Alexander Olivieri v. State

Citation: Not availableDocket: 01-12-00722-CR

Court: Court of Appeals of Texas; February 19, 2014; Texas; State Appellate Court

Original Court Document: View Document

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On February 20, 2014, the Court of Appeals for the First District of Texas upheld the murder conviction of Alexander Olivieri, sentencing him to sixty years in prison. Olivieri appealed on three grounds: (1) he argued the jury should have been instructed that a witness, Alan Perez, was an accomplice as a matter of law; (2) he contended the State failed to provide sufficient corroborative evidence for Perez's testimony; and (3) he claimed that the consent given by his father for police to search their home and his vehicle was involuntary and thus invalid.

The case arose from the murder of seventeen-year-old Bridgett Frisbie, whose body was discovered on April 3, 2011. Witnesses reported hearing gunshots around 2:45 a.m., and the medical examiner confirmed she was shot in the back of the head at close range. During the investigation, Perez disclosed that he had accompanied Olivieri with the intent to intimidate Frisbie, but Olivieri unexpectedly shot her. Following this, Perez's family negotiated an immunity agreement for his testimony.

Testimony indicated that Olivieri was upset with Frisbie for discussing a previous drive-by shooting they were involved in. On the night of the murder, Olivieri lured Frisbie into his vehicle under false pretenses while Perez hid in the back. After persuading Frisbie to accompany them, they drove to the location of a prior incident where Olivieri was seen carrying a shovel, suggesting premeditated intent to harm Frisbie. The court ultimately affirmed the trial court's judgment.

Appellant directed Bridgett to dig a spot, and while she was bent over, he shot her in the neck with a gun he pulled from his jacket, as witnessed by Perez. Shocked by the incident, Perez confronted appellant, who ordered him to be quiet and then returned to take Bridgett’s belongings, including her cell phone. They proceeded to a nearby water tunnel where both attempted to destroy the phone before hiding it. Afterward, they returned to appellant's house, and later picked up Richards at the bus station, where they concealed the murder from him. Appellant instructed Perez to provide a false alibi to the police, claiming they spent the night watching movies before picking up Richards. Following the incident, appellant's mother inquired about Bridgett's murder. When alone, appellant advised Perez to dispose of his gun and continue with their alibi. Perez later reported the events to his parents, surrendered his gun and clothes from the night of the murder to police, and led them to Bridgett's damaged phone. He identified appellant's Beretta as the murder weapon during the trial, corroborated by a video he filmed of appellant shooting it. 

Richards, Bridgett's boyfriend, testified that appellant had taken Bridgett's car and an AK-47 to confront her ex-boyfriend, which he later bragged about. On April 3, 2011, when appellant was late to pick up Richards, he claimed he couldn't find Bridgett. Richards subsequently learned about Bridgett's murder and noted that appellant was familiar with the area where her body was discovered, having previously visited it with both Bridgett and appellant. He also mentioned that it was common for appellant to carry a firearm.

Robert Frisbie, Bridgett's father, last saw her on April 2, 2011, after purchasing her a rave outfit. He observed a tense interaction between Bridgett and the appellant when he visited their home, but Bridgett did not leave with him. Later, Frisbie drove Bridgett and her friend, Kendall Suto, to a rave that was closed, and they returned home by 10:00 p.m. They watched a movie while Bridgett was still in her new outfit. Frisbie set his alarm for midnight, instructing Bridgett to wake him when Kendall's ride arrived. When he checked again at 3:00 a.m., he found doors open and his cell phone missing. After failing to locate Bridgett and learning of a body found nearby on April 3, he contacted the police, discovering it was Bridgett.

Following the appellant's arrest, police searched his residence and vehicle with consent from his father, Samuel Olivieri. No firearms were found, but a Beretta manual and various items, including fibers matching Bridgett's outfit and shell casings, were recovered from the Suburban. Ballistics linked the shell casing to a drive-by shooting incident. Officer J. Cassidy interviewed the appellant, who claimed to have visited Bridgett's house at 5:00 p.m. on April 2 and left without seeing her. Appellant denied knowledge of handguns.

Samuel Olivieri testified he had sold a 9 mm Beretta in 2003 and, on the night of April 2, observed appellant and Perez playing video games before going to bed around 10:30 p.m. His wife, Angelica, confirmed that Perez asked to stay the night and later noticed he was missing when she went for a drink around 12:45 a.m.

At 2:10 a.m., the witness observed the appellant asleep alongside her mother and daughter. A little after 3:00 a.m., the appellant informed her that he was going to pick up Richards, with Perez present at that time. Upon waking again, she found the appellant, Perez, and Richards asleep. The appellant requested the jury to consider Perez as an accomplice by law, necessitating corroboration for conviction based on his testimony alone. The court instructed the jury that a conviction could not rely solely on an accomplice's testimony unless corroborated by additional evidence linking the defendant to the offense. The jury ultimately found the defendant guilty of murder, sentencing him to sixty years of confinement.

On appeal, the appellant raised three issues: (1) the trial court erred by not instructing the jury that Perez was an accomplice as a matter of law, (2) there was insufficient corroborating evidence for Perez's testimony, and (3) consent for a search by Samuel Olivieri was not voluntarily given. The appellant argued that Perez's status as an accomplice was clear and that corroborative evidence was lacking. The State countered that it was appropriate for the court to leave the determination of Perez’s accomplice status to the jury and asserted that there was sufficient independent evidence to support the conviction.

Applicable law defines an accomplice as one who participates in the crime with the requisite mental state. Mere presence at the crime scene or knowledge of the crime does not constitute accomplice status. The evidence presented indicated that the witness only assisted in concealing the crime and did not actively participate in its commission. Consequently, the court did not err in refusing to label him as an accomplice.

Evidence that creates a factual dispute or is conflicting about whether a witness is an accomplice necessitates that the issue be submitted to the jury. A trial court is not required to instruct the jury on accomplice status unless the evidence definitively shows that a witness is an accomplice as a matter of law. If the evidence is unclear, the trial court must provide the jury with definitions and allow them to determine the witness's accomplice status. A prosecution witness indicted for the same or a lesser offense related to the same criminal episode is automatically considered an accomplice as a matter of law, and failing to instruct the jury accordingly constitutes an error. The appellate court focuses on whether there is sufficient evidence to support a charge against the alleged accomplice, rather than whether the witness has been charged. If an error in failing to submit an accomplice instruction is preserved, reversal is warranted if "some harm" is shown. However, nonaccomplice testimony can mitigate this harm if it effectively fulfills the purpose of the accomplice witness instruction. An appellate court assesses the strength of nonaccomplice testimony based on its reliability and its ability to connect the defendant to the crime. The analysis of nonaccomplice evidence should be holistic, considering various factors such as motive and actions, rather than treating pieces of evidence in isolation. In this case, the nonaccomplice evidence was deemed sufficient to render any potential error harmless, suggesting that the jury would likely have found the accomplice testimony corroborated had proper instructions been given.

A review of nonaccomplice evidence indicates that any error regarding the jury instruction on Perez as an accomplice was harmless. Motive and opportunity alone do not suffice to corroborate accomplice testimony, but can support other evidence linking the accused to the crime. The jury heard testimony from Richards, highlighting appellant’s motive to silence Bridgett regarding a drive-by shooting and detailing opportunities where both were present at crucial locations. Evidence showed that Bridgett and appellant were friends and that he had an excuse to have her in his vehicle early on April 3. Richards also noted that appellant was hours late to pick him up that morning, coinciding with the timing of Bridgett’s murder. The absence of the firearms at appellant’s home, combined with testimony that he frequently carried an AK-47, suggested he may have disposed of them. Additionally, Bridgett’s father confirmed that she was home until midnight on April 2, wearing an outfit linked to fibers found in appellant’s vehicle, supporting the inference that she was in his car after midnight. Neighbors reported hearing a gunshot around 2:45 a.m., aligning with Richards’s testimony of appellant's delay. The cumulative nonaccomplice testimony strongly implicates the appellant and corroborates Perez’s claims, rendering the trial court’s error harmless. 

Regarding the search warrant execution, police obtained written consent from appellant’s father, Samuel Olivieri, for searching the family residence and Suburban. The consent form indicated that Olivieri understood his right to refuse consent and was signed by him and witnesses. During the suppression hearing, Deputy Cassidy testified that Olivieri was allowed to read and understand the consent form, while Olivieri claimed he felt pressured to sign it without reading. The trial court ultimately concluded that the consent was voluntary, denying the motion to suppress evidence obtained from the Suburban.

Rulings on motions to suppress are reviewed for abuse of discretion, giving deference to a trial court's findings of historical facts, particularly those involving witness credibility. The court applies the law to the facts de novo when credibility is not at issue. During suppression hearings, the trial court serves as the sole factfinder. The determination of voluntariness concerning consent to search must be upheld unless clearly erroneous, as consent is fact-intensive. A voluntary consensual search is an exception to Fourth Amendment and Texas Constitution requirements for probable cause and warrants. The State bears the burden of proving consent was obtained voluntarily by clear and convincing evidence, with courts assessing the totality of the circumstances from an objectively reasonable perspective. Factors considered include physical treatment, threats, inducements, and the individual's mental and physical condition, as well as their age, education, intelligence, and whether they were informed of their right to refuse consent.

In the analysis, the appellant contends that Samuel Olivieri's consent was involuntary based on several factors: he was held at gunpoint, told not to move, and did not receive verbal notice of his right to refuse consent. The incident occurred around 2:30 a.m., with Olivieri being confronted by multiple officers, one of whom pointed a gun at him and pushed him against a wall. He was subsequently handcuffed and led away while officers searched the premises. When approached by officers in civilian clothes regarding consent to search, Olivieri claimed he was simply instructed to sign the consent form, believing it was necessary due to an existing search warrant.

Olivieri claims he did not read the consent form before signing it, contrasting with Officer Cassidy’s testimony. Cassidy stated that he met Olivieri post-arrest, allowing him to read the consent form and the search warrant before seeking consent. Olivieri showed no signs of misunderstanding. Despite being woken early in the morning, Cassidy testified that Olivieri was given time to wake up and read the form fully. Although Cassidy did not inform Olivieri of his right not to sign, he disputed Olivieri’s claim that he was told consent was mandatory due to the warrant. The court emphasized the necessity of viewing the circumstances favorably towards the trial court's finding of voluntary consent. Written consent implies a deliberate decision, countering Olivieri's argument that he acted under duress from an overwhelming police presence. While police entered unexpectedly between 2:00 and 2:30 a.m., Cassidy’s testimony indicated that consent was not coerced. Olivieri claimed ignorance of his right to refuse, yet the consent form stated he could refuse, and Cassidy confirmed he asked if Olivieri understood it. The conflicting testimonies allowed the trial court to find consent was voluntary. The court affirmed the trial court's judgment, denying the appellant's motion to suppress evidence from the search.