309 Ga. 805
FINAL COPY
S20A0942. SUBAR v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Desean Martin Subar was convicted of
various offenses, including malice murder, in connection with crimes
he committed against Justin Bryant, Bettie Stoddart, and Gary
Kimber.1 Subar appeals, arguing that he was denied constitutionally
1 On December 6, 2016, a DeKalb County grand jury indicted Subar for
the malice murder of Bryant (Count 1); the felony murder of Bryant based on
armed robbery, aggravated assault, home invasion, and possession of a firearm
by a first offender probationer (Counts 2 through 5); the armed robbery of
Bryant, Stoddart, and Kimber (Counts 6, 9 and 11); the aggravated assault of
Bryant, Stoddart, and Kimber (Counts 7, 10 and 12); home invasion (Count 8);
and two weapons charges (Counts 13 and 14).
Following a trial from April 23 to 26, 2018, the jury returned guilty
verdicts on all charges. Subar was sentenced on May 2, 2018, to life in prison
without parole for the malice murder of Bryant plus 20 years for the armed
robbery of Stoddart. Subar received concurrent sentences for home invasion,
the armed robberies of Bryant and Kimber, and for possessing a firearm as a
first offender probationer, and a suspended sentence for possessing a firearm
during the commission of a crime. The remaining counts were either vacated
by operation of law or were merged for sentencing purposes.
Subar filed a motion for new trial on May 7, 2018, which he amended
through new counsel on November 15, 2019. After a hearing, the trial court
denied the motion as amended on December 19, 2019. Subar timely filed a
notice of appeal to this Court. The appeal was docketed to the April 2020 term
of this Court and was submitted for a decision on the briefs.
effective assistance of counsel and that the trial court erred by
admitting improper character evidence pursuant to OCGA § 24-4-
404 (b) (“Rule 404 (b)”). We affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial showed that, in January 2016, Bryant
was living with his brother, Tevin, in a two-bedroom apartment in
DeKalb County. On the evening of January 28, 2016, the men
invited some friends over for a party at their apartment. When the
party ended, everyone went home, except Stoddart and Kimber, who
stayed for the night.
Early the next morning, Tevin’s mother drove him to an
appointment while Bryant, Kimber, and Stoddart slept. A short
time later, Kimber heard someone banging on the front door. Before
he could leave the bedroom where he and Stoddart had been
sleeping, an armed man entered. The man told Kimber and
Stoddart, “don’t move, put up your hands” and demanded to know
“where the money at.” Kimber and Stoddart complied, but denied
having any money. While the armed man, who referred to himself
2
as “Killer Max,” continued to demand the whereabouts of money and
drugs in the apartment, a second armed man entered, escorting
Bryant into the bedroom. The men eventually put the victims into
the bedroom closet and then rummaged through the apartment;
they took numerous electronic devices from the home, including all
of the victims’ cell phones.
When the apartment fell silent, Bryant exited the closet and
left the bedroom where the victims were being held. Shortly
thereafter, Kimber also exited the closet; he heard a scuffle and a
gunshot, after which the armed men, who were still inside the
residence, fled through the back door of the apartment. Kimber
found Bryant lying on the floor of the other bedroom, bleeding from
a gunshot wound.
Kimber ran to a neighbor’s house to call 911. When officers
arrived, they found Bryant, still conscious, on the floor. He was in
pain and could only communicate in short bursts. Officers noted
that both the front and back doors suffered damage consistent with
forced entry. The apartment was in disarray, a television had been
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ripped from the wall, and a single shell casing was located in the
bedroom where Bryant had been shot. Bryant repeated the phrase
“Killer Max” to officers until he was taken by EMS to a hospital,
where he later died.
The medical examiner recovered a bullet from Bryant’s body
and determined that Bryant died as a result of a gunshot wound to
the abdomen. The State’s firearm examiner determined that the
bullet recovered during the autopsy matched the shell casing found
at the scene, and opined that both had been fired from a Glock .40
pistol.
Kimber and Stoddart provided descriptions of the two gunmen
to police. They noted that one of the gunmen was taller, wore a pair
of black jeans ripped at the knee, and had an accent “from the
islands.” After officers left the apartment, Kimber and Stoddart
located a cell phone that they did not recognize on the floor of the
bedroom where Bryant had been shot. They turned it over to
officers, and a search of the phone revealed that Subar was listed as
the owner. Officers also located a photograph of Subar taken the
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day before the crimes showing him in a pair of black jeans ripped at
the knee. Kimber and Stoddart later identified Subar as one of the
armed men that had broken into the apartment, after which a
warrant was issued for Subar’s arrest. Subar was eventually located
in a house in DeKalb County; he engaged in a three-hour standoff
with the police before his arrest.
At trial, the State presented evidence that Subar was not
acquainted with Tevin, Kimber, Stoddart, or Bryant. The State also
introduced a recorded jail call during which Subar referred to
himself as “Max,” and introduced Subar’s birth certificate into
evidence, which showed that he was born in Trinidad and Tobago.
Finally, the State introduced a certified copy of Subar’s 2012 first
offender burglary adjudication by guilty plea and his sentence to
establish that he was a first offender probationer at the time of the
crimes.2 The State also introduced witness testimony and
documentary evidence concerning the 2012 burglary for the
2 Subar does not challenge the admission of his 2012 first offender
burglary adjudication and sentence for the purpose of establishing that he was
a first offender probationer at the time of the crimes in the current case.
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purposes of showing motive and intent pursuant to OCGA § 24-4-
404 (b).
Though not enumerated as error, consistent with our
customary practice in murder cases,3 we have reviewed the
sufficiency of the evidence, and we conclude that the evidence as
summarized above was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that Subar was guilty of the
crimes for which he was convicted. See Jackson v. Virginia, 443 U.
S. 307 (
99 SCt 2781, 61 LE2d 560) (1979).
2. Subar claims that he received constitutionally ineffective
assistance of counsel because his trial counsel failed to file a general
demurrer or a motion in arrest of judgment to challenge the home
invasion charge (Count 8) of the indictment. In order to establish
that he received ineffective assistance of counsel, Subar must prove
both deficient performance and prejudice. See Strickland v.
3 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, ___ Ga.
___, ___ (4) (b) (846 SE2d 83) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
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Washington, 466 U. S. 668, 687 (III) (
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.” Wright v. State,
291 Ga. 869, 870 (2)
(
734 SE2d 876) (2012).
Subar claims that his trial counsel should have filed either a
general demurrer or a motion in arrest of judgment4 to the count of
the indictment that charged him with home invasion because, he
alleges, the indictment failed to specify that Subar intended to
commit the underlying crimes “therein,” or inside the residence. See
OCGA § 16-7-5 (b).5 But the indictment alleged that Subar “did
4 As this Court has previously explained, “[a] general demurrer
challenges the sufficiency of the substance of the indictment.” (Citation,
punctuation and emphasis omitted.) Kimbrough v. State, 300 Ga. 878, 880 (2)
(
799 SE2d 229) (2017). And a motion in arrest of judgment challenges “a defect
that the accused might otherwise have challenged by a timely general
demurrer. It will lie only when the indictment is void.” (Citation omitted.)
Lowe v. State,
276 Ga. 538, 539 (2) (
579 SE2d 728) (2003).
5 OCGA § 16-7-5 (b) states as follows:
A person commits the offense of home invasion in the first
degree when, without authority and with intent to commit a
forcible felony therein and while in possession of a deadly weapon
or instrument which, when used offensively against a person, is
likely to or actually does result in serious bodily injury, he or she
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without authority and with intent to commit armed robbery and
aggravated assault, forcible felonies, . . . enter the dwelling house of
Justin Alexander Bryant, . . . while such dwelling house was
occupied by Justin Bryant, a person with authority to be present
therein.” The allegation that Subar entered Bryant’s home without
authority and with the intent to commit various felonies necessarily
implied that Subar intended to commit the underlying crimes inside
the residence. See Jordan v. State, 307 Ga. 450 (
836 SE2d 86)
(2019).
As a result, this count of the indictment was sufficient to
place [Subar] on notice of the crime with which he was
charged, and a general demurrer would not have been
successful. See Budhani v. State, 306 Ga. 315, 320 (1) (b)
(830 SE2d 195) (2019) (“[I]ndictment withstands a
general demurrer and satisfies due process here because
it alleges the essential elements of the offenses . . . and
put [the defendant] on notice of the crimes with which he
is charged and against which he must defend.” (Citation
and punctuation omitted)).
Jordan, 307 Ga. at 455 (3). Because neither a general demurrer nor
enters the dwelling house of another while such dwelling house is
occupied by any person with authority to be present therein.
(Emphasis supplied.)
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a motion in arrest of judgment would have been successful, Subar
cannot show deficient performance, as “counsel cannot be ineffective
for failing to make a meritless motion.” Fleming v. State, 306 Ga.
240, 250 (5) (b) (
830 SE2d 129) (2019).
3. Subar contends that the trial court erred by admitting
evidence of the 2012 burglary at trial pursuant to OCGA § 24-4-404
(b). We see no reversible error.
The record shows that Subar committed a prior burglary
wherein he and two others kicked in the door of a house while the
homeowner was present and stole two televisions, a PlayStation,
and an Xbox. Subar pled guilty to burglary in 2012 and was
sentenced as a first offender. Prior to trial in this case, the State
filed a notice of intent to introduce this evidence pursuant to OCGA
§ 24-4-404 (b). After a hearing, the trial court admitted the prior
burglary as Rule 404 (b) evidence for the purposes of showing
Subar’s motive and intent to commit the crimes charged.
Assuming without deciding that the admission of this evidence
was erroneous, any error was harmless. The evidence of Subar’s
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guilt was strong. He was identified by two eyewitnesses and, despite
the record showing he had no connections to any of the victims,
Subar’s cell phone was found in the bedroom where Bryant was shot.
The cell phone included a recent photograph of Subar wearing
clothing matching the description of the clothing worn by one of the
assailants. And Subar made a pre-trial phone call from jail wherein
he referred to himself as “Max.” See Hood v. State, 299 Ga. 95, 105-
106 (4) (
786 SE2d 648) (2016) (admission of Rule 404 (b) evidence
harmless where evidence of guilt was strong). Moreover, the jury
was aware of the prior burglary as the State introduced a certified
copy of Subar’s status as a first offender probationer in order to
establish certain charges within the indictment. Based on the
foregoing, it is highly probable that the introduction of the prior
burglary did not contribute to the jury’s verdict.
Id. at 106 (4).
Judgment affirmed. All the Justices concur.
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Decided September 8, 2020.
Murder. DeKalb Superior Court. Before Judge Jackson.
Gerard B. Kleinrock, for appellant.
Sherry Boston, District Attorney, Emily K. Richardson, Lenny
I. Krick, Shannon E. Hodder, Alana J. Driscoll, Assistant District
Attorneys; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Mark S. Lindemann, Assistant
Attorney General, for appellee.
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