The Alvaro Tenorio Case

I was appointed on the appeal of Alvaro Tenorio in 2001. The case was weak and based on an eyewitness identification of an out of town jewelry salesman who was robbed at gunpoint in a Norcross hotel. The victim called police who took the description: a hispanic male, age 40, with grey and black hair. There was also a blonde female seen who was driving the getaway car. The description was published in a newspaper which was seen by Bob Hodges. Bob Hodges happened to know a hispanic male who had a blonde wife. Mr. Hodges was also looking for the hispanic male he knew because his boss was trying to sue the hispanic male. The hispanic male known by Bob Hodges was a man named Alvaro Tenorio. Mr. Tenorio had owned a business in Gwinnett County in 1998. This is the same business where Bob Hodges worked. The business was purchased by Mr. Tenorio and his brother from Mr. Hodges’ boss. The deal went sour and the Tenorio brothers never fully paid Mr. Hodges’ boss the monies due according to the deal. Mr. Hodges was asked by the former owner to try and locate Mr. Tenorio so that he could be served with the lawsuit. After the deal went sour in 1999, Mr. Tenorio and his wife moved to Tifton, Georgia. Mr. Tenorio got a job at a grocery store as a night stocker. Hodges did not know that Tenorio had moved to Tifton. When Hodges saw the newspaper description, he thought it might help him locate Tenorio. Hodges decided to report Tenorio to police. When the police got Tenorio’s name, they got his picture from a 1997 arrest in Dekalb County where he had written a bad check.

Also, police deliberately used a 1996 photograph of Tenario when the offense occurred in 2000. Tenorio had previously been arrested in 1996 for a bad check but had no other criminal record. The police had access to a 2000 photograph taken within 20 days of the robbery when Tenorio renewed his driver’s license, but the police chose not to use this photo. Tenorio had aged considerably between the two photos (see rollover image below).

For over an hour police interviewed Tenorio who spoke very poor english. Tenorio claimed he was innocent and told police to check his time card at the grocery store. Police said they would and left Tenorio in jail. The time card showed Tenorio clocked in on the night of the robbery at 10:09 p.m. About a week later, the time card showed the manager had clocked him out. Further investigation revealed that the night of the robbery was the very same night that Tenorio had gotten written up by his boss. Tenorio had left the store that night after being written up. The next morning Tenorio was fired. After a week, the manager discovered that when Tenorio left the store after being written up, he had forgotten to clock out. The manager manually clocked him out a week later. Even better for Tenorio, there was a video camera which recorded the time clock 24 hours a day at the grocery store.

You might be thinking that since all of this could have been verified so easily, the case should have easily been dropped. If the police had bothered to verify the information, it probably would have. Police never learned about the videotape system at the time clock. Police never interviewed the store manager in Tifton. The police never even went to Tifton to search Tenorio’s home for the stolen property, or for clothing that matched the perpetrator. Police did very little to prove Tenorio was guilty.

Tenorio told the lawyer about the videotape system, but it was too late. The videotapes are re-used every 60 days and thus the night in question would have been erased in May 2001. The lawyer then researched the issue of the mailing of the line up and could not find any other cases where such a procedure had been done. The lawyer decided to file a motion to suppress the line-up identifcation and not allow any in court identification. Sure that she would win the motion to supress, the lawyer did little to prepare for trial. The motion was heard right before the jury was selected. The judge decided to allow the line-up and the testimony about the identification.

The trial went forward but the defense was not prepared. The lawyer told the jury in the opening that she would call Tenorio’s wife as an alibi witness. When the time came, however, trial counsel changed strategies and decided to call Tenorio’s step daughter and Tenorio’s night manager from the grocery store to establish the alibi. The only problem was that the step daughter and the night manager were dating. Jurors later said they felt as if the step daughter and her boyfriend were lying to protect the step dad. The lawyer also never presented Bob Hodges or bothered to explain how Tenorio became a suspect in the first place. There was no explantion given for how the police obtained Tenorio’s photograph either. Without the innocent explantion based on the truth, jurors were left to conclude that Tenorio was a convicted felon who had committed acts like this before. The jury never saw photographs of how dark the hotel parking lot was. Because of television shows, jurors were thinking they couldn’t be told all the bad things about Tenorio because he was supposed to get a fair trial. Jurors were apparently so concerned about what they could assume, they wrote the judge a note which asked "Can we make assumptions based on what was not asked?" The judge told the jury to base their verdict on the evidence. Within five minutes, they had reached a verdict. Guilty.

The first thing that stood out about the case on the appeal was that the lawyer failed to call an expert witness. About a year before Tenorio’s trial, the Georgia Supreme Court had held that a judge may admit expert testimony when the only evidence offered by the State is an eyewitness identification. The expert would be allowed to explain how psychological factors (based on studies of eyewitness accuracy) could have caused a misidentifcation. The case was a radical change in Georgia law, and was discussed widely by lawyers who kept up with the law. I asked the lawyer why she didn’t call an expert. She explained that she didn’t know anything about the Georgia Supreme Court case and had never heard of it. Tenorio’s appeal would be based on the failure of the lawyer to call the expert. The law required Tenorio to prove (1) an attorney error and (2) which prejudiced the defense. This would be easy I thought. The lawyer admits to the error, and the prejudice is clear because the eyewitness would have undermined the eyewitness’ testimony.

We got a good sign from the judge when she approved $1,500 of county funds for an expert witness to be appointed and to examine Tenorio’s case. The expert was called from New York who flew to Atlanta and testified. The judge, however, didn’t rule in Tenorio’s favor. She held that the error did not necessarily lead to any prejudice because many of the factors were brought up when the victim was cross examined, and that we had not even established an error because we only had the lawyer testify. The judge found that we had to have a legal expert of some kind establish what a reasonably competant lawyer would have done in such a case. We filed to reconsider. We were denied relief again. We got an affidavit and asked the judge to reconsider again. We were denied again. Finally, we moved that the judge be disqualified based on the fact that the judge’s law clerk worked for the district attorney at the time Tenorio’s case went to trial. This time the judge agreed with us, and sent the case to another judge.

A new judge is now considering the motion. I used a PowerPoint presentation to argue the issues at the new trial hearing. More when a ruling is made.