                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                             BRANCH and BETHEL, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                       March 8, 2018




In the Court of Appeals of Georgia
 A17A2096. THE STATE v. ORR.

       BRANCH, Judge.

       Following a jury trial in Floyd County Superior Court, Otto Orr was convicted

of a single count each of family violence battery and cruelty to children in the third

degree. Orr filed a motion for a new trial asserting, inter alia, that the trial court erred

when it failed to declare a mistrial after the State impermissibly commented on Orr’s

pre-arrest silence. After a hearing, the trial court granted Orr’s motion. The State now

appeals from that order, arguing that in light of Georgia’s new Evidence Code, the

law relied on by the lower court is no longer valid. We find no error and affirm.

       On appeal from the grant or denial of a motion for a new trial, we employ two

different standards of review:
      We review de novo the trial court’s decision as to any questions of law,
      while applying the clearly erroneous standard of review to any factual
      findings made by that court. . . . Thus, we will uphold the trial court’s
      factual findings if there is any evidence to support them, and we defer
      to the trial court’s credibility determinations.


Wedel v. State, 328 Ga. App. 28, 28 (761 SE2d 454) (2014) (citations omitted).

      The facts relevant to this appeal are undisputed and show that the charges

against Orr arose out of a physical altercation between Orr and his wife, which took

place in the presence of their infant child. At trial, Orr claimed he acted in self-

defense, testifying that on the night in question, he was talking on the phone with his

sister, but his wife assumed he was on the phone with “another woman.” Acting on

this assumption, his wife hit Orr on the head with a glass ashtray, splitting his skin

and causing significant bleeding. Orr responded by striking his wife with his closed

fist, but he claimed that he only struck his wife one time. On cross-examination, Orr

acknowledged that he had never contacted police to report this alleged assault by his

wife nor had he told anyone in law enforcement prior to trial about his wife’s role in

the couple’s altercation.

      Orr also presented the testimony of his sister and his cousin. Orr’s sister stated

that she was talking on the telephone with Orr on the night in question when she

                                          2
suddenly heard screaming and yelling. When Orr returned to the conversation, he

reported that his wife had hit him in the head with an ashtray. When the sister saw Orr

later that night, she observed that he had a gash on his head. On cross-examination,

the sister acknowledged that Orr did not report the incident to the police, although she

encouraged him to do so.

      Orr’s cousin offered similar testimony, stating that she had seen Orr at his

mother’s home late on the night in question and saw that he had a “goose egg” on his

head where the skin was split and bleeding. In response to questions from the

prosecutor on cross-examination, the cousin acknowledged that Orr did not report his

wife’s conduct to police or take a picture of his wound, explaining that Orr did not

want his wife to get in trouble.

      During her closing argument, the prosecutor stated:

      [Orr] wants to now claim self-defense. I find that particularly
      convenient. He never told the story [of his wife’s attack on him] to the
      police, never once said: . . . I’m the victim here. She came at me with an
      ashtray. I submit to you this is something [Orr] made up because he has
      an interest in the outcome of this case.




                                           3
      Immediately following these statements, defense counsel moved for a mistrial

on the ground that the State’s argument constituted an impermissible comment on

Orr’s right to remain silent. The trial court denied the motion, and the jury found Orr

guilty on both counts of the indictment. After entering judgment on the jury’s verdict,

however, the trial court granted Orr’s motion for a new trial, concluding that it had

erred in denying the motion for a mistrial. This appeal followed.

      In granting Orr a new trial, the lower court relied on Mallory v. State, 261 Ga.

625 (409 SE2d 839) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6,

9-10 (515 SE2d 155) (1999), and its progeny. Mallory held that in criminal cases, the

State could not comment upon a defendant’s silence or failure to come forward “even

where the defendant has not received Miranda warnings and where he takes the stand

in his own defense.” 261 Ga. at 630 (5). In reaching this conclusion, the Court

recognized that evidence of a defendant’s silence was not prohibited by federal

constitutional law. Id. at 629-630 (5). The Court also acknowledged that a party’s

silence normally would constitute an admission against interest under former OCGA

§ 24-3-36.1 The Mallory Court concluded, however, “that in criminal cases, a


      1
        Former OCGA § 24-3-36 defined “admission” to include “[a]cquiescence or
silence, when the circumstances require an answer, a denial, or other conduct . . . .”

                                          4
comment upon a defendant’s silence or failure to come forward is far more prejudicial

than probative. Accordingly, from the date of publication of this opinion . . . such a

comment will not be allowed.” 261 Ga. at 630 (5).

      Relying on Mallory and its progeny, the Georgia Supreme Court has explained

that there is “a bright-line rule in Georgia that the State may not comment on either

a defendant’s silence prior to arrest or failure to come forward voluntarily.” Sanders

v. State, 290 Ga. 637, 640 (4) (723 SE2d 436) (2012). See also Reynolds v. State, 285

Ga. 70, 71 (673 SE2d 854) (2009) (the State is strictly prohibited from commenting

upon a defendant’s silence because “in the situation of a criminal defendant, this

failure to speak or act will most often be judged as evidence of the admission of

criminal responsibility”); Collins v. State, 289 Ga. 666, 667-668 (1) (715 SE2d 136)

(2011). And in Jarrett v. State, 265 Ga. 28 (453 SE2d 461) (1995), the Supreme

Court extended Mallory and held that “a witness in a criminal trial may not testify as

to a declarant’s statements based on the acquiescence or silence of the accused.” 265

Ga. at 29 (1) (emphasis in original).

      The Georgia Supreme Court subsequently held, however, that not every

violation of the Mallory rule would entitle a defendant to a new trial. Specifically, no

new trial is required if the error was “harmless beyond a reasonable doubt.” Allen v.

                                           5
State, 272 Ga. 513, 515 (5) (530 SE2d 186) (2000). “The determination of harmless

error must be made on a case-by-case basis, taking into consideration the facts, the

trial context of the error, and the prejudice created thereby as juxtaposed against the

strength of the evidence of defendant’s guilt.” Id. at 515-516 (5) (citation and

punctuation omitted). As this Court has explained:

      When determining whether the State’s unchallenged comments or
      questions about a defendant’s right to remain silent prejudice that
      defendant, we consider a number of factors. These include whether the
      error was an isolated incident, or instead consisted of several questions
      or comments, and whether the error was inadvertent, rather than a
      deliberate attempt by the State to use the defendant’s silence against
      him. We also examine the ‘trial context’ of the error, and take a
      particularly dim view of the State’s conduct in arguing during closing
      that evidence of the defendant’s silence should be viewed as evidence
      of his guilt. Finally, we analyze whether, in light of the evidence
      presented, there was a possibility that the State’s improper comments
      contributed to the guilty verdict. In other words, we examine whether
      the evidence of the defendant’s guilt was overwhelming or whether the
      evidence was conflicting.


Scott v. State, 305 Ga. App. 710, 717 (2) (a) (700 SE2d 694) (2010) (citations

omitted).




                                          6
      Here, the trial court found that it had erred in denying Orr’s motion for a

mistrial without determining whether the prosecutor’s closing argument and the

State’s elicitation of testimony relating to Orr’s failure to come forward were harmful

to Orr. After applying that analysis, the lower court concluded that the State’s conduct

was “not harmless beyond a reasonable doubt” because “a reasonable possibility

exists that [the prosecutor’s] comments influenced the jury’s decision.” The court

therefore found that Orr was entitled to a new trial.

      The State challenges this ruling, pointing out that since the enactment of

Georgia’s new Evidence Code, the Supreme Court of Georgia has called into question

the continuing validity of the bright-line rule established in Mallory. In doing so, the

Supreme Court has indicated that a defendant’s pre-arrest silence or failure to come

forward may be admissible in some cases. Explaining “that Mallory was decided not

on constitutional grounds but rather based on former OCGA § 24-3-36,” the Supreme

Court has repeatedly stated that “[w]e express no opinion about the continuing

validity of Mallory under the new Evidence Code.” State v. Sims, 296 Ga. 465, 471

(3) (769 SE2d 62) (2015). See also Kennebrew v. State, 299 Ga. 864, 872, n. 4 (792

SE2d 695) (2016); Seabolt v. Norris, 298 Ga. 583, 587 (3), n. 3 (783 SE2d 913)

(2016); Wilson v. State, 295 Ga. 84, 88 (3), n. 6 (757 SE2d 825) (2014); Romer v.

                                           7
State, 293 Ga. 339, 343 (2) n. 4 (745 SE2d 637) (2013); Yancey v. State, 292 Ga. 812,

817 (2), n. 9 (740 SE2d 628) (2013). Additionally, in Simmons v. State, 299 Ga. 370

(788 SE2d 494) (2016), the Supreme Court of Georgia held that a violation of the

Mallory rule could not be considered plain error because it was no longer clear that

Mallory constituted valid law. Id. at 374 (2) (“[A]n error is plain if it is clear or

obvious under current law. An error cannot be plain for there is no controlling

authority on point.”) (citation and punctuation omitted).

      Relying on this line of cases, the State argues that the trial court was no longer

bound by Mallory. The State further contends that under OCGA § 24-8-8012 and

relevant federal precedent, evidence of a defendant’s pre-arrest silence may be

admissible. See Jenkins, 447 U. S. at 240. Thus, the State asserts that in deciding the

motion for a new trial, the lower court should have analyzed whether the evidence at




      2
        OCGA § 24-8-801 defines a statement to include “[n]onverbal conduct of a
person, if it is intended by the person as an assertion.” OCGA § 24-8-801 (a) (2). It
further provides that an admission by a party-opponent includes: “(A) The party’s
own statement, in either an individual or representative capacity; [and] (B) A
statement of which the party has manifested an adoption or belief in its truth[.]”
OCGA § 24-8-801 (d) (2).

                                          8
issue was admissible under OCGA § 24-4-4033 as being more probative than

prejudicial.

      What the State’s argument fails to acknowledge, however, is that although

Mallory has been called into question, it has never been overruled. And in the

absence of a decision from our Supreme Court expressly overruling Mallory, this

Court, like the trial court, remains bound by its holding. See Chin Pak v. Ga. Dept.

of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731

SE2d 384) (2012) (“this Court has no authority to overrule or modify a decision made

by the Supreme Court of Georgia, as ‘the decisions of the Supreme Court shall bind

all other courts as precedents’”), quoting Ga. Const. of 1983, Art. VI, Sec. VI, Par.

VI. See also Cargile v. State, 194 Ga. 20, 22 (1) (20 SE2d 416) (1942) (the

constitutional provision that decisions of Supreme Court shall bind the Court of

Appeals as precedents is applicable in all cases). Accordingly, the trial court did not

err when it applied Mallory and its progeny to decide Orr’s motion for a new trial.4

      3
        OCGA § 24-4-403 provides: “Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.”
      4
        The State has not challenged the trial court’s factual conclusions that the
prosecution violated the bright-line rule established by Mallory and that Orr suffered
prejudice as a result.

                                          9
See Tran v. State, 340 Ga. App. 546, 553 (2) (c), n. 7 (798 SE2d 71) (2017) (“we

continue to follow the precedent established by the Supreme Court of Georgia” on the

admissibility of a defendant’s pre-arrest silence or failure to come forward). We

therefore affirm the trial court’s order.

      Judgment affirmed. McFadden, P. J. concurs, and Bethel, J., concurs

specially.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS

RULE 33.2 (a).




                                            10
 A17A2096. THE STATE v. ORR.



      BETHEL, Judge, concurring specially.

      I agree with the majority that the Mallory1 rule applies and controls in this case.

I write separately to emphasize my belief that Mallory is based neither on

constitutional nor statutory interpretation. Rather, I read the rule announced in

Mallory to be a court made law.2 If I agreed with the Supreme Court that Mallory was




      1
      Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991), overruled on other
grounds, Clark v. State, 271 Ga. 6, 9-10 (515 SE2d 155) (1999).
      2
       In Mallory, after finding no U. S. constitutional prohibition implicated by the
facts before it, our Supreme Court noted that “each jurisdiction remains free to
formulate” it own rules pursuant to Jenkins v. Anderson, 447 U. S. 231, 240 (100 SCt
2124) (1980). The Supreme Court then referenced former OCGA § 24-3-36 (a rule
of inclusion) before announcing a rule of exclusion that involved no analysis or
explication related to the statute. Of course, the rule announced in Mallory can find
support in our state constitution (e.g. Ga. Const. of 1983, Art. I, Sec I, Par. XVI), and
in other former and current provisions of our evidence code. I am not persuaded,
however, that the rule is dependent on former OCGA § 24-3-36.
“based on former OCGA § 24-3-36,”3 I would find it necessary to evaluate whether

the adoption of the new evidence code abrogated the holding therein. Given the

dramatic differences in the language of the new code and the fact that the new

language tracks so closely with federal law, a persuasive argument could be made for

abrogation by legislative act. Since, however, the Mallory rule was not a product of

an interpretation of former OCGA § 24-3-36, no such analysis is required or

appropriate and we remain bound by it until further direction from the Supreme

Court.




         3
             State v. Sims, 296 Ga. 465, 471 (3) (769 SE2d 62) (2015).

                                              2
