An Appeals Court Overturned Two Cleveland Men's 2007 Attempted Murder Convictions. Cuyahoga County Prosecutors Still Think They Got It Right

click to enlarge Kenny Phillips - Family photo
Family photo
Kenny Phillips

On March 18, the Eight District Court of Appeals in Cuyahoga County handed down a new trial order for Kenny Phillips and Michael Sutton, two men who were convicted of attempted murder—of a Cleveland police officer—in 2007. They were originally sentenced to 92 years and 46 years in prison, respectively, and now, it seemed, a sense of clarity was beginning to leak into their case.

“Reversed, vacated, remanded” was the triptych judgment from the appellate panel. Phillips and Sutton’s case was kicked back to the trial court.

The men’s families were elated. “Everybody was so excited,” Sutton’s mother, Roberta, tells Scene. “It’s about time! Somebody heard us. Somebody got it right.” She looked forward to having her son home for Easter, to putting years of doubt and frustration in the past. Her son, she’d been trying to tell everyone all along, couldn’t have been involved in this crime.

The good news didn’t last long, however.

click to enlarge Michael Sutton - Family photo
Family photo
Michael Sutton

Just a few hours later, Cuyahoga County Prosecutor Michael O’Malley pushed back on the ruling and filed a motion for stay of all proceedings for 45 days. Phillips and Sutton’s attorneys quickly filed motions for bond, a chance to have their clients leave prison while the matter of a new trial was sorted out. Trial court judge Peter Corrigan granted the extra time to the prosecutor and opted not to set bond for Phillips or Sutton. A bond hearing was set for May 3. The waiting game began again.

One week later, the state filed a motion to reconsider this new trial decision, insisting that the county court’s 2007 conviction stood on its merits. New witnesses had emerged, yes, new narratives challenged the original story, but O’Malley wrote that the appeals court ruling “places the proverbial cart before the horse.”

So, what happened here?

Phillips and Sutton had been friends at South High School, a campus in Slavic Village that would go on to be shuttered by the Cleveland Metropolitan School District’s 2010 Academic Transformation plan. They hadn’t been super close, but they were known to one another’s families. Phillips had a habit of showing up at Sutton’s house and borrowing his clothes. He had a sharp sense of style, his mother says, even if half his wardrobe was on loan.

On May 28, 2006, Sutton was out front of his house in Union-Miles, washing his ’87 Chevy Caprice—a graduation gift from his parents—fresh from a local auto repair shop. It was one of those halcyon days off the shore of Lake Erie, a bright spring afternoon in the mid-80s. The end of high school was drawing near, and a four-year run at the University of Akron was looming on the autumn horizon. Plus—it was his pal Kenny Phillips’ 18th birthday. Memorial Day weekend in Cleveland was off to a great start. Time to celebrate.

After a night at Moda on West 25th Street, the guys congregated with a pack of friends at the Shell gas station that anchors one corner of the five-point intersection at East 55th Street and Woodland and Kinsman avenues. The parking lots that ring this intersection have for years acted as a sort of meeting ground for young men and women on a Friday night: the social gateway to neighborhoods flanking downtown Cleveland’s eastern border.

That night, as usual, the place was busy. Cops were posted up the Marathon across the intersection (now Hanini Petroleum). Cars whizzed through the intersection at a rapid clip. The Rapid chugged audibly nearby.

Around 2:30 a.m., the four friends—Phillips and Sutton, along with Deante Creel and Akeem Tidmore—piled into the Caprice and aimed their way toward Woodland Avenue.

Nearby, a black Lincoln pulled out onto the road. Inside were four men.
Sutton noticed a gold car pulling adjacent to the black Lincoln in front of him on the road. Someone in the gold car extended an arm out the passenger window and fired shots into the driver’s side of the Lincoln. The gold car peeled off. The strange moment passed quickly.

Cleveland Police Officers Daniel Lentz and Michael Keane took notice, pulling out of the Marathon parking lot and giving brief chase. Sutton veered gently toward the curb to let the cops drive around him, but he soon realized they were pulling him over. He eased the car onto East 65th Street, “panicked,” as reported by court documents.

Sutton remained with the car. It was his, after all, a gift entrusted to him. His car. The other guys ran—fearful of getting caught up in something that didn’t involve them.

“But you know how it is,” Creel would later say in court. “Like it’s like I don’t want to say, racial profile or whatever. I don’t know how it is. But we knew they was going to try to put it on us.”

A foot chase ensued, and here’s where things get a little complicated. The officers, Lentz and Keane, reported that two of the men had guns and fired at Lentz during the pursuit. Lentz reported at the trial that he saw muzzle flashes lighting up the yard off East 65th. Guns of multiple calibers were firing on him, he said. Keane reported that he heard, but did not see, a similar volley of bullets.

Before too long, the three men were apprehended. Sutton was in custody back at the car. Whatever happened, a criminal case was quickly unfolding.
In subsequent investigations, no guns were found at the scene. No bullets. No bullet holes. No shell casings.

“I remember him calling me, saying, ‘Mom, I’m in jail,’” Sutton’s mother, Roberta, says. She figured it was get resolved quickly—maybe a misunderstanding at a traffic stop. Her son had never been in trouble with the law, after all.

But then the hours started ticking by with an unsettling silence. She picked up the phone and tried to get in touch with him again. She remembers someone at the jail downtown insisting that she get there immediately: Her son was being charged with attempted murder and felonious assault. “I lost it,” she says. “I was devastated. You’re getting ready to take my son away? My son’s got to go graduate! I don’t want to hear none of this!”

In the interim, while Phillips and Sutton were out on bond ahead of their trial, Sutton and his family spent long days and nights at home, wondering what could have happened to land him in this situation.

“I believed in the justice system,” she says. “But do I believe in it now? No.”
For Phillips’ mother, the shock of that fateful night was similar. It’s still felt as a fresh wound, even 15 years later. “I got a phone call from him, saying that he was in jail,” she says. “To me, it was so rigged up. My son ran [that night] because he was scared!”

It wasn’t until the following summer, in 2007, that the young men found themselves at trial. The litany of criminal charges is staggering when laid out on the page.

Phillips was charged with five counts of attempted murder, two counts of attempted aggravated murder, nine counts of felonious assault, two counts of inducing panic, one count of resisting arrest—with a series of firearm specifications added to a few of those charges.

Sutton was charged with four counts of attempted murder, six counts of felonious assault, two counts of attempted felonious assault, two counts of inducing panic, one count of failure to comply and one count of resisting arrest—with similar firearm specifications.

Creel was charged with five counts of attempted murder, seven counts of felonious assault, three counts of attempted felonious assault, two counts of attempted aggravated murder, two counts of inducing panic and one count of resisting arrest.

Tidmore was charged with four counts of attempted murder, six counts of felonious assault, two counts of attempted felonious assault, two counts of inducing panic and one count of resisting arrest.

Sutton and Phillips were convicted in June 2007.

For Phillips: 92 years.

For Sutton: 46 years.

“I cried every day, trying to figure out how I’m going to do that,” Sutton’s mother, Roberta, says.

Those sentences were eventually reduced (to 65 for Phillips and 41 for Sutton).
Creel and Tidmore were both acquitted.

As far as the people in the black Lincoln, the victims in this case, two passengers sustained gunshot wounds to the head—resulting in permanent injuries. The four men in the Lincoln were unable to say who was at fault in this case, although other witnesses would later single out a man who’d been at Moda earlier in the night.

“The victims could not identify the vehicle but none of them believed that the shots were fired from the Chevy,” according to court documents.

Speed camera log photographs from the intersection were, for an unknown reason, never provided to the detective assigned to this case. At any rate, the detective didn’t follow up to find out if they existed and what they might show.

In 2015, several breaks emerged in the case. By this point, the Ohio Public Defender’s Office and the Ohio Innocence Project had come onboard to represent Phillips and Sutton, respectively, and the attorneys set to work on bringing new accounts to light. Not only were additional witness identified—other people who’d been out with the presumed shooter that night—but two police officers began telling a different version of events from May 28, 2006. The officers signed affidavits that cemented their perspectives in the court docket: Lentz and Keane’s story wasn’t holding up.

According to those affidavits, officers Gregory Jones and John Lundy were at the East 55th Street intersection that night, too. In fact, they were parked in the same Marathon gas station parking lot as Lentz and Keane, and they heard the shots fired from the gold car. Lundy reported the shots via radio. Jones said that he watched his fellow officers pull over Sutton’s car—and watched as the passengers fled the vehicle. “From that point on, I heard no additional shots fired,” he said.

“Later, Office Lundy and I told a supervising detective about what occurred that night,” he said. “We told him that we did not hear shots fired at the officers. He told the prosecutor, but no one asked me about that again.”

Lundy concurred in his own affidavit: “I assisted in apprehending the four suspects in the Chevy after they pulled their car over and a foot pursuit began. At no point did I hear additional shots once the foot pursuit began.”

Jones was convicted of rape in 2014, and remains in Allen Correctional Institution until 2023. Lundy was the subject of a city of Cleveland legal settlement after shooting an unarmed Black boy in 2007.

As these countervailing narratives entered the case, O’Malley pushed back on the officers’ credibility—pointing out that Corrigan had deemed Jones’ testimony “suspect.”

“Where a witness's version of events is contradicted by other witnesses, his credibility is at issue,” O’Malley wrote in his motion to reconsider the new trial ruling, all but summing up the dynamics of the Cleveland Division of Police.
As to where things stand now, in mid-April 2021, the case is about as clear as it sounds. A new trial has been ordered, and both Phillips and Sutton are awaiting word on possible bond.

“We couldn’t understand it,” Roberta says. “If we can follow the rules, why can’t they follow the rules? It’s the justice system. That’s what they say. So, I figured you all should listen to what the courts have the say. We listened to you all for 14 years. And now that we’ve got the right, and it’s not in you all’s hands, now you’re deciding to take it and put a 45-day stay on it. That was horrible.”

Her son, needless to say, was not home for Easter.

He remains in prison—at Lake Erie Correctional Institution. (Phillips is at Mansfield Correctional Institution.) The COVID-19 pandemic has ravaged Ohio prison populations at an alarming rate, and Roberta says that she’s tried to lift up her son’s spirits as much as possible while visitations are barred.

Corrigan has resisted setting bail, and reportedly will continue to sit on the decision until at least May 3—the date of a scheduled hearing in this case. This creates a strange legal cycle, where the state and the trial court can essentially provide each other leeway on the calendar—issuing stays on the appellate court’s decision—all while Phillips and Sutton tack more days onto their time in prison.

“The manner in which Judge Corrigan has conducted the proceedings in this case creates an appearance of bias against Mr. Sutton and Mr. Phillips,” Sutton’s attorney, Donald Caster, wrote in an affidavit for disqualification filed with the Ohio Supreme Court.

Corrigan was first elected to the bench in 2004, and he won his third consecutive term in an unopposed contest in 2016. This case has arced across the bulk of his tenure on the bench. And still, even with the new trial order hovering above the county courthouse, any action on Phillips and Sutton has been kicked down the road. They remain in prison. On April 26, Corrigan recused himself from the case. Phillips and Sutton's bond hearing remains set for May 3. Their attorneys are seeking an emergency hearing ahead of that date.

“Why?” Roberta asks. “What do you have against these guys? I can see if they actually did it, but they didn’t do anything. What is it that you’re holding onto? I don’t get it. Is it embarrassing because you guys know you got it wrong? This is your system.”
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Eric Sandy

Eric Sandy is an award-winning Cleveland-based journalist. For a while, he was the managing editor of Scene. He now contributes jam band features every now and then.
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