Nevertheless, Beach has not satisfied the first or second prong of the analysis in order to establish plain error. See Dumas v. State , 337 Ga. App. 124, 129-130 (1), 786 S.E.2d 508 (2016) ("the jury’s determination necessitated weighing the credibility of the victim’s testimony against [the defendant’s] credibility"). Beach contends that he did not intentionally relinquish his right to redact the excluded allegation from the two hearings, and he was not aware he had that right because he was acting pro se and suffers from mental illness.
And defense counsel's failure to object to such comments would amount to deficient performance. Dumas v. State , 337 Ga.App. 124, 127 (1), 786 S.E.2d 508 (2016). We note that it is unclear whether the bright-line evidentiary rule enunciated in Mallory remains applicable because Mallory was based on former OCGA § 24-3-36 ("[a]cquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission") and the Supreme Court of Georgia has expressed no opinion about the continuing validity of Mallory 's evidentiary ruling under the new Evidence Code.