State v. Sheppard

• Docket Number: A-0332-19
• Decision Date: 29 August 2023
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN SHEPPARD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN SHEPPARD, Defendant-Appellant.

No. A-0332-19

Superior Court of New Jersey, Appellate Division

August 29, 2023

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.

Submitted November 10, 2022

On appeal from the Superior Court of New Jersey, Law Division Mercer County, Indictment No. 17-07-0378.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Ryan William Sundstrom, Assistant Prosecutor, of counsel and on the brief).

Before Judges Gooden Brown and DeAlmeida.

PER CURIAM.

Following a jury trial, defendant was convicted of murder, eluding, and related weapons offenses. He was sentenced to an aggregate term of sixty-two years of imprisonment, fifty-five years of which were subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2. The convictions stemmed from the murder of Laura Perez, whose bludgeoned body was found in defendant's bedroom on April 25, 2017, as well as two separate incidents in the days following the murder during which defendant engaged police officers in a high-speed vehicular pursuit. The State's proofs at trial included video surveillance footage of the victim in proximity to the pickup truck defendant was driving on the day of the murder eyewitness testimony of individuals matching the victim's and defendant's descriptions arriving at the murder scene, clothing depicted in the surveillance footage that was recovered from defendant's bedroom soaked in the victim's blood, and defendant's DNA under the victim's fingernails.

On appeal, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE DENIAL OF THE MOTION FOR SEVERANCE; THE ELUDING COUNTS SHOULD HAVE BEEN SEVERED FROM THE REMAINING COUNTS IN THE INDICTMENT.

(1) The First Prong Under Cofield^[1] Was Not Met.

(2) The Fourth Prong Under Cofield Was Not Met.

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE INADMISSIBLE LAY OPINION TESTIMONY BY THE INVESTIGATING DETECTIVE THAT . . . DEFENDANT WAS THE PERSON DEPICTED ON THE SURVEILLANCE VIDEOS, THEREBY INVADING THE PROVINCE OF THE JURY AS THE FACTFINDER.

POINT III

. . . DEFENDANT'S RIGHT TO REMAIN SILENT WAS VIOLATED WHEN HE WAS ASKED SPECIFIC QUESTIONS DESIGNED TO ELICIT INCRIMINATING EVIDENCE PRIOR TO BEING ADVISED OF HIS MIRANDA^[2] RIGHTS.

POINT IV

. . . DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT INSTRUCTED THE JURY ON FLIGHT.

POINT V

THE SENTENCE IMPOSED WAS EXCESSIVE BECAUSE THE COURT IMPROPERLY COUNTED

AGGRAVATING FACTOR [ONE].

POINT VI

. . . DEFENDANT MUST BE RESENTENCED BECAUSE THE COURT DID NOT ADDRESS THE OVERALL FAIRNESS OF THE CONSECUTIVE SENTENCES.

We have considered the arguments in light of the record and applicable legal principles. Based on our review, we affirm the convictions but remand the sentence for the limited purpose of providing "[a]n explicit statement, explaining the overall fairness of [the] sentence," in accordance with State v. Torres, 246 N.J. 246, 268 (2021).

I.

Following the adjudication of a severance motion and various in limine applications, a nine-day jury trial was conducted in November 2018, during which the State produced nineteen civilian and law enforcement witnesses, including several expert witnesses. We glean these facts from the trial record.

On the evening of April 25, 2017, Hopewell Township police officers discovered the body of Laura Perez inside a first-floor bedroom in the home of Anthony Olswfski. At the time of the discovery, the bedroom was in "complete disarray." Specifically, the window blinds "were broken," there were "scratches on the floor" suggesting that furniture had been moved, the bed was in the middle of the room and "off the frame," and the head of the bed appeared to be propped on something. There was also blood on "the doorjamb" to the bedroom, "three out of . . . four walls," "the mattress," the bed "linens," and the "pillow." An inspection of the adjacent bathroom revealed more blood on "the bath mat" and "bloody footprints" in the bathtub. There was also blood in the basement, directly beneath the bedroom, that had apparently "seeped through the [bedroom] floorboards."

Members of the Mercer County Prosecutor's Office (MCPO) Homicide Task Force took over the investigation and requested assistance from the New Jersey State Police Homicide Forensic Squad in processing the evidence collected from the bedroom. As a result, State Police detectives photographed "the victim lying on the floor" of the bedroom, "partially underneath the mattress and box spring." Detectives also recovered "a pair of gray sweat pants," "a blue fleece" pullover "with a gray sweatshirt . . . inside," and a "tan or olive-colored baseball cap" from a pile of clothing on the floor. The sweatpants and the pullover both had numerous bloodstains on them, likely the result of "direct contact with a blood source that was producing a significant amount of blood." Detectives also recovered a "black and yellow hammer with a claw on the back end" near the victim's body. The hammer's claw appeared to have loose strands of hair and other biological material on it.

A postmortem examination by the medical examiner revealed that the victim had sustained at least twenty-four separate blows to the head, bruising around and about her face and jaw, a ruptured right eyeball, and lacerations inside her mouth. The victim had also sustained fractures to the skull as well as significant hemorrhaging under the scalp. At the time of the examination, "a large portion of the skull was . . . missing," and "[m]ost of the left side of the brain was . . . not present within the skull cavity." Additionally, the victim sustained several abrasions and bruises on her neck, some consistent with the jewelry found on her at the scene, as well as hemorrhaging in her neck muscles consistent with "external pressure . . . being applied," though not necessarily indicative of "a strangulation case."

At trial, the medical examiner opined that the victim's head injuries were "very consistent" with injuries caused by a hammer and concluded that "the cause of death" was "blunt force trauma of the head." The medical examiner collected fingernail clippings from the victim during the examination to analyze for DNA evidence, and a toxicology report showed that the victim had cocaine and associated metabolites in her system at the time of death.

Surveillance footage from April 25, 2017, was collected from various businesses in West Trenton, where the victim lived. The videos were admitted into evidence. Detective Scott Peterson of the Trenton Police Department narrated the surveillance footage in detail as it was played for the jury. The footage showed that between 8:00 a.m. and 9:00 a.m., a pickup truck that Peterson identified as Olswfski's pickup truck parked at a local deli. Peterson highlighted the distinctive markings on the truck. The footage also showed an individual Peterson identified as the victim walking towards the deli. The identification of the victim was later corroborated by her boyfriend, Dan Jones, both in an interview with Peterson and in Jones's trial testimony.

According to Peterson, while the pickup truck was parked, an individual got out of the truck and entered the deli. Based on Peterson's familiarity with defendant from the investigation, Peterson identified the individual exiting the pickup truck as defendant and continued to use defendant's name to refer to that individual throughout his testimony. The individual was wearing "an orange-colored hat, a blue fleece, . . . [and] light-colored cargo pants." According to Peterson's narration, the victim approached the pickup truck at about 8:38 a.m. and stopped "at the passenger[-side] window." About ten minutes later, the truck left the view of the security cameras, with the victim following on foot, disappearing out of view of the cameras. At no point did the security footage ever depict the individual identified as defendant and the victim together, nor did it ever show a clear view inside the pickup truck. Additionally, the footage never showed the victim getting into the pickup truck. At 8:56 a.m., the truck was captured on surveillance cameras making a right turn onto Washington Crossing-Pennington Road, where the Olswfski home was located.

The Olswfskis' next-door neighbor testified that at about 9:00 a.m. that morning, April 25, 2017, she observed a large black pickup truck pull into the Olswfskis' driveway. The neighbor watched two people get out of the truck, a man and a woman, neither of which was Olswfski. She noted that neither person "seemed to be smiling or talking with each other" as they moved towards the house. The neighbor's description of each truck occupant matched general descriptions of defendant and the victim. Although the neighbor did not recognize the man "at the time," at trial, she "believe[d]" it was defendant she saw exit the pickup truck.

In April 2017, defendant had been living in the first-floor bedroom of the Olswfski home for about two years. Defendant had been a close friend of the family for over twenty-five years and had periodically worked with Olswfski's brother, Theodore, on various jobs. On April 25, 2017 defendant was scheduled to accompany Theodore to a power-washing job in Florence. When Theodore called defendant in the morning to...