CourtListener 10679792

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314 Ga. 733
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S22A0735. PARK v. THE STATE.

LAGRUA, Justice.

Appellant Dongsoo Park (“Appellant”) was convicted of malice

murder in connection with the stabbing death of Kwang Ko (“Ko”) in

a parking lot after a confrontation between two groups of people.1

On appeal, he contends that (1) the trial court erred by failing to

instruct the jury on justification as part of the former suggested

pattern jury instruction on mutual combat; (2) his trial counsel

provided ineffective assistance of counsel; and (3) the trial court

1 Ko was killed on December 8, 2011. On February 29, 2012, a Gwinnett

County grand jury indicted Appellant, Dong Ho Shin, Seung Won Lee, and
Yeon-Tae Kang Hill for malice murder, felony murder, and aggravated assault.
Appellant was tried separately from June 3 to 11, 2019, and the jury found
Appellant guilty of all counts. Appellant was sentenced to serve life in prison
without the possibility of parole for malice murder. The felony murder count
was vacated by operation of law, and the trial court merged the aggravated
assault count into the felony murder count. See Division 3, below. Appellant
filed a timely motion for new trial. In June 2021, the trial court held hearings
on the motion for new trial. On January 5, 2022, the trial court denied the
motion for new trial. Appellant filed a timely notice of appeal, and the case was
docketed to this Court’s April 2022 term and submitted for a decision on the
briefs.
erred in merging the aggravated assault count into the felony

murder count. We affirm.

The evidence showed that on December 8, 2011, at

approximately 7:00 a.m., the body of an unidentified man was

discovered in the Aldi’s parking lot in Duluth. The man was

ultimately identified as Ko. The medical examiner later determined

that Ko had been stabbed or cut at least seven times by a sharp

object and had other blunt-force injuries. Ko’s fatal wound was a cut

to his neck that severed both internal jugular veins.

Earlier on December 8 around 4:00 a.m., Appellant and his

friends, Seung Won Lee (“Lee”), Dong Ho Shin (“Shin”), and Yeon-

Tae Kang Hill (“Hill”), had dinner and drinks at a restaurant in the

same shopping center as the Duluth Aldi. Ko and Jin Oh (“Oh”)2

were also dining at the same restaurant, and the restaurant owner

testified that she did not see any interaction between the men at the

two tables. After finishing their meal, Appellant’s group called two

2 Although counsel — for both parties — mentioned during opening
statements and closing arguments that Ko and Oh had dinner that night, no
one testified to this fact at trial.

2
taxis — Shin planned to drive himself home — and then went

outside to smoke.

While Appellant’s group was outside smoking, Ko and Oh left

the restaurant. Shin testified that either Ko or Oh asked Shin and

his group of friends, “What are you looking at?” in a sarcastic

manner; Hill testified that this same person “smirked” at them, with

“a smile that makes you feel uncomfortable, mistreated.” Ko and Oh

then walked to the parking lot and got into a car.

According to Hill, Appellant stated that he knew Ko and Oh

and walked over to their car and knocked on the passenger-side

window, where Ko was seated. Appellant told “them to come out

from [Oh’s] car.” Around this same time, a taxi driver arrived in the

parking lot. He testified that seven or eight people “were talking,

sort of making verbal confrontation to each other.”

Hill testified that Appellant attempted to stop Oh’s car by

standing in front of it; the taxi driver testified that two men stood in

front of the car. Both Hill and the taxi driver testified that Oh’s car

“was still moving” when either Appellant or two men stood in front

3
of the car. Hill testified that Appellant “was holding onto the hood”

when the driver of the car “pressed . . . the gas pedal” and “some part

of [Appellant’s] body was under the car, as he tried to hold onto the

hood.” The taxi driver also testified that one of the men who stood in

front of the car went “under the car.” Lee and Shin testified that

they did not see what happened prior to Appellant getting hit by

Oh’s car because they were busy having a conversation, but they

both witnessed Appellant “under the car.”

The taxi driver testified that after Appellant was hit by Oh’s

car, the other man who was standing in front of the car went to the

driver’s door “to take [the driver] out from the car” and the “two

people who were standing next to the restaurant” ran to the driver’s

door “to assist.” Lee and Shin both testified that they ran over to the

car, opened the driver-side door, and tried to get the driver out.

Hill testified that while Lee and Shin were attempting to

remove Oh from the car, Ko got out of the car and “grabbed”

Appellant. Appellant and Ko “were literally onto their bodies

together, fighting, and they slowly, slowly made their way to the

4
[Aldi’s] parking lot.” Oh was not removed from the car and

ultimately drove away.

The taxi driver testified that after Oh’s car left the parking lot,

the people who had attempted to remove the driver from the car ran

over to the adjacent Aldi’s parking lot. There were a total of “five or

six” people in the Aldi’s parking lot and “they were all tangled

together.” The taxi driver then received an order from his employer

to leave, so he left.

Lee, Shin, and Hill each testified differently than the taxi

driver as to who was in the Aldi’s parking lot. According to Hill, only

Appellant and Ko were “tangled up” in the Aldi’s parking lot, and he

did not see either one of them with a knife. Someone screamed, “Let’s

go,” and Appellant, Shin, Lee, and Hill ran to Shin’s car.

Lee testified that he ran after Oh’s car as it was leaving the

premises “to chase [it].” After he failed to catch the car, he saw

Appellant and Ko standing in the Aldi’s parking lot. He testified: “It

appear[ed] . . . there’s going to be a fight, you know, heating up. So

let’s not fight. Let’s go.” Appellant, Shin, Lee, and Hill then got into

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Shin’s car.

Shin testified that he saw only Appellant and Ko in the Aldi’s

parking lot; Appellant was standing, and Ko “was kind of sitting in

a squat position.” Shin “didn’t want to get into a conflict, so [he]

shouted to them from [a]far, [l]et’s go home.” Appellant started

walking toward him, and Appellant, Shin, Lee, and Hill got into

Shin’s car. Shin further testified that he, Lee, and Hill were never

in the Aldi’s parking lot.

Shin, Lee, and Hill testified that Shin drove the foursome to

his apartment complex and that Appellant sat in the back seat.

During the five-to-ten-minute car ride, Shin, Lee, and Hill asked

Appellant whether he was injured. According to Lee, Appellant

stated “he was okay, but he was frightened.” Shin, Lee, and Hill

testified that when they arrived at Shin’s apartment complex, they

all started smoking in the parking lot. Hill testified that he noticed

that Appellant’s pants were “ripped here and there.” Lee testified

that Appellant asked: “Where’s my bag? Did I leave it in [Shin’s]

car?” Appellant then “took the bag out of [Shin’s] car and went to the

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back of the apartment [building].” When Appellant came back, he

showed everyone that he was wounded. Lee testified “[t]here was

blood and then there’s some scratches.” Lee and Appellant left in a

taxi, and Hill slept at Shin’s apartment that night.

When Sergeant William Petty arrived at the Aldi’s parking lot

that morning, he recovered Ko’s cell phone and called his recent

contacts, one of whom was Oh.3 After speaking with Oh, Sergeant

Petty went to Star Daepo, a restaurant, where he learned that Shin

and Lee were employees and present on-site and that Appellant was

a former employee. Sergeant Petty asked Shin and Lee to speak with

him at the police station; both agreed.

A few days later, on December 12, Shin drove to the police

station. His car was processed for evidence, and Ko’s blood was

discovered in the back seat where Appellant had been sitting. After

Sergeant Petty interviewed Shin, the police conducted a search of

Shin’s apartment and recovered a “black-handled knife with a

3 Sergeant Petty testified that Oh had been deported, and his deportation

order was admitted at trial. Oh therefore did not testify at trial.

7
sheath” from inside a drawer in his bedroom. Forensic testing of this

knife revealed no evidence of blood, or the fingerprints of Appellant,

Shin, Lee, or Hill. The police also conducted a search of the

apartment complex’s grounds for a knife or other evidence, but did

not find anything. On December 13 and 19, Sergeant Petty

interviewed Lee and Hill, respectively.

Less than 24 hours after Ko’s body was discovered, Appellant

arrived at the Atlanta airport and purchased a one-way ticket to

Seoul, South Korea; his flight departed Atlanta on December 9,

2011, at 12:30 a.m. After Appellant, Shin, Lee, and Hill were

indicted in 2012 for malice murder and related crimes, Appellant

was eventually extradited in 2018 from South Korea to Gwinnett

County.

At trial, the defense’s theory of the case was that after

Appellant was hit by Oh’s car, he remained on the ground until he

left in Shin’s car. In addition to their testimony recounted above,

Shin, Lee, and Hill testified that their charges for Ko’s murder were

still pending and they had received no deal from the State in

8
exchange for their testimony, but they had received testimonial

immunity.

Min-Hyuk Lee (“Min-Hyuk”), the manager of Star Daepo where

Shin and Lee worked and Appellant formerly worked, testified that

on the morning of December 8 he received a phone call from the

owner of the restaurant where Appellant and his friends had eaten

dinner. Based on this conversation, he drove to Shin’s apartment

where he met with Shin, Appellant, and Lee.4 Min-Hyuk asked

them: “I was told that someone passed away. . . . So what happened?”

No one responded. Appellant then said: “What am I going to do . . .

now?” and “Do I need to go hide?” Min-Hyuk then asked him, “Where

is the knife?” Min-Hyuk testified that he asked Appellant about a

knife because he “knew [Appellant] had a knife in his bag” since

Appellant once showed everyone at Star Daepo “how to cut . . . raw

fish.” Appellant responded that he “put [the knife] away around

somewhere.”

Appellant did not testify at trial, but the State played

4 Min-Hyuk testified that he was not sure if Hill was also present.

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recordings of several phone calls made by Appellant to his mother,

Oksoon Robinson (“Robinson”), while he was in jail.5 During one

phone call, Appellant explained, “Since I have no memory, there’s

much I could not see, whether everything [everyone else said was]

correct.” During another phone call, Appellant stated, “What [Shin,

Lee, and Hill] are saying are all lies,” and “the guys coordinated

their stories” because “[t]heir stories are so similar.” He also pointed

out that one of the taxi drivers said “that he saw [four] or [five]

people standing together, saw them fighting while standing, but

didn’t mention anything about one person lying down” and that

“[e]veryone does agree about [him] getting hit by the car and falling.”

Additionally, Appellant stated:

[T]here are a lot of things that the guys say that don’t
match up with what the taxi driver says. The guys said
that they didn’t hit at all. [Hill] says that he was out of it
so that he didn’t get involved at all, and [Lee] and [Shin]
gave false statements that they didn’t see [inaudible]
going towards the dead person, but the taxi driver is
saying that he saw all of them standing there together, so
that’s also a lie.

5 Appellant and Robinson spoke in Korean on the phone calls, and the

jury was provided with a translated transcript.

10
Robinson asked: “So is [the taxi driver] saying that you were there

when the fight broke out? You weren’t.” Appellant then responded:

“I wasn’t. Not that I wasn’t but when I was getting beat up, they

came to help me, so from his perspective, it could seem like we were

all fighting together. Since the guys came to help me as I was getting

beat up.”

The defense called two character witnesses and Ki Song Kim

(“Kim”), Shin’s cellmate for two months in 2013. According to Kim,

Shin explained he was in custody because “there was a fight and

there was a car [that was] involved and how it had hit [Appellant]”

and Appellant went “under the car.” Shin also told Kim that

Appellant remained on the ground until he was “placed” in Shin’s

car. After Shin, Lee, and Appellant got into the car, “this one black

shadow f[e]ll down in front of their car. And later, [Hill] got into the

car, and they left.”

1. Appellant contends that the trial court erred by failing to

instruct the jury on justification as part of the then-current pattern

jury instruction on mutual combat. Specifically, he contends that the

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trial court should have read the part of the instruction that

pertained to justification, which stated:

Under some circumstances, such killing . . . may be
justifiable.
...
The killing as a result of mutual combat may be
justifiable, and you may find it to be so if it appears that
the defendant reasonably believed at the time of the
killing that the force the defendant used was necessary to
prevent death or great bodily injury to the defendant (or
a third person) or to prevent the commission of a forcible
felony, and if it further appears that the deceased was the
aggressor. If it appears that the deceased was not the
aggressor but that the defendant was the aggressor, then
in order for the killing to be justified, if such killing was
the result of mutual combat, it must further appear that
the defendant withdrew from the encounter and
effectively communicated to the deceased the intent to do
so, and the deceased, notwithstanding, continued or
threatened to continue the use of unlawful force.

During the charge conference, Appellant’s trial counsel

requested the pattern jury instruction on mutual combat, and the

State objected to the justification language.6 The trial court declined

to instruct the jury with this language, finding that the evidence did

6 We note that Appellant requested the pattern jury instructions on
mutual combat, lesser offense, and voluntary manslaughter, and he did not
request the pattern jury instructions on affirmative defense or justification.

12
not support it. Assuming without deciding that the trial court erred

in failing to instruct the jury with the mutual combat justification

language, we conclude that any error was harmless.

“The test for determining whether a nonconstitutional

instructional error was harmless is whether it is highly probable

that the error did not contribute to the verdict.” McIver v. State, 314

Ga. 109, 140 (2) (h) (875 SE2d 810) (2022) (citation and punctuation

omitted). “In determining whether a trial court erred in giving jury

instructions, we read and consider the instructions as a whole.”

Stafford v. State, 312 Ga. 811, 820 (4) (865 SE2d 116) (2021). “And

in determining whether such an error is harmless, we assess the

evidence from the viewpoint of reasonable jurors, not in the light

most favorable to the verdicts.” McIver, 314 Ga. at 140 (2) (h). Where

the defense of justification “is supported by only the slightest

evidence and is inconsistent with the defendant’s own account of the

events or with the main defense theory presented at trial, the failure

to give a charge on the defense generally will be harmless in any

event.” Guerrero v. State, 307 Ga. 287, 288-289 (2) (835 SE2d 608)

13
(2019) (citation and punctuation omitted).

Here, the trial court instructed the jury on mutual combat —

minus the justification language — and voluntary manslaughter. As

part of these pattern jury instructions, the jury was instructed:

After consideration of all the evidence, before you
would be authorized to return a verdict of guilty of malice
murder or felony murder, you must first determine
whether mitigating circumstances, if any, would cause
the offense to be reduced to voluntary manslaughter.
A person commits voluntary manslaughter when
that person causes the death of another human being
under circumstances that would otherwise be murder, if
that person acts solely as the result of the sudden, violent,
and irresistible passion resulting from serious
provocation sufficient to excite such passion in a
reasonable person.
...
If you find that there was a mutual intention on the
part of both the deceased and the defendant to enter into
a fight or mutual combat and that under these
circumstances the defendant killed the deceased, then
ordinarily such killing would be voluntary manslaughter,
regardless of which party struck the first blow.

“Qualified jurors under oath are presumed to follow the instructions

of the trial court.” Hill v. State, 310 Ga. 180, 190 (6) (850 SE2d 110)

(2020) (citation and punctuation omitted). Because the jury was

charged on voluntary manslaughter and mutual combat yet

14
returned a guilty verdict on malice murder and felony murder, it

follows that the jury likely considered and rejected the factual basis

underpinning the first step of finding justification by mutual

combat, i.e., that Appellant was engaged in mutual combat. Based

on (1) the jury’s rejection of mutual combat — which was

inconsistent with Appellant’s own version of events, (2) the

compelling evidence of Appellant’s guilt — i.e., that Ko’s blood was

found in the back seat of Shin’s car where Appellant was sitting, that

Appellant was wounded, appeared to hide his bag after the incident,

was known to carry a knife, and stated that he hid the knife, and

that Appellant flew to South Korea less than 24 hours after the

incident, and (3) there was no more than slight evidence of

justification, we conclude that any error here did not likely affect the

outcome of the trial court proceedings. See State v. Newman, 305 Ga.

792, 797-798 (2) (a) (827 SE2d 678) (2019) (the trial court’s failure

to instruct the jury on the defense of habitation was harmless where

there was compelling evidence of the defendant’s guilt and the jury

was instructed on self-defense and accident and rejected those

15
defenses). Accordingly, this claim fails.

2. Appellant contends he received constitutionally ineffective

assistance of counsel in multiple ways. To prevail on these claims,

Appellant must demonstrate that his trial counsel’s performance

was professionally deficient and that he was prejudiced by this

deficient performance. See Sullivan v. State, 308 Ga. 508, 510 (2)

(842 SE2d 5) (2020) (citing Strickland v. Washington, 466 U.S. 668,

687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To establish deficient

performance, Appellant must show that trial counsel performed his

duties in an objectively unreasonable way, considering all the

circumstances and in the light of prevailing professional norms. See

id. Establishing deficient performance

is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and
[Appellant] bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. In
particular, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent
attorney would have followed such a course.

16
Vann v. State, 311 Ga. 301, 303 (2) (857 SE2d 677) (2021) (citations

and punctuation omitted).

To establish prejudice, Appellant must prove that there is a

reasonable probability that, but for his trial counsel’s deficiency, the

result of the trial would have been different. See Sullivan, 308 Ga.

at 510 (2). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. (citation and punctuation

omitted). “And, this burden is a heavy one.” Bates v. State, 313 Ga.

57, 62-63 (2) (867 SE2d 140) (2022) (citation and punctuation

omitted). “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.” Id. at 63 (2).

(a) Appellant contends that his trial counsel provided

constitutionally ineffective assistance by failing to impeach Min-

Hyuk with an alleged violation of a court order to excuse himself

during Oh’s deposition testimony. For the reasons explained below,

this claim of error fails.

On December 13, 2012, a judge presided over Oh’s deposition

17
in a courtroom.7 Counsel for the State, Shin, Lee, and Hill were

present, and they asked that any potential witnesses for trial leave

the courtroom. Hill’s counsel noted that there were four people

present in the courtroom. The judge stated, “I don’t know who these

folks are, but if you believe that any one of these individuals might

be a witness at trial, then I’m going to ask you to ask that individual

to leave the courtroom.” Counsel then conferred with the people in

the courtroom, and Shin’s counsel stated that “some of these young

people might be called . . . [at] sentencing, because they are friends.”

The judge stated she did not have an issue with people remaining

for Oh’s deposition if they were only going to be called at sentencing.

Their names were put on the record, and Min-Hyuk was one of them.

Oh testified at his deposition that he and Ko had dinner, they

left the restaurant without speaking to anyone and got into Oh’s car.

Someone unknown to him then “blocked” his car from leaving the

parking lot by standing in front of it near the passenger side. Oh

7 In August 2012, the State moved to depose Oh to preserve his testimony

in the event he was deported before trial.

18
inched his car forward, and the man moved out of the way. Then,

someone opened Oh’s car door; a different man punched Oh and

attempted to pull him out of his car. Then Ko was “pulled out” of the

passenger side of the car, and Oh drove off. Oh went home and called

Ko several times, until the police called him later that afternoon.

At the motion-for-new-trial hearing, both of Appellant’s trial

counsel testified that they reviewed Oh’s deposition transcript prior

to trial, but they did not recall whether Min-Hyuk was present at

the deposition in the courtroom. Lead trial counsel testified that if

he had known Min-Hyuk was present at Oh’s deposition, he would

have “tried to get the [trial court] to restrict [Min-Hyuk’s] testimony

based on a violation of the [order], or at least . . . make it known to

the jury that there was something perhaps improper in his

testimony.” Second-chair counsel testified that if Min-Hyuk was

present, he would have used Min-Hyuk’s alleged violation of the

court order to impeach him during trial.

“[T]he purpose of the sequestration rule is to prevent the

shaping of testimony by one witness to match that of another, and

19
to discourage fabrication and collusion.” Davis v. State, 299 Ga. 180,

185 (2) (a) (2) (787 SE2d 221) (2016) (citation and punctuation

omitted). “A party’s remedy for a violation of the rule is to request

the trial court to charge the jury that the violation should be

considered in determining the weight and credit to be given the

testimony of the witness.” Szorcsik v. State, 303 Ga. 737, 741-742 (3)

(814 SE2d 708) (2018) (citation and punctuation omitted).

Assuming without deciding that Min-Hyuk violated the court’s

order and Appellant’s trial counsel provided constitutionally

deficient assistance by failing to impeach Min-Hyuk with evidence

that he was present at Oh’s deposition and by failing to request an

instruction on Min-Hyuk’s alleged violation, we turn to whether

Appellant suffered prejudice because of that presumed deficiency—

that is, whether he has demonstrated that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial

would have been different.

The record shows that the testimony of Oh — at his deposition

in 2012 — and Min-Hyuk — at trial in 2019—contained no common

20
elements. The testimony of Oh concerned what occurred in the

parking lot of the restaurant; the testimony of Min-Hyuk concerned

what occurred when he arrived at Shin’s apartment the morning of

the altercation in the parking lot and on the question of whether

Appellant had a knife. And Oh never testified that he saw anyone

with a knife during the confrontation in the parking lot. The

testimony of Min-Hyuk does not match that of Oh, and Appellant

has failed to demonstrate any evidence that could have been argued

to the jury as showing fabrication by Min-Hyuk or collusion between

him and Oh. Appellant has thus failed to show that there is a

reasonable probability the result of his trial would have been

different had Min-Hyuk been impeached with his presence at Oh’s

deposition, which occurred seven years earlier. Accordingly, this

claim fails.

(b) Appellant contends his trial counsel provided

constitutionally ineffective assistance by failing to present any

evidence to explain Appellant’s flight to South Korea. For the

reasons explained below, we disagree.

21
“[I]t is well settled that the determination of which witnesses

to call is a matter of trial strategy and tactics, and such strategic

and tactical decisions do not amount to deficient performance unless

they are so unreasonable that no competent attorney would have

made them under similar circumstances.” Butler v. State, 313 Ga.

675, 684 (4) (b) (872 SE2d 722) (2022) (citation and punctuation

omitted). And “deciding whether to call a witness . . . is normally

considered a matter of strategy based in part on counsel’s

assessment of whether the witness would be credible[.]” Gramiak v.

Beasley, 304 Ga. 512, 523 (II) n.5 (820 SE2d 50) (2018).

During his opening statement, Appellant’s counsel stated that

after Appellant arrived in South Korea in 2011, he had surgery due

to his injuries from being struck by the car, obtained his college

degree, completed his military service, had a job, and was preparing

to buy a house. However, no such evidence was presented at trial.

At the motion-for-new-trial hearing, Robinson testified that

Appellant was already preparing to return to South Korea in

December 2011 “for school” and that the “quarrel” was “a good

22
opportunity” for Appellant to return, particularly because

Appellant’s student visa had expired. She further testified that upon

returning to South Korea, Appellant went to university, completed

his military obligation, joined the reserve forces, and had a job.

Robinson’s now-husband testified that he began dating Robinson in

October 2011 and she told him that “[Robinson and Appellant] were

both planning on going back to [South] Korea at some point[.]”

Appellant’s lead counsel testified that there was not “much of

a plan” to present evidence to explain Appellant’s flight to South

Korea, absent Appellant testifying to “explain[ ] the timing and the

reason[ ] for his trip.” He spoke with Robinson and “didn’t put a

whole lot of stock in what she was saying and so . . . [they] made the

decision not to press forward[.]” Additionally, he testified that

“[Robinson’s] testimony . . . might also open up a bigger can of

worms” and could have done “a lot more damage than good” because

“clearly she would have known through police contacts that the

State was looking for [Appellant].” Lead counsel admitted “that the

timing of [Appellant’s] trip [was] quite problematic” and “was the

23
elephant in the room.” Ultimately, counsel “didn’t find a good way to

deal with it,” and “[i]t was just one of those facts out there that

[counsel] just . . . had to . . . dance around.” Once Appellant decided

not to testify, lead counsel stated that the plan was to “not talk about

[Appellant’s flight to South Korea].” Appellant’s second-chair

counsel testified that without Appellant’s testimony at trial, there

was no alternative plan to explain his flight to South Korea.

Given lead trial counsel’s concerns about Robinson’s credibility

and that her testimony may have been harmful, we cannot say that

the strategic decision not to call her at trial was patently

unreasonable. See Atkinson v. State, 301 Ga. 518, 526-527 (6) (h)

(801 SE2d 833) (2017) (trial counsel “made a reasonable strategic

decision not to call” a witness when she had concerns “that he might

not be a credible witness”); McDuffie v. State, 298 Ga. 112, 115-116

(2) (779 SE2d 620) (2015) (concluding that the appellant failed to

show that trial counsel’s “strategic decision not to call” a certain

witness was “entirely unreasonable” when trial counsel was

concerned that the witness would be “more harmful than helpful”).

24
Additionally, Appellant has failed to establish that the testimony of

Robinson’s husband would have been admissible at trial under an

exception to the hearsay rule. See Mosby v. State, 300 Ga. 450, 454

(2) (796 SE2d 277) (2017) (“Deficient performance of counsel is not

shown by trial counsel’s failure to present a witness whose

testimony would have been inadmissible.”). Accordingly, this claim

fails because Appellant has not established that trial counsel

performed deficiently.

constitutionally ineffective assistance by failing to object to evidence

of the knife found in Shin’s apartment because it was irrelevant.

Assuming without deciding that counsel was deficient, we turn to

whether Appellant has demonstrated that there is a reasonable

probability that, but for his trial counsel’s deficiency, the result of

the trial would have been different, see Sullivan, 308 Ga. at 510 (2),

and we conclude he has not.

While the knife was not particularly probative, it was also not

particularly prejudicial, because it did not incriminate Appellant.

25
As the prosecutor stated during closing argument: “The police took

out a search warrant and went to Shin’s residence and found a knife

that has no blood on it, unrelated to the crime. . . . [Appellant’s]

fingerprints are not on it. . . . We tested everything we possibly could

get our hands on.” (Emphasis supplied.) Thus, Appellant has failed

to show that there is a reasonable probability the result of his trial

would have been different had his counsel objected. See Varner v.

State, 306 Ga. 726, 735 (3) (d) (832 SE2d 792) (2019) (“Pretermitting

whether counsel should have objected to [the discovery of a shotgun

that was not connected to any of the charged crimes], there is no

reasonable probability that it affected the outcome of [the] trial.”).

Accordingly, this claim fails.

3. Appellant contends the trial court erred by merging the

aggravated assault count into the felony murder count, which was

vacated by operation of law. We agree. See Marshall v. State, 309

Ga. 698, 700 (2) (848 SE2d 389) (2020) (“[T]he aggravated assault

[count] should have merged into the malice murder conviction, not

the vacated felony murder count.”). “However, because [this] merger

26
error[ ] make[s] no practical difference . . . we decline to correct [it]

here.” Id.

4. Finally, Appellant contends that the cumulative effect of

his counsel’s ineffective assistance amounted to prejudice. See

Bates, 313 Ga. at 69 (3) (“It is the prejudice arising from counsel’s

errors that is constitutionally relevant, not that each individual

error by counsel should be considered in a vacuum.” (citation and

punctuation omitted)). For purposes of this analysis, we have

assumed two deficiencies on the part of trial counsel — the failure

to impeach Min-Hyuk with an alleged violation of a court order to

excuse himself during Oh’s deposition testimony and the failure to

object to the knife found in Shin’s apartment, which was not

incriminating — and assumed one trial court error — the failure to

instruct the jury on the justification language contained within the

mutual combat jury instruction — but we have concluded that each

was harmless. Given our conclusions above and even assuming that

all of these errors should be considered cumulatively under State v.

27
Lane, 308 Ga. 10 (838 SE2d 808) (2020),8 we conclude that Appellant

has failed to establish that the “combined prejudicial effect” of these

errors “requires a new trial.” Id. at 21 (4). “We have yet to decide

how multiple standards for assessing prejudice may interact under

cumulative review of different types of errors, [but] we need not do

so here, because [Appellant’s] claims of cumulative prejudice fail

under even the higher standard implicated by these errors.” Pender

v. State, 311 Ga. 98, 120 (6) (856 SE2d 302) (2021).

Judgment affirmed. All the Justices concur.

8 “Lane involved only evidentiary issues, which usually are easily
cumulated.” Jones v. State, 314 Ga. 605, 617 (5) n.9 (878 SE2d 505) (2022). “We
made explicit in Lane that some other types of error may not allow aggregation
by their nature, but that question is not presented here.” Id. (citation and
punctuated omitted). “And we stated that if a defendant in a future case seeks
to argue to the reviewing court that he is entitled to a new trial based on the
cumulative effect of errors outside of the evidentiary context, he would do well
to explain why cumulative error should be extended beyond the evidentiary
context.” Id. (citation and punctuation omitted). Here, Appellant makes no
argument as to why we should apply Lane’s cumulative error approach in this
new context, much less how we might aggregate harm from a jury instruction
with harm from two unrelated evidentiary decisions.

28
Decided October 4, 2022.

Murder. Gwinnett Superior Court. Before Judge Miles, pro hac

vice.

Clark & Towne, David E. Clark, for appellant.

Patsy Austin-Gatson, District Attorney, Christopher M. DeNeve,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Kathleen L. McCanless,

Assistant Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: October 4, 2022

S22A0735. PARK v. THE STATE.

LAGRUA, Justice.

Appellant Dongsoo Park (“Appellant”) was convicted of malice

murder in connection with the stabbing death of Kwang Ko (“Ko”) in

a parking lot after a confrontation between two groups of people.1

On appeal, he contends that (1) the trial court erred by failing to

instruct the jury on justification as part of the former suggested

1Ko was killed on December 8, 2011. On February 29, 2012, a Gwinnett
County grand jury indicted Appellant, Dong Ho Shin, Seung Won Lee, and
Yeon-Tae Kang Hill for malice murder, felony murder, and aggravated assault.
Appellant was tried separately from June 3 to 11, 2019, and the jury found
Appellant guilty of all counts. Appellant was sentenced to serve life in prison
without the possibility of parole for malice murder. The felony murder count
was vacated by operation of law, and the trial court merged the aggravated
assault count into the felony murder count. See Division 3, below. Appellant
filed a timely motion for new trial. In June 2021, the trial court held hearings
on the motion for new trial. On January 5, 2022, the trial court denied the
motion for new trial. Appellant filed a timely notice of appeal, and the case was
docketed to this Court’s April 2022 term and submitted for a decision on the
briefs.
pattern jury instruction on mutual combat; (2) his trial counsel

provided ineffective assistance of counsel; and (3) the trial court

erred in merging the aggravated assault count into the felony

murder count. We affirm.

The evidence showed that on December 8, 2011, at

approximately 7:00 a.m., the body of an unidentified man was

discovered in the Aldi’s parking lot in Duluth. The man was

ultimately identified as Ko. The medical examiner later determined

that Ko had been stabbed or cut at least seven times by a sharp

object and had other blunt-force injuries. Ko’s fatal wound was a cut

to his neck that severed both internal jugular veins.

Earlier on December 8 around 4:00 a.m., Appellant and his

friends, Seung Won Lee (“Lee”), Dong Ho Shin (“Shin”), and Yeon-

Tae Kang Hill (“Hill”), had dinner and drinks at a restaurant in the

same shopping center as the Duluth Aldi’s. Ko and Jin Oh (“Oh”)2

were also dining at the same restaurant, and the restaurant owner

2 Although counsel—for both parties—mentioned during opening
statements and closing arguments that Oh and Ko had dinner that night, no
one testified to this fact at trial.

2
testified that she did not see any interaction between the men at the

two tables. After finishing their meal, Appellant’s group called two

taxis—Shin planned to drive himself home—and then went outside

to smoke.

While Appellant’s group was outside smoking, Ko and Oh left

the restaurant. Shin testified that either Ko or Oh asked Shin and

his group of friends, “What are you looking at?” in a sarcastic

manner; Hill testified that this same person “smirked” at them, with

“a smile that makes you feel uncomfortable, mistreated.” Ko and Oh

then walked to the parking lot and got into a car.

According to Hill, Appellant stated that he knew Ko and Oh

and walked over to their car and knocked on the passenger-side

window, where Ko was seated. Appellant told “them to come out

from [Oh’s] car.” Around this same time, a taxi driver arrived in the

parking lot. He testified that seven or eight people “were talking,

sort of making verbal confrontation to each other.”

Hill testified that Appellant attempted to stop Oh’s car by

standing in front of it; the taxi driver testified that two men stood in

3
front of the car. Both Hill and the taxi driver testified that Oh’s car

“was still moving” when either Appellant or two men stood in front

of the car. Hill testified that Appellant “was holding onto the hood”

when the driver of the car “pressed . . . the gas pedal” and “some part

of [Appellant’s] body was under the car, as he tried to hold onto the

hood.” The taxi driver also testified that one of the men who stood in

front of the car went “under the car.” Lee and Shin testified that

they did not see what happened prior to Appellant getting hit by

Oh’s car because they were busy having a conversation, but they

both witnessed Appellant “under the car.”

The taxi driver testified that after Appellant was hit by Oh’s

car, the other man who was standing in front of the car went to the

driver’s door “to take [the driver] out from the car” and the “two

people who were standing next to the restaurant” ran to the driver’s

door “to assist.” Lee and Shin both testified that they ran over to the

car, opened the driver-side door, and tried to get the driver out.

Hill testified that while Lee and Shin were attempting to

remove Oh from the car, Ko got out of the car and “grabbed”

4
Appellant. Appellant and Ko “were literally onto their bodies

together, fighting, and they slowly, slowly made their way to the

[Aldi’s] parking lot.” Oh was not removed from the car and

ultimately drove away.

The taxi driver testified that after Oh’s car left the parking lot,

the people who had attempted to remove the driver from the car ran

over to the adjacent Aldi’s parking lot. There were a total of “five or

six” people in the Aldi’s parking lot and “they were all tangled

together.” The taxi driver then received an order from his employer

to leave, so he left.

Lee, Shin, and Hill each testified differently than the taxi

driver as to who was in the Aldi’s parking lot. According to Hill, only

Appellant and Ko were “tangled up” in the Aldi’s parking lot, and he

did not see either one of them with a knife. Someone screamed, “Let’s

go,” and Appellant, Shin, Lee, and Hillran to Shin’s car.

Lee testified that he ran after Oh’s car as it was leaving the

premises “to chase [it].” After he failed to catch the car, he saw

Appellant and Ko standing in the Aldi’s parking lot. He testified

5
that: “It appear[ed] . . . there’s going to be a fight, you know, heating

up. So let’s not fight. Let’s go.” Appellant, Shin, Lee, and Hill then

got into Shin’s car.

Shin testified that he saw only Appellant and Ko in the Aldi’s

parking lot; Appellant was standing, and Ko “was kind of sitting in

a squat position.” Shin “didn’t want to get into a conflict, so [he]

shouted to them from [a]far, [l]et’s go home.” Appellant started

walking toward him, and Appellant, Shin, Lee, and Hill got into

Shin’s car. Shin further testified that he, Lee, and Hill were never

in the Aldi’s parking lot.

Shin, Lee, and Hill testified that Shin drove the foursome to

his apartment complex and that Appellant sat in the backseat.

During the five-to-ten-minute car ride, Shin, Lee, and Hill asked

Appellant whether he was injured. According to Lee, Appellant

stated “he was okay, but he was frightened.” Lee, Shin, and Hill

testified that when they arrived at Shin’s apartment complex, they

all started smoking in the parking lot. Hill testified that he noticed

that Appellant’s pants were “ripped here and there.” Lee testified

6
that Appellant asked: “Where’s my bag? Did I leave it in [Shin’s]

car?” Appellant then “took the bag out of [Shin’s] car and went to the

back of the apartment [building].” When Appellant came back, he

showed everyone that he was wounded. Lee testified “[t]here was

blood and then there’s some scratches.” Lee and Appellant left in a

taxi, and Hill slept at Shin’s apartment that night.

When Sergeant William Petty arrived at the Aldi’s parking lot

that morning, he recovered Ko’s cell phone and called his recent

contacts, one of whom was Oh. 3 After speaking with Oh, Sergeant

Petty went to Star Daepo, a restaurant, where he learned that Shin

and Lee were employees and present on-site and that Appellant was

a former employee. Sergeant Petty asked Shin and Lee to speak with

him at the police station; both agreed.

The next day, on December 12, Shin drove to the police station.

His car was processed for evidence, and Ko’s blood was discovered in

the backseat where Appellant had been sitting. After Sergeant Petty

3 Sergeant Petty testified that Oh had been deported, and his deportation
order was admitted at trial. Oh therefore did not testify at trial.

7
interviewed Shin, the police conducted a search of Shin’s apartment

and recovered a “black-handled knife with a sheath” from inside a

drawer in his bedroom. Forensic testing of this knife revealed no

evidence of blood, or the fingerprints of Appellant, Lee, Shin, or Hill.

The police also conducted a search of the apartment complex’s

grounds for a knife or other evidence, but did not find anything. On

December 13 and 19, Sergeant Petty interviewed Lee and Hill,

respectively.

Less than 24 hours after Ko’s body was discovered, Appellant

arrived at the Atlanta airport and purchased a one-way ticket to

Seoul, South Korea; his flight departed Atlanta on December 9,

2011, at 12:30 a.m. After Appellant, Shin, Lee, and Hill were

indicted in 2012 for malice murder and related crimes, Appellant

was eventually extradited in 2018 from South Korea to Gwinnett

County.

At trial, the defense’s theory of the case was that after

Appellant was hit by Oh’s car, he remained on the ground until he

left in Shin’s car. In addition to their testimony recounted above,

8
Shin, Hill, and Lee testified that their charges for Ko’s murder were

still pending and they had received no deal from the State in

exchange for their testimony, but they had received testimonial

immunity.

Min-Hyuk Lee (“Min-Hyuk”), the manager of Star Daepo where

Shin and Lee worked and Appellant formerly worked, testified that

on the morning of December 8 he received a phone call from the

owner of the restaurant where Appellant and his friends had eaten

dinner. Based on this conversation, he drove to Shin’s apartment

where he met with Shin, Appellant, and Lee.4 Min-Hyuk asked

them: “I was told that someone passed away . . . So what happened?”

No one responded. Appellant then said: “What am I going to do . . .

now?” and “Do I need to go hide?” Min-Hyuk then asked him, “Where

is the knife?” Min-Hyuk testified that he asked Appellant about a

knife because he “knew [Appellant] had a knife in his bag” since

Appellant once showed everyone at Star Daepo “how to cut . . . raw

fish.” Appellant responded that he “put [the knife] away around

4 Min-Hyuk testified that he was not sure if Hill was also present.

9
somewhere.”

Appellant did not testify at trial, but the State played

recordings of several phone calls made by Appellant to his mother,

Oksoon Robinson (“Robinson”), while he was in jail. 5 During one