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Jury to weigh credibility of conflicting Cleveland Police accounts in retrial of two men

Michael Sutton (fourth from left at table) and Kenny Phillips (second from right) with their defense team on the first day of trial.
Matthew Richmond
Ideastream Public Media
Michael Sutton (fourth from left at table) and Kenny Phillips (second from right) with their defense team on the first day of trial.

The retrial of Kenny Phillips and Michael Sutton began Tuesday with opening statements. An appeals court overturned their convictions last year.

Phillips and Sutton were convicted 15 years ago of shooting Kenneth Tolbert and Christopher Loveland on Cleveland's East Side early in the morning on May 29, 2006.

Cuyahoga County Assistant Prosecutor Gregory Paul told the jury in his opening statement that the case is going to rely largely on the testimony of two Cleveland police officers who testified during the original trial.

“You’re going to hear from two officers who say they saw, with their own eyes, in real time, they were right behind the car that fired at Mr. Tolbert’s car, striking Mr. Tolbert and Mr. Loveland,” Paul said.

Their testimony was later challenged by two fellow officers, leading to reversal of the convictions.

On the night of the shooting, Sutton and Phillips, along with Deante Creel and Akeem Tidmore, were traveling in a car on Woodland Avenue near the 5-way intersection with East 55th Street and Kinsman Road on Cleveland’s East Side.

Daniel Lentz and Michael Keane, the Cleveland Police officers who testified at the 2007 trial, said they saw Sutton’s Chevy driving recklessly and started to follow it right before the shooting. They claimed to have heard a single gun shot, then saw the Chevy pull up next to the victim’s car. They testified to seeing an arm reach out of the Chevy’s passenger side window and fire multiple shots into the car.

In their opening statements, attorneys for Phillips and Sutton said that version of events is deeply flawed.

“What Mr. Paul has done for you is he has essentially inflated a rubber raft and he’s set it out to sea and he’s asked us all to go along on a little cruise with him,” said Michael Sutton’s attorney, former U.S. Attorney for the Northern District of Ohio Justin Herdman. “But you are going to start to see holes pricked in that rubber raft, you are going to start to see the state bail as the water starts to come in and you are going to start to see that raft sink.”

The judge in the case, John O’Donnell, hasn’t decided yet whether the jury will hear that Phillips and Sutton’s 2007 conviction was overturned.

Herdman and the attorney for Kenny Phillips, Diane Menashe, both said during their opening statements the state arrested the wrong people.

“There are no guns and no casing. There is no motive. In fact, there is not even a connection between the individuals that were shot and Kenny Phillips,” said Menashe. “There is no time when anyone in that car will come in and say, ‘Those were the shooters,’ despite the proximity of the shooting – victims and shooter.”

The targets of the shooting all survived. Kenneth Tolbert and Christopher Lovelady suffered permanent injuries. No one in the vehicle was able to identify the shooter or shooters in the first trial.

The statements from two fellow officers near the shooting that night led to the overturning of the convictions by the 8th Ohio District Court of Appeals, ruling that evidence had been withheld from the defense at trial.

Former Cleveland police officer Gregory Smith signed an affidavit in 2015 that said Lentz and Keane could not have seen the shots fired based on where they were that night.

Smith and John Lundy, the other officer who signed an affidavit contradicting Lentz and Keane, said they were at the Marathon gas station at the corner of East 55th and Woodland because a large crowd had gathered there.

They said they saw and spoke with Lentz and Keane at the gas station and heard the gun shots. According to their sworn statements, Lentz and Keane were not in a position where they could have seen the shots fired into the victims’ car. They said they also did not hear any gun shots during the subsequent foot pursuit by Keane and Lentz.

Smith was convicted of kidnapping and rape in 2014. He’s nearing the end of a 9 year prison sentence.

Lentz and Keane had testified that they began to pursue Sutton’s Chevy near the intersection of East 55th Street and Woodland Avenue after the shots were fired. Another car also sped away from the scene, but the officers said they believed that vehicle was fleeing to get to safety. Multiple witnesses would later connect that second, gold-colored car to the shooting.

Sutton initially attempted to evade the police, before stopping the car and surrendering. The three others in the vehicle fled on foot. According to Lentz and Keane, shots were fired at the officers during the foot pursuit before all three – Phillips, Creel and Tidmore – were arrested.

No gun or bullet casings were found in the area of the pursuit. Phillips’ hand tested positive for gun shot residue after he was arrested.

Other witnesses at the scene, and at the nearby club where the victims were earlier that night, said the shots came from a gold car that had sped away after the shooting. An occupant, Willie Wayne Moore, had allegedly been involved in a fight with the victims earlier that night, the witnesses said.

Phillips was initially sentenced to 92 years in prison, which was reduced to 65 years on appeal.

Sutton was sentenced to 46 years in prison, later reduced to 41 years. Both men were 17 at the time of the shooting.

Daniel Lentz, who’s now a homicide detective, is scheduled to testify when the trial resumes Wednesday morning.

Matthew Richmond is a reporter/producer focused on criminal justice issues at Ideastream Public Media.