Mallory rule in Georgia

2019We note, however, our recent decision in Orr v. State , --- Ga. ---- (2), 827 S.E.2d 892 , 2019 WL 1982963 (Case No. S18G0994, decided May 6, 2019), in which we held that the Mallory rule was abrogated by the adoption of our new Evidence Code.

2019We note, however, our recent decision in Orr v. State , --- Ga. ---- (2), 827 S.E.2d 892 , 2019 WL 1982963 (Case No. S18G0994, decided May 6, 2019), in which we held that the Mallory rule was abrogated by the adoption of our new Evidence Code.

2019See Eller v. State , 303 Ga. 373 , 384 (IV) (E), 811 S.E.2d 299 (2018) ("We have specifically declined thus far to decide whether Mallory applies in trials after January 2013." (citations omitted)).

2019See Eller v. State , 303 Ga. 373 , 384 (IV) (E), 811 S.E.2d 299 (2018) ("We have specifically declined thus far to decide whether Mallory applies in trials after January 2013." (citations omitted)).

2019See Eller v. State , 303 Ga. 373 , 384 (IV) (E), 811 S.E.2d 299 (2018) ("We have specifically declined thus far to decide whether Mallory applies in trials after January 2013." (citations omitted)).

2019See Eller v. State , 303 Ga. 373 , 384 (IV) (E), 811 S.E.2d 299 (2018) ("We have specifically declined thus far to decide whether Mallory applies in trials after January 2013." (citations omitted)).

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2013See Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (“As Curry did not invoke his right to remain silent during the interview, the testimony regarding Curry’s failure to respond to [particular] questions [while providing his statement] was admissible.” (citation omitted)); Rogers v. State, 290 Ga. 401, 406 (2) ( 721 SE2d 864 ) (2012) (an expressed desire not to discuss a particular subject while giving a statement to police is not an “invocation of the right to silence so as to raise the concerns addressed in Mallory v. State” (punctuation omitted)); Gilyard v. State, 288 Ga. 800,

2016Under Georgia’s old Evidence Code, which governed the trial of this case, this Court had established a bright-line rule prohibiting the State from commenting on a defendant’s pre-arrest silence or failure to come forward, on the ground that such comments were “far more prejudicial than probative.” Mallory v. State, 261 Ga. 625, 630 ( 409 SE2d 839 ) (1991). 4 The State clearly violated the Mallory rule in this case — indeed, it is hard to imagine a clearer violation.

2016Under Georgia’s old Evidence Code, which governed the trial of this case, this Court had established a bright-line rule prohibiting the State from commenting on a defendant’s pre-arrest silence or failure to come forward, on the ground that such comments were “far more prejudicial than probative.” Mallory v. State, 261 Ga. 625, 630 ( 409 SE2d 839 ) (1991). 4 The State clearly violated the Mallory rule in this case — indeed, it is hard to imagine a clearer violation.

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2019See, e.g., Sanders v. State , 290 Ga. 637 , 640-641, 723 S.E.2d 436 (2012) ; Ruiz v. State , 286 Ga. 146 , 150-151, 686 S.E.2d 253 (2009) ; Reynolds v. State , 285 Ga. 70 , 70-72, 673 S.E.2d 854 (2009).

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[ajf'ter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[Ajlthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdi

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[a]fter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[A]lthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdin

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[ajf'ter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[Ajlthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdi

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[a]fter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[A]lthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdin

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[ajf'ter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[Ajlthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdi

2017See Heard, 295 Ga. at 567 (3) (finding no clear error where the trial court denied defendant’s Batson challenge “[ajf'ter finding that the State provided facially race-neutral reasons for the strikes”); Wilburn v. State, 230 Ga. App. 619, 623 ( 497 SE2d 380 ) (1998) (“[Ajlthough a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors.”); see also United States v. Edouard, 485 F3d 1324, 1343 (II) (B) (11th Cir. 2007) (upholdi

2013See Yancey, 292 Ga. at 817 (2) (permissible to ask defendant who voluntarily came to police station and made statement why he would not draw a diagram of crime scene upon request of investigating officers); Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (permissible to ask defendant who did not invoke right to remain silent why he failed to respond to particular questions during interview); McMichen v. State, 265 Ga. 598, 606 (11) (a) ( 458 SE2d 833 ) (1995) (questions about why defendant did not mention self-defense claim during voluntary statement were proper inquiries into the

2013See Yancey, 292 Ga. at 817 (2) (permissible to ask defendant who voluntarily came to police station and made statement why he would not draw a diagram of crime scene upon request of investigating officers); Curry v. State, 291 Ga. 446, 451 (3) ( 729 SE2d 370 ) (2012) (permissible to ask defendant who did not invoke right to remain silent why he failed to respond to particular questions during interview); McMichen v. State, 265 Ga. 598, 606 (11) (a) ( 458 SE2d 833 ) (1995) (questions about why defendant did not mention self-defense claim during voluntary statement were proper inquiries into the

2019In light of the strength of the evidence, we conclude that no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument.9 Consequently, Williams has not shown ineffective assistance of counsel in this 9 See Wallace v. State, 272 Ga. 501, 504 (3) (a) ( 530 SE2d 721 ) (2000) (in light of the strength of the physical and circumstantial evidence identifying the appellant as the perpetrator of his wife’s murder, the appellant failed to carry his burden of showing that prejudice resulted from his trial counsel’s failure to object to the prosecutor’s ar

2019In light of the strength of the evidence, we conclude that no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument.9 Consequently, Williams has not shown ineffective assistance of counsel in this 9 See Wallace v. State, 272 Ga. 501, 504 (3) (a) ( 530 SE2d 721 ) (2000) (in light of the strength of the physical and circumstantial evidence identifying the appellant as the perpetrator of his wife’s murder, the appellant failed to carry his burden of showing that prejudice resulted from his trial counsel’s failure to object to the prosecutor’s ar

2022See Rowland v. State, 306 Ga. 59, 66 (3) (829 SE2d 81) (2019) (alleged violation of Mallory was harmless given strong evidence of defendant’s guilt and prosecutor’s minimal use of the challenged evidence). 3.

2022See Rowland v. State, 306 Ga. 59, 66 (3) (829 SE2d 81) (2019) (alleged violation of Mallory was harmless given strong evidence of defendant’s guilt and prosecutor’s minimal use of the challenged evidence). 3.

2022See Sampson v. State, 282 Ga. 82, 85 (6) (646 SE2d 60) (2007) (the failure to make meritless objections cannot support an ineffectiveness claim). (c) Mathews argues that his trial counsel was ineffective for failing to raise a Mallory objection when the State commented on his and Jackson’s pre-arrest silence and failure to come forward sooner.

2022See Sampson v. State, 282 Ga. 82, 85 (6) (646 SE2d 60) (2007) (the failure to make meritless objections cannot support an ineffectiveness claim). (c) Mathews argues that his trial counsel was ineffective for failing to raise a Mallory objection when the State commented on his and Jackson’s pre-arrest silence and failure to come forward sooner.

2020See Williams v. State, 305 Ga. 776, 781 (2) (d) ( 827 SE2d 849 ) (2019) (in light of the strength of the evidence, no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument); Oree v. State, 280 Ga. 588, 593 (5) ( 630 SE2d 390 ) (2006) (trial court’s error was harmless in light of overwhelming evidence of appellant’s role as party to the crime).

2020See Spell v. State, 305 Ga. 822, 827 (2) n.5 ( 828 SE2d 345 ) (2019). 11 that Taylor was guilty because he declined to speak with the police about the crime, this testimony would not be admissible under the Mallory rule.

2020See Spell v. State, 305 Ga. 822, 827 (2) n.5 ( 828 SE2d 345 ) (2019). 11 that Taylor was guilty because he declined to speak with the police about the crime, this testimony would not be admissible under the Mallory rule.

2020See Williams v. State, 305 Ga. 776, 781 (2) (d) ( 827 SE2d 849 ) (2019) (in light of the strength of the evidence, no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument); Oree v. State, 280 Ga. 588, 593 (5) ( 630 SE2d 390 ) (2006) (trial court’s error was harmless in light of overwhelming evidence of appellant’s role as party to the crime).

2020See Williams v. State, 305 Ga. 776, 781 (2) (d) ( 827 SE2d 849 ) (2019) (in light of the strength of the evidence, no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument); Oree v. State, 280 Ga. 588, 593 (5) ( 630 SE2d 390 ) (2006) (trial court’s error was harmless in light of overwhelming evidence of appellant’s role as party to the crime).

2020See Williams v. State, 305 Ga. 776, 781 (2) (d) ( 827 SE2d 849 ) (2019) (in light of the strength of the evidence, no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument); Oree v. State, 280 Ga. 588, 593 (5) ( 630 SE2d 390 ) (2006) (trial court’s error was harmless in light of overwhelming evidence of appellant’s role as party to the crime).

2020See also Moore v. State, 278 Ga. 397, 399 (2) (a) ( 603 SE2d 228 ) (2004) (the State was not permitted under Mallory to elicit testimony about defendant’s failure to come forward when he knew the police were looking for him).6 6 We recently held that the current Evidence Code abrogated Mallory’s rule categorically excluding evidence or comments concerning the defendant’s pre-arrest silence.

2020See also Moore v. State, 278 Ga. 397, 399 (2) (a) ( 603 SE2d 228 ) (2004) (the State was not permitted under Mallory to elicit testimony about defendant’s failure to come forward when he knew the police were looking for him).6 6 We recently held that the current Evidence Code abrogated Mallory’s rule categorically excluding evidence or comments concerning the defendant’s pre-arrest silence.

2019See State v. Spratlin, 305 Ga. 585, 593 ( 826 SE2d 36 ) (2019). way, considering all the circumstances and in the light of prevailing professional norms” — and that the deficient performance caused Appellant prejudice, meaning that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Spratlin, 305 Ga. 585, 591 ( 826 SE2d 36 ) (2019) (citations and punctuation omitted).

2019See State v. Spratlin, 305 Ga. 585, 593 ( 826 SE2d 36 ) (2019). way, considering all the circumstances and in the light of prevailing professional norms” — and that the deficient performance caused Appellant prejudice, meaning that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Spratlin, 305 Ga. 585, 591 ( 826 SE2d 36 ) (2019) (citations and punctuation omitted).

2019As we have explained before, the new Evidence Code 6 That said, we need not and do not decide in this case whether Mallory’s exclusionary rule should continue to be applied to cases governed by the old Evidence Code (of which there are unfortunately many left in the appellate pipeline, even though the new Evidence Code has been in effect for more than six years, see Owens v. State, 303 Ga. 254, 258-260 ( 811 SE2d 420 ) (2018)).

2019In light of the strength of the evidence, we conclude that no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument.9 Consequently, Williams has not shown ineffective assistance of counsel in this 9 See Wallace v. State, 272 Ga. 501, 504 (3) (a) ( 530 SE2d 721 ) (2000) (in light of the strength of the physical and circumstantial evidence identifying the appellant as the perpetrator of his wife’s murder, the appellant failed to carry his burden of showing that prejudice resulted from his trial counsel’s failure to object to the prosecutor’s ar

2019In light of the strength of the evidence, we conclude that no prejudice resulted from trial counsel’s failure to raise a Mallory objection to the prosecutor’s argument.9 Consequently, Williams has not shown ineffective assistance of counsel in this 9 See Wallace v. State, 272 Ga. 501, 504 (3) (a) ( 530 SE2d 721 ) (2000) (in light of the strength of the physical and circumstantial evidence identifying the appellant as the perpetrator of his wife’s murder, the appellant failed to carry his burden of showing that prejudice resulted from his trial counsel’s failure to object to the prosecutor’s ar

2019See, e.g., Moss v. State, 298 Ga. 613, 617-618 ( 783 SE2d 652 ) (2016); Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015). 9 The trial court and the Court of Appeals applied Mallory’s rule in this case because, they said, they felt bound to follow this Court’s precedent.

2019See, e.g., Moss v. State, 298 Ga. 613, 617-618 ( 783 SE2d 652 ) (2016); Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015). 9 The trial court and the Court of Appeals applied Mallory’s rule in this case because, they said, they felt bound to follow this Court’s precedent.

2019Davis v. State, 299 Ga. 180, 192 ( 787 SE2d 221 ) (2016).

2019Davis v. State, 299 Ga. 180, 192 ( 787 SE2d 221 ) (2016).

2019See, e.g., Moss v. State, 298 Ga. 613, 617-618 ( 783 SE2d 652 ) (2016); Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015). 9 The trial court and the Court of Appeals applied Mallory’s rule in this case because, they said, they felt bound to follow this Court’s precedent.

2019See, e.g., Moss v. State, 298 Ga. 613, 617-618 ( 783 SE2d 652 ) (2016); Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015). 9 The trial court and the Court of Appeals applied Mallory’s rule in this case because, they said, they felt bound to follow this Court’s precedent.