White v. State , 181 Ga. App. 170 ( 1986 )

Beasley, Judge.

In a bench trial, appellant was convicted of driving a moving vehicle while his blood contained more than .12 percent by weight of alcohol. OCGA § 40-6-391 (a) (4). On appeal he sets forth two related points: neither his intoximeter test results nor the testimony of the intoximeter operator should have been admitted into evidence, because the state failed to furnish appellant with a copy of the blood alcohol test results despite appellant’s timely written request pursuant to OCGA § 17-7-211.

It was not until the state called as a witness the intoximeter operator that appellant realized that the test result he had received from the state was not the one related to the charge he was then facing. The state maintained it had sent appellant a copy of the proper test result pursuant to appellant’s request, but the trial court acknowledged that appellant had not been provided a copy of the test. The trial court, however, did not view the state’s oversight as a bar to the admission into evidence of the proper test result and the intoximeter operator’s testimony. Instead, it afforded appellant’s counsel an opportunity to interview the intoximeter operator/witness prior to his appearance as a witness.

“[OCGA § 17-7-211] allows, for the first time, the pre-trial discovery in criminal cases of scientific reports, whether inculpatory or exculpatory, which the state intends to use in prosecution of the casein-chief or in rebuttal.” State v. Meminger, 249 Ga. 561, 562 (1) (292 SE2d 681) (1982). “The defendant is entitled to have the document at least ten days prior to trial. If ten days are not available, the defendant is entitled to the document within a reasonable time and may be entitled to a continuance or recess as the trial judge shall determine. Only where the prosecuting attorney fails altogether to furnish the document does the exclusionary rule apply.” Law v. State, 251 Ga. 525, 528 (307 SE2d 904) (1983).

Here it appears the court found that, although the state had sent a copy of test results and other documents requested by defendant’s counsel to him, two copies of a test from an April 26 arrest were sent and a copy of the test from the March 16 arrest was not sent. Defendant was on trial in this case on the March 16 incident, not on the April 26 incident. There was no finding, and no evidence, that the mistake was other than inadvertent.

Defendant’s counsel did not notice in advance of trial that the test report was for a day other than the day in question, and that the operator and arresting officer listed were different from the ones reported on his traffic citation as having arrested him and administered the test. He obviously did not rely on the wrong report in preparing his defense, else he would have noticed these clearly appearing discrepancies. He admitted that at least one of the copies was “perfectly legible, you can read it”; after receipt of the documents from the state, he never complained of illegibility or of their being documents other than the ones sought.

The purpose of requiring the state to furnish to defendant the scientific evidence in advance of triad is “in order to prepare.” Law v. State, supra at 527. Here it is apparent that provision of the wrong report had no effect on defendant’s trial preparation. He did not interview the wrong operator or prepare to challenge the operation of the wrong intoximeter. Nor did he articulate that he had prepared to defend against a .21 reading rather than against a .18 reading, or that it would make a difference in his defense. The result of the March 16 test for the offense on trial was .18; the result of the April 25 test, of which defendant was provided advance copy, was .21.

The court offered to allow defendant to interview the witness who administered the test on trial and the defendant did so, stating that it would take only a few minutes and indicating after the interview that the time was sufficient for him and there would be no matter of surprise at trial.

With these facts in mind, we conclude that the court did not err in refusing to apply the sanction of exclusion. The state of affairs differ materially in Taylor v. State, 172 Ga. App. 408, 411 (3) (323 SE2d 212) (1984), and Tanner v. State, 160 Ga. App. 266 (287 SE2d 268) (1981). The severe response of exclusion altogether was called for in those cases because the state did not furnish anything. As said in Law, supra at 528, “The only circumstance making the exclusionary rule applicable is the failure of the prosecuting attorney to afford discovery at all . . . Only if no copy at all had been furnished by the district attorney would the exclusionary rule have applied.” It was repeated in Taylor, supra at 410: “The only circumstance making the exclusionary rule applicable is the failure of the prosecuting attorney to afford discovery at all. OCGA § 17-7-211 (c).”

Where a scientific report is furnished on demand and timely, albeit the wrong report, and there is no evidence whatsoever that the error was other than an innocent mistake, and no harm results to defendant, the rule of exclusion should not automatically apply. The circumstances surrounding the provision of discovery, on the one hand, and the harm to defendant arising from the deficient provision, on the other hand, should be weighed by the trial judge in assessing whether the sanction of exclusion should be imposed. The trial court would of course be bound to apply the appellate interpretations which govern.

Even if error had been demonstrated, where no harm is claimed, and none appears, the judgment is not reversible. Green v. State, 177 Ga. App. 179, 180 (1) (338 SE2d 761) (1985).

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong, P. J., Carley, Sognier, and Pope, JJ., concur. Benham, J., dissents.