Eaker v. State

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official text of the opinion.
In the Supreme Court of Georgia
Decided: November 29, 2022
S22A0875. EAKER v. THE STATE.
WARREN, Justice.
After a jury trial in October 2018, Darrell Eaker was convicted
of malice murder and other crimes in connection with the shooting
death of Audra Eaker. 1 Eaker raises two claims of error on appeal:
1 The crimes occurred on December 27, 2016. On March 14, 2017, a
Cherokee County grand jury indicted Eaker on six counts: malice murder;
felony murder; aggravated assault (family violence); possession of a firearm
during the commission of a felony; criminal damage to property in the first
degree; and discharge of a gun near a highway or street. After a jury trial from
October 22 to 29, 2018, the jury found Eaker guilty on all counts except felony
murder. With regard to the felony murder count, the trial court instructed the
jury that if it found Eaker guilty of malice murder, it was not “authorized to
find [him] guilty on [the felony murder] count.” But see Hendrix v. State, 298
Ga. 60, 66–67 (779 SE2d 322) (2015) (explaining that a jury is authorized to
find a defendant guilty of both malice and felony murder, but that where “there
[is] but a single victim, he cannot be convicted and sentenced on both counts,
and the felony murder count must be vacated as mere surplusage”). Eaker
does not raise any enumeration regarding the trial court’s charge.
On October 29, 2018, Eaker was sentenced to life in prison without the
possibility of parole for malice murder, five years to be served consecutively for
possession of a firearm during the commission of a felony, ten years to be
served consecutively for criminal damage to property in the first degree, and
that (1) Eaker received constitutionally ineffective assistance of
counsel; and (2) the trial court erred in denying Eaker’s motion for
new trial on the basis of newly discovered evidence. For the reasons
explained below, we affirm.
1. Eaker does not challenge the sufficiency of the evidence
supporting his convictions. As such, we review only the evidence
presented at trial that is relevant to Eaker’s enumerations of error
and any factual background needed to provide context for them. 2
That evidence included the following. Eaker and Audra had been
married for 23 years and began experiencing marital issues in 2016,
twelve months to be served consecutively for discharge of a gun near a highway
or street. The aggravated assault (family violence) count was merged for
sentencing purposes with the malice murder count. Eaker timely filed a
motion for new trial on November 7, 2018, which he amended on April 6, 2019,
through new counsel. On June 7, 2021, following a hearing three days earlier,
the trial court denied Eaker’s motion for new trial, as amended. Eaker timely
filed a notice of appeal on June 10, 2021. The case was docketed in this Court
to the August 2022 term and submitted for a decision on the briefs.
2 In Dugar v. State, 314 Ga. 376, 377 (877 SE2d 213) (2022), we explained
that because the appellant did “not challenge the sufficiency of the evidence to
support her convictions,” and because, under Davenport v. State, 309 Ga. 385,
398-399 (846 SE2d 83) (2020), “[w]e no longer routinely review evidentiary
sufficiency sua sponte, except with respect to murder convictions resulting in
the death penalty,” we would note “only those portions of the record necessary
to address her claims of error.”
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partly due to Eaker’s alcohol use and his suspicion that Audra was
engaged in infidelity. During this period, the couple had several
serious arguments, including one in which Eaker waved a gun in
front of Audra and several which involved physical altercations.
On December 27, 2016, the couple attended a party and arrived
around 7:00 p.m. At the party, Eaker paced around, walked in and
out of the house several times, seemed nervous and very talkative,
and continued to drink throughout the night before Audra stopped
him. Eaker and Audra left in her car, with Audra driving and Eaker
in the passenger seat. Eaker testified in his defense at trial and
stated the following. During the car ride back to their home, Audra
told Eaker she felt embarrassed at the party because “[he was]
acting weird, everybody was asking is [he] okay.” At approximately
9:30 p.m., while driving along Highway 92 in Cherokee County,
Audra told him he had embarrassed her for the last time, and “[s]he
said, we’re done; we’re getting a divorce.” Eaker accused her of
having an extramarital affair. According to Eaker, Audra owned an
H&K .45-caliber handgun that was in the car’s glovebox that night.
3
Eaker removed it, racked the slide, and put it to his own head,
closing his eyes. Audra admitted to having and wanting to continue
an affair. In response, Eaker “pulled the trigger,” and when he
opened his eyes, Audra’s body was slumped over and bleeding.
Eaker added, “I don’t remember firing eight [rounds]. I remember
pulling the trigger.” The Eakers’ car came to a stop in the middle of
Highway 92. A witness whose car stopped behind theirs testified
that she saw “a very bloody woman” inside the car. Eaker got out of
the car and said, in an “[e]erily calm” manner, “I’ve done something
really wrong and I’m going to jail for a very long time.”
Officers responded to the scene shortly thereafter. They found
Audra dead inside her car. The car had “four projectile holes in the
driver’s-side front door,” and a gun was on the passenger side
floorboard. Audra’s wounds were “consistent with five different
gunshot wounds,” and a GBI forensic pathologist testified at trial
that Audra “died of multiple gunshot wounds of the head.” Evidence
introduced at trial showed that the gun had an empty eight-round
magazine, no bullet in the chamber, and the safety was off. A GBI
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agent testified that the gun’s hammer was set to be ready to fire,
and it was semiautomatic, meaning one bullet leaves the chamber
for each pull of the trigger. Eaker was arrested at a nearby parking
lot where he was found smelling of alcohol and slurring his speech.
Gunshot residue on his hands matched the gun from the car’s
floorboard.
2. Eaker contends his trial counsel rendered constitutionally
ineffective assistance of counsel for failing to investigate the
possibility that the gun used in the shooting accidentally fired
multiple times and for not presenting the defense of accident to the
jury. 3 His claim fails, however, because he has not shown that his
counsel’s performance was deficient.
(a) As background, in Eaker’s amended motion for new trial, he
argued that he received ineffective assistance because trial counsel
failed to properly examine the gun used in Audra’s shooting and
present accident as an alternative theory. Eaker asserted that “[i]t
3Eaker requested, and the trial court gave, a charge on voluntary
manslaughter.
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was well known that [he] ‘tinkered’ with his guns” and that
“[l]ogically, any instrument can be assumed subject to malfunction
if improperly assembled or modified.” Eaker also asserted that
evidence showed the sequence of bullets discharged from the gun
was arced, which could have been the result of it becoming
uncontrollable and “discharging repeatedly” from a single trigger
pull. Eaker argued trial counsel improperly limited his
investigation, never considering alternative theories such as a
possible gun malfunction.
At the hearing on Eaker’s motion, trial counsel testified that
he had 21 years of experience as a criminal defense lawyer working
on murder cases and on jury trials and that he spent hours with
Eaker preparing for trial, during which time they discussed the gun.
Counsel testified that he reviewed the evidence in the case in
preparing for trial and that he did not “recall [Eaker] specifically
saying that [the gun] had malfunctioned,” had no “definitive
memory” of Eaker telling him about disassembling it, and would
have had the gun examined if he had received information that its
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parts had been modified or that it “was prone to misfiring.”
Eaker presented testimony from a firearms expert who
testified that normally, after emptying a magazine, a handgun’s
slide will be locked to the rear, and pointed out that the slide of the
gun used in the shooting was locked to the forward position. The
expert testified that he reviewed the pretrial report from the GBI
analyst and that the report did not document “any kind of alteration
to the weapon.” The expert testified that he field-stripped the gun
and “looked inside the internal mechanism of the weapon itself.” He
noted a possible modification to the gun’s hammer and “trigger
assembly” due to the relative shininess of the parts, but testified
that it did not malfunction at all during his field test. He also
testified that misassembling a handgun could cause it to “slamfire,”
meaning it would fire multiple times with a single pull of the trigger.
But on cross-examination, he acknowledged that, although he had
testified on direct examination that the gun “may be altered in some
way,” he was “not sure if it actually ha[d] been altered.”
A GBI expert who examined the gun during pretrial
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investigations testified at the hearing that the gun’s safety and
hammer appeared unaltered, its parts were functioning, the field
tests he conducted never produced a misfire, and no one had
suggested during the investigation that it had been altered. The
GBI expert also testified that a handgun that had malfunctioned
before would continue to do so and would not operate normally later.
(b) To establish ineffective assistance of counsel, a defendant
must show that his trial counsel’s performance was professionally
deficient and that he was prejudiced by this deficient performance.
See Sullivan v. State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (citing
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984)). “If an appellant fails to meet his or her burden of
proving either prong of the Strickland test, the reviewing court does
not have to examine the other prong.” Bates v. State, 313 Ga. 57, 63
(867 SE2d 140) (2022) (citation and punctuation omitted).
To establish deficient performance, a defendant must show
that his attorney “performed at trial in an objectively unreasonable
way considering all the circumstances and in the light of prevailing
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professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d
637) (2013). This requires a defendant to overcome “the strong
presumption that counsel’s performance fell within a wide range of
reasonable professional conduct, and that counsel’s decisions were
made in the exercise of reasonable professional judgment.”
Simmons v. State, 299 Ga. 370, 375 (788 SE2d 494) (2016) (citation
and punctuation omitted). A defendant attempting to carry his
burden “must show that no reasonable lawyer would have done what
his lawyer did, or would have failed to do what his lawyer did not.”
Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). “In
particular, decisions regarding trial tactics and strategy may form
the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such
a course.” Id. (citation and punctuation omitted).
To establish prejudice, a defendant must show a reasonable
probability that, but for trial counsel’s deficiency, the result of the
trial would have been different. See Patterson v. State, 314 Ga. 167,
171 (875 SE2d 771) (2022). “A reasonable probability is a probability
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sufficient to undermine confidence in the outcome.” Sullivan, 308
Ga. at 510 (citation and punctuation omitted). “[T]his burden is a
heavy one.” Bates, 313 Ga. at 62-63 (citation and punctuation
omitted).
Eaker argues that trial counsel was constitutionally ineffective
for failing to properly investigate the gun used in Audra’s shooting
and for failing to raise the defense that that the gun accidentally
misfired multiple times based on a single pull of the trigger.
However, Eaker has failed to show that trial counsel acted
objectively unreasonably in failing to investigate this defense. To
begin, and contrary to Eaker’s assertion in his brief, there was no
evidence presented at the motion-for-new-trial hearing or at trial
that it was “well known that Mr. Eaker ‘tinkered’ with his guns.” 4
Moreover, Eaker’s expert testified at that hearing that the GBI’s
pretrial report on the murder weapon did not contain any
4 Although Eaker asserts on appeal, as he did in his amended motion for
new trial, that it was “well known that [he] ‘tinkered’ with his guns,” we note
that at trial, Eaker testified that the gun belonged to Audra and was in the
glove compartment of her car at the time of the crimes.
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information stating that the gun had been modified or disassembled.
Eaker’s trial counsel testified that he reviewed the evidence in the
case when preparing for trial, which would have included the GBI
report on the gun, but that report would not have alerted trial
counsel to the possibility of the gun misfiring due to a modification.
Moreover, at the hearing on Eaker’s motion for new trial, Eaker’s
trial counsel testified that he spent hours with Eaker preparing for
trial, which included discussions about the gun, but that he could
not definitively recall Eaker telling him that the gun had misfired
or been modified. Trial counsel added that if he had received such
information, he would have had the gun examined before trial.
Eaker also points to his expert’s testimony at the motion-for-
new-trial hearing that the five bullet wounds to Audra’s head
“arced” “up her head” “in almost a straight line,” as well as his
testimony that the three bullets that missed Audra hit the roof, sun
visor, and windshield of the car, as evidence that should have alerted
trial counsel to the possibility that the gun misfired. However,
although Eaker’s expert described the pattern of shots as “erratic,”
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he noted that the five bullets that struck Audra did so within three
to four inches of each other, and he did not testify that the pattern
of the shots indicated a misfire. Moreover, he testified that he was
not even “sure” if the gun had been altered in any way, and Eaker’s
theory of accidental misfiring was premised on the gun having been
altered.
“Concerning the adequacy of investigations, counsel has a duty
to make reasonable investigations . . . with deference given to
counsel’s judgment.” Bonner v. State, 314 Ga. 472, 475 (877 SE2d
588) (2022) (citation and punctuation omitted). And “what
investigation decisions are reasonable depends critically” “on
information supplied by the defendant.” Strickland, 466 U.S. at 691.
In this regard, we have held that “a lawyer’s performance is not
deficient for failing to discover information that easily could have
been provided by his client.” Parker v. State, 305 Ga. 136, 143 (823
SE2d 313) (2019). Moreover, “where the record shows that [counsel]
ha[d] no reason to investigate or pursue [a] defense,” trial counsel
does not perform deficiently in not pursuing it. Williams, 308 Ga. at
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536.
Here, Eaker’s counsel testified that, if he had been informed
that the gun had been modified or had misfired, he would have had
it examined, supporting the conclusion that he was not told of such
occurrences. In addition, given that the GBI’s pretrial report did not
mention the possibility of the gun having been modified or being
prone to misfire, and given that Eaker’s expert did not specifically
testify that the “arc” of the shots indicated a misfire and testified
that he was not even “sure” that the gun had been modified, we
conclude that counsel did not act objectively unreasonably when he
did not investigate the possibility of the gun misfiring. See
Williams, 308 Ga. at 536 (holding that “where the record shows that
[counsel] ha[d] no reason to investigate or puruse [a] defense,” trial
counsel did not perform deficiently in not pursuing it).
3. Eaker contends that the trial court erred in denying his
motion for new trial under OCGA § 5-5-23 on the basis of newly
discovered evidence. Eaker’s contention fails because it was not
preserved for appellate review: he did not raise this claim in his
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amended motion for new trial and the transcript from the hearing
on that motion shows that Eaker did not raise or argue this claim.
Moreover, in denying Eaker’s motion, the trial court did not rule on
such a claim and, instead, ruled against Eaker’s motion on the two
grounds that he did raise: that he was entitled to a new trial on the
general grounds and because his trial counsel had been
constitutionally ineffective. “An appellate court’s consideration of
such a claim is dependent upon a trial court’s having first considered
the evidence and made particular findings of fact.” Harris v. State,
313 Ga. 872, 877 (874 SE2d 73) (2022). Consequently, Eaker’s claim
for a new trial on the basis of newly discovered evidence was not
preserved for appellate review. McClendon v. State, 299 Ga. 611,
616 (791 SE2d 69) (2016) (“Because [appellant] raises an issue on
appeal that was not presented or ruled upon by the trial court, his
argument is not preserved for review by this Court.”).
Judgment affirmed. All the Justices concur, except Pinson, J.,
not participating.
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