Park v. State ( 2022 )

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
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]
5 Appellant and Robinson spoke in Korean on the phone calls, and the
jury was provided with a translated transcript.
10
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
11
instruct the jury on justification as part of the then-current pattern
jury instruction on mutual combat. Specifically, he contends that the
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
6 We note that Appellant requested the pattern jury instructions on
12
to instruct the jury with this language, finding that the evidence did
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) (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
mutual combat, lesser offense, and voluntary manslaughter, and he did not
request the pattern jury instructions on affirmative defense or justification.
13
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) (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.
14
“Qualified jurors under oath are presumed to follow the instructions
of the trial court.” Hill v. State, 310 Ga. 180, 190 (7) (850 SE2d 110)
(2020) (citation and punctuation omitted). Because the jury was
charged on voluntary manslaughter and mutual combat yet
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 backseat
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
15
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 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
16
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.
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
17
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
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.
7 In August 2012, the State moved to depose Oh to preserve his testimony
in the event he was deported before trial.
18
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
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.”
19
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
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—
20
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
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
21
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.
“[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
22
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
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
23
“[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
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
24
not be a credible witness”); McDuffie v. State, 298 Ga. 112, 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”). 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.
(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
25
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.
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
26
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
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
27
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.
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, ___ Ga. ___, ___ n.9 (5) (2022 WL 4349303) (Case
No. S22A0548, decided Sept. 20, 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.
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