MCFADDEN, P. J., BRANCH and BETHEL, JJ.
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on by the lower court is no longer valid.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
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
Wedel v. State, 328 Ga.App. 28, 28 (761 S.E.2d 454)
(2014) (citations omitted).
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.
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 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.
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.
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.
granting Orr a new trial, the lower court relied on
Mallory v. State, 261 Ga. 625 (409 S.E.2d 839)
(1991), overruled on other grounds, Clark v. State,
271 Ga. 6, 9-10 (515 S.E.2d 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. The Mallory Court concluded,
however, "that in criminal cases, a 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).
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 S.E.2d 436) (2012). See also Reynolds
v. State, 285 Ga. 70, 71 (673 S.E.2d 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 S.E.2d 136) (2011). And in Jarrett
v. State, 265 Ga. 28 (453 S.E.2d 461) (1995), the
Supreme Court extended Mallory and held ...