THE STATE v. ORR.
S18G0994
Supreme Court of Georgia
May 6, 2019
305 Ga. 729
NAHMIAS, Presiding Justice.
FINAL COPY
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 SE2d 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
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
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
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
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:
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
The State appealed, but the Court of Appeals affirmed. See Orr v. State, 345 Ga. App. 74, 79 (812 SE2d 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
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.
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
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.‘” Mallory, 261 Ga. 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
The Court then announced Mallory‘s categorical exclusionary rule in the following passage, which we quote in full:
We take this opportunity to hold 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, December 26, 1991, in the advance sheets of [the] Georgia Reports, such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense. To the extent that the holding in Fraley v. State, 256 Ga. 178 (345 SE2d 590) (1986), conflicts with this holding, it is overruled.
Mallory, 261 Ga. at 630. The Mallory rule has since been applied dozens of times by Georgia‘s appellate courts and has been characterized as a “bright-line” evidentiary rule applicable even when a defendant is unaware that he is under criminal investigation — although the rule, like other evidentiary rules, can be waived and
Mallory said plainly that its rule was not imposed as a constitutional requirement.4 And while Mallory was decided under
It thus appears that Mallory‘s categorical exclusionary rule is best characterized as judicial lawmaking: a rule excluding a certain type of evidence based on the Court‘s view of good policy, operating only prospectively (like most legislation and unlike normal judicial decisions, see Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 743 (691 SE2d 218) (2010) (Nahmias, J., concurring
3.
As we have explained before, the new Evidence Code
Under the new Evidence Code, the rules on “Relevant Evidence and Its Limits” are found in Chapter 4.
Many “other rules” in the Evidence Code embody legislative policy decisions about the risks of prejudice associated with certain categories of evidence, including the 15 rules in Chapter 4 that authorize the exclusion of certain specific types of evidence. See
Georgia‘s Rule 403 mirrors Federal Rule of Evidence 403, and we have accordingly interpreted our State‘s new rule in light of the federal appellate decisions interpreting the federal rule. See, e.g., State v. Jones, 297 Ga. 156, 158 (773 SE2d 170) (2015). Looking to Eleventh Circuit precedent, we have explained that Rule 403 requires the trial court to apply the rule‘s balancing test to the facts
[T]here is no mechanical solution for this balancing test. Instead, a trial court must undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination of whether the probative value of the evidence “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.”
Jones, 297 Ga. at 163 (quoting
We also have explained that the exclusion of evidence under Rule 403 is “an extraordinary remedy” that “should be used only sparingly” to exclude “matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Kirby v. State, 304 Ga. 472, 480 (819 SE2d 468) (2018) (citation and punctuation omitted). And we have recognized that “[t]he application of Rule 403 is a matter committed principally to the discretion of the trial courts,” subject to appellate review only for abuse of that discretion. Plez v. State, 300 Ga. 505, 507-508 (796 SE2d 704) (2017). It is therefore clear that Rule 403 provides no authority for an appellate court to direct the exclusion of entire
Mallory‘s categorical exclusionary rule for evidence of a criminal defendant‘s “silence or failure to come forward” does not come within the exceptions enumerated in Rule 402. As discussed above, the Mallory rule did not purport to be constitutionally required, nor to be “otherwise provided” by any Georgia (or federal) law outside the Evidence Code. The Mallory rule is inconsistent with Rule 403, and it finds no home in any of the specific and detailed exclusionary rules included in the new Code.
These statutory exclusionary rules replace common-law exclusionary rules and, perforce, judge-made exclusionary rules that lack even the backing of common-law authority. See Chrysler Group, 303 Ga. at 365-366 (“[B]ecause there is no specific exclusionary rule
For these reasons, we conclude that Mallory‘s categorical, bright-line rule excluding all “comment upon a defendant‘s silence or failure to come forward [as] far more prejudicial than probative,” 261 Ga. at 630, was abrogated by the new Evidence Code.8 The trial court and the Court of Appeals therefore erred in relying on Mallory to set aside Orr‘s convictions.9
4. The demise of Mallory‘s blanket exclusionary rule will often make it much harder to determine whether evidence of a criminal defendant‘s pre-arrest “silence or failure to come forward” is admissible (and whether or how prosecutors may comment on such evidence).
(a) The analysis now requires careful consideration of what specific sorts of evidence that come within the broad phrase “silence or failure to come forward” may be properly offered under which particular evidence rules and theories.
In the decades since Mallory, lawyers and judges in our State‘s courts — including this Court — have rarely had to grapple with these questions, because whether or not such evidence might be properly admitted under any particular theory was irrelevant; Mallory‘s rule meant that the evidence would all be excluded in any event. Moreover, the grappling now occurs under the new Evidence Code, making reliance on pre-Mallory Georgia precedent generally inappropriate.
As mentioned earlier, the Mallory Court alluded to the admissibility of a defendant‘s pre-arrest silence or failure to come forward as a so-called “adoptive admission” under former
Our Rule 801 (a) (2) defines a “[s]tatement” to include the “[n]onverbal conduct of a person, if it is intended by the person as an assertion,” and Rule 801 (d) (2) (B) then defines “admissions” not excluded by the hearsay rule when offered against a party to include “[a] statement of which the party has manifested an adoption or belief in its truth.” For evidence to qualify as a criminal defendant‘s adoptive admission under Rule 801 (d) (2) (B), the trial court must find that two criteria were met: first, that “‘the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond,‘” and second, that “‘there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.‘” United States v. Jenkins, 779 F2d 606, 612 (11th Cir. 1986) (citation omitted). See also In the Interest of E. B., 343 Ga. App. 823, 828-829 (806 SE2d 272) (2017).
In this case, Orr‘s failure to contact the police after his wife allegedly hit him in the head with an ashtray would not appear to meet this standard. The State has not identified a specific statement by someone else that Orr could be considered to have responded to or acquiesced in by not calling the police; without such a statement, there was nothing for Orr to “adopt.” Compare United States v. Carter, 760 F2d 1568, 1579-1580 (11th Cir. 1985) (holding that the trial court properly admitted evidence of the defendants’ adoptive admissions based on testimony that they remained silent in the back seat of a car while a co-conspirator told the driver about their smuggling activities). The State likewise presented no evidence that Orr remained silent in response to any specific statement by the police before or after he was arrested. The State did not call an arresting officer to testify, and Orr testified that, rather than remaining silent, he told the police about his head injury after he was arrested.
But the adoptive-admission theory is not the only way that evidence of a defendant‘s silence or failure to come forward might be admissible. Evidence of this sort also might qualify as an “admission” excluded from the hearsay rule under subsection (A) of Rule 801 (d) (2) if it is “[t]he party‘s own statement” — but to be such a “statement,” we recall, Rule 801 (a) (2) requires “[n]onverbal conduct” to be “intended to be an assertion.” See
Certain aspects of a defendant‘s failure to come forward to the police might also be offered not as a particular assertive statement subject to the hearsay rules, but rather as circumstantial evidence of guilt. As the Eleventh Circuit has recognized, “‘[i]t is today universally conceded that the fact of an accused‘s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, [is] admissible as evidence of consciousness of guilt, and thus of guilt itself.‘” United States v. Borders, 693 F2d 1318, 1324-1325 (11th Cir. 1982) (citation omitted). See also Renner v. State, 260 Ga. 515, 517 (397 SE2d 683) (1990) (“The fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.“).
There may be more theories under which evidence of a specific aspect of a defendant‘s “silence or failure to come forward” is admissible, including theories that apply only when the defendant testifies and becomes subject to the rules regarding impeachment. The point is that careful attention must now be paid to the specific evidence offered and the specific theory and rules the proponent of that evidence contends authorize its admission.
(b) If such evidence is deemed properly admissible, the inquiry turns to potential grounds for its exclusion — not automatically under Mallory‘s defunct rule, but rather through the lens of Rule 402.
Perhaps a defendant opposing admission of evidence related to his silence or failure to come forward can, under certain circumstances, show that the specific evidence in question must be excluded under the federal or state Constitution, a statute, or one of the specific exclusionary rules in the new Evidence Code. But more commonly the defendant can ask the trial court to exercise its discretion to exclude the evidence under the balancing test set forth in Rule 403, as that exclusionary rule generally applies to all evidence, see Chrysler Group, 303 Ga. at 363.
It should be reiterated that the exercise of discretion under Rule 403 is case-specific and usually turns on the trial court‘s assessment of the probative value and prejudicial effect of the particular evidence at issue. In this respect, we note the United States Supreme Court‘s admonition that “[i]n most circumstances silence is so ambiguous that it is of little probative force,” especially if the defendant does not later testify inconsistently. United States v. Hale, 422 U.S. 171, 176 (95 SCt 2133, 45 LE2d 99) (1975). See also Johnson v. State, 151 Ga. 21, 24 (105 SE 603) (1921) (“When under arrest and confronted by another in the presence of an arresting officer, silence by the accused is as consistent with the theory that the accused prefers to exercise his right to await trial by the proper tribunal as it is of the consciousness of guilt.“).
Courts have also cautioned against giving significant weight to certain evidence that a defendant did not come forward to the police after a crime, such as evidence of flight.
[W]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. . . . “[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.‘”
Wong Sun v. United States, 371 U.S. 471, 483 n.10 (83 SCt 407, 9 LE2d 441) (1963) (citations omitted). See also Borders, 693 F2d at 1325 (explaining that “the interpretation to be gleaned from an act of flight should be made cautiously and with a sensitivity to the facts of the particular case,” including whether the defendant was aware that he was under investigation or had other reasons to flee and the timing of the flight).
But we also recall that exclusion of evidence under Rule 403 is “an extraordinary remedy” that “should be used only sparingly” to prohibit “matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Kirby, 304 Ga. at 480 (citation and punctuation omitted). Again, the point is that this analysis cannot be done with broad strokes; it requires careful attention to the circumstances of and arguments made in the particular case at hand.
(c) Because the trial court and the Court of Appeals believed incorrectly that Mallory‘s categorical exclusionary rule applied to this case, they did not conduct the analysis required by the new Evidence Code.
Nor have the parties fully briefed those issues in this Court. The issues are further complicated at this point in the proceedings by questions about which arguments and concessions Orr and the State made at trial and on appeal, and whether arguments forfeited by Orr may be resurrected as claims of plain error, see
Judgment vacated, and case remanded with direction. All the Justices concur, except Bethel, J., disqualified.
Decided May 6, 2019.
Certiorari to the Court of Appeals of Georgia — 345 Ga. App. 74.
Leigh E. Patterson, District Attorney, Luke A. Martin, Assistant District Attorney, for appellant.
McCurdy & Candler, Benjamin H. Pierman, for appellee.
D. Victor Reynolds, District Attorney, Michael S. Carlson, John S. Melvin, John R. Edwards, Amelia G. Pray, Assistant District Attorney, amici curiae.