Missing court tape could mean trouble
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The defendant, Abel Torres, who was 16 at the time of the crime, is serving a 36-year sentence for shooting a female clerk outside Pit Stop North on Chancery Street – and then opening fire on a man who came to her rescue. Torres shot the clerk in the shoulder with a high-powered rifle as she was leaving after closing the store for the evening. Torres and his brother, Michael Cabrera, then 21, were planning to rob the store.
Torres was tried as an adult and sentenced to the maximum 36 years in prison by Circuit Court Judge Charles Haston, who called the teen “a menace to society.” Now of age, Torres is an inmate with the Department of Corrections and is continuing to serve his sentence. His request for new trial was denied last year by Judge Haston.
However, recent events may have a direct impact on Torres’ conviction, and could potentially lead to a new trial.
At the root of the issue is a missing tape used to record parts of the Torres trial. The tape was discovered missing as court officials were preparing a written transcript for the Tennessee Court of Criminal Appeals where Torres is appealing his conviction. Typed transcripts are normally prepared using audio tapes and then forwarded to the appellate courts so the judges can review the actions of the court.
Public Defender Dan Bryant, who has filed a motion asking for an explanation about what happened to the tape, says he hopes the matter can be resolved to the satisfaction of both sides.
“This is not an automatic new trial,” Bryant said. “If we can agree on what was contained in the tape, then I think everything will be fine.”
Bryant said he believes the tape contained testimony of a police officer. However, he noted the tape could have also contained parts of other people’s testimony. Before knowing how deeply the missing tape will impact the case, Bryant said he will have to determine exactly how many witnesses were on the tape. Bryant said it is unclear how the tape was misplaced.
While the tape could be found, or the sides could agree as to what was likely contained on the tape, a reversal due to tape problems has precedent in the local court system.
In the early 1990s, J.B. McCord was granted a new trial on first-degree murder charges for the 1987 shooting death of local attorney Robert Bonner. McCord, who was convicted and sentenced to death, was granted a new trial after court officials discovered some of the audio tapes of his trial were faulty.
Like in the Torres case, the discovery was made as they were preparing transcripts for the appellate court. McCord was subsequently convicted of the lesser offense of second-degree murder in his second trial which was moved to Crossville and was sentenced to 37 years. He died in prison a few years ago.
Bryant said the Torres case is not yet in that position.
“We should be able to agree on what was on there,” Bryant said. “That is, unless we get in to it and figure out there was some key testimony which we can’t agree to.”
District Attorney General Dale Potter says he is “concerned” by the missing audio tape.
“Anytime evidence is missing, it’s a concern,” Potter said. “We’ll have to see what motions the defense puts forth and then deal with them.”