May 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAMER SHAHID, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2007
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 defendant. Gardner followed the group outside and observed them kicking the victim, who was already down, and claimed that defendant was the only assailant kicking the victim in the head until Steinberg intervened.
Detective Greg Ingrum arrived at the scene at 4:41 a.m. and spoke to Steinberg. As a result, Ingrum went into the bar and matched up persons with Steinberg's descriptions of the assailants. While Ingrum claimed that he had no problem identifying the "tall Middle-Eastern gentleman" as the person who kicked Westra, Ingrum also encountered a second Middle-Eastern person, later identified as Amged Bashay, who was different in appearance than defendant. Ingrum indicated that Bashay "was much smaller in build" than defendant and, after the police talked with the second man, determined that he had nothing to do with the altercation. Ingrum admitted, however, that Bashay was "dressed identically to Mr. Shahid," and that he relied on the "owner's information" to exonerate the man.
Another officer, Sergeant David Cohen, arrived at the scene around 6 a.m., entered the Naked City Bar, and spoke to the owner about gathering suspects and other personnel. When asked if everyone was gathered, Cohen testified that:
[H]e [the owner] responded by saying no, Tim's upstairs. And I asked him generally who Tim was and he proceeded to tell me that the victim had been harassing one of the dancers up on the second floor and that Tim had escorted the victim out of the establishment. . . .
"Tim" (defendant's nickname) admitted that the victim "had been harassing one of the dancers" and that he "took him to the top of the steps and his friends took him down the steps." "Tim" indicated that he "never went downstairs or outside with him." Sergeant Cohen described "Tim" as "Middle-Eastern extraction, perhaps Egyptian, which [he] found later to be the case."
Dr. Hydow Park, the Atlantic County Medical Examiner, testified that he observed external signs of trauma to the victim's right temple and there were at least three injuries to the head. While there were no fractures to the skull, Park concluded that the cause of death was "multiple blunt force injuries of head and neck with brain swelling." Dr. Lucy Rorke, a consulting neuropathologist, also agreed that the victim died as a result of "multiple blunt force trauma to the head and neck."
Defense witness Helen Borek, a dancer at The Naked City Bar, testified that bouncers Michael Martinez and Tim Hood pushed the victim outside. Borek indicated that she saw the men "kicking and punching" the victim and that Martinez and Hood both kicked the victim's head. When confronted with the contrary testimony of the State's witnesses, she assumed that "there was a part of the incident that [she] didn't see." She also indicated that she did not see defendant outside. Borek explained that she did not come forward until May of 2002 because she "was scared. . . . I was threatened by other employees." She further testified that she was afraid to come forward "[b]ecause Tim told me that I was a key witness to what was going on and he didn't want everybody to go down for the murder in Naked City."
Bashay, also an employee of The Naked City Bar, testified that he assisted defendant in escorting the victim out of the bar. He saw defendant push the victim towards a blue Mustang and saw Martinez and Hood come outside. Bashay also indicated that an off-duty officer came outside and told everyone else to go inside. Bashay went outside again to shut his car alarm off and saw all of the bouncers outside and the victim on the ground. Bashay claimed that there were between fifteen and twenty people outside, but that he did not see any assault.
Prosecutor's Investigator Stanley Yeats testified that he examined six pairs of shoes obtained from the suspected assailants and that a pair of sneakers belonging to one of the assailants, Michael Martinez, initially tested positive for blood. However, Yeats indicated that subsequent testing by the State Police lab "determined that there was no blood on the footwear." He admitted that he did not submit the other footwear to the lab for testing.
Finally, the 23-year-old defendant unequivocally testified that he did not take part in the assault on Westra. He acknowledged that he worked as a bouncer for the private party which the victim and Steinberg attended. Defendant indicated that the party started around 11:15 p.m. and that there were about thirteen men altogether who were "nice people, well dressed." Defendant saw that a fellow bouncer upstairs, Mark Fichetola, intervened between a dancer and one of the members of the party.
Defendant testified that one of the dancers, Christine, who was in the "Champagne room," reported having a problem with another member of the party. Defendant asked that person to leave and escorted "him halfway down the stairs." A couple of minutes later, defendant went downstairs and discovered that the person was seated at the bar. Defendant told the two downstairs bouncers, Michael Martinez and Tim Hood, that "this guy is supposed to leave and they asked him to leave and he left."
Defendant claimed that sometime around 3 a.m., when most of the private party had left, "[s]ome of the girls had complained about" Westra. Defendant asked Westra several times to stop inappropriate behavior which culminated with a complaint by one of the dancers in the VIP bar. After pushing a beer bottle onto the floor, Westra, who was "completely intoxicated, . . . started bopping" defendant on his shoulder. When Westra refused to stop, defendant asked him to leave. Defendant claimed that when Westra refused, he took Westra by the arm, escorted him down the stairs and, with the assistance of Bashay, tried to take Westra outside. According to defendant, Westra braced himself against the doorway and refused to go. Bouncers Tim Hood and Michael Martinez then joined in and pushed Westra outside. Defendant then went back inside and upstairs to continue working.
Defendant claimed that he then heard "screaming downstairs." Defendant went downstairs and saw that Westra was in "contact" with one of the owners, either Ernest DiBono or Michael Morton. According to defendant, "[a]ll bouncers, plus me, was trying to push everyone to the outside door." Shahid saw that:
Mr. Steinberg, he had Mr. Westra in a bear hug trying to put him away to the left side and was trying to push the owner away. Mr. Steinberg and Mr. Westra during this pushing, they fell both together at the same time. Mr. Westra fell backward on his head, his face up. Mr. Steinberg fell on top - on the top of him.
During the melee, defendant fell onto Steinberg and then saw Michael Martinez "kicking the victim a couple times in his head." Defendant observed several people outside with the victim including Tim Hood, Michael Martinez, Amged Bashay, "the two owner[s], Michael Morton, Ernest DiBono; and Joseph Alouise, [who] was off-duty police officer. He was outside from the beginning . . . with the owner, Mr. Ernest DiBono."
According to defendant, "Ernie and Joe . . . told us to go back inside." Defendant went back inside, told Fichetola what happened, and confronted Martinez, telling him, "Mike, you kicked this guy hard in his head and he was looking at me and he said, oh, yeah, and he left." Defendant claimed that he then saw Officer Alouise at the main bar downstairs, sitting with "Ernie and it was Michael Martinez sitting beside him. . . ." Defendant overheard Alouise tell Martinez "don't say anything about what happened outside," and "[a]ll you have to say is that this guy he came back, was trying to take swing at Ernie, and that all you did [was] just push him outside." Defendant testified that he never struck Westra, the victim. Defendant admitted that he failed to inculpate Martinez in his police statement because he was told not to say anything to the police. Defendant further indicated that he was, as a foreigner, afraid to tell police that an off-duty police officer, Alouise, instructed him not to cooperate since "I don't know who this [sic] people. . . . I don't know how these people they act."
On appeal, defendant presents the following arguments:
POINT I: THE TRIAL COURT'S ONE-SIDED IDENTIFICATION INSTRUCTION WHICH SET FORTH TESTIMONY FAVORABLE TO THE STATE WITHOUT ANY MENTION OF FAVORABLE DEFENSE EVIDENCE REGARDING MISIDENTIFICATION, REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below)
POINT II: THE PROSECUTOR IMPROPERLY PRESSURED THE JURORS TO CONVICT DEFENDANT BY TELLING THEM THAT THE VICTIM'S FAMILY WAS IN THE COURT AND REFERRING TO THE SPECIAL QUALITIES OF THE VICTIM. (Partially Raised Below)
POINT III: THE PROSECUTOR'S QUESTIONING OF A KEY POLICE WITNESS REGARDING HIS "EFFORTS . . . TO INSURE THAT THERE WOULD BE NO MISIDENTIFICATION," INTRUDED UPON THE JURY'S SOLE FUNCTION TO DETERMINE THE IDENTIFICATION ISSUE. (Not Raised Below) POINT IV: THE JUDGE TWICE MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (Not Raised Below)
We reject defendant's contentions in Points II, III and IV as without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2). We address Point I below.
In the course of his identification instruction, the judge stated the following:
The State has presented testimonies -testimony rather of Mr. Steinberg and Mr. Gardner with respect to the defendant's involvement. Other witnesses have been heard with respect to involvement, including the testimony given by the defendant himself, but in any event, dealing with the testimony of Messrs. Steinberg and Gardner, you'll recall that these witnesses identified the defendant in Court as the person who committed the offenses charged. The State also presented testimony that on a prior occasion or occasions before this trial, the witness in question identified the person - the defendant as the person who committed the offenses charged, and according to the witness, his identification of the defendant was based upon the observations and perceptions that he made of the perpetrator at the time the offense was being committed.
The judge instructed the jury on factors to consider in assessing identification testimony and also provided an instruction on cross-racial identification. The instructions fully covered the Model Jury Charge (Criminal), Identification -In Court/Out of Court (2007).
Defendant claims that the charge was unfair by virtue of mentioning the testimony of Steinberg and Gardner, the State's witnesses, without specific reference to countervailing defense evidence on the critical identification issue. In advancing that argument defendant relies on State v. Robinson, 165 N.J. 32 (2000), in which the Court addressed a similar claim. Id. at 34. Referring to its earlier decision in State v. Green, 86 N.J. 281 (1981), the Court said:
We made it clear in Green that when identification is a fundamental or an essential issue at trial, "the defendant ha[s] a right to expect that the appropriate guidelines w[ill] be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness" of in-court identifications. Id. at 292. To that end, we approved the use of the model charge on identification then in existence. The model charge we approved in Green, as revised in 1990, was essentially the charge given by the trial court in this case. . . .
Defendant objects to the court's charge on the ground that the court did not refer to the perceived weaknesses in the State's case as argued by defense counsel in summation. Briefly stated, defendant asserts that the trial court's failure to set forth his factual contentions made the charge deficient under Green.
We disagree. Green indicates that a trial court may satisfy its obligation by "setting forth the respective factual contentions," Green, supra, 86 N.J. at 293, but that decision does not require the court to proceed in that manner. We noted in Green that the trial court "also could have used as a guide the Model Jury Charge[.]"
Ibid. In sum, the Green Court did not require the trial court to refer to the facts of the case when providing instruction on identification, and we decline to impose that requirement now. [Robinson, supra, 165 N.J. at 41.]
The Court went on to approve the 1999 revision to the Model Identification instructions which, like their predecessor, reserved "to the sound discretion of the trial court the discretion to add specific factual references to the identification instructions." Id. at 42. The Court continued:
We recognize that there are situations in which we do require the jury instructions be "molded" or "tailored" to the facts adduced at trial. That requirement has been imposed in various contexts in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury. . . .
Those decisions, however, do not require that trial courts comment on weaknesses in the State's evidence as urged by defendant. Instead, in each of those instances, the trial court was required to explain an abstract issue of law in view of the facts of the case. That is significantly different from requiring a trial court to comment on perceived weaknesses in identification evidence. [Id. at 42-43 (citations omitted).]
The Court continued:
As a general rule, then, we believe that summarizing the strengths and weaknesses of the evidence is more appropriately left for counsel. [State v. Walker, 322 N.J. Super. 535, 551 (App. Div.), certif. denied, 162 N.J. 487 (1999)]. That said, we intend nothing in this opinion to foreclose the trial court from referring to the facts in a charge. We note, as does the model charge, that trial courts are free to add specific factual references to the identification instruction when necessary for clarity or when the court concludes that such references are required in the interest of justice. State v. Parker, 33 N.J. 79, 94 (1960) ("We approve, especially in a protracted trial . . . with its voluminous and conflicting testimony, of a trial court's undertaking to point out to the jury the significant evidence in the case."). If a court comments on weaknesses in the State's evidence, it is "required, in the interests of fairness, to mention the State's explanations" for those weaknesses. Walker, supra, 322 N.J.Super. at 551. By the same token, if the court refers to the State's evidence in any significant way, it must also refer to the defendant's contrary contentions. Thus, we leave it to the sound discretion of the trial court to decide on a case-by-case basis when and how to comment on the evidence, consistent with the broad outlines expressed above. [Id. at 45.]
More specifically, the Court addressed Robinson's claim that the identification instruction was "imbalanced in favor of the state", id at 45-46, in that the names of three State witnesses were mentioned but there was no comment on defendant's countervailing proofs. Id. at 46. The Court rejected defendant's challenge in the following language,
We disagree with defendant's characterization of the charge. The instruction as a whole correctly explained that the court and the jury have separate and distinct functions to perform. In that regard, in the two sentences immediately following the portion of the charge highlighted by defendant, the court instructed: "It is your function as jurors to determine what weight, if any, to give to this testimony. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged." Moreover, the court at least twice emphasized that it was for the jury, and the jury alone, to decide the disputed questions of fact and to evaluate the credibility of the witnesses. The court also told the jury that it would not be providing commentary on the evidence, and that any reference the court made to the evidence should be disregarded if it conflicted with the jury's recollection concerning that evidence. The court reminded the jury that there were conflicting versions of the testimony.
In addition to general instructions on reasonable doubt and the State's burden of proof, the court provided an extended charge on identification as required by Green. The charge emphasized that "the ultimate issue of the trustworthiness of an in-court identification" was for the jury to decide. Appropriately, the court also instructed the jury to consider each witness's ability to view the perpetrator at the time of the robbery. Finally, the court also provided general instructions (not excerpted above) on witness credibility and provided guidance for evaluating the witnesses.
Even if we assume some small error in the portion of the charge to which defendant objects, we would not reverse under the plain-error standard because the charge as a whole thoroughly explained the law and was not clearly capable of producing an unjust result. State v. Delibero, 149 N.J. 90, 106-07 (1997). We must also consider the charge in light of the arguments made by trial counsel, as those arguments can mitigate prejudice resulting from a less-than-perfect charge. State v. Morton, 155 N.J. 383, 423 (1998). Considering the instructions in their entirety, in the context of the evidence and the arguments of trial counsel, we are convinced that the charge was fair. The charge impartially instructed the jury, which, in turn, properly discharged its function. [Id. at 46-47]
We consider the Court's observations dispositive of defendant's claim here, in which the instructions contained the same elements present in Robinson. As there, we conclude that the jury could not have been less than fully aware of the identification issues, particularly in light of the summations. We see no possibility of prejudice in this regard. That said, we once again admonish the trial courts to mind Robinson's concern at providing a fully balanced charge.
This was a hard fought case, which could have resulted in a verdict in defendant's favor, but did not. Our review of the record leads us to conclude that defendant received a fair trial.
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