 Kenny Phillips
At 3:34 a.m., as Kenneth Tolbert drove east on Woodland Avenue past the intersection with 55th Street, shots were fired, including several into his Lincoln Mark VIII. Tolbert was hit in the head, as was Christopher Lovelady. The two other passengers, Leonard Brown, and Kevin Tolbert, Kenneth’s brother, were unharmed.
The intersection, with its gas stations, parking lots and restaurants, served as a gathering spot for young people after the bars closed in Cleveland, and the Cleveland Police Department assigned officers to the area to keep traffic moving and watch for trouble. At least one patrol car was parked in the Marathon gas station on the northwest corner of the intersection.
The officers heard the shots, hit their sirens, and gave chase. One patrol car initially pursued a gold car that sped off east on Woodland. The other pulled up next to a Chevrolet Caprice that had slowed down. Then the Caprice drove off, also heading east on Woodland, making a right on 65th Street, and then stopping. Four young men in the Caprice – Michael Sutton, Kenny Phillips, Deante Creel, and Akeem Tidmore – were quickly arrested by the police after a brief chase.
The Caprice belonged to Sutton, who was 18 years old. It was a graduation present from his parents, tricked out with a distinctive cream-colored paint job, including the number “84” on the side. Two officers said that shots were fired during the brief foot chase, but no weapon or shells were found. Police conducted gunshot residue tests on the four men. Three tests came back negative. The test for Phillips, who had turned 18 on May 28, came back positive.
Each of the four men was charged with four counts of attempted murder, and related counts of assault and attempted assault. They were tried together in the Cuyahoga County Court of Common Pleas, beginning May 29, 2007. Judge Peter Corrigan presided over the jury trial.
The state had no motive for the shooting. Although Sutton and his friends and Tolbert and his friends had both spent part of the night before the shooting at or near the same club in downtown Cleveland, there was no evidence that the victims knew the defendants or that there had been any prior incident between the two groups.
The defense attorneys said there had been a rush to judgment, based on the men fleeing from the police. Creel’s attorney said in his opening statement: “Running away from a policeman for being an inner-city young black male does not make him guilty of attempted aggravated murder or felonious assault or attempted murder. It makes him scared.”
Kenneth Tolbert and the other three men with him in the Lincoln testified, but none of them could identify the shooter or the car the shots came from. Kenneth Tolbert, like Sutton, was also showing his car off that night, but he testified that he didn’t notice anything special about the vehicles around him.
Kevin Tolbert, who was in the front passenger seat, testified that after he heard the shots, he saw a car “peel off” and then saw a white car make a hard right turn. He testified that at the time of the shooting, he did not believe the shots came from the white car. Lovelady and Brown, the passengers in the back, each said that they saw a “light-skinned” arm from a car to their left.
Officer Michael Keane testified that he and his partner, Officer Daniel Lentz, had been on patrol prior to the shooting, when the officers parked at the Marathon station, in Car 321, radioed for assistance, as the crowd was bigger than usual. Keane, who was driving, testified that he and Lentz headed north on 55th Street toward the intersection. Keane testified they were in heavy traffic and saw a late-model tan Chevrolet headed south pull a “reckless” U-turn and then continue north. Keane testified that he and Lentz followed, with the intent of giving the driver a ticket. He said they did not activate their lights or siren. Keane said he followed the car, which was about 50 feet ahead. As he turned east on Woodland, Keane testified, he heard the first shot. When he finished making the turn, he heard more shots.
“I could see muzzle flashes coming from the right side of the car that I had been trying to stop.” He testified that he saw a gold car speed away, but it was “far [away] by the time the gunfire stopped.”
Keane testified that the Caprice appeared to be coming to a stop after the shooting, but then the car took off east on Woodland and then south on 65th Street. The men inside the car got out and ran. Keane testified that he arrested Sutton about 30 feet from the car and placed him in back of the patrol car. Keane said that as he handcuffed Sutton, he heard four shots from the area where Lentz was chasing the other suspects. Keane testified that they sounded like two different weapons.
Based on the observed speed of the gold car, the vehicle would have tripped a traffic camera on Woodland. On cross-examination, Keane said there had been no effort to track down that vehicle and its occupants.
Officer Daniel Lentz testified that Officers John Lundy and Gregory Jones, who were in Car 321, radioed them to help with monitoring the intersection. Lentz also testified that after they saw a “Chevy box car, white, black top with a number on the side” make a U-turn on 55th Street, the officers followed the car with the intention of making a traffic stop. Lentz said he heard a broadcast from Car 321 about shots being fired, and he saw people in the parking lot at the Rally’s restaurant at the intersection’s northeast corner hit the ground. He testified that he then saw shots fired from the Chevy toward Tolbert’s Lincoln.
Lentz testified that he and Keane pursued the Chevy after it drove off. When the car came to a stop, Keane concentrated on the driver, and Lentz went after the passenger or passengers. “I am focused on the passenger's side,” Lentz said. “The passenger's door is opening up. The first two out of the car were wearing white T-shirts and carrying handguns. A third male exited the vehicle was wearing dark clothing and ran the same direction, but cut a different path.” Lentz testified that as he chased the men with guns, he saw and heard three shots, two small caliber and one large caliber.
A few moments later, Lentz testified, he saw Creel emerging from some brush. Lentz said he chased Creel and saw him appear to throw something before Lentz tackled him and arrested him. “I spent a lot of time looking for whatever he threw,” Lentz said. “I couldn’t find it.”
Lentz later arrested Phillips, and Officers Lundy and Jones arrested Tidmore.
Martin Lewis, a forensic analyst with Ohio’s Bureau of Criminal Investigation, testified about the results of gunshot residue testing performed on the Caprice and the four defendants. Lewis said that the samples from Sutton, Creel and Tidmore came back negative, but the sample from Phillips’s left hand came back positive, as did a sample from the front passenger door-window area.
During cross-examination, Lewis said that he could not conclude, with scientific certainty, that Phillips, who is right-handed, fired a weapon. “If you test positive on your hands for gunshot residue that can be explained by one of three possibilities,” Lewis said. “Either you discharged a firearm, you were in close proximity to a firearm when it was discharged, or your hands came into contact with something that already had gunshot residue on it.”
Lewis also testified that particles from brake linings can give false positives in testing for gunshot residue.
A forensic scientist hired by the defense said in a report that it could not be concluded that Phillips fired a gun that morning. The expert said Phillips’s sample could have been contaminated from handcuffs, being in the back of a police cruiser, or some other problem with the Ohio laboratory.
Detective Carl Hartman testified that a request was made for photographs taken by the speed camera on Woodland Avenue, but the information was not provided and he failed to follow up.
Tidmore did not testify, but the other three defendants did, and each denied involvement with the shooting. Sutton described his route from the nightclub to the intersection, testifying that he got gas at the Shell station rather than the Marathon station because the Marathon was too crowded. He said he never made a U-turn, but he saw a gold car pull up beside Tolbert’s Lincoln, fire shots and speed off. He also testified that he picked up the Caprice that day from the auto shop, where the performed work included brake repairs.
In his testimony, Phillips said he saw an occupant with a “light-colored” arm shoot into the Lincoln. He said he and his friend panicked when the police car pulled up behind them. “We stopped. It looked like they [were] fitting to go around us. They didn’t. They got behind us. I looked at my friend and Akeem Tidmore, like, ‘Man, I can’t go down on my birthday. I am scared. I know they will blame it on us.’” Phillips said that he never had a gun that night or fired at the car or the officers.
He also testified that he told the officers that the shots were fired from a gold-colored car that had an E on the back, indicating it was an Enterprise rental car. (Hartman testified he didn’t check with Enterprise because he had no reason to.) He also testified that Jones, one of the officers involved in the arrests, had it in for the young men and had shot at Tidmore during the chase.
Separately, Marsean Watters, a friend of Sutton and Phillips and the other defendants, testified that he met them at the Shell station and they drove off in a group of vehicles toward home. Watters said that he saw shots fired from a gold car at the black car. During cross-examination, Watters couldn’t explain why he never came forward to tell the police this information.
Officer Jones testified briefly. He said he knew some of the defendants from working security at a local high school but held no animosity toward them. He also testified that he didn’t fire his weapon that morning.
During his closing argument, the prosecutor reminded the jury that Lentz was a former Marine. “In this case, you judge credibility,” the prosecutor said. “And on one hand you have two highly decorated veteran Cleveland police officers who testified about what they saw and they are very clear. And it’s very opposite as to what the defendants’ version is. It’s completely different. And the defendants say the police are lying and that they are in this conspiracy to frame them because basically they are too lazy to go over the real people in the gold car.”
On June 8, 2007, the jury acquitted Tidmore and Creel. The jury convicted Phillips of four counts of attempted murder, six counts of felonious assault, two counts of attempted felonious assault, felonious assault on a police officer, attempted felonious assault on a police officer, and two counts of inducing panic. He was sentenced to 92 years in prison. Sutton was convicted of four counts of attempted murder, six counts of felonious assault, two counts of attempted felonious assault, two counts of inducing panic, and failure to comply. He received a sentence of 46 years and six months in prison.
Sutton and Phillips filed separate appeals. Their convictions were affirmed, but each defendant was resentenced, with Phillips receiving a reduction to 65 years and Sutton receiving a reduction to 41 years and six months.
In August 2015, Sutton moved for leave to file a motion for a new trial based on statements from several witnesses who said they were part of a convoy of vehicles driving east on Woodland at the time of the shooting. Several of the witnesses said a gold car was leading the convoy, and one of the witnesses said that one of the occupants of the car had shot at the Lincoln. One witness said that prior to the shooting, he saw a fight at the club between the victims and another group of young men.
In addition, the motion contained a brief statement from Jones, who said that Lentz “could not have been truthful in his testimony.” By then, Jones was no longer a police officer; he had been convicted of rape and received a sentence of nine years in prison.
Judge Corrigan denied Sutton’s motion for leave, and an appellate court affirmed that ruling.
On December 29, 2015, Phillips, now represented by the Wrongful Conviction Project of the Ohio Public Defender’s Office, also moved for leave to file a motion for a new trial. Unlike Sutton’s motion, Phillips’s motion had statements from Jones and Lundy that challenged the testimony of Keane and Lentz, and it said the delay in obtaining these statements was due to Jones wanting to first resolve his criminal case.
Without holding a hearing, Judge Corrigan denied Phillips’s motion on July 5, 2016. Phillips appealed, and Ohio’s Eighth District Court of Appeals ordered Corrigan to hold an evidentiary hearing. On May 23, 2018, after holding the hearing, Judge Corrigan approved allowing Sutton and Phillips to move for a new trial, ordering the documents to be submitted within seven days.
In separate motions, Sutton, now represented by the Ohio Innocence Project, and Phillips each included affidavits from Lundy and Jones that contradicted the testimony of Keane and Lentz. Jones said that Keane and Lentz could not have witnessed Sutton pull a U-turn just prior to the shooting, because they were already in the parking lot of the Marathon station.
“I do not believe that Officers Keane and Lentz could have seen shots being fired from the tan car into the car driven by the victims because they were in the parking lot with me and Officer Lundy when we heard the shots,” Jones said. “It was only then that they began to follow the tan car.”
Jones also said that he didn’t hear any shots when the officers were chasing the four defendants through the brush and properties along 65th Street.
Jones said he gave this information to a detective, and the detective told a prosecutor, but “no one asked me about that again.” Jones said in his affidavit that he had forgotten that he testified at the trial.
Lundy’s affidavit, which was much shorter, said he didn’t hear any shots during the period when the police were chasing the defendants on foot.
The two affidavits were supported by their testimony from the evidentiary hearings. At the hearing, Lundy testified that Keane and Lentz were in the Marathon parking lot before the shots were fired. He said the four officers discussed a shooting earlier that night on the city’s west side. He also said the defendants told them that they ran because they were scared, not because they shot anyone.
Both Lundy and Jones testified that they saw the defendants run from the car after it stopped on 65th Street, and both testified that they didn’t see any of them holding weapons. In addition, they said their initial belief was that the gold car was involved with the shooting.
While prosecutors had placed Lundy and Jones on the list of potential witnesses at trial, the substance of their potential testimony was not disclosed.
The motions also noted the new witnesses who said the shots came from a car other than Sutton’s. Several of these witnesses said a man known as W.W.M. was involved in the shooting. Attorneys for Sutton and Phillips had unsuccessfully tried to introduce this testimony at trial.
Sutton’s motion said the failure to disclose exculpatory evidence, as required by the U.S. Supreme Court in Brady v. Maryland, violated his right to a fair trial. “Officer Lundy and former officer Jones have offered testimony that directly contradicts that of Lentz and Keane. First, their testimony demonstrates that Lentz and Keane were not in the position they claimed to be at the time of the shooting. Instead, they were near Lundy and Jones—meaning they were in no position to determine from which car the shots had come. Second, their testimony belies the claim that shots were fired during the foot pursuit. The jury was unaware that two police officers, had they been asked to, would have provided an account of that night that directly contradicted the State’s narrative. This new evidence leaves the original verdict unworthy of confidence.”
Phillips’s motion noted that the state had argued in its closing argument that the defendants had not taken any action or found any witnesses to support their theory that Officers Keane and Lentz had falsely testified. “Had the state not suppressed the evidence,” the motion said, “the defense would have had witnesses: two veteran Cleveland police officers.”
Judge Corrigan denied the motions for a new trial on June 3, 2019. He said there were too many gaps in the statements and testimony of Lundy and Jones.
“In fact, closely examining all the testimony at trial and in the motion hearing, the potentially exculpatory information from Jones is not credible, not sufficiently corroborated by Lundy, and at best is mistaken to a point that would not be inconsistent with evidence jurors have previously considered,” Corrigan wrote. “If this new evidence is not to be believed, then it follows that the state did not have it and could not have disclosed it to defendants prior to trial as required by Brady.”
Sutton and Phillips appealed, and Ohio’s Eighth District Court of Appeals granted the two men a new trial on March 18, 2021. It said Corrigan had too narrowly drawn the boundaries for a disclosure violation and that prosecutors failed to turn over material exculpatory evidence, depriving the men of a fair trial.
“Regardless of speculatively imputed motives, Officer Lundy’s testimony parallels that of former Officer Jones on a number of key points that directly contradicts the testimony of Officers Keane and Lentz and corroborates the account of events provided by the trial defendants,” the court wrote. According to these accounts, Keane and Lentz had not just arrived at the Intersection shortly before the shots were fired; they could not have observed a U-turn by Sutton’s car; they were not directly behind Sutton’s car when shots were fired; the defendants did not possess weapons when they ran from the car; no shots were fired during the chase; and a gold car appeared to be involved in the shooting.
Sutton and Phillips were released from prison on May 3, 2021.
Their retrial began on September 19, 2022, again in the Cuyahoga County Court of Common Pleas. Sutton was now represented by Justin Herdman, a former U.S. Attorney for the Northern District of Ohio, now with the Jones Day law firm, as well as the Ohio Innocence Project. Diane Menashe of the Ice Miller law firm, along with the Wrongful Conviction Project, represented Phillips.
At the retrial, Lentz testified that Lundy and Jones were mistaken in the events prior to the shooting. He said that he and Keane went to the Marathon station, but quickly left to continue their patrol and then came upon Sutton making the U-turn. But his testimony also differed from the first trial. Now, he said he and Keane were driving south on 55th Street, not north.
Prior to the retrial, the defense team received a report on the gold car that indicated the police had obtained vehicle information, including a license plate number, after the car tripped the speed camera on Woodland Avenue. The request for information from the camera company said the vehicle was a “suspect car,” and the police received the report just before the first trial ended.
Hartman testified at the retrial that he never saw the report and that he relied on Lentz’s report in writing his own report about the case. He said that he did not speak to witnesses and that the police took no photos of the crime scene. He also said that the windows on Sutton’s car, which Lentz testified had been towed “as is,” were rolled up, suggesting shots were not fired from the car.
During Hartman’s cross-examination, defense attorneys played a recording of a radio broadcast made by Lentz after the shooting.
“I don’t know where that happened,” Lentz said over the police radio. “About five cars swerved off the road when they started shooting. I don’t know if they were actually shooting at a car or what.”
This appeared to contradict Lentz’s testimony at both trials.
Hartman was asked by Herdman, “You had information that contradicted what Daniel Lentz put in his incident report on May 29, 2006, didn’t you?”
Hartman answered, “Apparently.”
Lewis, the forensic analyst, again testified about the results of the testing for gunshot residue. He said the state crime lab no longer tested the exterior of cars because the risk of environmental contamination was too high. In addition, he said that Phillips’s testing and reporting on the sample went against current lab protocols in two areas. First, Phillips had been placed in a police cruiser, which increased the risk of contamination. Second, the tested samples showed extremely high levels of iron, and the lab manual said analysts should not make a finding on gunshot residue in these instances, because it can be indicative of brake pads.
The jury acquitted Phillips and Sutton on September 27, 2022.
“Somebody finally believed in me,” Phillips said.
“I just thought I was going to be somebody,” Sutton said. “A business person with degrees behind my name. I'd have had a family, and kids by now. This stopped my whole life.”
On November 9, 2022, Sutton and Phillips filed a claim against the state of Ohio, seeking to be declared wrongfully convicted, which would enable them to seek state compensation. Separately, on September 26, 2023, the two men filed a federal civil-rights lawsuit against the Cuyahoga County Prosecutor's Office and several police officers involved in their wrongful conviction.
– Ken Otterbourg
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