State v. Otto Orr , 831 S.E.2d 512 ( 2019 )

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
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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);
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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.
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