Gunter v. State
316 Ga. App. 485
Ga. Ct. App.2012Background
- Gunter was convicted of aggravated assault and terroristic threats.
- Facts show Gunter chased Dadzie with a knife-like object, threatening her life in a Walmart parking lot and store entrance.
- Video and witnesses corroborated that Gunter carried a large knife and threatened Dadzie.
- Defense sought a lesser included offense instruction (simple assault); the court declined after defense counsel and client decision.
- Gunter appealed on sufficiency, failure to charge lesser included offense, and ineffective assistance claims.
- Affirmed judgment; concurrent and partial dissent addressed trial court's handling of the defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault | Gunter argues no evidence of a blade and imminent threat. | State contends threats plus weapon established deadly weapon use. | Evidence sufficient; deadly weapon established; reasonable apprehension shown. |
| Failure to charge lesser included offense of simple assault | Gunter desired a simple assault instruction. | Waiver of request occurred; trial court did not err. | Waived on appeal; no error review. |
| Ineffective assistance for failing to preserve the issue | Counsel's failure to preserve error prejudiced outcome. | Waiver by defendant limits claim; no prejudice shown. | No ineffective assistance; waiver valid. |
Key Cases Cited
- Ware v. State, 289 Ga. App. 860 (2008) (deadly weapon use must be shown when weapon not clearly exposed)
- Davis v. State, 184 Ga. App. 230 (1987) (jury questions about weapon proximity and immediacy of threat)
- Durrance v. State, 250 Ga. App. 185 (2001) (absence of written request to charge not error)
- Chancey v. State, 258 Ga. App. 319 (2002) (nonerror where no written request; waiver appears)
- Alvarado v. State, 271 Ga. App. 714 (2005) (defendant cannot blame counsel for own strategic waivers)
- Rose v. State, 258 Ga. App. 232 (2002) (waiver where defendant chose to introduce evidence over counsel's objection)
- Gabler v. State, 177 Ga. App. 3 (1985) (illustrates that failure to object to duplicative testimony is not ineffective assistance)
- Van Alstine v. State, 263 Ga. 1 (1993) (distinguishes decisions for accused vs. counsel in trial strategy)