Branch, Judge.
Following 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 Orrs pre-arrest silence. After a hearing, the trial court granted Orrs motion. The State now appeals from that order, arguing that in light of Georgias new Evidence Code, the law relied on by the lower court is no longer valid. We find no error and affirm.
On 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 courts 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 courts factual findings if there is any evidence to support them, and we defer to the trial courts credibility determinations.
Wedel v. State , 328 Ga. App. 28, 28, 761 S.E.2d 454 (2014) (citations omitted).
The 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 wifes role in the couples altercation.
Orr also presented the testimony of his sister and his cousin. Orrs 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.
Orrs cousin offered similar testimony, stating that she had seen Orr at his mothers 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 wifes 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 wifes attack on him] to the police, never once said: ... Im 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.
Immediately following these statements, defense counsel moved for a mistrial on the ground that the States argument constituted an impermissible comment on Orrs 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 jurys verdict, however, the trial court granted Orrs motion for a new trial, concluding that it had erred in denying the motion for a mistrial. This appeal followed.
In 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 defendants 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), 409 S.E.2d 839. In reaching this conclusion, the Court recognized that evidence of a defendants silence was not prohibited by federal constitutional law. Id. at 629-630 (5), 409 S.E.2d 839. The Court also acknowledged that a partys 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 defendants 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), 409 S.E.2d 839.
Relying 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 defendants 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 defendants 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 that a witness in a criminal trial may not testify as to a declarants statements based on the acquiescence or silence of the accused. 265 Ga. at 29 (1), 453 S.E.2d 461 (emphasis in original).
The Georgia Supreme Court subsequently held, however, that not every violation of the Mallory rule would entitle a defendant to a new trial. Specifically, no new trial is required if the error was harmless beyond a reasonable doubt. Allen v. State , 272 Ga. 513, 515 (5), 530 S.E.2d 186 (2000). The determination of harmless error must be made on a case-by-case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendants guilt. Id. at 515-516 (5), 530 S.E.2d 186 (citation and punctuation omitted). As this Court has explained:
When determining whether the States unchallenged comments or questions about a defendants right to remain silent prejudice that defendant, we consider a number of factors. These include whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the State to use the defendants silence against him. We also examine the trial context of the error, and take a particularly dim view of the States conduct in arguing during closing that evidence of the defendants silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the States improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendants guilt was overwhelming or whether the evidence was conflicting.
Scott v. State , 305 Ga. App. 710, 717 (2) (a), 700 S.E.2d 694 (2010) (citations omitted).
Here, the trial court found that it had erred in denying Orrs motion for a mistrial without determining whether the prosecutors closing argument and the States elicitation of testimony relating to Orrs failure to come forward were harmful to Orr. After applying that analysis, the lower court concluded that the States conduct was not harmless beyond a reasonable doubt because a reasonable possibility exists that [the prosecutors] comments influenced the jurys decision. The court therefore found that Orr was entitled to a new trial.
The State challenges this ruling, pointing out that since the enactment of Georgias new Evidence Code, the Supreme Court of
Georgia has called into question the continuing validity of the bright-line rule established in Mallory . In doing so, the Supreme Court has indicated that a defendants pre-arrest silence or failure to come forward may be admissible in some cases. Explaining that Mallory was decided not on constitutional grounds but rather based on former OCGA § 24-3-36, the Supreme Court has repeatedly stated that [w]e express no opinion about the continuing validity of Mallory under the new Evidence Code. State v. Sims , 296 Ga. 465, 471 (3), 769 S.E.2d 62 (2015). See also Kennebrew v. State , 299 Ga. 864, 872, n. 4, 792 S.E.2d 695 (2016) ; Seabolt v. Norris , 298 Ga. 583, 587 (3), n. 3, 783 S.E.2d 913 (2016) ; Wilson v. State , 295 Ga. 84, 88 (3), n. 6, 757 S.E.2d 825 (2014) ; Romer v. State , 293 Ga. 339, 343 (2) n. 4, 745 S.E.2d 637 (2013) ; Yancey v. State , 292 Ga. 812, 817 (2), n. 9, 740 S.E.2d 628 (2013). Additionally, in Simmons v. State , 299 Ga. 370, 788 S.E.2d 494 (2016), the Supreme Court of Georgia held that a violation of the Mallory rule could not be considered plain error because it was no longer clear that Mallory constituted valid law. Id. at 374 (2), 788 S.E.2d 494 ([A]n error is plain if it is clear or obvious under current law. An error cannot be plain for there is no controlling authority on point.) (citation and punctuation omitted).
Relying on this line of cases, the State argues that the trial court was no longer bound by Mallory . The State further contends that under OCGA § 24-8-801 and relevant federal precedent, evidence of a defendants pre-arrest silence may be admissible. See Jenkins , 447 U.S. at 240, 100 S.Ct. 2124. Thus, the State asserts that in deciding the motion for a new trial, the lower court should have analyzed whether the evidence at issue was admissible under OCGA § 24-4-403 as being more probative than prejudicial.
What the States argument fails to acknowledge, however, is that although Mallory has been called into question, it has never been overruled. And in the absence of a decision from our Supreme Court expressly overruling Mallory , this Court, like the trial court, remains bound by its holding. See Chin Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities , 317 Ga. App. 486, 488, 731 S.E.2d 384 (2012)
(this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents ), quoting Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. See also Cargile v. State , 194 Ga. 20, 22 (1), 20 S.E.2d 416 (1942) (the constitutional provision that decisions of Supreme Court shall bind the Court of Appeals as precedents is applicable in all cases). Accordingly, the trial court did not err when it applied Mallory and its progeny to decide Orrs motion for a new trial. See Tran v. State , 340 Ga. App. 546, 553 (2) (c), n. 7, 798 S.E.2d 71 (2017) (we continue to follow the precedent established by the Supreme Court of Georgia on the admissibility of a defendants pre-arrest silence or failure to come forward). We therefore affirm the trial courts order.
Judgment affirmed.
McFadden, P. J. concurs, and Bethel, J., concurs specially.*
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2 (a).
Bethel, Judge, concurring specially.
I agree with the majority that the Mallory rule applies and controls in this case. I write separately to emphasize my belief that Mallory is based neither on constitutional nor statutory interpretation. Rather, I read the rule announced in Mallory to be a court made law. If I agreed with the Supreme Court that Mallory was based on former OCGA § 24-3-36, I would find it necessary to evaluate whether the adoption of the new evidence code abrogated the holding therein. Given the dramatic differences in the language of the new code and the fact that the new language tracks so closely with federal law, a persuasive argument could be made for abrogation by legislative act. Since, however, the Mallory rule was not a product of an interpretation of former OCGA § 24-3-36, no such analysis is required or appropriate and we remain bound by it until further direction from the Supreme Court.
Former OCGA § 24-3-36 defined admission to include [a]cquiescence or silence, when the circumstances require an answer, a denial, or other conduct....
OCGA § 24-8-801 defines a statement to include [n]onverbal conduct of a person, if it is intended by the person as an assertion. OCGA § 24-8-801 (a) (2). It further provides that an admission by a party-opponent includes: (A) The partys own statement, in either an individual or representative capacity; [and] (B) A statement of which the party has manifested an adoption or belief in its truth[.] OCGA § 24-8-801 (d) (2).
OCGA § 24-4-403 provides: Relevant evidence may be excluded if its probative value 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.
The State has not challenged the trial courts factual conclusions that the prosecution violated the bright-line rule established by Mallory and that Orr suffered prejudice as a result.
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).
In Mallory , after finding no U.S. constitutional prohibition implicated by the facts before it, our Supreme Court noted that each jurisdiction remains free to formulate it own rules pursuant to Jenkins v. Anderson , 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The Supreme Court then referenced former OCGA § 24-3-36 (a rule of inclusion ) before announcing a rule of exclusion that involved no analysis or explication related to the statute. Of course, the rule announced in Mallory can find support in our state constitution (e.g. Ga. Const. of 1983, Art. I, Sec I, Par. XVI ), and in other former and current provisions of our evidence code. I am not persuaded, however, that the rule is dependent on former OCGA § 24-3-36.
State v. Sims , 296 Ga. 465, 471 (3), 769 S.E.2d 62 (2015).