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Kim v. State (2/24/2017) ap-2542

Kim v. State (2/24/2017) ap-2542

                                                                       NOTICE
  

            The text of this opinion can be corrected before the opinion is published in the  

            Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

            errors to the attention of the Clerk of the Appellate Courts:  



                                              303 K Street, Anchorage, Alaska  99501
  

                                                             Fax:  (907) 264-0878
  

                                                  E-mail:  corrections @ akcourts.us
  



                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



YOUNG JAE KIM,  

                                                                                           Court of Appeals No. A-11484  

                                                Appellant,                               Trial Court No. 3AN-12-7632 CR  



                                    v.  

                                                                                                          O P I N I O N  

STATE OF ALASKA,  



                                                Appellee.                                  No. 2542 - February  24, 2017  



                        Appeal   from   the   District   Court,   Third   Judicial   District,  

                                                  

                        Anchorage, Alex Swiderski, Judge.  



                        Appearances: David D. Reineke, under contract with the Public  

                        Defender  Agency,  and  Quinlan  Steiner,  Public  Defender,  

                        Anchorage,  for  the  Appellant.    Melissa  Wohlfeil,  Assistant  

                        District   Attorney,   Anchorage,   and   Michael   C.   Geraghty,  

                        Attorney General, Juneau, for the Appellee.  



                        Before: Mannheimer, Chief Judge, and Allard, Judge.  



                        Judge ALLARD.  



                        Young Jae Kim was convicted of third-degree theft for stealing a computer                                           



from the University of Alaska and then making a false report to the police officer who                                                                



                                                                         1  

was investigating the missing computer.                                                                                                            

                                                                            Kim told the officer that someone had stolen  



                                                                                                   

the computer from him while he was in the university library.  



      1     Former AS 11.46.140(a)(1) (2012) and AS 11.56.800(a)(2), respectively.  


----------------------- Page 2-----------------------

                    Kim raises three claims on appeal. He argues first that the judge at his trial  

                                                                                                                               



improperly  allowed  the  investigating  officer  to  offer  his  opinion  concerning  the  

                                                                                                            



credibility of Kim's version of events and a competing version of events offered by one  

                                                                                                                               



of the State's witnesses.   Kim next claims that the prosecutor engaged in improper  

                                                                                                                      



behavior when, during her cross-examination of Kim, she asked Kim whether he was  

                                                                                                                               



telling the truth and the State's witness was lying. Lastly, Kim claims that the prosecutor  

                                                                                                                     



improperly  offered  her  personal  opinion  concerning  Kim's  credibility  when  she  

                                                                                                                               



delivered her closing argument to the jury.  

                                                           



                    None of these claims were preserved in the trial court.  For the reasons  

                                                                                                                         



explained in this opinion, we conclude that Kim has failed to show plain error.   We  

                                                                                                                               



therefore affirm Kim's convictions.  

                                     



           Underlying facts  

                              



                    Kim was a student at the University of Alaska Anchorage. In March 2010,  

                                                                                                                            



he checked out a laptop computer from the university on a long-term student loan.  Two  

                                                                                                                              



years later, Kim reported that this laptop had been stolen from him on June 15, 2012  

                                                                                                                             



when he briefly left the laptop unattended in the university library.  

                                                                                            



                    Using a monitoring program, the university was able to locate the laptop  

                                                                                                                           



at the home of George Yates.  When Yates was contacted, he told the university police  

                                                                                                                            



that he had seen the computer advertised on Craigslist, and that he had purchased the  

                                                                                                                                



laptop for $60 from a man named Samuel Choe.  According to Yates, he purchased the  

                                                                                                                                



computer around the same time that Kim claimed that the laptop was taken from him at  

                                                                                                                                  



the library.  

       



                    University police officer Roger Frierson then interviewed Samuel Choe.  

                                                                                                                                      



Choe admitted selling the laptop to Yates, but he was reluctant to reveal how he acquired  

                                                                                                                        



the laptop.  The officer informed Choe that the laptop was stolen, and that he (Choe)  

                                                                                                                          



                                                              - 2 -                                                         2542
  


----------------------- Page 3-----------------------

could get in trouble for trafficking in stolen goods. Choe declared that he had not known                                                                                                                              



that the laptop was stolen, and he then told the officer that he had received the laptop                                                                                                                                



from   his   friend   Kim   as   collateral   for   a   loan   that   Kim   had   taken   out   from   Choe.   



According to Choe, Kim failed to repay the loan, so Choe sold the laptop to Yates.                                                                                                                            



                                    Frierson   interviewed   Kim   and   told   Kim   what   he   had   already   learned  



through his investigation, including what Yates and Choe had said.  Kim continued to   



assert that the laptop had been stolen from him at the library.                                                                                 



                                    The police, and later the district attorney's office, concluded that Kim's                                                                                                          



story was false, so the State charged Kim with third-degree theft for pledging the laptop                                                                                                                               



                                                                                               2  

to Choe as collateral for the loan,                                                                                                                                                                                              

                                                                                                   and with making a false report to the police for  



                                                                                                               3  

                                                                                             

declaring that the laptop had been stolen. 



                                                                                                                                                                                                  

                  It was improper to allow Officer Frierson to offer his opinion as to whether  

                                                                                                                                                                        

                  Choe and Kim were telling the truth, but this improper testimony did not  

                                                                                                                                                                                        

                  rise to the level of plain error given the circumstances of this case  



                                                                                                                                                                                                                                

                                    At Kim's trial, Officer Frierson testified about his investigation into the  



                                                                                                                                                                                                                  

report of the stolen laptop.  During this testimony, Frierson told the jury that when he  



                                                                                                                                                                                                          

interviewed Kim, he concluded that Kim was lying about the laptop being stolen from  



                                                                                                                                                                                                                                

the library.   According to Frierson, the "real theft" occurred when Kim pledged the  



                                                                                                                                                                                                                

laptop as collateral for the loan.  Frierson also testified that, during his earlier interview  



                                                                     

with Choe, he concluded that Choe had not known that the laptop was stolen, and that  



                                                                                                                                          

Choe was acting in good faith in trying to help the officer.  



         2        See former AS 11.46.140(a)(1) (2012).  



         3        See AS 11.56.800(a)(2).  



                                                                                                              - 3 -                                                                                                       2542
  


----------------------- Page 4-----------------------

                              Kim's attorney did not object to anyofthis                                                   testimony, or to the prosecutor's          



questions that elicited this testimony.                                                  But on appeal, Kim claims that the officer's                                         



testimony was improper.           



                              We agree with Kim that it was improper for Officer Frierson to testify that                                                                                 



he thought Choe was telling the truth about the laptop and that Kim was lying.                                                                                     



                              This Court has                   repeatedly condemnedallowingawitness                                                       toact as a"human         



polygraph" -  i.e., allowing a witness to offer a personal opinion about the credibility     



                                                                                                                 4                                                                             5  

of another witness's prior statements or testimony.                                                                                                                                                 

                                                                                                                     Other courts have done the same. 



                                                                                                                                                                                         

                              We have expressed particular concern when the testifying witness is a law  



                                                                                                                                                                                       

enforcement officer, because "jurors may surmise that the police are privy to more facts  



                                                                                                                                                                                 

than have been presented in court, or [jurors] may be improperly swayed by the opinion  



                                                                                                                                                               6  

                                                                                                                                 

of a witness who is presented as an experienced criminal investigator." 



                                                                                                                                                                                         

                              Those concerns apply in this case.  Officer Frierson testified that he had  



                                                                                                                                                                                           

been a police officer for almost nine years.  He further testified that he had been the  



                                                                                                                                                                             

investigating officer in this case, and that the investigation had been "pretty lengthy,"  



                                                                                                                                                                                          

taking approximately six weeks.  From this, the jurors might surmise that Frierson had  



                                                                                                                                                                                                    

some reason for believing Choe over Kim that had not been introduced into evidence.  



        4      Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998); Flynn v. State , 847 P.2d   



 1073, 1075-76 (Alaska App. 1993);                                             Thompson v. State                       , 769 P.2d 997, 1003 (Alaska App.   

 1989); George v. State, 2014 WL 2937874, at *1 (Alaska App. June 25, 2014) (unpublished),  

rev'd on other grounds, 362 P.3d 1026 (Alaska 2015).  



        5  

                                                                                                                                 

               See 3  Wharton's Criminal Evidence  12:13, p. 358 (15th ed. 1999) ("Most courts  

                                                                                                                                                    

prohibit lay witnesses from commenting on someone else's credibility because the factfinder  

                                                                                                   

must ultimately make that evaluation and lay witnesses are no better than the factfinder at  

                                                                                                                                                                                     

reaching those conclusions."); 1 McCormick on Evidence   43 n.29, p. 285 (7th ed. 2013)  

                                                                                                    

("The prevailing view is that one witness may not be asked whether another witness lied or  

was untruthful.").  



        6      Sakeagak, 952 P.2d at 282.  



                                                                                           - 4 -                                                                                     2542
  


----------------------- Page 5-----------------------

The jurors might also be swayed by the opinion of a witness who was presented as an                      



experienced criminal investigator.                                                                                                               We therefore conclude that Officer Frierson should                                                                                                                                            



not have been permitted to testify as to whose story - Kim's or Choe's - he thought                                                                                                                                                                                                                                                       



was more credible.                         



                                                        ButalthoughFrierson's testimony on                                                                                                                        this point was improper, we conclude                                                                                



that this testimony did not prejudice the fairness of Kim's trial.                                                                                                                                                                                                              The information that                                                       



Frierson based his opinion on - the information gleaned from his investigation - had                                                                                                                                                                                                                                                                        



already been introduced into evidence at Kim's trial, and the jury was therefore already                                                                                                                                                                                                                                                    



acquainted with the evidentiary basis of Frierson's opinion about the relative credibility                                                                                                                                                                                                                                      



of Choe and Kim. In addition, both Choe and Kim testified at Kim's trial, and both were                                                                                                                                                                                                                                                                



extensively questioned regarding their descriptions of what happened to the laptop.                                                                                                                                                                                                                                                                                             



Thus, the jurors could make their own evaluation of Choe's and Kim's credibility.                                                                                                                                                                                                                           



                                                        Given   this   record,  we   conclude   that   Frierson's   testimony,   although  

improper, did not constitute plain error requiring reversal of Kim's convictions.                                                                                                                                                                                                                                                               7  



                                                                                                                                                                                                                                                                                                                  

                            It was error for the prosecutor to ask Kim if he was contending that Choe's  

                                                                                                                                                                                                                           

                            description of events was a lie, but it was not prejudicial  



                                                                                                                                                                                                                                                                                                                                                 

                                                        When Kim took the stand at his trial, he testified, consistent with his earlier  



                                                                                                                                                                                                                                                                                                                             

statements, that the laptop was stolen from him at the library.   When the prosecutor  



                                                                                                                                                                                                                                                                                                                                                          

cross-examined  Kim,  she  asked  him  a  series  of  questions  that  highlighted  the  



                                                                                                                                                                                                                                                                                                                                              

fundamental discrepancy between Kim's assertion that the laptop was stolen and Choe's  



                                                                                                                                                                                                                                                                     

testimony that Kim had given him the laptop as collateral for a loan.  



              7             See Adams v. State, 261 P.3d 758, 774 (Alaska 2011).  



                                                                                                                                                                            - 5 -                                                                                                                                                                  2542
  


----------------------- Page 6-----------------------

                                 Toward the end of this series of questions, the prosecutor asked Kim, "Are                                                                                                 



you saying that Mr. Choe is lying?", and "Are you lying, or is he lying?"                                                                                                               Kim replied  



that he was not lying and that Choe was the one who was lying.                                                                                   



                                 Kim's attorney did not object to these questions.                                                                                But, on appeal, Kim                       



argues that it was plain error for the trial court to permit the prosecutor to ask these                                                                                                                  



questions, because Kim was then forced to offer an opinion about the credibility of                                                                                                                               



another witness (                        i.e., Choe).   



                                 As discussed in the preceding section of this case, Alaska courts have often                                                                                              



condemned   allowing   witnesses   to   comment   on   the   veracity   of   another   witness's  



                          8  

testimony.                                                                                                                                                                                       

                               But we have never ruled on the specific issue presented here:  the propriety  



                                                                                                                                                                                                     

of so-called "were they lying?" questions - that is, the propriety of asking one witness  



                                                                                                                                                                                                

whether another witness was lying during their in-court testimony when both witnesses  



                                                                                                                                  

claim personal knowledge of the underlying factual issue.  



                                                                                                                                                                                            

                                 A majority of jurisdictions to reach this question have adopted a bright-line  



                                                                                                                                                                                                     

rule against "were they lying?" questions, particularly when they are directed against  



                                                                                9  

                                                       

defendants or defense witnesses.                                                                                                                                                             

                                                                                    There are a number of reasons to favor this bright-line  



approach.  



                                                                                                                                                                                                            

                                 First, such questions offer little, if any, probative value because they seek  



                                                                                                                                                                                                                  

information beyond the competency of the witness - i.e., they require the witness to  



         8       E.g., Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998).  



         9       See, e.g.,   United States v. Sanchez, 176 F.3d 1214, 1220 (9th Cir. 1999); Liggett v.  



People, 135 P.3d 725, 729-30 (Colo. 2006); State v. Singh, 793 A.2d 226, 236-39 (Conn.  

2002); State v. Maluia, 108 P.3d 974, 978 (Haw. 2005); People v. Riley, 379 N.E.2d 746, 753  

(Ill. App. 1978); State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003); Burgess v. State, 495  

 S.E.2d 445, 447 (S.C. 1998).  



                                                                                                      - 6 -                                                                                              2542
  


----------------------- Page 7-----------------------

                                                                                             10  

speculate as to another witness's state of mind.                                                 As one court has explained, "where the                                  



witness expresses a belief as to the veracity of another witness, that statement of belief                                                                          



is simply irrelevant; it does nothing to make the inference that another witness lied any                                                                               

more or less probable."                        11  



                                                                                       

                           Second, as some courts have noted:  



                                                                                                                        

                           the predominate, if not sole, purpose of such questioning is  

                                                                                                                   

                           simply to make the defendant look bad ... .  If the defendant  

                                                                                                                                              

                           says the other witness is lying, then the defendant is put in the  

                                                                                                                                              

                           [unenviable] position of calling someone a liar ... .   If the  

                                                                                                                                             

                           defendant says a contradictory witness is not lying, then a fair  



                                                                                                            12  

                                                                                              

                           inference is that the defendant is lying." 



                                                                                                                                                                           

And  even  if  making  the  defendant  look  bad  is  not  the  purpose  of  the  question,  it  



                                                                        13  

                                                          

"appear[s] to be the general effect." 



                                                                                                                                                      

                           Third, the form of the question "ignores numerous alternative explanations  



                                                                                                                                              14  

                                                                                                                                                             

for evidentiary discrepancies and conflicts that do not involve lying."                                                                             For example,  



                                

"differences in opinion, lapses or inaccuracies in memory, differences in perception, a  



                                                                                                                                                                

misunderstanding, or any other number of wholly innocent explanations" may explain  



                                                                                                                       15  

                                                                                                   

the discrepancy between the testimony of the two witnesses.                                                                                                            

                                                                                                                           A "were they lying?" type  



                                                                                                                                                          

of question falsely reduces these various explanations to the single option of intentional  



deception.  



       10    See Liggett, 135 P.3d at 731.   



       11    Id.  



       12     Graves, 668 N.W.2d at 872 (emphasis in original); accord Liggett, 135. P.3d at 732.  



       13    Liggett , 135 P.3d at 731.  



       14    Id.  



       15    Id. ; see also Singh, 793 A.2d 237; Graves, 668 N.W.2d at 872-73.  



                                                                                  - 7 -                                                                            2542
  


----------------------- Page 8-----------------------

                         Fourth, "these questions infringe upon the province of the fact-finder and                                                           



risk distracting the fact-finder from the task at hand" which is to determine whether the                                                                      



                                                                                                          16  

State   has   proved   its   case   beyond   a   reasonable   doubt.                                                                                           

                                                                                                                 It  is  the  jury,  and  not  the  



                                                                                                                                                                       

prosecutoror thetestifyingwitness, that is tasked with makingcredibility determinations.  



                                                                                                                                                                 

"Were they lying?" questions falsely imply "that the fact-finder must determine one or  



                                                              17  

                                                                                                                                           

more of the witnesses is lying."                                    This has the effect of distorting the government's  



                                                                                                                                                        

burden of proof, because "the fact-finder may assume that an acquittal turns upon finding  



                                                                             18  

                                                                   

that the [government's] witness ... lied." 



                                                                                                                                                         

                         Finally,  "were  they  lying?"  questions  have  been  criticized  for  being  



                                                                                                                                                                 

argumentative.   As one court has noted, "anytime [an attorney] asks a defendant to  



                                                                                                                                                              

comment  on  the  truthfulness  or  explain  the  testimony  of  an  adverse  witness,  the  



                                                                                                                                                                

defendant  is  in  effect  being  pitted  against  the  adverse  witness.                                                                 This  kind  of  



                                                                             19  

                                                         

argumentative questioning is improper." 



                                                                                                                                                     

                         Despite the many problems with "were they lying?" questions, a minority  



                                                                                                                                                      

of  courts  have  declined  to  adopt  a  bright-line  rule.                                               These  courts  express  general  



                                                                                                                                                     

disapproval of these types of questions, but they approach each occurrence on a case-by- 



                    20  

                                                                                                                                                           

case basis.             The minority approach therefore leaves roomfor trial court discretion when  



       16    Liggett 135 P.3d at 732; see also Singh, 793 A.2d at 238.  



       17    Liggett 135 P.3d at 732.  



       18    Id. ; accord Singh, 793 A.2d at 237; Maluia , 108 P.3d at 978.  



       19    Burgess, 495 S.E.2d at 447.  



      20     See Liggett, 135 P.3d at 730 (providing a partial list of jurisdictions in the minority);   



see also State v. Morales, 10 P.3d 630, 633 (Ariz. App. 2000) (holding that "were they lying"   

questions are not improper if "the only possible explanation for the inconsistent testimony     

is deceit or lying or when the defendant has opened the door by testifying about the veracity   

                                                                                                                                            (continued...)  



                                                                              - 8 -                                                                       2542
  


----------------------- Page 9-----------------------

the competing testimony is truly irreconcilable and the only reasonable inference is that                                                         



                                    21  

one witness is lying.                                                                                                                            

                                        As these courts have noted, in such circumstances, a "were they  



                                                                                                                                                     

lying" question does not falsely reduce the various explanations for the discrepancy in  



                                                                                                                                                 

witness testimony to intentional deception - because intentional deception is the only  



                                         22  

                                                                                                                                  

                                             Instead, thequestion onlyforces thedefendantto acknowledge  

reasonableexplanation. 



                                                                                                                      

what the jury must have already realized - that the defendant is implicitly accusing  



                                  

another witness of lying.  



                                                                                                                                      

                       Although we agree that "were they lying?" questions should be disfavored  



                                                                                                                                   

and rarely (if ever) permitted, we conclude that this case does not require us to decide  



                                                                                                                                          

whether to adopt the majority bright-line approach or the minority approach.  Instead,  



                                                                                                                                                

because there was no objection to the "were they lying?" question in this case, we need  



                                                                                                                                                

only determine whether the particular question asked in this case rose to the level of plain  



error.  



                                                                                                                                                

                       Here, the jury heard both Kim's and Choe's testimony, and it would have  



                                                                                                                                             

been obvious to the jury that there was no other reasonable way to reconcile the stories  



                                                                                                                                          

of Kim and Choe - either Kim was lying or Choe was lying. The prosecutor's question  



                                                                                  

therefore simply made apparent what the jury would have already realized - that this  



                                                                                                                                               

case  turned  on  their  determination  of  Kim's  and  Choe's  credibility.                                                      Given  these  



      20    (...continued)  



of other witnesses on direct examination"); People v. Overlee, 666 N.Y.S.2d 572, 576 (N.Y.  

      

App. Div. 1997) (holding that such questions are appropriate "where ... the defendant's  

testimony leaves open only the suggestion that the [prosecution's] witnesses have lied").  



      21    See Morales, 10 P.3d at 633; Overlee, 666 N.Y.S.2d at 576.  



      22    See Morales, 10 P.3d at 633; Overlee, 666 N.Y.S.2d at 576.  



                                                                        - 9 -                                                                 2542
  


----------------------- Page 10-----------------------

circumstances,  we conclude that the prosecutor's question did not prejudice Kim's                                                   

substantial rights, and Kim has not shown plain error.                                   23  



                                                                                                    

           The prosecutor did not offer her personal opinion as to Kim's credibility  

                                                                                             

           when she delivered the State's summation to the jury  



                                                                                                                                              

                      One theme of the prosecutor's closing argument was that Kim had spun a  



                                                                                                                                          

"web of lies." The prosecutor recounted Officer Frierson's interview with Kim, and she  



                                                                                                                                          

argued that Kim committed the crime of making a false report when he declared the  



                                                                                                                   

laptop had been stolen from him at the library.  The prosecutor then asserted that Kim  



                                                                                                                                         

was continuing to lie about what happened to the laptop - and that the jurors were now  



                                                                                              

"witnesses to [Kim's] lies" (i.e., they had heard his trial testimony).  



                                                                                                                                    

                      Kim's attorney did not object to the prosecutor's comments. But on appeal,  



                                                                                                                                  

Kim argues that these comments were "improper assertions of the prosecutor's personal  



                                   

opinion as to Kim's credibility."  



                                                                                                                                         

                      A  prosecutor  is  permitted  to  argue  reasonable  inferences  from  the  



                24  

                                                                                                                                            

evidence.           And as we explained in the preceding section of this opinion, there was an  



                                                                                                                                          

irreconcilable conflict between Choe's and Kim's accounts of what happened to the  



                                                                                                                                       

laptop. It was therefore reasonable to infer, from the evidence, that Kim was lying about  



                                                                                                                                           

what happened. Indeed, if the State was to prove the charge of making a false report, the  



                                                                                                                                                 

State had to prove that Kim knowingly gave a false account of events to the authorities.  



                                                                                                                                   

                      Here, the prosecutor's assertion about Kim's "web of lies" was tied directly  



                                                                                                                                             

to her discussion of the evidence presented at Kim's trial, and her assertion was a  



      23   See Adams v. State, 261 P.3d 758, 774 (Alaska 2011).  



      24   Lewis v. State , 862 P.2d 181, 189 (Alaska App. 1993).  



                                                                  - 10 -                                                              2542
  


----------------------- Page 11-----------------------

reasonable   comment   on   that   evidence.     We   therefore   conclude   that   the   prosecutor  



                                                                                                                        

engaged in proper argument when she characterized Kim's testimony in this fashion.  



         Conclusion  



                   The judgment of the district court is AFFIRMED.  

                                                                      



                                                        - 11 -                                                   2542
  

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