Park v. State
| Decision Date | 04 October 2022 |
| Docket Number | S22A0735 |
| Citation | 314 Ga. 733,879 S.E.2d 400 |
| Parties | PARK v. The STATE. |
| Court | Georgia Supreme Court |
David Edward Clark, Clarke & Towne, PC, 753 Cherokee Avenue SE, Suite 55, Atlanta Georgia 30315, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capital Square SW, Atlanta Georgia 30334, Patsy A. Austin-Gatson, District Attorney, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville Georgia 30046, for Appellee.
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 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 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 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" 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 that: 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 that Appellant asked: 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 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, 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 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...
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