OPINION OF THE COURT BY NAKAMURA, C.J.
Plaintiff-Appellee State of Hawaii (State) charged Defendant-Appellant Herwin Magbulos (Magbulos) with second-degree murder for intentionally or knowingly causing the death of Darryle Wong (Wong). Wong resided in an improvised structure in a homeless encampment underneath a freeway viaduct. While in Wongs dwelling, Magbulos stabbed Wong in the stomach and back with two different knives, causing Wongs death. The State asserted that the stabbings were unprovoked and constituted murder; Magbulos asserted that he stabbed Wong in self-defense.
The jury found Magbulos guilty as charged. The Circuit Court of the First Circuit (Circuit Court) sentenced Magbulos to life imprisonment with the possibility of parole.
On appeal, Magbulos contends: (1) the prosecutor committed misconduct during opening statement by stating that despite Wongs homelessness and drug use, Wongs life mattered; (2) the prosecutor committed misconduct in closing argument by improperly vouching for the credibility of the States witnesses and inviting jurors to consider Magbulos interest in the case in evaluating his credibility; and (3) the Circuit Court erred by failing to instruct the jury on the lesser included offenses of second-degree assault, third-degree assault, and third-degree assault by mutual affray. As explained below, we conclude that the alleged misconduct by the prosecutor and alleged error by the Circuit Court did not violate Magbulos right to a fair trial by an impartial jury, and we affirm Magbulos conviction.
BACKGROUND
The stabbing that led to Wongs death took place at about daybreak on Sunday morning at a homeless encampment underneath the Nimitz/Dillingham interchange in Mapunapuna. Wong lived there in a separate enclosed structure that used the cement foundation of the viaduct for its ceiling and a portion of its walls and wooden pallets for the remaining walls. Wongs enclosed structure contained an opening in the wooden pallets for a door, a bed, a toilet area with a bucket, and cardboard and pieces of carpet on the floor. Magbulos stabbed Wong while they were in Wongs dwelling.
The States witnesses at trial included people who lived at or frequented the encampment, and who, like Wong, were homeless and used drugs. Magbulos had previously stayed at the encampment with one of Wongs neighbors, and Magbulos was also a drug user.
I.
The State presented the following evidence at trial.
A.
Michael Lund (Lund) testified that on Friday, May 3, 2013, he went to visit Wong at the encampment. Lund had known Wong for at least three years, but had not seen Wong for some time. Lund was homeless and brought some of his possessions with him and stayed with Wong.
According to Lund, he asked Wong to procure drugs, and Wong provided what Lund believed was a twenty dollar paper of methamphetamine. Lund injected the drugs on Friday afternoon, which made him feel sick. Lund stayed in or around Wongs dwelling through Saturday morning. During that time, Lund did not sleep and did not see Wong sleep. Lund remained at Wongs dwelling on Saturday. He observed Wong leave the dwelling several times and return after being gone for hours.
Lund began feeling better on Saturday and that night, after midnight, he left Wongs dwelling to get something to eat and drink. Lund returned to Wongs dwelling at around 1:30 to 2:00 a.m. on Sunday. When Lund returned, Wong left the dwelling and did not come back until hours later, when daybreak was starting. When Wong came back, Lund tried to talk to Wong, but Wong was tired and lay down on his bed. Lund had not seen Wong sleep at all between Saturday and when Wong came back on Sunday morning.
Shortly after Wong lay down on his bed, Magbulos entered Wongs dwelling. Magbulos asked Lund for a cigarette, and then Magbulos sat on a cooler next to Wongs bed and smoked it. Magbulos did not appear agitated; and Wong did not react to Magbulos entering the dwelling. Magbulos tried to talk to Wong, but Wong remained on his bed and just kind of mumbl[ed] in response. Another person, whom Lund did not know, called from outside without entering the dwelling, asking to talk to Wong. However, Wong would not get up, and Lund told the person to leave.
Magbulos, Wong, and Lund remained in the dwelling. Wong was tossing and turning in his bed, and Lund was next to his possessions that had been placed in a corner of Wongs dwelling. Lunds attention was drawn back to Wong when he heard something that sounded like a grunt. Lund looked towards Wong and saw him going into the fetal position[.] Lund then saw Magbulos strike Wong in the back with a pummeling overhand motion. Wong jumped up in his bed and began shouting and yelling at the top of his lungs[.] Magbulos then backed away from Wong and towards Lund. Prior to Magbulos striking Wong, Lund did not observe Wong do or say anything to provoke Magbulos, and during the incident, Lund did not see Wong strike or do anything to Magbulos.
After striking Wong, Magbulos left the dwelling, but then stepped back into the dwelling because a crowd had gathered outside. At that point, Lund observed a knife, with a long blade, which was a little under a foot, in Magbulos left hand. Lund could not see Magbulos other hand. Wong kept yelling, Get him out of here. Get him out of here[,] and Magbulos subsequently left the dwelling.
After Magbulos left, Wong said to call 911 and fell to the ground. Lund saw a wound on Wongs chest and another on his back. The wound on Wongs back was bleeding, and Lund applied pressure to it. While doing so, Lund also saw injuries on Wongs left arm. After a while, police and other emergency personnel arrived and took over.
B.
Derek Vesper (Vesper) testified that he had known Wong for a little over a year. According to Vesper, Wong had helped Vesper when Vesper was homeless, and he felt indebted to Wong. On the day of the stabbing incident, before daylight, Vesper went to visit Wong to bring him food, because Vesper heard that Wong had not eaten in some time. Vesper saw Wong outside. Wong looked [v]ery tired and exhausted, and Wong asked whether Vesper could help Wong by buying a bike from Wong. Vesper test drove the bike for about fifteen minutes. When Vesper returned, Wong was no longer outside, so Vesper called into Wongs dwelling. A voice Vesper did not recognize told him to come back later. Before leaving, Vesper negotiated with and paid the unknown speaker fifty dollars for the bicycle.
As he was leaving, Vesper was confronted by Nelson Cablay (Cablay), one of Wongs neighbors in the encampment, who scolded Vesper for making noise while others were still sleeping. Vesper apologized. Vesper again started to leave. When he was about twenty feet away from Wongs dwelling, he heard a loud ... excruciating scream coming from the dwelling. The screams continued, and Cablay told Vesper to go help Wong. Vesper headed back to Wongs dwelling, and numerous people living in the encampment came out and went towards Wongs dwelling to investigate.
Then, someone told Vesper to watch out ... [h]es behind you. Vesper turned and saw Magbulos bending down with [t]wo knives in his hands looking back towards Wongs dwelling. The knife in Magbulos right hand appeared to be a large kitchen knife with a blade that was a little over twelve inches. The knife in Magbulos left hand was smaller, and maybe about three, four inches of the blade were sticking out of Magbulos hand. Magbulos hands and arms were covered with blood.
Vesper told Magbulos, I dont want no trouble[,] and Magbulos responded, [D]ont make no sudden moves. Cablay came over and said to Magbulos, [W]hat you doing? ... [G]et out of here. Cablay also told Magbulos that the police are coming. Magbulos yelled, Let that fucker die," and then Magbulos fled the scene.
Vesper went with Cablay to check on Wong. Vesper saw Wong on the ground, going into convulsions, spurting blood from different wounds, and breathing really fast. Vesper got on the bicycle to find a phone so he could call the police. As Vesper was pedaling towards a U-Haul business, he saw Magbulos. At that point, Magbulos did not have any knives in his hands. Vesper found someone with a phone who called the police. When the police arrived, Vesper led them to Wongs dwelling.
C.
Cablay testified that on the day in question, he was living in the encampment underneath the viaduct about twenty yards away from Wongs dwelling. Cablay had been living there for four years and had known Wong for seven years. Cablay had known Magbulos for about four months, and Magbulos had previously stayed with Cablay off and on for maybe two, three months.
According to Cablay, sometime in the late night or early morning before the stabbing incident, when it was still dark outside, Magbulos came to Cablays dwelling and woke Cablay up. Magbulos told Cablay that he was gonna fight somebody. Cablay did not think that Magbulos was talking about Wong. Magbulos then left, and Cablay went back to sleep.
Later that morning, Cablays girlfriend woke Cablay up and said, They fighting over there. Cablay testified that he heard Wong screaming ... for help, and he did not hear Wong say anything else. After he heard Wong screaming, Cablay went to Wongs dwelling and saw Magbulos inside. Magbulos walked out of Wongs dwelling and came within five feet of Cablay. Cablay saw Magbulos holding two knives, one in each hand. The longer knife, with a blade about ten inches, was in Magbulos right hand, and the shorter knife, with a blade about three or four inches, was in his left hand. Cablay later recognized the longer knife as a knife from his kitchen when Cablay checked his kitchen and the knife was missing.
As Magbulos was leaving Wongs dwelling, Cablay asked Magbulos, [W]hat you doing there? Cablay testified that Magbulos replied, F you, Let him die.
D.
Magbulos brother, Hermangildo Magbulos (Hermangildo), testified that Magbulos was his oldest brother. Hermangildo testified that at about 9:00 to 9:15 a.m. on the day of the incident, Magbulos showed up at Hermangildos residence. Magbulos appeared scared and nervous and asked to be allowed to come inside the residence. Because Hermangildos mother told him not to let his brother come in, Hermangildo told Magbulos that he could not come inside and asked Magbulos to leave.
After receiving a description of Magbulos, Honolulu Police Department Officer Tyler Parson (Officer Parson) apprehended Magbulos at a laundromat at approximately 1:30 p.m. on the day of the stabbing. Officer Parson testified that it is standard procedure for the police to determine the nature and extent of an arrestees injuries. Officer Parson did not observe any injuries on Magbulos, Magbulos did not complain of any injuries, and Magbulos did not move, act, or behave as though he was injured.
Wong was taken by ambulance to the Queens Medical Center at approximately 6:36 a.m., and he was pronounced dead at approximately 6:49 a.m. The following morning, William Goodhue, M.D. (Dr. Goodhue), a forensic pathologist, performed an autopsy on Wong. Dr. Goodhue testified that Wong had sustained a stab wound to his front upper abdomen, two slash wounds to his left arm, and a stab wound to his back near his left shoulder blade. The direction of the stab wound to Wongs upper abdomen was from front to back, up to down, and left to right, and it penetrated Wongs body to a depth of 3.5 inches. The wound had a forked appearance, which indicated that the knife was twisted in Wongs body or that Wong moved while the knife was inside him. This wound did not cut into any vital organs or blood vessels and was not fatal.
Dr. Goodhue next described two incised or slash wounds to Wongs left forearm and the crease of his left elbow. Dr. Goodhue opined that these wounds were consistent with defensive wounds -wounds that [w]ould reasonably be interpreted as occurring as Mr. Wong tried to defend himself by interposing his left arm between the oncoming blade and his body[.]
Dr. Goodhue concluded that the stab wound to Wongs left upper back was the fatal wound and the cause of Wongs death. This wound was 7.5 inches deep. The direction of the wound was from Wongs back to his front, up to down, and left to right. The wound went through Wongs diaphragm and through his spleen, and it cut into his aorta, which is the main blood vessel taking blood from the heart to the rest of the body. As a result of the cut to his aorta, Wong bled to death.
Dr. Goodhue testified that the wounds Wong sustained were consistent with being inflicted by a knife that was sharpened on one side. Dr. Goodhue did not find any abrasions or contusions to Wongs hands, elbows, or knees that would be consistent with Wong attacking or assaulting someone.
Wongs postmortem toxicology blood tests were positive for methamphetamine and cannabis. Dr. Goodhue testified that Wongs methamphetamine level was 330 nanograms per milliliter. Dr. Goodhue concluded that the methamphetamine contributed to Wongs death because it accelerated the bleeding from his aorta. However, this did not alter Dr. Goodhue opinion that the stab wound to Wongs back was the cause of his death. Dr. Goodhue determined that given the severity of the stab wound to Wongs back, Wong would have died even if there was no methamphetamine in his system when he was stabbed. Dr. Goodhue noted that Wong had a documented history of mental illness, including schizophrenia and bipolar disorder.
II.
Magbulos presented the following evidence at trial.
A.
Hanin Davalos (Davalos) lived in the encampment underneath the viaduct and knew Wong. About a month prior to Wongs stabbing, Davalos witnessed an incident between Wong and a woman who had stolen Wongs cooler which contained all his food. Wong hit the woman with a two-by-four, [n]ot as hard as he could, but still one good crack that caused the woman to return the cooler.
B.
Magbulos, with the aid of an Ilocano interpreter, testified in his own defense. Magbulos immigrated to Hawaii from the Phillippines when he was 12 years old. Magbulos testified that he was 25 and acknowledged that Wong was significantly older than him. After dropping out of high school in tenth grade, Magbulos worked at food establishments. At some point, he got into drugs.
Magbulos testified about his version of the events which led to Wongs stabbing. According to Magbulos, after midnight, he went to the encampment underneath the viaduct to buy drugs from Cablay. Magbulos went to Cablays place, but no one answered. As Magbulos was leaving, Wong threw something at Magbulos that missed, and Wong asked Magbulos what he was doing there. Magbulos knew Wong, but they were not particularly close. Magbulos told Wong that he wanted to buy drugs from Cablay, but Cablay was not there. Wong told Magbulos to give him money and he would buy the drugs. Magbulos gave Wong $30 to buy ice (methamphetamine), and Wong told Magbulos to wait by Wongs dwelling.
Magbulos waited a long time before Wong returned. Wong appeared very restless to Magbulos. Wong asked Magbulos to help him carry a cabinet from down the street back to Wongs place. Magbulos helped Wong, but the cabinet was heavy and they left it on the road. Magbulos asked Wong if he had purchased the drugs, and Wong told Magbulos to come inside Wongs dwelling. When Magbulos entered the dwelling, he saw Lund, who had a head light on his forehead, which was the only lighting inside. Wong told Magbulos to sit on the cooler, and Wong, who appeared tired, lay down on his bed. Magbulos got a cigarette from Lund. When he finished smoking the cigarette, Magbulos again asked Wong if Wong had gotten the drugs.
According to Magbulos, Wong got up and went to get something underneath the bed. Wong then approached Magbulos, who was still siting on the cooler, and hit Magbulos with something, which Magbulos believed was a piece of wood, about two and a half feet long. Magbulos raised his left arm, and the blow hit Magbulos on the upper arm and nicked his head. Wong and Magbulos pushed each other, Magbulos grabbed Wongs hand, and Wong dropped the wood. Wong pushed Magbulos to the ground, and Wong put his hand on Magbulos neck. They grappled with each other on the ground.
At some point, Wong stood up and went to get the wood. It was then that Magbulos saw a knife and grabbed it. After grabbing the knife, Magbulos remembered that he had brought a small knife with him, because he knew there are many troublemakers in that place. Magbulos showed Wong the two knives to scare him. Wong raised the wood to attack Magbulos. To defend himself, Magbulos stabbed Wong in a one and two combination. Magbulos stabbed Wong in the front with the smaller knife that was in Magbulos left hand, then reached around and stabbed Wong in the back with the larger knife that was in Magbulos right hand. Wong stopped attacking Magbulos and began screaming. Magbulos ran to the door, which had previously been blocked by Wong.
Magbulos testified that he was not fighting or angry with Wong prior to Wong attempting to hit him with the wood. In particular, Magbulos claimed that it did not bother him that Wong took his money and did not give him anything in return. Magbulos was shown photographs taken of him after his arrest. He testified that an abrasion and bruising to his left arm were caused by Wong hitting him with the wood. He also identified scratches on his back as having been sustained when Wong pushed him to the ground.
C.
Edward Fisher, Ph.D (Dr. Fisher), an expert in pharmacology and toxicology, examined Wongs autopsy report. Dr. Fisher testified that methamphetamine increases aggressiveness and that the very high level of methamphetamine found in Wongs blood had been correlated with individuals who show aggressive and irrational behaviors. However, Dr. Fisher acknowledged that there was insufficient information to claim a causal link between chronic methamphetamine use and violent behavior. Dr. Fisher opined that Wongs history of schizophrenia and bipolar disorder also increased the risk of irrational psychotic behaviors. Dr. Fisher stated that although methamphetamine use and a history of bipolar disorder increase the risk of aggressive and psychotic behavior, he could not say what behavior they would cause on any particular occasion.
III.
The jury deliberated for about an hour and ten minutes (excluding its recess for lunch) before informing the Circuit Court that it had reached a verdict. The jury found Magbulos guilty as charged of second-degree murder. The Circuit Court sentenced Magbulos to life imprisonment with the possibility of parole, and it entered its Judgment on November 15, 2014. This appeal followed.
DISCUSSION
I.
Magbulos contends that the prosecutor committed misconduct during opening statement by emphasizing that despite Wongs homelessness and drug use, Wongs life mattered. Magbulos asserts that the prosecutors remarks were improper because they constituted argument during opening statement and induced the jury to decide the case on their emotions instead of the facts and the law. We conclude that the remarks challenged by Magbulos do not warrant vacating his conviction.
A.
The prosecutors remarks challenged by Magbulos were made at the beginning and the end of his opening statement. Magbulos objected three times on the basis that the prosecutors remarks constituted argument or were argumentative, and the Circuit Court sustained the objections. Magbulos did not move to strike the prosecutors remarks or seek a curative instruction. The remarks challenged by Magbulos on appeal have been highlighted in the quoted material. The prosecutor began his opening statement as follows:
Fuck him. Let him die. Thats what the defendant said seconds after stabbing Darryle Wong. Fuck him. Let him die. Seconds after he plunged a ten-inch kitchen knife into his back. Fuck him. Let him die. As he lay there on the ground, bleeding to death, his aorta sliced open. Left there to die, like he didnt matter.
And yes, Darryle Wong was homeless. And he matters. And yes, Darryle Wong was a drug user. And he matters. And yes, Darryle Wong is now dead. And still, he matters. He matters because, whether homeless or not, whether a drug user or not, he was a person. He was a person who did not deserve to die, a person who did not deserve to be brutally murdered.
[Defense Counsel]: Objection, Your Honor. This is argument.
THE COURT: Sustained.
After the Circuit Court sustained Magbulos objection, the prosecutor proceeded to recount in great detail what he expected the evidence would show through the testimony of the States witnesses. The trial transcripts reveal that the prosecutors opening statement went on for about ten pages without drawing any objection from Magbulos. The prosecutor then ended his opening statement as follows:
Now, on May 5th, 2013, the City and County of Honolulu, State of Hawaii, Herwin Magbulos plunged the knife into Darryles back, severing his aorta and causing his death. And then he left him there to die, like he didnt matter.
[Defense Counsel]: Objection, argumentative.
THE COURT: Sustained.
[Prosecutor]: The State is going to ask that, after you consider the evidence, you show him that it does matter.
[Defense Counsel]: Objection, argumentative.
THE COURT: Sustained.
[Prosecutor]: You show him that hes guilty, and find that he is guilty. Convict him as charged, murder in the second degree.
B.
Although the challenged remarks appear to be argument, and thus more appropriate in closing argument than opening statement, the Circuit Court sustained Magbulos objections. The crux of Magbulos prosecutorial misconduct claim is that the theme of the prosecutors opening statement-that Wongs life mattered-was improper because it inflame[d] the passions or prejudices of the jury and us[ed] an argument ... that was calculated to appeal to the jurors emotions, We disagree with Magbulos contention. The rather obvious and self-evident statement that the life of a person who had been killed matters does not serve to improperly inflame the passions or prejudices of the jury or cause a case to be decided on an improper basis.
By their nature, trials are emotional, especially trials involving a victim whose life has been lost. It is not improper for a prosecutor to present evidence or make arguments that causes the jury to feel emotion; it is only improper to make gratuitous appeals to the jurys passion, prejudice, or emotion that have no legitimate bearing on issues relevant to the case. See State v. Bruce, SCWC-15-0000439, 141 Hawaii 397, 408-08, 411 P.3d 300, 308-11, 2017 WL 4480038, at *9-12 (Hawaii Oct. 9, 2017) ;
State v. Kiakona, 110 Hawaii 450, 457-59, 134 P.3d 616, 623-25 (App. 2006).
In Bruce, the defendants were charged with offenses arising from their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). Id. at *1, 141 Hawaii at 398, 411 P.3d at 301. The CW testified that defendants were her pimps who used physical violence and other means to intimidate and control her to ensure that she would continue working for them as a prostitute. Id. at *2-4, 141 Hawaii at 394-401, 411 P.3d at 301-04. In closing argument, the defendants attacked the CWs credibility. In response, the prosecutor in his rebuttal closing argued:
So this whole thing about [CW] lying and cant be believed, well, the only people who cant be believed was [defense witness] Keshawn Stewart and [defendant] Mr. Bruce. The fact of the matter is that they treated her like she was property.
... They didnt see her as any thing more than a piece of property to pass around, to mistreat, to humiliate, intimidate, beat, and force. That is how they viewed her, that is how they treated her. But shes not a piece of property. I mean, shes somebodys daughter, shes somebodys friend, shes a mother, shes a woman, she is a person, and she deserves to be treated properly [.]
Id. at *5, 141 Hawaii at 401-02, 411 P.3d at 304-05 (emphasis and some brackets in original).
The Hawaii Supreme Court held that the prosecutors comments did not constitute an improper plea to the jurys passions and prejudices and did not constitute misconduct. The supreme court distinguished its prior decision in State v. Rogan, 91 Hawaii 405, 984 P.2d 1231 (1999), concluding that unlike in Rogan, the prosecutors remarks in Bruce: (1) did not constitute an improper appeal to the jurys emotions that bore no objectively legitimate purpose, but were relevant to the States overarching theme and theory of the case; and (2) did not constitute an improper invitation to the jury to put themselves in the CWs place, but rather were a summation of facts that, in the States view, supported the charges against the defendants. Bruce, 2017 WL 4480038 at *10-11, 141 Hawaii at 406-08, 411 P.3d at 309-11.
Here, the prosecutors theory of the case was that Magbulos, without provocation, stabbed Wong to death over a $30 drug transaction. Magbulos defense was that he acted in self-defense and that the States witnesses, many of whom, like Wong, were homeless and drug users, were not believable. The prosecutors statements that Wongs life mattered, notwithstanding his homelessness and drug use, was relevant to the overarching theory and theme of the prosecution-that Magbulos held so little regard for Wongs life that without justification or provocation, Magbulos felt it was permissible to stab Wong to death. The prosecutors statements were also relevant to counteract any possible prejudice the jury may have felt against Wong or the States witnesses due to their homelessness and drug use, by reminding the jury that the lives of all people matter and have value, regardless of whether they are homeless or use drugs. Thus, unlike in Rogan, the prosecutors statements were not gratuitous attempts to appeal to the prejudices of the jury on matters having no legitimate bearing on the case, but were directly tied to the States overarching theory of the case and were relevant to issues in dispute. See Bruce, 2017 WL 4480038, at *11, 141 Hawaii at 407-08, 411 P.3d at 310-11 (concluding that viewed in context, it was not improper for the prosecutor to argue that as a human being, CW did not deserve to be treated like a piece of property). Although the prosecutors statements would have been more appropriate in closing argument, we conclude that they do not warrant vacating Magbulos conviction.
C.
In this regard, we observe that our adversarial system of justice is founded on the principle that strong advocacy by each side is the best way to uncover the truth. The appellate courts should not attempt to micro-manage the trial process, the trial judge, or advocacy by the trial participants. For our adversarial system to work, both parties and their counsel must be given leeway to strongly advocate their positions to the jury. Imposing undue restrictions on what a prosecutor can say, or making every occasion in which an appellate court believes the prosecutor made an objectionable statement the basis for overturing a conviction, will skew the appropriate adversarial balance. This will be detrimental to the proper functioning of the adversarial system and the principal purpose of criminal trials-to search for and find the truth.
Even if improper in opening statement, the prosecutors challenged remarks were relatively innocuous. It is self-evident that every persons life matters, regardless of whether the person is homeless or a drug user, and that no one deserves to be murdered. The same remarks by the prosecutor would have been permissible in closing argument.
No trial is perfect, and during a typical trial, both prosecutors and defense counsel, in advocating their side of the case, make numerous remarks or ask questions that are found objectionable by the trial court. Jurors understand that the prosecutor and defense counsel are not disinterested actors, but that their role is to strongly advocate for their side. The appellate court should not exaggerate the impact that brief remarks by the prosecutor, found objectionable by a trial court as part of the routine give and take of trial, had on the outcome of a case. The trial courts sustaining of a defense counsels objection to a prosecutors remark indicates to the jury that the remark should be disregarded. We conclude that in* this case, the prosecutors challenged remarks, which merely expressed self-evident propositions, did not prejudice the defendants right to a fair trial and do not justify overturning Magbulos conviction. See State v. Mara, 98 Hawaii 1, 16, 41 P.3d 157, 172 (2002) (Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendants right to a fair trial. (internal quotation marks and citations omitted) ).
II.
Magbulos contends that the prosecutor committed misconduct in closing argument by improperly vouching for the credibility of the States witnesses and inviting jurors to consider Magbulos interest in the case in evaluating his credibility. We conclude that the prosecutor did not improperly vouch for the credibility of the States witnesses and that any impropriety in inviting the jurors to consider Magbulos interest in the case in evaluating his credibility was harmless.
A.
The prosecutors comments in closing argument that are challenged by Magbulos arose in the following context.
The prosecutor began his closing argument in a manner similar to his opening statement, arguing that Magbulos, without provocation or remorse, stabbed Wong to death:
Fuck him. Let him die. It comes down to that again. Because thats what the defendant did. He stabbed him two times. Once in the abdomen, 3.5 inches deep, top to bottom, front to back, and left to right. Then again he stabbed the defendant in the back, with a ten-inch kitchen knife, going 7 and a half inches deep, through his rib cages, or his rib cage, through his diaphragm, through his spleen, eventually slicing his aorta. Again, up to down. Left to right. And this time, back to front.
Then after this, as [Wong] is on the ground bleeding to death, his aorta having been cut, this is no remorse. There is no How can we help? There is no regret. There is Fuck him. Let him die.
Now, that alone, you can see this was not a fight. Okay. This was not self defense. This was the defendant coming in, sitting feet away from [Wong] for 15 minutes, calmly, coolly smoking a cigarette, before stabbing him twice.
This was a cold and deliberate murder.
The prosecutor then recited the elements the State had to establish to prove the charged second-degree murder, and he discussed the facts that were not in dispute, including that Magbulos caused the death of Wong by stabbing him. Although the prosecutor argued that Magbulos actions and the evidence showed that Magbulos intent to cause death was clear and that there was no self-defense, he noted the defense may disagree. With respect to self-defense, the prosecutor argued that if the jury believed the States witnesses, Lund, Vesper, and Cablay, there was no issue of self-defense. In particular, the prosecutor noted that Lund, who was present when the stabbing occurred, testified that there was no fight, Wong did not know he was about to be stabbed, and that Magbulos inflicted the fatal blow to Wongs back while Wong was in the fetal position.
The prosecutor argued that in evaluating Magbulos self-defense claim, the jury would have to evaluate the credibility of the witnesses who testified. Citing the jury instructions, the prosecutor stated that included in the things the jury should consider in evaluating a witnesss credibility were the extent to which the witness is supported or contradicted by other evidence; the probability or improbability of the witnesss testimony; and the witnesss interest, if any, in the result of the case. The prosecutor then proceeded to argue these credibility factors to the jury. The prosecutor argued that Magbulos version of events was contradicted by the States witnesses, but noted that the mere fact that one witnesss testimony is contradicted by another witness does not tell you which witness to believe. Thus, the prosecutor argued that what was more important was that the physical evidence corroborated the States witnesses and contradicted Magbulos testimony.
In particular, the prosecutor argued that the angle of Wongs stab wounds to the abdomen and back were consistent with Lunds testimony, but inconsistent with Magbulos testimony and Magbulos in-court demonstration of how he claimed he stabbed Wong in self-defense with a one-two combination. The prosecutor attacked Magbulos claim that Magbulos post-arrest photos corroborated his testimony that Wong struck him with a piece of wood, arguing that the photographs depicted well-developed scabs and bruising that were too old to have come from injuries suffered earlier that day. The prosecutor also attacked Magbulos version by arguing that the location of the blood stains at the scene did not jibe with Magbulos testimony about the location of the stabbing, and that Magbulos testimony does not account for the defensive wounds on Wongs left arm.
The prosecutor then discussed the improbabilities in the defendants story. The prosecutor argued that this included Magbulos testimony that he did not know Wong very well, but decided to give Wong $30 to buy drugs; that he was not bothered or upset by Wongs failure to come back with any drugs; and that Wong was so tired that he could not finish moving the cabinet, but then minutes later Wong, who was much older than the 25-year-old Magbulos, became restless and could summon the power to hold Magbulos down. The prosecutor asserted that in contrast, the testimony of Lund, Vesper, and Cablay, who had not been in contact with each other, were consistent with each other regarding the significant details. He further argued that the testimony of these witnesses was consistent with Magbulos testimony, except that Magbulos testimony differed on matters that would show he was guilty and did not act in self-defense. The prosecutor also argued that Magbulos actions showed consciousness of guilt, including Magbulos hiding of the knives and his statement, Fuck him, let him die.
At this point in his closing argument, the prosecutor made the following comments, with the comments challenged by Magbulos on appeal highlighted in the quoted material:
Just quickly, Ill go into in the interests or bias. You know, when we talked in voir dire, almost to a person, everyone who we talked about when we-both Defense Counsel and the State asked whats the reason people lie, everyones number one reason, so you dont get in trouble. Not going to spend too much time on that. That ones obvious. He has an interest in the case. Self protection.
Now, on the flip side of that, again, not going to insult you by saying that States witnesses were perfect. Okay. You heard them go up there. They occasionally left things out that they didnt think were important. And they didnt say the same story exactly the same way.
... Theres difference in perspective. Theres differences in when you tell the same story, of course, tell the same story over and over, a good attorney, like [Magbulos counsel], is going to be able to find something that you didnt tell exactly the same way. And in this case he did just that. He found something that wasnt exactly the same.
Now, Id ask you when youre considering these, call them inconsistencies, I guess, to be fair, okay, to think about some of the instructions that you will also get about how to consider those. But first Id-I guess I would suggest to you that theyre credible for more than just because they came across as the more credible witnesses, and because the States saving that theyre the more credible witnesses.
Look at what the underlying facts are. Okay. Their story are not just consistent with each other. Theyre consistent with the defendant. Okay. Again, the only parts where they become inconsistent is where the defendant has to change the story to make him not guilty.
Now, also remember that we talked about those broad strokes, okay, that everybodys going to get it wrong if you had to say it over and over. But clearly, in each and every one of their statements and in their testimony, the broad strokes are identical. They saw the defendant walking out, with a huge knife. And in [Lunds] case, that he saw him not self defense, not fight, but stab [Wong] in the back.
Now, also, the States witnesses, I would argue and submit to you, do not have that interest or bias, that incentive to lie that the defendant has.
[Defense Counsel]: Your Honor, Im going to object at this point. State v. Bashom [sic].
THE COURT: Overruled.
[Prosecutor]; Okay. So, again, [Cablay] was a friend to the defendant. Okay. He has no reason to try and put the knife in his hands. He let him stay in his house. He was living with him. Okay. [Wong is] a neighbor, true. But [Cablay] has no incentive to favor anyone. Okay. He just called it like he saw it.
Same, [for Lund] and [Vesper]. They indicated they didnt even know who the defendant was. What incentive do they have to pin it on someone they didnt even know? Because its not like were talking about a balance, like maybe [Wong is] going to get in trouble. Okay. Its the cold reality is [Wong is] dead. Hes not going to be getting in trouble for anything that happened that day. There is no reason to lie about what his role was. Okay. Its not going to help him.
The prosecutor then discussed the instruction that in weighing the effect of inconsistencies or discrepancies, the jury can consider whether they concern matters of importance or unimportant detail and whether they result from innocent error or deliberate falsehood; argued that any inconsistencies in the testimony of the States witnesses did not indicate that they were lying; discussed the self-defense instruction and argued that Magbulos was not justified in using deadly force; and discussed lesser included offenses. The prosecutor concluded the opening portion of his closing argument by stating:
So at this point, Ill leave it at that. Its clear from the credible evidence that the defendants testimony is in fact just a fabrication to try and get him out of trouble. Okay. All the physical evidence, as well of course all the States witnesses, unequivocally suggest-not suggest, require I would argue, that the jury find him guilty of murder, as charged.
B.
With respect to Magbulos claim that the prosecutor improperly personally vouched for the credibility of the States witnesses, we conclude that this claim is without merit. Magbulos did not object to the prosecutors alleged personal vouching comment, and thus, he has the burden of showing plain error.
Viewed in context, the message conveyed by the prosecutors comment was that the jury should not find that the States witnesses were more credible than Magbulos simply because the State was making this argument, but because the factors relevant to the jurys assessment of credibility supported that conclusion. Prior to making the alleged personal vouching comment, the prosecutor had engaged in a prolonged argument explaining that the States witnesses were more credible than Magbulos because their testimony was consistent with, and Magbulos testimony was inconsistent with, the physical evidence presented at trial, and because Magbulos version of the events was improbable. The prosecutors statement that Lund, Vesper, and Cablay were credible for more than just because they came across as the more credible witnesses, and because the States saying that theyre the more credible witnesses, was a prelude to the prosecutors additional arguments, based on the evidence presented at trial, that the testimony of the States witnesses were consistent with each other in significant detail and that these witnesses did not have a bias or an interest to testify falsely. Based on this context, and viewing the prosecutors closing argument as a whole, we conclude that the stray comment challenged by Magbulos did not constitute improper personal vouching for the credibility of the States witnesses.
C.
Citing State v. Basham, 132 Hawaii, 97, 319 P.3d 1105 (2014), Magbulos contends that the prosecutor engaged in misconduct by arguing that Magbulos had an interest in the case and an incentive to lie that the States witnesses did not have. Magbulos argues that under Basham, a generic argument that a defendant was not credible because he or she had an interest in the outcome of the case and thus a motive to lie was impermissible, and that the prosecutors argument in this case was improper under Basham. To properly evaluate Magbulos claim, a history of the development of the law on this issue is instructive.
1.
Prior to Basham, the long established rule in Hawaii was that it was permissible for the prosecutor to argue that a defendants interest in the outcome of the case gave him or her a motive to lie. In State v. Apilando, 79 Hawaii 128, 142, 900 P.2d 135, 149 (1995), the defendant Apilando argued that it was improper for the prosecutor to attack Apilandos credibility in closing argument by stating that because Apilando had the highest stake in the outcome of the case, he had the greatest motive to lie. The Hawaii Supreme Court rejected Apilandos argument, reasoning as follows:
This court has held that, when a defendant takes the stand to testify, his or her credibility can be tested in the same manner as any other witness. State v. Pokini, 57 Haw. 17, 22, 548 P.2d 1397, 1400 (1976) ; see also HRE 609.1(a) (1985) (Generally, the credibility of a witness may be attacked by evidence of bias, interest, or motive.) Apilando testified on his own behalf, and, by so doing, subjected himself to attacks on his credibility. We believe the prosecutions comments regarding Apilando s interest in the case were not improper. See, e.g., People v. Dall, 207 Ill. App.3d 508, 527, 152 Ill.Dec. 442, 453, 565 N.E.2d 1360, 1371 (prosecutors statement that defendant had better motive than victim to lie was not error), appeal denied, 139 Ill.2d 599, 159 Ill.Dec. 111, 575 N.E.2d 918 (1991) ; People v. Bunyard, 45 Cal.3d 1189, 249 Cal.Rptr. 71, 92-94, 756 P.2d 795, 816-18 (1988) (prosecutors argument that defendant was an interested party and had motive to lie in order to avoid conviction deemed appropriate); Walls v. State, 560 A.2d 1038, 1049 (Del.) (proper for prosecutor to argue that defendants were biased because they had a big stake in the outcome of the case), cert. denied, 493 U.S. 967, 110 S.Ct. 412, 107 L.Ed.2d 377 (1989).
Apilando, 79 Hawaii at 142, 900 P.2d at 149 (emphases added.)
However, twenty years later, in Basham, the supreme court majority sua sponte addressed this issue, which had not been raised by the parties. At trial, the prosecution began closing argument by stating that two of the States witnesses were completely credible and then stating that Aliikea Basham (Aliikea), one of the co-defendants who testified, had no reason to tell the truth. Basham, 132 Hawaii at 115, 319 P.3d at 1123. The supreme court noted that at that point in the closing argument, the prosecutor had not discussed any of the testimony presented at trial or offered any reason, based on the evidence, other than Aliikeas status as a defendant, for why Aliikea would have no reason to tell the truth. Id. at 116, 319 P.3d at 1124. The supreme court held that the implication of the prosecutors argument was that Aliikea had no reason to tell the truth because he was a defendant in the case. Id. at 115-16, 319 P.3d at 1123-24. The supreme court concluded that such general comments about a defendants credibility based solely upon his or her status as the defendant were improper. The supreme court held that
it is improper for a prosecutor in summation to make generic arguments regarding credibility based solely upon the status of a defendant. Walsh, 125 Hawaii at 285, 260 P.3d at 364 (Because fundamental rights are infringed when generic tailoring arguments are made, generic tailoring arguments are subject to plain error review.). Accordingly, a prosecutor may not argue during closing argument that defendants, because they are defendants, have no reason to tell the truth or have the greatest motive to lie. Apilando, 79 Hawaii at 142, 900 P.2d at 149.
Id. at 118, 319 P.3d at 1126.
Although the supreme court majority cited Apilando as the source of the greatest motive to lie quote, it did not expressly overrule Apilando in its decision. It also did not discuss the Apilando decision, other than a but see citation to its statement that prosecutors are bound to refrain from expressing their personal views as to the credibility of the Witnesses. However, we conclude that Basham overrules Apilando, at least with respect to Apilando s holding that it was not improper for the prosecutor to argue that because Apilando had the highest stake in the outcome of the case, he had the greatest motive to lie.
2.
The Basham majoritys failure to expressly overrule Apilando, and, in particular, to specify exactly what aspects of Apilandos analysis it was overruling, creates questions concerning how to apply Basham to this case. Did the Basham majority intend only to prevent the prosecutor from arguing that a defendant has a motive to lie due to his or her interest in the outcome of the case, or did the Basham majority intend a broader holding that it is improper for the jury to consider the defendants interest in the outcome of the case in assessing the defendants credibility? Each interpretation is problematic.
A persons self-interest is widely recognized as a relevant factor to consider in evaluating the persons credibility. The precept that people are inclined to act in ways that further their own interests is reflected in Hawaii Rules of Evidence (HRE) Rule 609.1 (2016), which establishes the general rule that [t]he credibility of a witness may be attacked by evidence of bias, interest, or motive. It is also reflected in judicial precedent which holds that [b]ias, interest, or motive is always relevant [.] State v. Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987). Precluding the jury from considering a defendants interest in the outcome or result of the case in evaluating the defendants credibility will require the jury to ignore a factor that is always relevant in evaluating credibility. It would therefore impair and impede the truth-seeking purpose of the criminal justice system.
On the other hand, if the jury can consider the defendants interest in the outcome of the case as a relevant factor in evaluating the defendants credibility, it is unclear why a prosecutor should be precluded from arguing this factor.
In choosing between these alternative interpretations of Basham, we note that the Basham majority focused on the role of the prosecutor in its analysis, prefacing its holding with the phrase, Given the prosecutors important role in our justice system.... Basham, 132 Hawaii at 118, 319 P.3d at 1126. Indeed, the specific holding of Basham is that it is improper for a prosecutor in summation to make generic arguments regarding credibility based solely upon the status of the defendant and that a prosecutor may not argue during closing argument that defendants, because they are defendants, have no reason to tell the truth or have the greatest motive to lie. Id. (emphasis added; internal quotation marks and citation omitted). Furthermore, Basham did not address whether it was permissible for the jury to consider the defendants interest in the outcome of the case in assessing the defendants credibility. Basham also did not specifically overrule the Apilando courts conclusion that when a defendant takes the stand to testify, his or her credibility can be tested in the same manner as any other witness. Apilando, 79 Hawaii at 142, 900 P.2d at 149.
For these reasons, we conclude that Basham should be read narrowly to only preclude the prosecutor from making the generic argument regarding the defendants interest in the outcome of the case, and not to prevent the jury from considering the defendants interest in the outcome of the case in evaluating his or her credibility. Interpreting Basham in this manner, we conclude that the prosecutors Basham error was harmless and did not prejudice Magbulos right to a fair trial.
Because the jury could legitimately consider Magbulos interest in the case, the error is limited to the prosecutors arguing that Magbulos had an interest and incentive to lie. We conclude that the effect of this error on the jury was not substantial. The prosecutors argument on this point was brief. The prosecutor spent the vast majority of his closing argument focusing on other factors, which were based on evidence presented at trial, to support his assertion that Magbulos testimony was not credible. This included the prosecutors arguments that Magbulos testimony was inconsistent with the physical evidence presented at trial; that Magbulos testimony conflicted with the testimony of the States witnesses, including Lund, who was present and witnessed the stabbing; and that Magbulos version of events was improbable. The Circuit Court also instructed the jurors that they were the sole and exclusive judges of the effect and value of the evidence, and of the credibility of the witnesses and that it was their exclusive right to determine whether and to what extent a witness should be believed, and to give weight to his or her testimony accordingly. Finally, the evidence supporting Magbulos conviction was strong. Magbulos admitted that he stabbed Wong in the stomach and back. Magbulos did not dispute that the stab to Wongs back, which penetrated to a depth of 7.5 inches, caused Wongs death. Lund, an eyewitness to the stabbing, testified that Magbulos stabbed Wong without provocation and not in self-defense. Wong had cuts to his left arm that were consistent with defensive wounds ; Magbulos version of events did not specifically account for these defensive wounds ; and Magbulos did not suffer any significant injury.
For these reasons, we conclude that the prosecutors Basham error was harmless. We also conclude, based on our preceding analysis, that the cumulative effect of the alleged misconduct of the prosecutor in opening statement and closing argument did not affect Magbulos substantial rights and do not justify overturning his conviction.
III.
The Circuit Court instructed the jury on the lesser included offenses of reckless manslaughter and first-degree assault, but denied Magbulos request to instruct the jury on the lesser included offenses of second-degree assault, third-degree assault, and third-degree assault by mutual affray. Magbulos argues that the Circuit Court erred in failing to instruct on the lower-level assault offenses. We conclude that any error in failing to instruct on the lower-level assault offenses was harmless.
A.
The development of the law on this issue includes the following.
In State v. Haanio, 94 Hawaii 405, 16 P.3d 246 (2001), the supreme court held that the trial court is required to instruct juries as to any included offenses having a rational basis in the evidence regardless of what the parties desire. Haanio, 94 Hawaii at 407, 16 P.3d at 248. The supreme court reasoned:
A trial courts failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jurys truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an all or nothing choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.
Id. at 415, 16 P.3d at 256 (block quote format altered; citation omitted). The supreme court, however, further held that the trial courts error in failing to instruct the jury on a lesser included offense is harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions. Id.
In State v. Flores, 131 Hawaii 43, 44, 314 P.3d 120, 121 (2013), the supreme court overturned this latter holding in Haanio, and it ruled that the trial courts failure to instruct on a lesser included offense is not automatically harmless error when the jury returns a guilty verdict on a greater offense. In reaching this result, the supreme court concluded that rendering the failure to instruct on a lesser included offense always harmless whenever the jury finds the defendant guilty of a greater offense would leave the jury with the same all or nothing choice that had been condemned in Haanio. Flores, 131 Hawaii at 56, 314 P.3d at 133.
In State v. Kaeo, 132 Hawaii 451, 323 P.3d 95 (2014), the supreme court applied its new rule in Flores to overturn Kaeos manslaughter conviction. Kaeo had been charged with second-degree murder, but was convicted of the lesser included offense of reckless manslaughter. Kaeo, 132 Hawaii at 460, 323 P.3d at 104. The supreme court vacated the manslaughter conviction on the ground that the trial court had erred in failing to instruct on the lesser included offense of first-degree assault. The supreme court concluded that there was a rational basis in the evidence to acquit Kaeo of second-degree murder and to convict him of first-degree assault based on the evidence presented at trial, which included Kaeos testimony that he was trying to hurt, but did not intend to kill, the victim who ultimately died. Id. at 465-67; 323 P.3d at 109-11.
B.
Here, the jury, after being instructed on the lesser included offenses of reckless manslaughter and first-degree assault, convicted Magbulos of the charged offense of second-degree murder. Thus, unlike in Flores and Kaeo, the failure of the Circuit Court to instruct on the lower-level assault offenses did not present Magbulos jury with an all or nothing choice between the guilty verdict it rendered and a complete acquittal. Instead, the jury had the option of finding Magbulos guilty of manslaughter or finding him guilty of first-degree assault, but chose to find him guilty as charged of second-degree murder.
Under these circumstances, we need not consider whether there was a rational basis in the evidence to acquit Magbulos of second-degree murder and convict him of the lower-level assault offenses because we conclude that any error in failing to instruct on the lower-level assault offenses was harmless beyond a reasonable doubt. While the failure to instruct on a lesser included offense just below the offense for which the jury returned a guilty verdict is not automatically harmless error, we conclude that absent unusual circumstances, the failure to instruct on a lesser included offense two levels below the offense for which the defendant is found guilty will ordinarily be harmless. In this case, Magbulos is contending that the failure to instruct on lesser included offenses that are at least three levels below the second-degree murder for which the jury found him guilty entitles him to a new trial. It strains credulity to believe that the jury who found Magbulos guilty as charged of second-degree murder, despite being instructed on the lesser included offenses of manslaughter and first-degree assault, might reasonably have found him guilty of the lower-level assault offenses if instructed on these offenses. We therefore conclude that there is no reasonable possibility that the Circuit Courts failure to instruct on the lower-level assault offenses affected the outcome of this case.
CONCLUSION
For the foregoing reasons, we affirm the Circuit Courts Judgment.
The Honorable Dexter D. Del Rosario presided.
Lund was unable to identify Magbulos at trial, but without objection by Magbulos, the prosecutor referred to the person Lund testified had entered Wongs dwelling as the defendant and Herwin (Magbulos first name). There was no dispute at trial that this person was Magbulos as Magbulos himself acknowledged that he had stabbed Wong in Wongs dwelling while Lund was present. So for purposes of simplicity, in recounting Lunds testimony, we will refer to this person as Magbulos.
On cross-examination, Cablay acknowledged that in his statement to the police, he stated that he heard Wong say, Get the fuck out of the tent already. I told you, I gonna take care of it already.
On cross-examination, Cablay acknowledged that in his statement to the police, he stated that Magbulos said, Fuck him. Let him die. He like fuck me up.
Photographs taken at the scene after Wongs stabbing showed what appears to be a two-by-four piece of wood on the floor.
The prosecutor argued that Vesper testified he did not know Lund and that Lund testified that he had not spoken to Cablay since the day in question.
As quoted in Basham, the prosecutors closing argument was as follows:
On behalf of the prosecution, I adamantly, state to you, that Mr. and Mrs. Bloom [ (the alleged victim and his wife) ] have been completely credible witnesses, that they are worthy of your belief. They have no axe to grind, no revenge to be had. They did not know the Defendants Basham before this incident. They have absolutely no reason to fabricate or otherwise make up the accounts that they have recited to you in explicit detail.
Defendant Aliikea Basham, on the other hand, has decided to testify, which is his right. When a defendant testifies, his credibility is to be weighed as any other witness. But you need to keep something in mind. Defendant Aliikea Basham has absolutely no reason to tell you the truth. So the selection or the choice before you in weighing the credibility of the witness is this. Your willingness to believe two people who have no reason to lie to you versus one person who has no reason to tell you the truth.
Basham, 132 Hawaii at 104, 319 P.3d at 1112 (emphasis omitted).
The petitioner before the supreme court was Michael Basham, Aliikeas father, who did not testify at trial. The supreme court concluded that "while the prosecutors argument was specifically directed at Aliikea, the statement implicated [Michael] Basham as well. Basham, 132 Hawaii at 116, 319 P.3d at 1124.
The but see citation to Apilando appears in the Basham majority opinion in the following context:
It is well-established under Hawaii case law that prosecutors are bound to refrain from expressing their personal views as to a defendants guilt or the credibility of witnesses. [State v.] Clark. 83 Hawaii [289] at 304, 926 P.2d [194] at 209 (citations omitted). See State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986) ; State v. Cordeiro, 99 Hawaii 390, 424-25, 56 P.3d 692, 726-27 (2002) ; Tuua, 125 Hawaii at 14, 250 P.3d at 277. But see State v. Apilando, 79 Hawaii 128, 142, 900 P.2d 135, 149 (1995) (prosecutors comment that defendant had the greatest motive to lie because he had the highest stake in the outcome of the case was permissible attack on defendants credibility).
Basham, 132 Hawaii at 115, 319 P.3d at 1123.
We note that the Basham majority began its discussion of the issue by stating that the prosecutors argument in closing that Aliikea had no reason to tell the truth came before the prosecutor had discussed any trial testimony or offered any reason based on the evidence for why Aliikea would have no reason to tell the truth. Thus, it could be argued that the prohibition against a prosecutors arguing that a defendant has a motive to lie because of his or her interest in the outcome of the case is only triggered when a prosecutor makes this argument without first discussing trial evidence or attacking the defendants credibility based on evidence presented at trial. However, we believe that such an argument would be difficult to reconcile with the Basham majoritys subsequent, more unconstrained analysis.
We note that the standard Hawaii Criminal Jury Instructions (HCJI) provide that [w]hen a defendant testifies, his/her credibility is to be tested in the same manner as any other witness. HCJI § 3.15 (1991). The HCJI further provide that [i]n evaluating the weight and credibility of a witnesss testimony, the jury may consider a number of factors, including the witnesss interest, if any, in the result of the case [.] HCJI § 3.09 (2000). If Basham were read to preclude a jury from considering a defendants interest in the result of the case in evaluating his or her credibility, HCJI § 3.15, which has been in effect since 1991, may have to be amended to read something like: When a defendant testifies, his/her credibility is to be tested in the same manner as any other witness, except that, unlike other witnesses, the defendants interest in the result of the case shall not be considered.