STATE OF NEW JERSEY VS. WAYNE B. HIX(08-07-0628, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5387-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE B. HIX, a/k/a WAYNE BILAL
HIX, WAYNE HICKS, and WAYNE B.
HICKS,
Defendant-Appellant.
_____________________________
Submitted April 3, 2017 – Decided May 17, 2017
Before Judges Haas and Currier.
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 (Monique Moyse, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo,
Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Wayne Hix appeals from a June 9, 2015 order denying
his petition for post-conviction relief (PCR). He argues that his
trial counsel minimized the injury he sustained at the hands of
the victim, failed to timely raise the issue of his learning
disability, and failed to object to the prosecutor's improper
comments in summation. Because we find that defendant has failed
to present a prima facie showing of ineffective counsel, we affirm.
Defendant was convicted by a jury of manslaughter and unlawful
possession of a weapon, and sentenced to an aggregate fifteen-year
custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2 (NERA). We affirmed defendant's conviction, State v. Hix, No.
A-5034-09 (App. Div. Aug. 12, 2013), and the subsequent petition
for certification was denied. State v. Hix, 217 N.J. 288 (2014).
Defendant filed a PCR petition pro se, and thereafter, a
brief was filed by assigned counsel. Judge Scott J. Moynihan
heard oral argument on June 9, 2015, and issued an order denying
defendant's petition on the same date.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of
ineffective assistance of counsel, defendant must meet the two-
prong test of establishing both that: (l) counsel's performance
was deficient and he or she made errors that were so egregious
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that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the
defect in performance prejudiced defendant's rights to a fair
trial such that there exists a "reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 687,
694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
At trial, defendant and several witnesses testified that
after the victim and defendant exchanged verbal insults inside a
convenience store, the victim followed defendant out of the store
and "slapped" or "smacked" defendant across his face. According
to one witness, he heard the blow from inside the store. Defendant
recounted that he feared for his life and he stabbed the victim
in the chest with a pocketknife, causing his death.
At trial, defendant's counsel and several witnesses,
including defendant himself, referred to the injury he suffered
from the victim as a "slap" or a "smack." Defendant contends that
his counsel failed to appropriately characterize the blow to him,
which precluded the jury from properly assessing his claim of
self-defense.
In his thorough oral decision, Judge Moynihan carefully
detailed every instance throughout the trial where defendant and
other witnesses described the blow as a "slap" or a "smack." He
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also noted that "it's simply not true that the trial counsel simply
referred to the blow by the victim to the defendant [as] merely a
slap. She referred to it as a karate slap in her opening statement.
. . . And likewise, in her summation." In her closing argument,
counsel listed the top ten reasons why the jury should find that
defendant acted in self-defense. Her number one reason was:
[T]his is not just a slap . . . in the face.
This was a forceful karate slap. You heard
testimony that the slap was so loud it was a
slap that could be heard around the world.
You heard evidence from [a witness] way up on
the third floor she heard the slap. You heard
testimony from [defendant's friend] and other
people in the store that they could hear the
slap and the door was closed . . . .
. . . .
It was a situation where there was a physical
encounter which [the victim] initiated,
. . . spun him around so that they were face-
to-face, slapped the living daylights out of
him and then grabbed him again.
The record shows that defense counsel repeatedly emphasized that
defendant was hit with a powerful blow in an effort to persuade
the jury that his subsequent actions were justified. Judge
Moynihan's determination that defendant was unable to meet the
first prong of the Strickland-Fritz test is well supported by the
evidence presented at trial.
The remainder of defendant's arguments lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2). We
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affirm substantially for the reasons expressed by Judge Moynihan
as reflected in his well-reasoned oral opinion and add only the
following brief comments.
If counsel had chosen to present a diminished capacity defense
presumably based on a learning disability asserted by defendant,
it would have contradicted the proffered self-defense theory.
Counsel's trial strategy is supported by the facts presented in
the record and her trial performance was reasonable considering
all of the circumstances. Strickland, supra, 466 U.S. at 688.
We are satisfied that defendant did not establish a prima
facie case of ineffective counsel and is not entitled to an
evidentiary hearing.
Affirmed.
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