August 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
WAYNE B. HIX, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-0628.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad, Sapp-Peterson and Nugent.
Convicted by a jury of manslaughter and unlawful possession of a weapon, defendant Wayne B. Hix was sentenced to an aggregate fifteen-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). He contends his conviction should be reversed because the prosecutor engaged in misconduct while giving his closing statement to the jury, and because the court misinformed the jury on the law of self-defense and flight. Defendant also contends his sentence is excessive. Having considered defendant's arguments in light of the record and controlling law, we affirm.
On the afternoon of April 1, 2008, on a street in Elizabeth a short distance from the Pink Gloves Styx bodega, defendant stabbed and killed fifty-one-year old Brian Graham. According to the State's trial evidence, defendant and a friend, twenty-two year old Jazmene Williams, had gone to the bodega to buy cigarettes. When they entered, Barry Taylor, who worked there, was behind the counter; Brian Graham, the victim, and his son, Brian Davis, were standing near the store's freezer.
Defendant and Graham briefly bantered while Williams bought cigarettes from Taylor. Williams heard Graham say "something smart" to defendant. Defendant replied, "I don't know who you [are] talking to because I don't be around here[, ]" and then started to leave the store. The two men exchanged verbal vulgarities and defendant walked out. When defendant left, Davis told his father, "[g]o smack him, go smack the s out of him 'cause he ain't gonna do anything."
Graham left and a few seconds later Williams "heard a smack." Williams testified the "smack" was "real loud because I was still in the store. So they were outside and I was in the store and I heard the smack." The store's door was closed when Williams heard the smack. Asked to describe what she heard, Williams said, "[l]ike somebody got smacked real hard."
After hearing the smack, Williams went to the door and saw Graham walking back toward the store, bent over, and bleeding. He said he was stabbed, but did not say who stabbed him. Graham passed out and Williams called an ambulance and the police.
The bodega employee, Taylor, remembered things somewhat differently from Williams. He recalled defendant coming into the bodega with "a large sum of money" and saying that he was "going to buy everybody everything and put it on my tab[.]" Defendant had no tab. Taylor told defendant to show the money, and defendant counted out approximately $3000. Defendant walked to a counter, picked up some orange juice and asked if anyone else wanted anything. Graham said "yeah, get me one." Defendant replied "buy it yourself." Then, according to Taylor, defendant and Graham started "cracking jokes back and forth, " but the verbal exchange escalated and they started using profanity. Taylor told defendant to leave. Defendant left, and Taylor told Graham to leave too. Shortly before Graham left, Graham's son, Davis, told Graham, "you should have smacked the h out of him[.]"
After Graham walked out, Taylor "heard like a boom, like a shaking on the window." He looked outside and saw Graham knock defendant's hat off. Taylor also saw Graham making a kicking motion towards defendant, but could not say whether the kick landed. Taylor turned to talk to Davis, and then observed Graham walking back toward the store, holding his stomach, and hollering that he had been stabbed. Graham collapsed and Jazmene Williams, who had a cell phone, called the police.
Taylor explained that defendant and Graham had come into the store nearly every day. As a form of amusement, they called each other names, but it didn't usually lead to fighting. When defendant and Graham exchanged profanities on April 1, 2008, Taylor thought they might be playing an April fool's joke on him.
Taylor, who had been trained in mixed martial arts, had a red belt, which is higher than a black belt. In the 1960's, Taylor trained Graham in combat karate. Graham eventually obtained a first degree black belt and competed nationally until he became interested in a singing career.
Although Graham's son, Davis, testified at trial, he remembered little about the exchange of words between his father and defendant. He testified: "[Defendant] came in the store. Whatever happened in the store, whatever words they had, they went outside after that. So the next thing you know my father came in saying 'he stabbed me.'"
Three people witnessed the stabbing: Crimelda Mercado, Travis Price, and Graham's other son, Tihik Washington. Mercado, who lived in an apartment in a building near the bodega, saw the stabbing through her living room window. She testified she saw two men come out of the bodega arguing. She heard defendant tell Graham, "you shouldn't have said nothing like that[, ] . . . I wasn't f talking to you[.]" Graham "just straight up slapped" defendant, and defendant "just took his left hand and . . . stabbed him with whatever he had in his hand." Immediately after defendant stabbed Graham, before anyone came out of the store to help Graham, defendant ran. According to Mercado, "[i]t was like two seconds and he started running." Defendant ran as Graham returned to the store.
Price, a high school student, was walking to a store after school when he saw defendant stab Graham. He testified:
I seen the defendant and the victim come out [of] the store. Defendant had the - - the victim against - - against the store - - the store wall kind of held up.
I see him like take a - - a stab at him. The victim kind of slid up against the wall and slid down and the defendant ran off.
When asked if he heard defendant and the victim say anything, Price replied that defendant "yelled that he slapped him, or something like that."
Washington was on a street corner watching a dice game when he saw defendant walk out of the bodega. He glanced back at the dice game, then saw his father come out and start talking to defendant, "face-to-face." Washington then looked back toward the dice game and when he next looked in the direction of his father, he saw his father jerk back and then start walking back toward the store, "holding under his arm." According to Washington, when Brian Davis came out of the store, defendant "took off."
Davis and Washington chased defendant in Davis's car. When they caught up to him, Washington jumped out of the car and ran toward defendant who "still had the blade with the blood on it." Washington asked defendant why he had stabbed Graham, and defendant said "he slapped me." Washington continued to chase defendant, who ran into a backyard where Washington, Davis, and Graham's brother, Raymond Earl Graham, cornered and beat him with their fists, feet, boards and garbage cans. Defendant was eventually able to get away with the assistance of his cousin, Kareem.
The police recovered the knife. Dr. Junaid Shaikh, the Union County Deputy Medical Examiner, testified that Graham died from a stab wound that "entered through the chest wall, cut the seventh rib, . . . went into the chest cavity, . . . perforated through the pericardial sac, which is the membranous bag that envelops the heart itself, penetrated into the left ventricle and that was the final termination of the wound itself." The wound was consistent with the knife recovered by the police. Graham's blood alcohol concentration was 0.112 and he had morphine in his system.
Defendant testified that he had known Graham his entire life and had a good relationship with Graham and his family until March 15, 2008. On March 15, defendant went to the bodega, where he was confronted by Graham, his brother and his two sons, Davis and Washington. Davis told Graham to take defendant's cell phone. Graham smacked defendant on the back of his head and took defendant's cell phone from the clip holder on defendant's hip. Defendant did nothing, because he was outnumbered, aware of Graham's and Davis's reputations for violence, and aware that Graham had been trained in martial arts. Defendant was also aware that Graham had once been convicted of attempting to possess a weapon.
On April 1, 2008, defendant met Williams in front of her house and agreed to walk with her to the bodega. As they walked toward the store, defendant saw Graham's brother walk out, and saw defendant's son, Washington, on a nearby street corner. When defendant and Williams entered the store, Taylor was behind the cash register, Graham's son, Davis, was sitting on the freezer and Graham was standing near the soda refrigerator.
Defendant walked over to the refrigerator to grab an orange juice, and turned to walk back to the counter with his money, approximately $2100, in his hand. Graham saw the money and asked defendant for a couple of dollars. Defendant told Graham he couldn't give him any money because he was saving for a car, to which Graham replied, "[W]hy the f you always pulling your money out and why the f you always in the store?" When defendant responded, Graham asked defendant who he was talking to. Defendant said, "I'm talking to whoever got something to say." Graham said, "[y]ou act like we can't take your s." Defendant believed Graham was implying that he and his son could take defendant's money if they wanted. Graham then directed a vulgarity at defendant. Defendant thought Graham sounded aggressive and left the store, concerned that Graham and his son, Davis, would try to take his money.
When defendant walked out, Graham followed. Defendant described the incident, explaining why he stabbed Graham:
Q [:] [Defense Counsel:] When you walked outside the store, did you hear anything?
A [:] I heard the door open up and I heard [Graham] say you thought I was playing and he grabbed me from behind and that's when he smacked me. He smacked me. He shook the s out of me. He smacked me as he was trying to hurt me. He was trying to seriously hurt me. That's how hard he smacked me.
Q [:] Can you describe how he smacked you?
A [:] Aggressive, hard.
A [:] It was hard. He swung with all his might. He reached into it, swung trying to intentionally hurt me.
I got hit in the right side of my face and I went back. I was dazed a little bit. I was dazed and he just . . . had my shirt. He just had my shirt, you know what I'm saying? I don't know what he was trying to do, what he was going to do. He had my shirt and that's when I reached knowing I had a knife and hit him with the knife, no intent to kill him or not intent to seriously hurt him but just to get him off me.
Defendant explained he believed Graham was trying to hurt him because "he must have wanted my money or he was mad that I didn't give him the money." Defendant did not believe that he could walk away safely because Graham and his family would have "tracked [him] down, " so he took the pocket knife from his belt clip, opened it, and "just poked him." Defendant stood there for about two seconds, and began to run away as soon as he saw Graham's son, Davis, "barging" out of the store.
Defendant ran down Third Street toward Court Street, with Graham's brother and sons in pursuit. Defendant saw Davis reach for something, and, thinking Davis had a gun, defendant pled for Davis not to shoot him. Defendant repeatedly told the men that Graham had "slapped me. He slapped me for no reason. He just slapped me." The three men eventually caught and began to beat defendant with their fists, sticks, and garbage cans. While on the ground, Graham's brother went in defendant's pocket, took his money, then left with Graham's sons.
After the beating, defendant's cousin helped defendant regain his composure. Defendant went home, then took a cab to Penn Station in Newark where he received a telephone call from one of his relatives who told him Graham had died. The following evening, defendant turned himself in to the police.
A Union County grand jury subsequently charged defendant with first-degree murder, N.J.S.A. 2C:11-3 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three). Following an eight-day trial, a jury found defendant guilty of reckless manslaughter, a lesser-included offense of murder, on count one; and count three, unlawful possession of a weapon. The jury acquitted defendant of count two, possession of a weapon for an unlawful purpose. The court sentenced defendant on count one to fifteen years in prison, subject to an eighty-five percent parole disqualifier under NERA; and on count three, to a concurrent eighteen-month sentence. The court also imposed appropriate assessments and penalties. This appeal followed.
Defendant presents the following arguments for our consideration:
UNDER THE INSTANT FACTS, THE COURT SHOULD HAVE MODIFIED THE WORDING IN THE SELF-DEFENSE CHARGE BY ELIMINATING THE EXAMPLE WHICH REFERRED TO A "SLAP" AS NOT CONSTITUTING JUSTIFICATION FOR THE USE OF DEADLY FORCE.
THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY DURING SUMMATION BY MISSTATING FACTS, DENIGRATING THE DEFENSE AND DISPLAYING WRITTEN EXCERPTS FROM THE FINAL INSTRUCTIONS (Partially Raised Below).
THE COURT ERRED IN GIVING THE FLIGHT CHARGE BECAUSE THE DEFENDANT'S DEPARTURE FROM THE SCENE WAS TO AVOID PHYSICAL HARM AND NOT TO AVOID APPREHENSION.
THE EXTENDED TERM SENTENCE OF 15 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, WAS MANIFESTLY EXCESSIVE UNDER THE FACTS.
We first address defendant's argument that his conviction should be reversed because of the prosecutor's misconduct during his closing argument. To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001). The absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. See id. at 323.
Defendant contends that "[t]he prosecutor began his summation by telling the jury that '[t]he defense has created this fiction that there is some kind of self-defense.'" Defendant argues that in addition to that comment, the prosecutor said defendant was no lamb, commented that defendant "gutted" Graham, and stated, "the question is how accountable are you going to hold [defendant] because this self-defense is a joke, " all of which deprived him of a fair trial. Defendant also argues that the court erred by permitting the prosecutor to display excerpts of the court's charge to the jury.
Contrary to defendant's assertion, the prosecutor did not begin his summation by referring to the defense of self-defense as a fiction. The prosecutor began his summation by telling the jury: "[a]s I was listening to [defense counsel's] summation, I was picturing this lamb walking into this store, this [lair], this strategically planned robbery, and it occurred to me he didn't get smacked for nothing." That comment was in direct response to defense counsel's well-constructed argument that suggested when defendant walked into the bodega he entered the hangout of a family of criminals who intended to victimize him. The prosecutor's metaphorical reference to defendant was fair comment on defendant's summation. "A prosecutor is . . . entitled to argue the merits of the State's case graphically and forcefully . . . and is not required to present those arguments as if he [or she] were addressing a lecture hall[.]" State v. Smith, 212 N.J. 365, 403 (2012) (internal quotation marks and citations omitted), cert. Denied, ___ U.S. ___, 133 S.Ct. 1504, 185 L.Ed.2d. 558 (2013).
The prosecutor's argument that defendant "gutted" Graham was an embellishment unsupported by any evidence in the record. In view of the deputy medical examiner's detailed description of the path of the knife wound, however, we fail to discern how the jury could have been misled in any way by the prosecutor's singular hyperbolic reference to the fatal wound. It is understandable why defense counsel did not object to the prosecutor's inane remark.
The prosecutor's reference to defendant's self-defense claim as "fiction" and a "joke" were improper. We pointed out the impropriety of making such comments more than fifteen years ago when we remarked that "'instances of prosecutorial excesses in the course of summations seem to come to this court with numbing frequency.'" State v. Marquez, 277 N.J.Super. 162, 170, 172 (App. Div. 1994) (quoting State v. Watson, 224 N.J.Super. 354, (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.Ct. 535, 102 L.Ed.2d 566 (1988)), certif. denied, 141 N.J. 99 (1995). Nevertheless, in Marquez, a case in which the prosecutor's comments about defense counsel and two psychologists were egregious, we were "unable to conclude that these remarks substantially prejudiced defendant's right to have the jury fairly evaluate this case and decline[d] to reverse his conviction on [that] ground." Id. at 173.
Here, the prosecutor's characterization of defendant's claim of self-defense as a fiction and joke was made during the course of a summation that spanned twenty-nine pages of the trial transcript. Defendant did not object to the remarks when they were made. The failure to object demonstrates that defendant did not view the remarks as prejudicial. See State v. Ramseur, 106 N.J. 123, 323 (1987). More significantly, the jury acquitted defendant of first-degree murder and possession of a weapon for an unlawful purpose. Considering those circumstances, we are unable to conclude that the prosecutor's "fiction" and "joke" remarks were so egregious that they deprived him of a fair trial. See Frost, supra, 158 N.J. at 83.
Defendant also asserts that it was improper for the court to permit the prosecutor to display portions of the jury charge during his summation. Defendant made no attempt to preserve the record by insisting that the prosecutor's displays be marked for identification. Consequently, there is no way to evaluate the effect, if any, that the prosecutor's display of parts of the charge had upon the jury. Nor is there any way to determine whether the prosecutor referred to the law "only to the extent reasonably necessary to set a framework for discussion of the evidence." State v. Walker, 322 N.J.Super. 535, 547 (App. Div.), certif. denied, 162 N.J. 487 (1999). Stated differently, nothing in the record suggests that the trial court abused its discretion by permitting the prosecutor to display certain jury charges during his summation.
Defendant next contends that the court misinformed the jury on self-defense and flight. We find no error in the court's charge.
In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J.Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Defendant takes exception to the following portion of the court's instruction on the use of force in self-protection:
One cannot respond with deadly force to a threat of or even a . . . minor attack. For example, a slap or an imminent threat of being pushed in a crowd would not ordinarily justify the use of deadly force to defend against such unlawful conduct.
Defendant asserts that the court's instruction essentially nullified his claim of self-defense. He maintains that the court's use of the word "slap" was both a description of Graham's blow to defendant and an example of conduct that can never justify the use of deadly force. The State argues that the charge was appropriate in view of defendant's self-defense claim. Considered in the context of the court's entire charge on the use of force in self-protection, the two sentences challenged by defendant did not constitute error.
The court's instructions to the jury followed the model jury charge on self-defense. See Model Jury Charge (Criminal), "Justification – Self-Defense in Self-Protection (N.J.S.A. 2C:3-4)" (2011). Accordingly, before mentioning the word "slap, " the court explained that a defendant "can only use that amount or degree of force that he reasonably believes is necessary to protect himself against harm, " and that "deadly force may be justified only to defend against force or threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself against death or serious bodily injury." Additionally, the court used the word "slap" while explaining that a defendant may not use deadly force to respond to a threat or a minor attack, such as "a slap or an imminent threat of being pushed in a crowd."
Significantly, defendant did not argue to the jury that he stabbed Graham to protect himself against a minor slap. Rather, defendant claimed that he feared being victimized by defendant, and by members of his family who were nearby, some of whom had criminal records. More significantly, defendant claimed that Graham was trained in martial arts and had inflicted a powerful karate blow immediately before defendant stabbed him.
Considered in both the context of defendant's evidence and the entire charge on self-defense, the court's reference to a slap was not ambiguous and did not misinform the jury of the law. See R.B., supra, 183 N.J. at 324. No reasonable juror could have equated the type of minor slap referred to by the court with the forceful karate blow alleged by defendant, under the circumstances defendant described. For those reasons, we are unpersuaded by defendant's argument that the court misinstructed the jury on self-defense.
Defendant also contends the trial court erred by giving the model jury charge on flight, Model Jury Charge (Criminal), "Flight" (2010). He argues that the undisputed trial evidence established that he fled after he stabbed Graham not because of consciousness of guilt, but because Graham's relatives chased him and he feared them.
Defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. An instruction on flight "is appropriate when there are 'circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Latney, 415 N.J.Super. 169, 175-76 (App. Div. 2010) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). Whether sufficient evidence in the record exists to support a flight charge is within the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).
Here, Mercado, an eyewitness, testified that "right after the stabbing before people came out of the store[, ]" defendant ran. Mercado's testimony contradicts defendant's argument that he fled because Graham's relatives chased him. Moreover, defendant admitted that after returning to his home following the stabbing he took a cab to Newark Penn Station, and he did not surrender to police until the next evening. Considering those circumstances, the court did not abuse its discretion by determining that a factual dispute existed as to why defendant fled and by instructing the jury as to what inferences they could make depending upon how they resolved that factual dispute.
In his final point, defendant contends that his sentencing is manifestly excessive. He argues that the court did not focus on the offense he committed, as opposed to his prior record, when determining his base term; failed to consider the consequences of NERA; and failed to find and appropriately weigh three mitigating factors. We disagree.
Defendant does not dispute the trial court's determination that he was subject to an extended-term sentence as a persistent offender under N.J.S.A. 2C:44-3(a). "When fixing the appropriate sentence length for the defendant within [the extended-term] range, the court may consider, in addition to finding and weighing aggravating and mitigating factors, the 'protection of the public.'" State v. Hudson, 209 N.J. 513, 527 (2012) (quoting State v. Pierce, 188 N.J. 155, 170 (2006)). The court properly applied that criteria. The sentence it imposed was well within its statutory authority and did not constitute an abuse of discretion. See State v. Cassidy, 198 N.J. 165, 180-81 (2009).
Defendant asserts that he was entitled to have the court consider as mitigating factors that he acted under strong provocation there were substantial grounds tending to excuse his conduct though failing to establish a defense and the victim induced or facilitated the commission of the offense NJSA 2C:44-1b(3) (4) and (5) The court's finding of aggravating factors was amply supported by the record See NJSA 2C:44-1a(3); State v O'Donnell 117 N.J. 210 216 (1989) The court's failure to find the asserted mitigating factors was not an abuse of discretion
Defendant's sentence does not "shock the judicial conscience" See State v Roth 95 N.J. 334 365 (1984)