16-7 to produce the statement is not triggered since there can be no ‘‘possession, custody, or control’’ thereof. Forehand v. State, 267 Ga. 254, 477 S.E.2d 560 (1996), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998); Baldwin v. State, 232 Ga. App. 335, 501 S.E.2d 548 (1998). Victim’s testimony that the defendant threatened to kill the victim’s family if the victim told about the defendant’s molestation of the victim was not required to be revealed before trial because the testimony was not a recorded statement in the possession, custody, or control of the state or prosecution. Frazier v. State, 252 Ga. App. 627, 557 S.E.2d 12 (2001). State violated neither the discovery statute nor the Brady rule when the state allegedly withheld statements by another codefendant and a fourth man as the other codefendant’s statement was elicited by a codefendant’s counsel and there was no evidence the state withheld that statement; also, as to the fourth man, the statement was oral, and was neither recorded nor committed to writing other than in notes or summaries prepared by counsel, which meant the state did not have possession or control of the statement for purposes of producing the statement. Burgess v. State, 276 Ga. 185, 576 S.E.2d 863 (2003). Copying of statements. - O.C.G.A. § 17-16-7 does not require the custodian of a document to allow copying; thus, the refusal to allow a party to photocopy a witness statement does not constitute reversible error. Taylor v. State, 272 Ga. 562, 532 S.E.2d 669 (2000). Summary of statement not required. - Summary of a witness’s state-

ment to the prosecutor was not required to be provided to defense counsel. Williams v. State, 226 Ga. App. 313, 485 S.E.2d 837 (1997). Reference to statement not required. - Even though the state had only a reference in an arrest report to an oral statement from a witness, the trial court did not err in admitting the eyewitness identification testimony over the defendant’s objection that O.C.G.A. § 17-16-7 had been violated. Thompson v. State, 240 Ga. App. 26, 521 S.E.2d 876 (1999). Defendant’s failure to object to witness’ testimony regarding matters not contained in statement. - When, in a murder trial, a witness testified to matters not contained in a summary of the witness’s statement prepared by the state, pursuant to O.C.G.A. § 17-16-7, the defendant’s failure to object rendered meritless the error alleged on appeal. Moore v. State, 279 Ga. 45, 609 S.E.2d 340 (2005). Failure to timely disclose written statement. - Trial court did not abuse the court’s discretion in excluding a witness as the defendant did not disclose the witness’s written statement to the state within ten days of trial; further, the defendant did not include the witness’s birth date on the witness list and the state was unable to investigate the witness’s criminal record, if any. Clark v. State, 271 Ga. App. 534, 610 S.E.2d 165 (2005). No duty to disclose. - Trial court did not err in denying the defendant’s motion for mistrial on the grounds of prosecutorial misconduct because the defendant failed to show that the prosecutor violated the law, prejudiced the defense, or committed any act that could be construed as misconduct; there was no evidence in the record that the victim’s mother gave the police or the prosecution a written or recorded statement that the victim had told the mother that the victim had lied about the molestation, but if the mother had given an unrecorded oral statement to that effect to the prosecutor, the prosecutor was not obligated under O.C.G.A. § 17-16-7 to disclose the oral statement to the defense, and it was patent from the opening statement that the

defendant intended to offer evidence in the defendant’s defense that the victim had lied about the molestation and that some of that evidence would come from the victim’s own mother. Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011). Knowing defendant prior to crime. - Defendant’s contention that trial counsel was ineffective for failing to move to suppress the identification by a victim prior to trial, object to the in-court identification of the defendant, or move for a mistrial because the state allegedly failed to provide notice that the victim could identify the defendant failed because the defendant knew the victim before the armed robbery, thus, there was an independent basis for the in-court identification, making futile any objection to the testimony. Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013). Exclusion of 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). Deficient counsel did not mandate finding that defendant prejudiced. - When defense counsel did not provide the prosecutor with timely notice of the defendant’s expert witness or timely provide a copy of the witness’s report, as required by O.C.G.A. §§ 17-16-4(b)(2), 17-16-7, and 17-16-8(a), and the witness was excluded,

the defendant did not receive ineffective assistance of counsel; while counsel was deficient, it was not shown that the defendant was prejudiced as another expert testified to essentially the same facts and conclusions as the excluded witness, and referred to the excluded witness’s findings, so the excluded witness’s testimony would have been cumulative, and it was not shown that the outcome of the defendant’s trial would have differed had counsel’s performance not been deficient. Mann v. State, 276 Ga. App. 720, 624 S.E.2d 208 (2005). Failure to disclose ten days prior to trial statements of co-indictee. - State did not violate O.C.G.A. § 17-16-7 by not disclosing, ten days before trial, a co-indictee’s statement that the defendant threatened the co-indictee because the statement was not known by the state until trial, when the co-indictee and a second co-indictee were placed in the same holding cell. Silverio v. State, 306 Ga. App. 438, 702 S.E.2d 717 (2010). Failure to prove tape existed of entire witness interview. - Trial court did not abuse the court’s discretion finding no reciprocal discovery violation on the part of the state as to a witness interview because there was no evidence that a recording of the entire interview ever existed as the record showed that the state provided the defendant with a recording of a brief portion of the witness’s interview and represented to the trial court that no other portion of that interview was recorded, apparently due to an equipment malfunction. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019). Cited in Hammitt v. State, 225 Ga. App. 21, 482 S.E.2d 437 (1997); Harris v. State, 256 Ga. App. 120, 567 S.E.2d 394 (2002).

RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. - 25B Am. Jur. Pleading and Practice Forms, Witnesses, § 1. Am. Jur. Proof of Facts. - Unreliability of Eyewitness Identification,

18 POF2d 361. Challenge to Eyewitness Testimony Through Expert Testimony, 35 POF3d 1.