NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...