Subar v. State

Desean Subar was convicted by a DeKalb County jury of malice murder and other crimes after he and another armed man broke into an apartment, robbed the occupants, and shot Justin Bryant, who later died. Two survivors identified Subar, and his cell phone, containing a photo of him in clothing matching a witness description, was found at the scene. On appeal, Subar argued his trial lawyer should have challenged the home invasion count of the indictment as legally defective, and that the trial judge wrongly let the jury hear about his 2012 burglary conviction. The Supreme Court of Georgia disagreed on both points, finding the indictment was legally sound so a challenge would have failed, and that even if the burglary evidence should not have been admitted, the other evidence against Subar was so strong that any error was harmless. The court affirmed his convictions.

The indictment's home invasion count adequately notified Subar of the charge, so his lawyer was not ineffective for failing to challenge it, and even assuming the prior burglary evidence was wrongly admitted under Rule 404(b), the error was harmless because the other evidence of guilt was strong.

The ruling reinforces that Georgia defense lawyers are not considered ineffective for skipping legal challenges that would have failed, and shows appellate courts will excuse evidentiary mistakes when other proof of guilt is overwhelming, affecting how future convictions get reviewed.

Affirmed

1. The court applied the Strickland test for ineffective assistance of counsel, which requires showing both that the lawyer's performance was deficient and that the deficiency prejudiced the case; failing either prong defeats the claim.
2. Because the indictment's home invasion count alleged Subar entered the home without authority and with intent to commit armed robbery and aggravated assault, the court found this necessarily implied he intended those crimes inside the residence, satisfying the notice requirements of a valid indictment.
3. Since a general demurrer (a challenge to whether the indictment adequately states a crime) or a motion in arrest of judgment (a challenge claiming the indictment is void) would have failed, defense counsel could not be deemed ineffective for not filing either, since lawyers are not faulted for skipping motions that had no chance of success.
4. On the evidentiary issue, the court assumed without deciding that admitting Subar's 2012 burglary conviction under Rule 404(b), Georgia's rule allowing certain prior-act evidence to show motive or intent, was improper.
5. The court then applied a harmless-error analysis, concluding that because eyewitness identifications, a cell phone found at the crime scene with a matching photo, and a jail call in which Subar used the nickname used during the crime provided strong independent proof of guilt, it was highly probable the burglary evidence did not affect the verdict.

• murder conviction
• home invasion
• ineffective assistance of counsel
• prior crimes evidence
• DeKalb County