Subar v. State, 309 Ga. 805

On Jan. 28–29, 2016, two armed men forced entry into Justin Bryant’s DeKalb County apartment, bound victims (Bryant, Bettie Stoddart, Gary Kimber), and ransacked the unit; Bryant was shot and later died.
Witnesses heard one assailant call himself “Killer Max”; Kimber and Stoddart later identified Desean Subar as one of the intruders.
Investigators found a cell phone in the bedroom registered to Subar and a recent photo of him wearing black jeans ripped at the knee (matching a witness description); a shell casing at the scene matched the fatal bullet (Glock .40).
Subar was arrested after a standoff; jail call evidence included him referring to himself as “Max.” He had a 2012 burglary conviction adjudicated under Georgia’s First Offender Act.
A DeKalb grand jury indicted Subar on multiple counts including malice murder, home invasion, armed robbery, aggravated assault, and weapons offenses; a jury convicted him and the trial court sentenced him to life without parole plus additional terms.
On appeal, Subar argued (1) ineffective assistance for counsel’s failure to challenge the home invasion indictment, and (2) erroneous admission of his 2012 burglary under OCGA § 24-4-404(b); the Georgia Supreme Court affirmed.

Issue	Plaintiff's Argument (Subar)	Defendant's Argument (State)	Held
Sufficiency of the evidence	(not raised) convictions should not stand	Evidence (IDs, phone, matching photo, ballistics) proves guilt	Court reviewed sua sponte and found evidence sufficient; convictions affirmed
Ineffective assistance — failure to file general demurrer or motion in arrest to home invasion count	Indictment failed to allege intent to commit the underlying felonies inside the dwelling, so counsel was deficient for not challenging it	Indictment alleged entry "with intent to commit armed robbery and aggravated assault," which necessarily implies intent to commit those felonies in the dwelling; any challenge would be meritless	Counsel not ineffective; cannot be deficient for failing to make a meritless motion; claim denied
Admission of 2012 burglary under OCGA § 24-4-404(b)	Prior burglary was improper character evidence and prejudicial	Evidence was admissible to show motive/intent and the jury already knew of the prior via certified first-offender status; in any event error would be harmless	Even assuming error, its admission was harmless given strong identification, physical evidence, and jury awareness; no reversible error

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test)
Jordan v. State, 307 Ga. 450 (indictment alleging intent to commit forcible felony implies act "therein")
Budhani v. State, 306 Ga. 315 (indictment must allege essential elements and provide notice)
Fleming v. State, 306 Ga. 240 (counsel not ineffective for failing to make meritless motion)
Hood v. State, 299 Ga. 95 (Rule 404(b) error can be harmless where evidence of guilt is strong)