                                FIFTH DIVISION
                               McFADDEN, C. J.,
                            GOBEIL and COOMER, 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


                                                                       July 23, 2019




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

      GOBEIL, Judge.

      Following his conviction for family violence battery and cruelty to children in

the third degree, Otto 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. The trial court granted Orr’s motion, finding

that the exclusionary rule articulated by the Supreme Court of Georgia in Mallory v.

State,1 261 Ga. 625 (409 SE2d 839) (1991), overruled on other grounds, Clark v.

State, 271 Ga. 6, 9-10 (515 SE2d 155) (1999), required that Orr receive a new trial.

The State appealed, arguing that in light of Georgia’s new Evidence Code, Mallory

      1
       Under that rule, the State was strictly prohibited from commenting on either
a defendant’s pre-arrest silence or the defendant’s failure to come forward to police
voluntarily. Mallory, 261 Ga. at 630 (5).
and its progeny were no longer good law. We disagreed, noting that in the six years

since the new Evidence Code went into effect, our Supreme Court expressly reserved,

on at least seven separate occasions, the question of whether Mallory remained valid

under the new statutory scheme. State v. Orr, 345 Ga. App. 74, 77-78 (812 SE2d 137)

(2018) (Orr I) (citing cases). Accordingly, we affirmed the grant of Orr’s new trial

motion. Id. at 79.

       The Supreme Court of Georgia granted the State’s petition for certiorari and

subsequently held that the exclusionary rule set forth in Mallory “was abrogated by

the new Evidence Code.” State v. Orr, ___ Ga. ___, ___ (3) (827 SE2d 892) (2019)

(Orr II). The Supreme Court therefore vacated our opinion in Orr I and remanded the

case to this Court for further proceedings consistent with Orr II. Accordingly, we

now vacate our earlier decision and adopt the opinion of the Supreme Court as our

own.

       In accordance with the Supreme Court’s direction, we vacate the order of the

trial court and remand the case for further proceedings consistent with this opinion

and the opinion of our Supreme Court in Orr II. Specifically, the trial court should

determine: (1) whether evidence of Orr’s failure to come forward in this case was

admissible under Georgia’s current rules of evidence, Orr II, ___ Ga. at ___ (4) (a);

                                         2
and (2) even if otherwise properly admissible, that evidence should have been

excluded “under the federal or state constitution, a statute, . . . one of the specific

exclusionary rules in the new Evidence Code . . . [or] under the balancing test set

forth in Rule 403.” Id. at ___ (4) (b). The trial court should also consider the

additional grounds for a new trial set forth in Orr’s original and amended motions

seeking the same. Id. at ___ (4) (c).

      Judgment vacated and case remanded with direction. McFadden, P. J., and

Coomer, J., concur.




                                          3
