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State v. Orr

Supreme Court of Georgia

May 6, 2019


          Nahmias, Presiding Justice.

         We granted a writ of certiorari in this case to determine whether Georgia's new Evidence Code abrogates the categorical rule this Court announced in Division 5 of Mallory v. State, 261 Ga. 625 (409 S.E.2d 839) (1991), which excludes evidence of a criminal defendant's pre-arrest "silence or failure to come forward" to law enforcement on the ground that such evidence is always "far more prejudicial than probative." Id. at 630.[1] As we explain below, the new Evidence Code, which took effect on January 1, 2013, precludes courts from promulgating or perpetuating judge-made exclusionary rules of evidence like the one we created in Mallory, and instead generally requires trial courts to determine the admissibility of evidence based on the facts of the specific case and the rules set forth in the Evidence Code, including OCGA § 24-4-403. Accordingly, we vacate the judgment of the Court of Appeals and remand the case with direction.

         1. The evidence presented at appellee Otto Orr's trial in 2015 showed the following. Orr met Candice Nicole in June 2013, and in February 2014, the couple married and Candice became pregnant. According to Candice, after they had been together for a few months, Orr started to drink heavily and would hit her when they argued. Candice did not call the police or leave Orr because she thought things would change after the baby was born. In October 2014, the couple had a baby boy.

         Candice testified that on January 26, 2015, before Orr left for work, he asked her to pick up some baby formula. When he returned home that evening and learned that she did not get the formula, they began to argue. Orr told Candice to leave the living room, but she refused. Orr then became violent, striking Candice in the face several times with a closed fist in front of their son. Candice then went into the bedroom, but Orr followed her and started to hit her again. She tried to fight back, but he pushed her to the floor and kicked her in the stomach. Orr continued to kick Candice until she asked if he was going to kill her. Orr then stopped, called his friends to pick him up and take him to his mother's house, and left. Candice and the baby went to stay with her friend, who urged her to call 911.

         The responding police officer testified that when he arrived at the friend's house, Candice's face was swollen and looked like she had been punched "a considerable amount of times." Candice returned home to retrieve her phone and clothes before going back to her friend's house, where she and the baby spent the night. Her friend did not testify.

         Orr was arrested on the morning of January 28, 2015, and he was later formally accused of family violence battery and cruelty to children in the third degree. At his trial in September, Orr testified as follows. Candice was addicted to drugs and would attack him when she got angry; he would hit her only to defend himself from her attacks, and he had similarly acted in self-defense on the night of January 26. He was on the phone with his sister when Candice struck him over the eye with a glass ashtray, splitting his skin and causing significant bleeding, because Candice mistakenly believed that he was talking to a woman with whom he was having an affair. He then responded by hitting Candice one time with a closed fist.

         To rebut this defense, the prosecutor repeatedly asked witnesses about Orr's failure to call the police to report the abuse and injuries allegedly inflicted on him by Candice. First, the prosecutor asked the police officer who responded to Candice's 911 call whether he had ever responded to a domestic dispute call where Orr was the complainant. The officer said that January 26 was his "first time dealing with Mrs. Orr." The prosecutor then asked, "So to your knowledge, the defendant . . . did not call 911?" The officer answered, "To my knowledge, yes."

         To support his defense, Orr called his sister and his cousin. His sister testified that she was talking to him on the phone on the evening in question when she suddenly heard screaming and yelling; when Orr returned to the conversation, he said that Candice had hit him in the head with an ashtray, and when his sister saw him later that night at his mother's house, he had a gash on his head. She testified that she could hear Orr yelling "this is my sister" in the background of the phone call. In response to the prosecutor's cross-examination questions, Orr's sister acknowledged that Orr did not report the incident to the police, and that although she had wanted to contact the police herself, she did not. Orr's cousin testified that she saw Orr at his mother's house the day after the incident with a "goose egg" on his forehead that was still bloody. On cross-examination, the prosecutor again asked if Orr had ever reported his injury to the police, and the cousin answered no, explaining that Orr "did not want the police called on his wife."

         Finally, Orr testified as the last defense witness. After pointing out a scar on his forehead that he said came from the ashtray attack, Orr said that when he returned to his house from his mother's, Candice "told me about the police - - that she called the police or whatever, but I didn't know they was even looking for me or anything." Orr added that when the arresting officer arrived the following morning: "He said: Are you Otto Orr? I said: Yes. He said: Well, you're going to jail for simple battery. . . . And I gave [Candice] my credit card, . . . and the next morning I got bond . . . ."

         On cross-examination, the prosecutor asked Orr whether he called the police after the January 26 incident. Orr replied that he never called the police because he was afraid that if he did, the police or the Division of Family and Children Services would always be involved in his family's life. The prosecutor also asked Orr whether he ever told his ashtray story to "anyone in law enforcement." Orr answered: "I - - yeah, that morning when they took me to jail. When they took me to jail, I told them, I said: What am I supposed to do about this - - about this bruise up against my head?" There was no testimony from the arresting officer and no evidence that the police interviewed Orr after his arrest. Orr's counsel did not object to any of these questions by the prosecutor.

         During the State's closing argument, the prosecutor capitalized on the testimony she had elicited about Orr's silence:

That night the defendant - - he wants to now claim self-defense. I find that particularly convenient. He never told the story to the police, never once said: ["]Hey, wait, wait, wait, wait. I'm the victim here. She came at me with an ashtray.["] I submit to you that this is something made up because he has an interest in the outcome of this case.

         Orr's counsel objected and moved for mistrial on the ground that the prosecutor improperly commented on Orr's failure to tell the police his story, but the trial court denied the motion without explanation. The jury rejected Orr's claim of self-defense and found him guilty of both charges. The trial court sentenced him as a recidivist to serve five years in prison on the battery count and a concurrent 12 months for child cruelty.

         Orr's trial counsel filed a motion for new trial in November 2015. With new counsel, Orr amended the motion in March 2017, asserting that the trial court erred under Mallory by not granting the mistrial motion based on the State's improper comments on his pre-arrest silence and failure to come forward to the police. In an order entered on May 11, 2017, the trial court granted Orr's amended motion. The court noted that this Court had not yet determined whether the exclusionary rule announced in Mallory was still valid under the new Evidence Code, but in a decision issued after Orr's trial, the Court of Appeals had held that it would continue to apply Mallory until this Court held otherwise. See Tran v. State, 340 Ga.App. 546, 553 n.7 (798 S.E.2d 71) (2017). The trial court therefore applied Mallory, held that the prosecutor's closing argument was a violation of Mallory's rule, and concluded that the violation was not inadvertent (as shown by the prosecutor's questioning of witnesses about Orr's failure to come forward) and was not harmless. Accordingly, the court granted Orr a new trial.

         The State appealed, but the Court of Appeals affirmed. See Orr v. State, 345 Ga.App. 74, 79 (812 S.E.2d 137) (2018). The majority held that because this Court had not yet overruled Mallory, it was bound to apply Mallory's rule to this case. See id. at 78-79. The majority noted that the State had not challenged the trial court's conclusions that, if Mallory applies to this case, the prosecutor violated its rule and Orr suffered prejudice as a result. See id. at 79 n.4. Then-Judge Bethel concurred specially, arguing that Mallory's rule was not based on former OCGA § 24-3-36, but rather was "court made law" based "neither on constitutional nor statutory interpretation." Orr, 345 Ga.App. at 79. Judge Bethel agreed, however, that the Mallory rule remained binding "until further direction from the Supreme Court." Id. at 80.

         We granted the State's petition for certiorari to provide that direction.

         2. To understand where Mallory's categorical exclusionary rule is headed - oblivion - it is important to understand where the rule came from. Mallory was a murder case in which this Court reversed Vincent Mallory's convictions based on the improper admission of hearsay evidence, and then went on to address several issues that could arise again on retrial. See 261 Ga. at 628. One of those issues was Mallory's contention that his "right to remain silent" was violated when the trial court allowed the State to admit into evidence a portion of the statement he made to police more than a month after the murder occurred; the police had asked Mallory why he had not come forward to explain his innocence when he knew he was under investigation, and he answered that he was waiting for the police to come to him. Id. at 629. Mallory had testified at trial. See id. at 626-627.

         We first explained that the admissibility of this sort of evidence is not governed by the United States Supreme Court's decisions interpreting the federal Constitution. In the 1960s and 1970s, that Court constitutionalized rules prohibiting prosecutorial comment on a defendant's silence in various post-arrest contexts.[2] In the decade before Mallory, however, the Supreme Court clarified that at least when the government did not induce the defendant to remain silent by advising him of his right to remain silent as required by Miranda v. Arizona, 384 U.S. 436, 467-468 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), and when the defendant then waives his privilege against compelled self-incrimination by testifying at trial, "the State may comment at trial upon the fact that he did not come forward voluntarily" without violating the federal Constitution. Mallory, 261 Ga. at 629 (citing Jenkins v. Anderson, 447 U.S. 231 (100 S.Ct. 2124, 65 L.Ed.2d 86) (1980), and Fletcher v. Weir, 455 U.S. 603 (102 S.Ct. 1309, 71 L.Ed.2d 490) (1982)).

         Our Court then recognized that by not erecting a federal constitutional barrier to admissibility of this sort of evidence, the United States Supreme Court had left states "'free to formulate evidentiary rules defining the situation in which silence is viewed as more probative than prejudicial.'" Id. at 630 (quoting Jenkins, 447 U.S. at 240). See also Fletcher, 455 U.S. at 607 ("A State is entitled, in such [pre-Miranda-warnings] situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony."). We noted one provision of our State's then-existing Evidence Code under which evidence of a defendant's pre-arrest silence could be admitted, explaining that "OCGA ...

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