Kim v. State
2017 WL 727128
Alaska Ct. App.2017Background
- Kim, an Alaska student, was convicted of third-degree theft for pledging a laptop as collateral for a loan and for making a false report that the laptop had been stolen.
- Laptop was checked out in 2010; in 2012 Kim claimed it was stolen at the university library.
- Police traced the laptop to George Yates, who bought it from Samuel Choe; Choe admitted selling it after learning it was stolen.
- Choe said Kim provided the laptop to him as collateral for a loan that Kim failed to repay; Choe sold it to Yates.
- Officer Frierson testified about his conclusions that Kim lied and that Choe acted in good faith; Kim’s counsel did not object at trial.
- The Alaska Court of Appeals held Frierson’s credibility-opinion testimony was improper but not plain error, and that other challenged prosecutorial questions/comments did not amount to plain error; overall convictions affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the officer’s credibility opinion was plain error. | Kim argues Frierson’s credibility opinion was improper. | State contends any error was not plain. | No plain error; improper but not reversible. |
| Whether 'were they lying?' questions on cross-examination were plain error. | Kim contends such questions improperly forced credibility judgments. | State defends the questions as probative of credibility. | Not plain error given context; did not prejudice substantial rights. |
| Whether the closing argument impermissibly endorsed credibility or expressed the prosecutor’s personal opinion. | Kim argues closing comments reflected prosecutorial opinion on credibility. | State contends comments were proper inferences from evidence. | Prosecutor’s closing was proper as fair comment on evidence. |
Key Cases Cited
- Sakeagak v. State, 952 P.2d 278 (Alaska App. 1998) (witness credibility opinions improper but non-prejudicial here)
- Adams v. State, 261 P.3d 758 (Alaska 2011) (plain-error review of improper testimony)
- Liggett v. People, 135 P.3d 725 (Colo. 2006) (bright-line rule against asking if others lied; case discusses were they lying questions)
- Morales v. Morales, 10 P.3d 630 (Ariz. App. 2000) (were they lying questions—case law on this issue)
- Overlee v. People, 666 N.Y.S.2d 572 (N.Y. App. Div. 1997) (appropriate use or disallowance of were they lying questions)