¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: November 29, 2022
¶4 S22A0875. EAKER v. THE STATE.
¶5 WARREN, Justice.
¶6 After a jury trial in October 2018, Darrell Eaker was convicted
¶7of malice murder and other crimes in connection with the shooting
¶8death of Audra Eaker. 1 Eaker raises two claims of error on appeal:
¶9 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
¶10counsel; and (2) the trial court erred in denying Eaker’s motion for
¶11new trial on the basis of newly discovered evidence. For the reasons
¶12explained below, we affirm.
¶13 1. Eaker does not challenge the sufficiency of the evidence
¶14supporting his convictions. As such, we review only the evidence
¶15presented at trial that is relevant to Eaker’s enumerations of error
¶16and any factual background needed to provide context for them. 2
¶17That evidence included the following. Eaker and Audra had been
¶18married for 23 years and began experiencing marital issues in 2016,
¶19twelve 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.
¶20 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.” 2 partly due to Eaker’s alcohol use and his suspicion that Audra was
¶21engaged in infidelity. During this period, the couple had several
¶22serious arguments, including one in which Eaker waved a gun in
¶23front of Audra and several which involved physical altercations.
¶24 On December 27, 2016, the couple attended a party and arrived
¶25around 7:00 p.m. At the party, Eaker paced around, walked in and
¶26out of the house several times, seemed nervous and very talkative,
¶27and continued to drink throughout the night before Audra stopped
¶28him. Eaker and Audra left in her car, with Audra driving and Eaker
¶29in the passenger seat. Eaker testified in his defense at trial and
¶30stated the following. During the car ride back to their home, Audra
¶31told Eaker she felt embarrassed at the party because “[he was]
¶32acting weird, everybody was asking is [he] okay.” At approximately
¶339:30 p.m., while driving along Highway 92 in Cherokee County,
¶34Audra told him he had embarrassed her for the last time, and “[s]he
¶35said, we’re done; we’re getting a divorce.” Eaker accused her of
¶36having an extramarital affair. According to Eaker, Audra owned an
¶37H&K .45-caliber handgun that was in the car’s glovebox that night.
¶38 3 Eaker removed it, racked the slide, and put it to his own head,
¶39closing his eyes. Audra admitted to having and wanting to continue
¶40an affair. In response, Eaker “pulled the trigger,” and when he
¶41opened his eyes, Audra’s body was slumped over and bleeding.
¶42Eaker added, “I don’t remember firing eight [rounds]. I remember
¶43pulling the trigger.” The Eakers’ car came to a stop in the middle of
¶44Highway 92. A witness whose car stopped behind theirs testified
¶45that she saw “a very bloody woman” inside the car. Eaker got out of
¶46the car and said, in an “[e]erily calm” manner, “I’ve done something
¶47really wrong and I’m going to jail for a very long time.”
¶48 Officers responded to the scene shortly thereafter. They found
¶49Audra dead inside her car. The car had “four projectile holes in the
¶50driver’s-side front door,” and a gun was on the passenger side
¶51floorboard. Audra’s wounds were “consistent with five different
¶52gunshot wounds,” and a GBI forensic pathologist testified at trial
¶53that Audra “died of multiple gunshot wounds of the head.” Evidence
¶54introduced at trial showed that the gun had an empty eight-round
¶55magazine, no bullet in the chamber, and the safety was off. A GBI
¶56 4 agent testified that the gun’s hammer was set to be ready to fire,
¶57and it was semiautomatic, meaning one bullet leaves the chamber
¶58for each pull of the trigger. Eaker was arrested at a nearby parking
¶59lot where he was found smelling of alcohol and slurring his speech.
¶60Gunshot residue on his hands matched the gun from the car’s
¶61floorboard.
¶62 2. Eaker contends his trial counsel rendered constitutionally
¶63ineffective assistance of counsel for failing to investigate the
¶64possibility that the gun used in the shooting accidentally fired
¶65multiple times and for not presenting the defense of accident to the
¶66jury. 3 His claim fails, however, because he has not shown that his
¶67counsel’s performance was deficient.
¶68 (a) As background, in Eaker’s amended motion for new trial, he
¶69argued that he received ineffective assistance because trial counsel
¶70failed to properly examine the gun used in Audra’s shooting and
¶71present accident as an alternative theory. Eaker asserted that “[i]t
¶72 3Eaker requested, and the trial court gave, a charge on voluntary manslaughter. 5 was well known that [he] ‘tinkered’ with his guns” and that
¶73“[l]ogically, any instrument can be assumed subject to malfunction
¶74if improperly assembled or modified.” Eaker also asserted that
¶75evidence showed the sequence of bullets discharged from the gun
¶76was arced, which could have been the result of it becoming
¶77uncontrollable and “discharging repeatedly” from a single trigger
¶78pull. Eaker argued trial counsel improperly limited his
¶79investigation, never considering alternative theories such as a
¶80possible gun malfunction.
¶81 At the hearing on Eaker’s motion, trial counsel testified that
¶82he had 21 years of experience as a criminal defense lawyer working
¶83on murder cases and on jury trials and that he spent hours with
¶84Eaker preparing for trial, during which time they discussed the gun.
¶85Counsel testified that he reviewed the evidence in the case in
¶86preparing for trial and that he did not “recall [Eaker] specifically
¶87saying that [the gun] had malfunctioned,” had no “definitive
¶88memory” of Eaker telling him about disassembling it, and would
¶89have had the gun examined if he had received information that its
¶90 6 parts had been modified or that it “was prone to misfiring.”
¶91 Eaker presented testimony from a firearms expert who
¶92testified that normally, after emptying a magazine, a handgun’s
¶93slide will be locked to the rear, and pointed out that the slide of the
¶94gun used in the shooting was locked to the forward position. The
¶95expert testified that he reviewed the pretrial report from the GBI
¶96analyst and that the report did not document “any kind of alteration
¶97to the weapon.” The expert testified that he field-stripped the gun
¶98and “looked inside the internal mechanism of the weapon itself.” He
¶99noted a possible modification to the gun’s hammer and “trigger
¶100assembly” due to the relative shininess of the parts, but testified
¶101that it did not malfunction at all during his field test. He also
¶102testified that misassembling a handgun could cause it to “slamfire,”
¶103meaning it would fire multiple times with a single pull of the trigger.
¶104But on cross-examination, he acknowledged that, although he had
¶105testified on direct examination that the gun “may be altered in some
¶106way,” he was “not sure if it actually ha[d] been altered.”
¶107 A GBI expert who examined the gun during pretrial
¶108 7 investigations testified at the hearing that the gun’s safety and
¶109hammer appeared unaltered, its parts were functioning, the field
¶110tests he conducted never produced a misfire, and no one had
¶111suggested during the investigation that it had been altered. The
¶112GBI expert also testified that a handgun that had malfunctioned
¶113before would continue to do so and would not operate normally later.
¶114 (b) To establish ineffective assistance of counsel, a defendant
¶115must show that his trial counsel’s performance was professionally
¶116deficient and that he was prejudiced by this deficient performance.
¶117See Sullivan v. State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (citing
¶118Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
¶119674) (1984)). “If an appellant fails to meet his or her burden of
¶120proving either prong of the Strickland test, the reviewing court does
¶121not have to examine the other prong.” Bates v. State, 313 Ga. 57, 63
¶122(867 SE2d 140) (2022) (citation and punctuation omitted).
¶123 To establish deficient performance, a defendant must show
¶124that his attorney “performed at trial in an objectively unreasonable
¶125way considering all the circumstances and in the light of prevailing
¶126 8 professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d
¶127637) (2013). This requires a defendant to overcome “the strong
¶128presumption that counsel’s performance fell within a wide range of
¶129reasonable professional conduct, and that counsel’s decisions were
¶130made in the exercise of reasonable professional judgment.”
¶131Simmons v. State, 299 Ga. 370, 375 (788 SE2d 494) (2016) (citation
¶132and punctuation omitted). A defendant attempting to carry his
¶133burden “must show that no reasonable lawyer would have done what
¶134his lawyer did, or would have failed to do what his lawyer did not.”
¶135Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). “In
¶136particular, decisions regarding trial tactics and strategy may form
¶137the basis for an ineffectiveness claim only if they were so patently
¶138unreasonable that no competent attorney would have followed such
¶139a course.” Id. (citation and punctuation omitted).
¶140 To establish prejudice, a defendant must show a reasonable
¶141probability that, but for trial counsel’s deficiency, the result of the
¶142trial would have been different. See Patterson v. State, 314 Ga. 167,
¶143171 (875 SE2d 771) (2022). “A reasonable probability is a probability
¶144 9 sufficient to undermine confidence in the outcome.” Sullivan, 308
¶145Ga. at 510 (citation and punctuation omitted). “[T]his burden is a
¶146heavy one.” Bates, 313 Ga. at 62-63 (citation and punctuation
¶147omitted).
¶148 Eaker argues that trial counsel was constitutionally ineffective
¶149for failing to properly investigate the gun used in Audra’s shooting
¶150and for failing to raise the defense that that the gun accidentally
¶151misfired multiple times based on a single pull of the trigger.
¶152However, Eaker has failed to show that trial counsel acted
¶153objectively unreasonably in failing to investigate this defense. To
¶154begin, and contrary to Eaker’s assertion in his brief, there was no
¶155evidence presented at the motion-for-new-trial hearing or at trial
¶156that it was “well known that Mr. Eaker ‘tinkered’ with his guns.” 4
¶157Moreover, Eaker’s expert testified at that hearing that the GBI’s
¶158pretrial report on the murder weapon did not contain any
¶159 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. 10 information stating that the gun had been modified or disassembled.
¶160Eaker’s trial counsel testified that he reviewed the evidence in the
¶161case when preparing for trial, which would have included the GBI
¶162report on the gun, but that report would not have alerted trial
¶163counsel to the possibility of the gun misfiring due to a modification.
¶164Moreover, at the hearing on Eaker’s motion for new trial, Eaker’s
¶165trial counsel testified that he spent hours with Eaker preparing for
¶166trial, which included discussions about the gun, but that he could
¶167not definitively recall Eaker telling him that the gun had misfired
¶168or been modified. Trial counsel added that if he had received such
¶169information, he would have had the gun examined before trial.
¶170 Eaker also points to his expert’s testimony at the motion-for-
¶171new-trial hearing that the five bullet wounds to Audra’s head
¶172“arced” “up her head” “in almost a straight line,” as well as his
¶173testimony that the three bullets that missed Audra hit the roof, sun
¶174visor, and windshield of the car, as evidence that should have alerted
¶175trial counsel to the possibility that the gun misfired. However,
¶176although Eaker’s expert described the pattern of shots as “erratic,”
¶177 11 he noted that the five bullets that struck Audra did so within three
¶178to four inches of each other, and he did not testify that the pattern
¶179of the shots indicated a misfire. Moreover, he testified that he was
¶180not even “sure” if the gun had been altered in any way, and Eaker’s
¶181theory of accidental misfiring was premised on the gun having been
¶182altered.
¶183 “Concerning the adequacy of investigations, counsel has a duty
¶184to make reasonable investigations . . . with deference given to
¶185counsel’s judgment.” Bonner v. State, 314 Ga. 472, 475 (877 SE2d
¶186588) (2022) (citation and punctuation omitted). And “what
¶187investigation decisions are reasonable depends critically” “on
¶188information supplied by the defendant.” Strickland, 466 U.S. at 691.
¶189In this regard, we have held that “a lawyer’s performance is not
¶190deficient for failing to discover information that easily could have
¶191been provided by his client.” Parker v. State, 305 Ga. 136, 143 (823
¶192SE2d 313) (2019). Moreover, “where the record shows that [counsel]
¶193ha[d] no reason to investigate or pursue [a] defense,” trial counsel
¶194does not perform deficiently in not pursuing it. Williams, 308 Ga. at
¶195 12 536.
¶196 Here, Eaker’s counsel testified that, if he had been informed
¶197that the gun had been modified or had misfired, he would have had
¶198it examined, supporting the conclusion that he was not told of such
¶199occurrences. In addition, given that the GBI’s pretrial report did not
¶200mention the possibility of the gun having been modified or being
¶201prone to misfire, and given that Eaker’s expert did not specifically
¶202testify that the “arc” of the shots indicated a misfire and testified
¶203that he was not even “sure” that the gun had been modified, we
¶204conclude that counsel did not act objectively unreasonably when he
¶205did not investigate the possibility of the gun misfiring. See
¶206Williams, 308 Ga. at 536 (holding that “where the record shows that
¶207[counsel] ha[d] no reason to investigate or puruse [a] defense,” trial
¶208counsel did not perform deficiently in not pursuing it).
¶209 3. Eaker contends that the trial court erred in denying his
¶210motion for new trial under OCGA § 5-5-23 on the basis of newly
¶211discovered evidence. Eaker’s contention fails because it was not
¶212preserved for appellate review: he did not raise this claim in his
¶213 13 amended motion for new trial and the transcript from the hearing
¶214on that motion shows that Eaker did not raise or argue this claim.
¶215Moreover, in denying Eaker’s motion, the trial court did not rule on
¶216such a claim and, instead, ruled against Eaker’s motion on the two
¶217grounds that he did raise: that he was entitled to a new trial on the
¶218general grounds and because his trial counsel had been
¶219constitutionally ineffective. “An appellate court’s consideration of
¶220such a claim is dependent upon a trial court’s having first considered
¶221the evidence and made particular findings of fact.” Harris v. State,
¶222313 Ga. 872, 877 (874 SE2d 73) (2022). Consequently, Eaker’s claim
¶223for a new trial on the basis of newly discovered evidence was not
¶224preserved for appellate review. McClendon v. State, 299 Ga. 611,
¶225616 (791 SE2d 69) (2016) (“Because [appellant] raises an issue on
¶226appeal that was not presented or ruled upon by the trial court, his
¶227argument is not preserved for review by this Court.”).
¶228 Judgment affirmed. All the Justices concur, except Pinson, J., not participating.
¶229 14