by Anthony W. Accurso

The Supreme Court of Georgia unanimously granted a defendant’s habeas petition on the ground both his trial and appellate lawyers provided ineffective assistance of counsel based on the fact his first-degree burglary conviction was improper where the building he robbed was not “the dwelling of another” but rather a business.

On the evening of June 12, 2013, Alfred Moore and an accomplice dressed as police officers and knocked on the door of a building on Log Cabin Drive in Macon. The building was originally designed as a residential home but was used as the office for several restaurants owned by Luis Rodriguez. Moore and his accomplice presented a fake search warrant and, once inside the office, bound Rodriguez and his administrative assistant at gunpoint. They proceeded to steal $2,600 and fled.

In October 2013, Moore, along with his co-defendant, was indicted for first-degree burglary, two counts each of armed robbery, aggravated assault, false imprisonment, impersonating an officer, and possession of a firearm during the commission of a felony. In the indictment, the count titled “Burglary in the First Degree, OCGA § 16-7-1 (b)” alleged that Moore “without authority and with the intent to commit [a]rmed [r]obbery, a felony therein, enter[ed] the business of Luis Rodriguez….”

At trial, the prosecution presented Rodriguez and his assistant, who identified Moore and the accomplice as the robbers. During closing arguments, the court explained that armed robbery is a felony and instructed, “It’s only necessary that the evidence show beyond a reasonable doubt that [Moore] did, without authority, enter the place described in the [i]ndictment with the intent to commit the alleged felony, that being [a]rmed [r]obbery.”

Trial counsel did not challenge this statement that made no reference to a dwelling. Moore was convicted and sentenced to 45 years in prison, including 20 years for the first-degree burglary conviction.

On direct appeal, appellate counsel failed to raise the issue of whether the indictment alleged sufficient facts to convict Moore of first-degree burglary and to object to the improper standard for convicting him on this count.

In March of 2020, Moore filed a habeas motion on the ground that OCGA § 16-7-1(b) provides, in part, that a person commits the crime of first-degree burglary when he, without authority and with the intent to commit a felony, enters a “dwelling house of another” or a building “designed for use as the dwelling of another,” yet the indictment alleged that he committed first-degree burglary only by “enter[ing a] business.”

Since the first-degree burglary count did not allege that Moore entered a “dwelling house” or a building designed for use as a “dwelling,” Moore argued that the count failed to allege all the essential elements of first-degree burglary, and his appellate counsel should have raised the issue of his trial counsel’s failure to object to that failure. He did acknowledge that the prosecution alleged sufficient facts to meet the basic elements of second-degree burglary, which carries a maximum of five years in prison.

Moore’s habeas petition was denied, and he timely appealed.

The Court began its analysis by noting the standard for ineffective assistance, where Moore “must show that appellate counsel performed deficiently—i.e., that she ‘performed [her] duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms’—and that the deficiency prejudiced Moore’s direct appeal—i.e., that but for counsel’s unprofessional errors, the result of Moore’s direct appeal would have been different.” Strickland v. Washington, 466 U.S. 668 (1984); Cartwright v. Caldwell, 825 S.E.2d 168 (Ga. 2019).

An indictment must “contain every allegation essential to constitute the crime.” Sanders v. State, 869 S.E.2d 411(Ga. 2022). A necessary element of the charged crime of first-degree burglary is that the defendant entered or remained within a “dwelling house” or building designed for use as a “dwelling.” Dupree v. State, 815 S.E.2d 899 (Ga. 2018).

Turning to the present case, the Court noted that the indictment omitted any reference to a “dwelling house” or a building designed for use as a “dwelling,” so it failed to allege an essential element of first-degree burglary. Because the indictment failed to allege all the essential elements of first-degree burglary, it was subject to a “special demurrer,” which “challenges the sufficiency of the form of the indictment.” Kimbrough v. State, 799 S.E.2d (Ga. 2017). A special demurrer must be filed within 10 days of arraignment, unless the time for filing is extended by the trial court. OCGA § 17-7-110. But trial counsel never filed a special demurrer.

The Court concluded that “[t]rial counsel’s failure to raise the issue of the defective first-degree burglary count by special demurrer was not a reasonable trial tactic or strategy,” and “the requirement in OCGA § 16-7-1(b) that the defendant entered or remained within a type of ‘dwelling’ of another person was not difficult to discern….” Thus, the Court determined that Moore met his burden of establishing trial counsel performed deficiently.

As for prejudice, the Court wrote, “[a]bsent trial counsel’s failure to file a special demurrer, it is reasonably probable that the result of the trial would have been more favorable to Moore” because, “had counsel filed a timely special demurrer before trial … the trial court should have granted it.” Thus, Moore also satisfied his burden of establishing that but for counsel’s deficient performance “it is reasonably probable that the result of the trial would have been more favorable to Moore,” the Court concluded.

Because Moore met his burden of proving that his trial counsel provided constitutionally ineffective assistance, the Court concluded that any deficiency in appellate counsel’s failure to raise the ineffectiveness-of-trial-counsel claim prejudiced his appeal as well. Thus, the Court held that the habeas court erred in denying relief.

Accordingly, the Court reversed the habeas court and remanded the case with directions to enter an order vacating the first-degree conviction and to grant other appropriate relief consistent with its opinion. See: Moore v. White, 2024 Ga. LEXIS 243 (2024).   

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