FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO.
Ikenaga Deputy Public Defender for Defendant-Appellant
R. Vincent Deputy Prosecuting Attorney City and County of
Honolulu for Plaintiff-Appellee.
NAKAMURA, C.J., and FUJISE and GINOZA, JJ.
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
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.
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'
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.
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.
State presented the following evidence at trial.
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.
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
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.
after Wong lay down on his bed, Magbulos entered Wong's
dwelling. 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.
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.
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
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.
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.
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.
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
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.
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
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,
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
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. 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.
Magbulos was leaving Wong's dwelling, Cablay asked
Magbulos, "[W]hat you doing there?" Cablay
testified that Magbulos replied, "F you, Let him
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.
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.
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.
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
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.
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.
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.
presented the following evidence at trial.
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
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.
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
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.
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. ...