Hammitt v. State , 225 Ga. App. 21 ( 1997 )

Beasley, Judge.

Defendants Hammitt and Crowder were tried jointly and convicted by a jury. They were each sentenced pursuant to merger of two counts of robbery with two counts of armed robbery for the same offenses. OCGA §§ 16-8-40; 16-8-41. The robberies were the joint enterprise of defendants, who took clothing from two youths at knife-point in an alley late at night.

The appeals are consolidated for review and decision because the issues are the same in that Crowder has adopted the enumerations of error and brief of Hammitt. The first enumeration is that the court erred in refusing to grant a mistrial, and the second enumeration raises the same underlying ground in claiming error in the denial of the motions for new trial.

Appellants argue that the State violated the discovery rule contained in OCGA § 17-16-7, with the result that defendants were prejudiced at trial by not having the victim-witnesses’ statements to the police in advance of the trial. This, they say, hampered their cross-examination and ability to impeach the witnesses’ testimony and was exacerbated because defendants did not see the statements until after the witnesses testified.

Prior to arraignment, defendants invoked the criminal discovery rule contained in OCGA § 17-16-7 by filing formal requests for “any statement of any witness against defendant.” The statute requires the opposing party, in this case the prosecution, to produce statements of any witness which the party intends to call as a witness at trial.

The two young victims in this case testified for the State and were cross-examined on behalf of both defendants. Later, when a police detective testified, he indicated that recorded statements had been given by both victims in the course of his investigation. Defendants objected and moved for mistrial on the ground that the State had not produced the statements, only summaries. The court ordered a recess so counsel could read the transcripts of the recordings. After this was accomplished, defendants still insisted on mistrial. They explained to the court that the statements conflicted with what the witnesses had testified at trial, particularly with regard to whether a weapon was present and used and to the sequence of events.

The court offered to have the two witnesses returned for further cross-examination, but defendants rejected this proposal because of the possibility the two witnesses had talked together about their testimony after they were excused. Counsel admitted, however, that the failure to provide the verbatim statements would be rectified by a new trial because defendants now had the statements.

The State followed an open file policy in this case before trial but the prosecuting attorney’s file did not contain the tape or the transcripts of it; the police had them. The interview summaries provided to defendants noted they were based on taped interviews. The court found that the State had failed to comply with the discovery statutes, in particular OCGA § 17-16-4 regarding audio tapes, by not obtaining the full statements from the police and producing them for the defendants. It then relied on the authority given in OCGA § 17-16-6 to fashion a remedy.

After recounting that there had been substantial cross-examination of one of the victim-witnesses about inconsistencies, that both counsel had opportunity to review the transcripts during the trial recess, and that the court was requiring the State to summon the two witnesses for further cross-examination if either defendant wished it, the court denied a mistrial.

Thereafter, the audio tapes of both interviews were played for the jury, and neither victim was recalled by either defendant for further cross-examination.

OCGA § 17-16-6 provides in part: “If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this [discovery] article, the 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.” The legislature does not impose a rigid or exclusive remedy for defendant nor a fatal consequence to the State on failure to comply with the discovery mandates. Instead, it leaves for the trial court the authority to use its judgment to assure a fair trial.

Considering all the circumstances here, and there appearing no prejudice to either defendant by the State’s failure to produce before trial the transcripts or alternatively the tapes pursuant to OCGA §§ 17-16-4 (a) (3) and 17-16-7, we hold that the trial court did not abuse its discretion in refusing to grant a mistrial or a new trial. See Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996).

Judgment affirmed.

Blackburn, J., concurs specially. Birdsong, P. J., concurs in the judgment only.