Park v. StatePark v. State
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
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
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
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”
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
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
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
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,
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
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 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.
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
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
“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) (citation and punctuation omitted). “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
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.
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
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
On December 13, 2012, a judge presided over Oh‘s deposition in a courtroom.7 Counsel for the State, Hill, Lee, and Shin 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.
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 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 improper in his testimony.”
“[T]he purpose of the sequestration rule is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion.” Davis v. State, 299 Ga. 180, 185 (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, 741-42 (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—
The record shows that the testimony of Oh—at his deposition in 2012—and Min-Hyuk—at trial in 2019—contained no common 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
(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.
“[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 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
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 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
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
(c) Appellant contends his trial counsel provided 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
While the knife was not particularly probative, it was also not particularly prejudicial, because it did not incriminate Appellant. 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 added.) 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
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
Judgment affirmed. All the Justices concur.