307 Ga. 850 FINAL COPY
S19A1145. THE STATE v. BRYANT.
PETERSON, Justice.
In this murder case, the State has brought an interlocutory
appeal of the trial court’s order excluding certain evidence on the
basis that the evidence was not produced until just over a month
before trial, or had not been produced at all, in violation of the trial
court’s pre-trial scheduling order. The trial court’s order can stand
only if it properly found that the State acted with bad faith and that
the defendant was prejudiced as a result. But the trial court’s order
is ambiguous both as to whether the court actually found bad faith
on the part of the State at all and as to the basis for the trial court’s
finding of prejudice to the defendant. Accordingly, we vacate the
trial court’s ruling and remand for the trial court to clarify its ruling
on the defendant’s motion to exclude the evidence.
On May 16, 2018, a Chatham County grand jury indicted
Archie Marion Bryant and Jose Carlos Carrillo in connection with the 2017 shooting death of Shawn Rhinehart.1 The indictment
charged Bryant with malice murder, two counts of felony murder,
two counts of aggravated assault, and possession of a firearm by a
convicted felon. Bryant elected to proceed under reciprocal
discovery. A pre-trial scheduling order provided that the State must
“serve” all discovery materials on defense counsel “no later than
twenty (20) days after the Status Conference or after the Pretrial
Conference if there is no Status Conference, unless counsel enter
into a written consent agreement, filed of record, to deviate from this
schedule,” and that all supplemental discovery must be produced “at
least ten days prior to the Trial Docket Call.” The State concedes
that a “status hearing” was held at least as early as August 6, 2018.
Trial was set for April 1, 2019.
The State produced some discovery, but on July 18, 2018,
Bryant’s counsel contacted the assistant district attorney assigned
to the case with a list of items that he believed were missing. At a
1 Bryant filed a motion to sever his trial from that of Carrillo, but the
record before this Court does not reflect a ruling on that motion. 2 motion hearing held on September 4, 2018, Bryant’s counsel
indicated he was still missing discovery, explaining that he was
unable to proceed with some of his motions due to the missing
materials. The State claimed Carrillo’s counsel had “a lot of that
stuff,” but assured the trial court that the missing discovery would
be provided to Bryant’s counsel that week. Supplemental discovery
was filed by the State on September 6, 2018. Bryant claimed that
certain discovery still was missing, however.
A new assistant district attorney took over the case in the fall
of 2018. After taking over the case, she informed Bryant’s counsel
that she was not clear what discovery was missing and invited him
to come to the District Attorney’s office pursuant to the office’s open-
file policy. Eventually, the ADA told the court, she decided “just to
copy everything I had.” As a result, on February 21, 2019, the State
produced discovery materials consisting of police reports and nine
discs containing various evidence. On February 25, 2019, based on
the State’s failure to comply with the scheduling order, Bryant
moved to exclude all evidence produced for the first time on
3 February 21.2 The motion also sought the exclusion of certain
evidence, to the extent that it existed, on the basis that the State
still had not produced it.3 The trial court granted the motion to
exclude the evidence under OCGA § 17-16-6. The State filed a notice
of appeal pursuant to OCGA § 5-7-1 (a) (5).
The State argues that the trial court erred in excluding the
State’s evidence, and that the trial court’s ruling must be reversed,
or, alternatively, the case must be remanded for further
proceedings. We conclude that the trial court’s ruling is ambiguous
as to whether it made a finding of bad faith, as well as the basis for
its finding of prejudice, and so we vacate the order and remand the
case for the trial court to consider the motion further.
2 Bryant’s counsel represented to the trial court that the production included recordings of various witness interviews, an interview of Bryant, 911 calls, crime scene photographs, a “cell phone dump” of information extracted from the cell phone of Carrillo’s sister, and video from two particular locations. 3 Bryant’s motion in particular sought exclusion of any information
extracted from his cell phone, any body camera videos, autopsy x-rays or photographs, or photographs of his vehicle, to the extent any of those materials existed. He also sought exclusion of a video of a reenactment involving his vehicle apparently performed by police, claiming that although he received a copy of the video, a search warrant obtained for purposes of using the vehicle for the reenactment was never provided to him in discovery. 4 1. OCGA § 17-16-6 provides for exclusion of evidence as a
sanction for the State’s failure to comply with its discovery
obligations in a criminal case:
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 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 same provision also contains nearly identical language
providing for exclusion of evidence as a sanction for a criminal
defendant’s failure to comply with his discovery obligations. See
OCGA § 17-16-6. Exclusion of evidence pursuant to OCGA § 17-16-
6 is “a particularly harsh sanction” that should be imposed only
where there is a showing of bad faith by the party that has failed to
comply with its discovery obligation and prejudice to the other party.
Chance v. State, 291 Ga. 241, 245 (5) (728 SE2d 635) (2012) (citation
and punctuation omitted).
We review a trial court’s order excluding evidence under OCGA
5 § 17-16-6 for an abuse of discretion. See Chance, 291 Ga. at 245 (5).
We review for clear error the trial court’s factual findings under the
statute as to bad faith and prejudice. See Moceri v. State, 338 Ga.
App. 329, 339-340 (2) (788 SE2d 899) (2016); cf. Kennebrew v. State,
304 Ga. 406, 409 (819 SE2d 37) (2018) (trial court’s factual findings
in ruling on a motion to suppress are reviewed for clear error).
The State argues that the trial court erred in finding prejudice
to Bryant. In determining whether a party has been prejudiced such
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307 Ga. 850 FINAL COPY
S19A1145. THE STATE v. BRYANT.
PETERSON, Justice.
In this murder case, the State has brought an interlocutory
appeal of the trial court’s order excluding certain evidence on the
basis that the evidence was not produced until just over a month
before trial, or had not been produced at all, in violation of the trial
court’s pre-trial scheduling order. The trial court’s order can stand
only if it properly found that the State acted with bad faith and that
the defendant was prejudiced as a result. But the trial court’s order
is ambiguous both as to whether the court actually found bad faith
on the part of the State at all and as to the basis for the trial court’s
finding of prejudice to the defendant. Accordingly, we vacate the
trial court’s ruling and remand for the trial court to clarify its ruling
on the defendant’s motion to exclude the evidence.
On May 16, 2018, a Chatham County grand jury indicted
Archie Marion Bryant and Jose Carlos Carrillo in connection with the 2017 shooting death of Shawn Rhinehart.1 The indictment
charged Bryant with malice murder, two counts of felony murder,
two counts of aggravated assault, and possession of a firearm by a
convicted felon. Bryant elected to proceed under reciprocal
discovery. A pre-trial scheduling order provided that the State must
“serve” all discovery materials on defense counsel “no later than
twenty (20) days after the Status Conference or after the Pretrial
Conference if there is no Status Conference, unless counsel enter
into a written consent agreement, filed of record, to deviate from this
schedule,” and that all supplemental discovery must be produced “at
least ten days prior to the Trial Docket Call.” The State concedes
that a “status hearing” was held at least as early as August 6, 2018.
Trial was set for April 1, 2019.
The State produced some discovery, but on July 18, 2018,
Bryant’s counsel contacted the assistant district attorney assigned
to the case with a list of items that he believed were missing. At a
1 Bryant filed a motion to sever his trial from that of Carrillo, but the
record before this Court does not reflect a ruling on that motion. 2 motion hearing held on September 4, 2018, Bryant’s counsel
indicated he was still missing discovery, explaining that he was
unable to proceed with some of his motions due to the missing
materials. The State claimed Carrillo’s counsel had “a lot of that
stuff,” but assured the trial court that the missing discovery would
be provided to Bryant’s counsel that week. Supplemental discovery
was filed by the State on September 6, 2018. Bryant claimed that
certain discovery still was missing, however.
A new assistant district attorney took over the case in the fall
of 2018. After taking over the case, she informed Bryant’s counsel
that she was not clear what discovery was missing and invited him
to come to the District Attorney’s office pursuant to the office’s open-
file policy. Eventually, the ADA told the court, she decided “just to
copy everything I had.” As a result, on February 21, 2019, the State
produced discovery materials consisting of police reports and nine
discs containing various evidence. On February 25, 2019, based on
the State’s failure to comply with the scheduling order, Bryant
moved to exclude all evidence produced for the first time on
3 February 21.2 The motion also sought the exclusion of certain
evidence, to the extent that it existed, on the basis that the State
still had not produced it.3 The trial court granted the motion to
exclude the evidence under OCGA § 17-16-6. The State filed a notice
of appeal pursuant to OCGA § 5-7-1 (a) (5).
The State argues that the trial court erred in excluding the
State’s evidence, and that the trial court’s ruling must be reversed,
or, alternatively, the case must be remanded for further
proceedings. We conclude that the trial court’s ruling is ambiguous
as to whether it made a finding of bad faith, as well as the basis for
its finding of prejudice, and so we vacate the order and remand the
case for the trial court to consider the motion further.
2 Bryant’s counsel represented to the trial court that the production included recordings of various witness interviews, an interview of Bryant, 911 calls, crime scene photographs, a “cell phone dump” of information extracted from the cell phone of Carrillo’s sister, and video from two particular locations. 3 Bryant’s motion in particular sought exclusion of any information
extracted from his cell phone, any body camera videos, autopsy x-rays or photographs, or photographs of his vehicle, to the extent any of those materials existed. He also sought exclusion of a video of a reenactment involving his vehicle apparently performed by police, claiming that although he received a copy of the video, a search warrant obtained for purposes of using the vehicle for the reenactment was never provided to him in discovery. 4 1. OCGA § 17-16-6 provides for exclusion of evidence as a
sanction for the State’s failure to comply with its discovery
obligations in a criminal case:
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 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 same provision also contains nearly identical language
providing for exclusion of evidence as a sanction for a criminal
defendant’s failure to comply with his discovery obligations. See
OCGA § 17-16-6. Exclusion of evidence pursuant to OCGA § 17-16-
6 is “a particularly harsh sanction” that should be imposed only
where there is a showing of bad faith by the party that has failed to
comply with its discovery obligation and prejudice to the other party.
Chance v. State, 291 Ga. 241, 245 (5) (728 SE2d 635) (2012) (citation
and punctuation omitted).
We review a trial court’s order excluding evidence under OCGA
5 § 17-16-6 for an abuse of discretion. See Chance, 291 Ga. at 245 (5).
We review for clear error the trial court’s factual findings under the
statute as to bad faith and prejudice. See Moceri v. State, 338 Ga.
App. 329, 339-340 (2) (788 SE2d 899) (2016); cf. Kennebrew v. State,
304 Ga. 406, 409 (819 SE2d 37) (2018) (trial court’s factual findings
in ruling on a motion to suppress are reviewed for clear error).
The State argues that the trial court erred in finding prejudice
to Bryant. In determining whether a party has been prejudiced such
that exclusion of evidence under OCGA § 17-16-6 is authorized, the
trial court is to consider the extent to which the failure to comply
with the discovery process itself inflicts harm on the other party —
which may include, but, unlike other types of prejudice analysis, is
not limited to, the nature of the evidence itself and the role that the
evidence would play at trial. See Malaguti v. State, 273 Ga. 398, 402
(2) n.9 (543 SE2d 1) (2001) (“The finding of prejudice that is required
by [OCGA] § 17-16-6 . . . must arise from the failure to comply with
the discovery statute.”). Given ambiguities in the trial court’s order,
we cannot perform the appropriate review of the trial court’s finding
6 of prejudice.
The trial court found that Bryant was prejudiced by the “sheer
volume” of materials “disclosed just prior to trial.” But, although
Bryant’s counsel made representations to the trial court as to the
nature of those materials, the materials themselves do not appear
in the appellate record. Moreover, the trial court found that some of
the materials provided on February 21 “duplicated . . . materials
already provided” — without clearly identifying the nature of those
duplicates or to what extent they contributed to the “volume” of the
February 21 production, or making any suggestion that the initial
production of these materials also was “just prior to trial.” To
complicate matters further, the trial court found that “some of the
requested material still has not been provided to date” — while
merely referencing Bryant’s motion for the particulars, and without
addressing the prosecutor’s representation that she had given
Bryant’s counsel “everything [she] had,” or articulating what role, if
any, the failure to produce those materials had in the trial court’s
finding of prejudice. Clearer findings on these points are
7 particularly important because evaluation of the question of
whether a party has been prejudiced by a production of discovery
materials — or a failure to produce materials — a little more than a
month before trial necessarily depends on the nature and volume of
the materials at issue. Thus, although we cannot say at this juncture
that the trial court clearly erred in finding prejudice to Bryant, we
are unable to evaluate properly whether that finding was supported
by the record.
2. Additionally, the State argues that the trial court erred in
finding bad faith on its part. Again, we cannot perform the
appropriate review of the trial court’s order on this record, because
we cannot discern from the trial court’s contradictory order what the
court actually found regarding bad faith.
Inherent in the concept of bad faith is something more than
negligence. See Fincher v. State, 276 Ga. 480, 483 (5) (578 SE2d 102)
(2003) (“At most, the record shows negligence in record keeping to
be the cause of the [State’s] failure to preserve the evidence. That
being so, the trial court did not err in ruling that bad faith had not
8 been shown.”); see also Anthem Cos., Inc. v. Wills, 305 Ga. 313, 316
(2) (823 SE2d 781) (2019) (contrasting bad faith generally required
for most severe sanctions for spoliation with mere negligence that
normally should result in lesser sanctions, if any at all); Greenway
v. Hamilton, 280 Ga. 652, 655 (3) (631 SE2d 689) (2006) (noting in
attorney fee context that “[b]ad faith is not simply bad judgment or
negligence, but . . . (a) breach of known duty through some motive of
interest or ill will” (citation and punctuation omitted)). Therefore,
something more than negligence is required for exclusion of evidence
under OCGA § 17-16-6. See Rosas v. State, 276 Ga. App. 513, 518-
519 (2) (624 SE2d 142) (2005) (trial court did not err in refusing to
exclude crime lab report, where State furnished a copy of report to
appellant’s co-defendant but mistakenly failed to furnish copy to
appellant, as this did not constitute evidence of bad faith); Williams
v. State, 256 Ga. App. 249, 250-251 (1) (568 SE2d 132) (2002)
(finding error in trial court’s exclusion of evidence where trial court
made no finding of bad faith and made clear that it was excluding
expert’s report based solely on defendant’s failure to timely provide
9 it to the State, and the evidence showed that defendant timely
provided expert’s name and address to the State, indicating defense
was not “attempting to hide the information from the State”).
Here, the trial court said that it found “the result of bad faith
exercised in failing to provide discovery.” On the other hand, the
trial court also stated in a footnote that it did “not find any ill-will
nor deliberate action perpetrated by any particular state
representative or the State per se, but persistent failure to comply
with an ordered process without justifiable explanation.” These two
findings appear contradictory; the latter statement appears to
reflect a finding of mere negligence on the part of the State. If the
“persistent failure to comply with an ordered process without
justifiable explanation” is deliberate, that failure to comply may
constitute bad faith. But if the failure to comply is due merely to a
lack of organization and proper communication, such as that
resulting from staff turnover, that failure in some circumstances
may amount to mere negligence. And, as explained above, mere
negligence does not constitute the bad faith required to impose a
10 sanction of exclusion.
In short, the trial court should clarify its factual findings on
both prejudice to Bryant and bad faith (or lack thereof) on the part
of the State before we review its order of exclusion. We remand for
the trial court to clarify its findings.
Judgment vacated and case remanded. All the Justices concur.
DECIDED FEBRUARY 10, 2020. Murder. Chatham Superior Court. Before Judge Morse. Meg E. Heap, District Attorney, Abigail B. Long, Assistant
11 District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. James S. Byrne, for appellee.