concurring: I concur with the majority’s analysis of the issues regarding the limiting instruction, substitute counsel, *763alternative means, the exclusion of evidence, and sentencing, as well as the decision to affirm Wells’ convictions. I disagree, however, with the majority’s conclusion, that the prosecutor did not commit misconduct in commenting on the credibility of the defendant’s expert in closing argument. Further, I disagree with tire majority’s rationale for concluding that there was no evidence upon which to base lesser included instructions of reckless second-degree murder and reckless involuntary manslaughter because I would find that rationale inconsistent with another recent decision from this court. Finally, I take the opportunity to reiterate my agreement with the view that even when there is some evidence to support a conviction for a reckless crime, that evidence nevertheless may be insufficient to “reasonably justify” a conviction for the lesser crime under K.S.A. 22-3414(3). I would find that to be the circumstance here, and for that reason, I would hold the trial judge was not required to sua sponte give the lesser included instructions in this case.
Prosecutorial misconduct
The majority concludes the prosecutor did not commit misconduct in closing argument by commenting on the credibility of Wells’ expert witness, Dr. Young. The majority succinctly summarizes the prosecutor’s comments but the full context of closing argument provides important context. During the first portion of her argument, the prosecutor stated,
“And then you have the gold standard guy. Interesting that he [Dr. Young] used that term the day after Dr. Groves. Hired by the defense, $300 an hour. He comes in, not just to give a second opinion, but to say that Dr. Gillis, Dr. Han, Dr. Christensen, Dr. Groves, Dr. Lowen, and Dr. Mitchell are all wrong; six doctors. They weren’t wrong; the word he used was ’they’re mistaken.’ They’re mistaken because I didn’t see any retraction balls. You’ve got to have retraction balls in a shaken baby case. Not true. Not true because Dr. Lowen told you, You’re not always going to have them. Dr. Mitchell said, You’re not always going to have them. There is no checklist for injuries in a shaken baby case. Abusive head trauma, you don’t have—I’ve got to have one through ten to know that that’s what it is. You might have a couple of them, you might have all of them. It depends on the case.
“Then you have the slides that they showed. Now Dr. Young says, Well, okay, that might be a retraction ball. Okay. Well, do we not have them, or do we have them?
*764“You know, you decide ladies and gentlemen. You get to determine the credibility of a witness. You get to decide what motivations they have... —why they’re testifying the way they are.
“You know, Dr. Young expects the checklist to be there, and all these other doctors are just mistaken. But you still got all the other folks, the shifting stories, the fact that Dr. Young apparently didn’t know the Defendant had ever admitted that she had shaken [B.C.], Might be something he would need to know for his opinion. He discounts all of the inconvenient facts of the case. And what does he rely on? Her version, and her version alone, because it’s inconvenient to his opinion to consider what else is out there.”
Importantly, in this first portion of closing argument, the prosecutor did not stray from the evidence. But in the second portion of her closing, the prosecutor, responding to defense counsel’s closing remarks, said:
“[Defense counsel] asks—he puts this queiy to you: Why is [Dr. Young] saying this is a non-accidental death? Folks, are there at least $3,500 worth of reasons of why he is saying that for his client?”
The majority relies on State v. Jones, 273 Kan. 756, 47 P.3d 783, cert. denied 537 U.S. 980 (2002), in finding the prosecutor did not commit misconduct when she asked the jury whether there were “at least $3,500 worth of reasons” for Dr. Young’s testimony. I acknowledge that Jones held that prosecutors are permitted through cross-examination to expose witness bias or motive and, accordingly, are allowed to comment on such evidence during closing argument. 273 Kan. at 783.
But the majority cites Jones’ holding without examining Jones’ application of that holding. I would revisit Jones here, as I believe it permitted the prosecutor to go beyond commenting on evidence, and in that sense, its ultimate holding is fundamentally flawed.
In Jones, the prosecutor argued in reference to a paid defense witness,
“ ‘[W]hat we have is somebody that comes into a case that gets paid up to $120,000 a year to come in and criticize people that do [DNA analysis]. You can test his credibility by that, just like you test [E.G.] and [S.W.’s] credibility because they get paid to provide [sexual] services. Right? The only difference being [S.W.] and [E.G.] trade their services for crack cocaine.’ ” (Emphasis added.) 273 Kan. at 783.
*765The defendant in Jones argued the prosecutor improperly compared the motivation of defendant’s expert witness to the motivation of “crack prostitutes,” who also had testified in the case. But this court disagreed, reasoning the prosecutor based his comments on evidence presented at trial, and concluded that “[t]he prosecutor was making the point for the jury that Dr. Stetler is paid for his testimony and that this arrangement may influence what he had to say.” 273 Kan. at 783.
I find Jones’ application of its own holding flawed because the prosecutor in Jones went beyond simply commenting on facts in evidence. Instead, the prosecutor impermissibly drew a conclusion for the jury regarding the expert witness’ credibility by suggesting that the jury should view the credibility of the defendant’s expert, who was paid for his services, just as it viewed the credibility of a crack prostitute.
Ultimately, I would uphold Jones’ conclusion that prosecutors are permitted through cross-examination to expose witness bias or motive. However, I would modify Jones to the extent that it has been broadly applied to permit prosecutors to “comment on such evidence” in closing argument when that comment is, in reality, a not-so-thinly disguised comment on the witness’ credibility.
Similarly, in this case I would find that the prosecutor appropriately cross-examined the defense expert, Dr. Young, regarding any possible basis for bias and motive, including payment for his services. Thus, in closing argument, the prosecutor could have contrasted Young’s testimony with that of the State’s experts and could have invited the jury to consider Young’s potential motivation, including evidence of payment, along with any other evidence of motive or bias, in assessing Young’s credibility. But the prosecutor went beyond commenting on the evidence and took on the role of the jury in assessing credibility when she queried, “Why is [Dr. Young] saying this is a non-accidental death? Folks, are there at least $3,500 worth of reasons of why he is saying that for his client?”
Further, I would find the prosecutor’s use of a thinly veiled euphemism for the term “liar” to be inconsistent with this court’s explicit rejection of that practice in prior cases. See State v. Elnicki, 279 Kan. 47, 62-64, 105 P.3d 1222 (2005) (finding prosecutor’s use *766of several variations of the term “liar” improper); State v. Finley, 273 Kan. 237, 247, 42 P.3d 723 (2002) (acknowledging that this court’s decision in State v. Pabst, 268 Kan. 501, 996 P.2d 321 [2000], “inform[ed] us the use of the word die’ or its derivatives should be avoided by prosecutors”). By condoning the prosecutor’s comment here, the majority not only invites prosecutors to continue to “tread veiy close to the error line,” it encourages prosecutors to smudge—or even erase^a line that already appears to be scrawled crookedly in chalk. Nevertheless, although I would find misconduct, I would ultimately conclude based on the weight of the evidence that the prosecutor’s misconduct was harmless.
Unrequested Instructions on Lesser Included Offenses
Second, while I agree that Wells was not entitled to unrequested instructions on the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter, I would reach that result for a different reason.
Applying tire Williams’ framework, I agree that the omitted instructions were neither legally nor factually appropriate. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012). As the majority points out, the relevant inquiry on this last point is whether there was “ ‘some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt.’ ” 297 Kan. at 749 (quoting State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 [2011]; State v. Mireles, 297 Kan. 339, 365, 301 P.3d 677 [2013],
But I find the majority’s conclusion as to this issue difficult to reconcile with its conclusion in State v. Cheffen, 297 Kan. 689, 303 P.3d 1261 (2013). Like Wells, the defendant in Cheffen was convicted of felony murder and the underlying felony of child abuse. Like Wells, Cheffen argued on appeal that the trial court erred in failing to give an unrequested lesser included offense instruction. Applying the same clear-error analysis as the majority applies here, the majority in Cheffen concluded the trial court erred when it failed to sua sponte give an instruction on second-degree intentional murder because the defendant’s acts and the circumstances of the child abuse were such that the jury could have reasonably *767inferred that the defendant intended to ldll the child victim. 297 Kan. at 704.
Yet, in this case, the majority concludes that “[a]ll of the evidence before Wells’ juiy was about intentional conduct. Either Wells intentionally abused B.C., or she intentionally tried to save her life and failed. Lesser, reckless crimes were never in issue.” 297 Kan. at 762. Thus, the majority finds there simply was no evidence to support the lesser instructions. I disagree.
The State presented evidence at trial that Wells shook B.C. “pretty hard,” that Wells allowed K.W. to bounce or jump on B.C. and hit her with a doll, and that Wells hit B.C.’s head against an entertainment center while carrying B.C. out to meet the ambulance. As the majority points out, this is evidence of intentional conduct. But the fact that this evidence supports a finding of intentional conduct does not preclude a finding that Wells’ intentional conduct resulted in the reckless killing of B.C. See, e.g., State v. Deal, 293 Kan. 872, 881, 269 P.3d 1282 (2012) (concluding defendant’s act of intentionally beating his victim evidenced conscious and unjustifiable disregard of danger to his victim and supported conviction for second-degree recldess murder). Further, the evidence relating to the lesser included instruction here provides as much, if not more, evidence to support a finding of error dran the evidence relied upon to find error in Cheffen.
In short, if the majority in this case is to be consistent with Cheffen, it should conclude that the requested lesser included instructions were factually appropriate here, just as they were in Cheffen, but that the error in failing to give the instructions, as in Cheffen, was harmless.
I fear that trial judges, asked to determine when a lesser included instruction is required despite the lack of any request for such an instruction, will find the distinction between this case and Cheffen nearly impossible to discern. Here, despite some evidence to support the lesser instructions, die majority finds the trial court was not required to sua sponte give those instructions. But in Cheffen, where diere was some evidence to support the lesser instruction, the majority concludes the trial judge was required to give a lesser included instruction.
*768That being said, I reiterate my agreement with Justice Rosen’s position in Cheffen and would similarly conclude here that the unrequested instructions were not factually appropriate—not because there was no evidence to support convictions for lesser included crimes of reckless murder—but because the evidence supporting those reckless crimes, like the inferential evidence of intent in Cheffen, did not reasonably justify a conviction of some lesser included crime. See Cheffen, 297 Kan. at 705-06 (Rosen, J., concurring). As in Cheffen, the majority’s application of the statutory standard to the facts in this case fails to take into account the second part of the test—i.e., whether the evidence of the lesser included offense could reasonably justify a conviction beyond a reasonable doubt. This is the standard a trial judge—who is viewing the evidence in real time—must apply when considering whether to give a lesser included instruction despite the failure of a party to request it. See K.S.A. 22-3414(3).
In conclusion, I share the concern expressed by the concurrence in Cheffen that the majority’s approach “establishes] a standard where in reality a district court judge has no option but to automatically instruct the jury on all lesser included offenses, regardless of whether the instructions are requested and in spite of the actual evidence.” Cheffen, 297 Kan. at 706 (Rosen, J., concurring). As Justice Rosen aptly remarked in Cheffen, this “has never been the law and should not become the law of this state.” 297 Kan. at 706 (Rosen, J., concurring). This case and its inconsistency with Chef-fen demonstrate the hazards of the majority’s approach.
Rosen, J., joins in the concurrence on the issue of lesser included offense instructions. Biles, J., joins in the concurrence on the issue of prosecutorial misconduct.