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State v. Magbulos

Intermediate Court of Appeals of Hawaii

February 20, 2018

STATE OF HAWAI'I, Plaintiff-Appellee,
HERWIN MAGBULOS, Defendants-Appellees.


          Jon N. Ikenaga Deputy Public Defender for Defendant-Appellant

          Brian R. Vincent Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee.

          NAKAMURA, C.J., and FUJISE and GINOZA, JJ.


          NAKAMURA, C.J.

         Plaintiff-Appellee State of Hawai'i (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 Wong's dwelling, Magbulos stabbed Wong in the stomach and back with two different knives, causing Wong's 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)[1] 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 Wong's homelessness and drug use, Wong's life mattered; (2) the prosecutor committed misconduct in closing argument by improperly vouching for the credibility of the State's 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.


         The stabbing that led to Wong's 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. Wong's 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 Wong's dwelling.

         The State's 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 Wong's neighbors, and Magbulos was also a drug user.


         The State presented the following evidence at trial.


         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 Wong's dwelling through Saturday morning. During that time, Lund did not sleep and did not see Wong sleep. Lund remained at Wong's 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 Wong's dwelling to get something to eat and drink. Lund returned to Wong's 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 Wong's dwelling.[2] Magbulos asked Lund for a cigarette, and then Magbulos sat on a cooler next to Wong's 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 Wong's dwelling. Lund's 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 Wong's chest and another on his back. The wound on Wong's back was bleeding, and Lund applied pressure to it. While doing so, Lund also saw injuries on Wong's left arm. After a while, police and other emergency personnel arrived and took over.


         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 Wong's 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 Wong's 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 Wong's 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 Wong's dwelling, and numerous people living in the encampment came out and went towards Wong's dwelling to investigate.

         Then, someone told Vesper to "watch out . . . [h]e's behind you." Vesper turned and saw Magbulos bending down with "[t]wo knives in his hands" looking back towards Wong's 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 don't want no trouble[, ]" and Magbulos responded, "[D]on't 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 Wong's dwelling.


         Cablay testified that on the day in question, he was living in the encampment underneath the viaduct about twenty yards away from Wong's 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 Cablay's 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, Cablay's 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.[3] After he heard Wong screaming, Cablay went to Wong's dwelling and saw Magbulos inside. Magbulos walked out of Wong's 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 Wong's dwelling, Cablay asked Magbulos, "[W]hat you doing there?" Cablay testified that Magbulos replied, "F you, Let him die."[4]


         Magbulos1 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 Hermangildo's residence. Magbulos appeared scared and nervous and asked to be allowed to come inside the residence. Because Hermangildo's 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 arrestee's 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 Queen's 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 Wong's upper abdomen was from front to back, up to down, and left to right, and it penetrated Wong's body to a depth of 3.5 inches. The wound had a "forked" appearance, which indicated that the knife was twisted in Wong's 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 Wong's 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 Wong's left upper back was the "fatal" wound and the cause of Wong's death. This wound was 7.5 inches deep. The direction of the wound was from Wong's back to his front, up to down, and left to right. The wound went through Wong's 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 Wong's hands, elbows, or knees that would be consistent with Wong attacking or assaulting someone.

         Wong's postmortem toxicology blood tests were positive for methamphetamine and cannabis. Dr. Goodhue testified that Wong's methamphetamine level was 330 nanograms per milliliter. Dr. Goodhue concluded that the methamphetamine contributed to Wong's death because it accelerated the bleeding from his aorta. However, this did not alter Dr. Goodhue opinion that the stab wound to Wong's back was the cause of his death. Dr. Goodhue determined that given the severity of the stab wound to Wong's 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.


         Magbulos presented the following evidence at trial.


         Hanin Davalos (Davalos) lived in the encampment underneath the viaduct and knew Wong. About a month prior to Wong's stabbing, Davalos witnessed an incident between Wong and a woman who had stolen Wong's 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.[5]


         Magbulos, with the aid of an Ilocano interpreter, testified in his own defense. Magbulos immigrated to Hawai'i 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 Wong's stabbing. According to Magbulos, after midnight, he went to the encampment underneath the viaduct to buy drugs from Cablay. Magbulos went to Cablay's 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 Wong's 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 Wong's 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 Wong's 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 Wong's hand, and Wong dropped the wood. ...

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