On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1656.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Lihotz.
Defendant, Tamer Shahid, was charged with the following offenses: second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1b(1) (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); and murder, N.J.S.A. 2C:11-3a(1)(2) (count three). Four co-defendants were also named in counts one and two; defendant alone was charged in count three. Following a jury trial of defendant only in August 2002, defendant was found guilty of counts one and two, but the jury was unable to reach a verdict on the murder and lesser-included homicide offenses.
On April 19, 2004, following the jury trial, defendant pled guilty to second-degree reckless manslaughter in exchange for a recommendation that his sentence not exceed ten years. Pursuant to his plea agreement, defendant retained the right to appeal his conspiracy and aggravated assault convictions with the proviso that if his appeal was successful he would be permitted to retract his guilty plea.
On May 28, 2004, defendant was sentenced on the manslaughter conviction to seven years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The conspiracy conviction was merged with the aggravated assault conviction which was, in turn, merged with the manslaughter conviction.
Some dozen or so graduates of Middlebury College, including the victim, Peter Westra, met in Atlantic City for a weekend bachelor party for Brad Maxwell from July 6 through July 8 of 2001. Maxwell's best man, Christopher Lindstrom, made all of the arrangements and invited between fifteen and twenty people for the gathering. Westra arrived Friday night along with Peter Steinberg and Joe Kraft.
On the following day, Saturday, members of the group participated in various activities during the day, meeting at the Tun Tavern for dinner. After dinner, the group returned to their hotel and planned on meeting again around 10:30 p.m.
Around 11:15 p.m., the group arrived at The Naked City Bar for a private party on the second floor. Each member paid $40 for a two-hour open bar and to watch "girls dancing in bikinis." Among several "bouncers" in the bar was an "Italian-appearing gentleman" who was "well-built, probably six one or six two, over 200 pounds" manning a cash register for the private party and wearing the same dark staff-shirt as the other bouncers. According to Peter Steinberg, there was another "larger gentleman, probably six two to six three, 220 or so pounds, clearly Middle-Eastern . . . Egyptian in appearance, who was basically working the main door to the bar area and the bar for the duration of the evening." Steinberg claimed that he had "a lot of experiences in my past with people of various ethnicities, specifically regarding Egyptian people," and that he was positive that defendant was the Egyptian-looking bouncer in the upstairs bar area. Steinberg also indicated that the victim Westra, and other members of the party were "drinking beer and some mixed drinks. . . ." Steinberg claimed that he "did the round of shots with everyone else and had another drink or two, beer, or like a gin and tonic," but did not buy any more drinks for himself after the open bar had closed. Westra, on the other hand, had been drinking more than Steinberg and appeared to be intoxicated.
Around 3:00 a.m., most of the party members had left the bar with only Steinberg, Westra, and Greg Parent remaining. According to Steinberg, Westra continued to drink through the evening and "was drinking different types of drinks, beer, mixed drinks." Steinberg testified that Westra and defendant engaged in a "normal conversation" and that "there was some laughter exchanged between the two of them." At some point, however, Steinberg noticed that "the conversation changed tone, became argumentative," and that "they were shouting and the next thing I knew is he put Peter in an armlock. . . ." Steinberg then saw defendant "escort Peter down to the end of the bar and go out the door." According to Steinberg, Greg Parent was "talking to the dancers and as far as I could tell was oblivious to what was happening."
Steinberg followed defendant and Westra out into the street where he saw that Westra was "resisting and was kind of trying to get his arm free. . . ." Steinberg claimed that "[Defendant] had tackled Peter from behind onto the hood of a green foreign -I believe Honda - had tackled him onto the hood and so was on top of Peter while Peter was face down on the hood of the car."
According to Steinberg, he was able to separate the two, but Westra "broke free of my grasp and tried to re-approach the club." Steinberg heard "[a] lot of screaming and shouting," and admitted that he "was shouting expletives." Steinberg claimed that as Westra "re-approached the club, a large group of men came rushing out of the club and struck him [Westra] en masse, five to seven men." Steinberg was knocked backwards towards the outer wall of the club and "Peter was pushed behind me out of my field of vision at that point." After losing sight of Westra, Steinberg turned around and "saw a crowd of five gentlemen kicking him [Westra]." Steinberg indicated that when he "reacquired sight" of the attack, Westra "was clearly unconscious at that point." As Westra lay on the sidewalk, Steinberg, who was about ten feet away, saw the men continue to kick Westra. Steinberg claimed to have clearly seen defendant kicking Westra in the head, and, further, that defendant was the only person kicking Westra in the head. As Steinberg approached Westra, all of the men except defendant backed away. Steinberg estimated that defendant kicked Westra "between probably 5 to 10" times. As Steinberg covered up Westra's body, defendant finally stopped kicking. Steinberg indicated that defendant "was wearing a black-style of shoe that had some type of silver metallic part of it . . . it was dress-type or worker-type shoe with a silver aspect to it."
Steinberg, who was a medical student and had experience as an Emergency Medical Technician, realized that Westra was having trouble breathing and consequently performed a "jaw thrust" in order to facilitate Westra's breathing. Within five to ten minutes, Officer Bill Jackson arrived on the scene. As Steinberg continued to hold Westra's airway open, an ambulance eventually arrived.
Officer Jackson arrived at the scene at 4:17 a.m., exited his truck, and saw Steinberg on the ground kneeling by the unconscious victim. Jackson indicated that Steinberg was "very, very upset, yelling - still yelling at the staff members who were . . . going back into the bar."
According to Jackson, Steinberg described two of the assailants, one "a tall Egyptian-looking male . . . Middle-Eastern," and a "second guy . . . was a short, stocky black male." Jackson further indicated that Steinberg told him that Westra was beat up with "fists and possibly he was kicked." One of two paramedics that arrived on the scene admitted that his report revealed that Steinberg said that Westra "was beaten up by the club's bouncers with fists only," but claimed that he used the "term to depict that there was no weapons involved," and that he "could have written that better." Westra was subsequently taken to nearby Atlantic City Medical Center, and after efforts to revive him failed, he was pronounced dead at 5:04 a.m.
Atlantic City Detective James Gasbarro took Steinberg's statement at the police department and took him back to the Naked City Bar where Steinberg, who was seated in a patrol car, identified defendant as the person who kicked Westra in the head. Steinberg also identified four other individuals who assaulted Westra: Ernest DiBono, an "older Italian male"; Tim Hood, a tall black male; and "two other guys he wasn't too sure of with black [staff] shirts on," Mark Fichetola and Michael Morton. Gasbarro also indicated that Steinberg "identified another guy, a black gentlemen," Michael Martinez. DiBono and Morton were the manager and owner respectively of the Naked City Bar.
Robert Gardner, a professional bouncer and a patron at The Naked City Bar on the evening of the incident, was sitting at the bar with a young lady when he "heard a bunch, of ruckus . . . loud screaming" and, contrary to Steinberg's testimony that he followed only defendant and the victim out of the bar, saw "a bunch of individuals escorting, literally physically escorting a male . . . outside of the club." Gardner, out of curiosity, followed the group outside and "observed three of the bouncers . . . they were whooping his ass." Disgusted with the event, Gardner went back inside the bar. According to Gardner, defendant came back into the bar. Gardner pointed out defendant to the bartender as the assailant "who was doing most of the damage." Gardner then claimed that "again a bunch of the bouncers rushed outside," including ...