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315 Ga. 202
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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
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
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,

partly due to Eaker’s alcohol use and his suspicion that Audra was

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.”
2
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.

Eaker removed it, racked the slide, and put it to his own head,

3
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

agent testified that the gun’s hammer was set to be ready to fire,

4
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

was well known that [he] ‘tinkered’ with his guns” and that

3Eaker requested, and the trial court gave, a charge on voluntary
manslaughter.
5
“[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

parts had been modified or that it “was prone to misfiring.”

6
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

investigations testified at the hearing that the gun’s safety and

7
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

professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d

8
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

sufficient to undermine confidence in the outcome.” Sullivan, 308

9
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 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 information stating that the gun had

been modified or disassembled. Eaker’s trial counsel testified that

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,” (emphasis
supplied) 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
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,”

he noted that the five bullets that struck Audra did so within three

11
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 judgments.” 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]

had no reason to investigate or pursue [a] defense,” trial counsel

does not perform deficiently in not pursuing it. Williams v. State,

308 Ga. 532, 536 (842 SE2d 1) (2020).

12
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] had no reason to investigate or pursue [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

amended motion for new trial and the transcript from the hearing

13
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.

14
Decided November 29, 2022.

Murder. Cherokee Superior Court. Before Judge Salmon,

Senior Judge.

Jeffrey S. Williams, for appellant.

Shannon G. Wallace, District Attorney, Lara A. Snow, Cliff

Head, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, Michael A.

Oldham, Assistant Attorney General, for appellee.

NOTICE: 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.

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.”
2
partly due to Eaker’s alcohol use and his suspicion that Audra was

engaged in infidelity. During this period, the couple had several