State v. Sutton
| Decision Date | 18 March 2021 |
| Docket Number | No. 108750,No. 108748,108748,108750 |
| Citation | 2021 Ohio 854 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL SUTTON, ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-06-481840-D and CR-06-481840-C
Appearances:
Ohio Innocence Project and Donald R. Caster; Cullen Sweeney, Cuyahoga County Public Defender, Joanna Sanchez and Rachael Troutman, Assistant Public Defenders, for appellants.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellee.
I. Introduction
{¶ 1} In these consolidated cases, defendants-appellants Michael Sutton ("Sutton") and Kenny Phillips ("Phillips"), appeal the trial court's denial of their motions under Crim.R. 33 for a new trial based on newly discovered exculpatory evidence. Appellants charge that the evidence was withheld by the state in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
{¶ 2} We find that the appeal has merit, reverse the trial court's judgment and remand the case for a new trial.
II. Facts and Background
{¶ 3} On May 28, 2006, Sutton, Phillips, Deante Creel ("Creel"), and Akeem Tidmore ("Tidmore"), headed out to enjoy the Memorial Day weekend. The friends were also celebrating Phillips's and Sutton's 18th birthdays upcoming the next week. Sutton was also celebrating his high school graduation and acceptance to the University of Akron.
{¶ 4} The young friends were excited to ride in Sutton's new car, a graduation gift from Sutton's parents. Sutton picked up the white 1987 Chevrolet ("Chevy") with distinctive trim from the repair shop just hours prior to going out with his friends. The repair shop performed mechanical repairs that included brake work and installed a new sound system and fancy wheels.
{¶ 5} The friends traveled to a teen night club on the west side, spoke with friends, and later proceeded to the Shell gas station located at the five-wayintersection of East 55th Street, Woodland Avenue, and Kinsman Avenue ("Intersection") in Cleveland. The Intersection is a busy hangout for teens and young adults.
{¶ 6} At approximately 2:30 a.m., appellants and friends turned west onto Woodland Avenue to return to their homes. The young men witnessed a gold car pull up to the driver's side of a black Lincoln driving in front of the Chevy, a light-skinned arm extended out of the passenger window of the gold car and fired into the Lincoln, and the gold car pulled off at great speed. Appellants described the gold car as a newer model with an "E" symbol that indicated the car was owned by Enterprise Car Rental Company.
{¶ 7} The Chevy pulled over to the curb to allow the police car that approached from behind the Chevy with lights and siren activated to pursue the gold car. Instead of pursuing the gold car, the police cruiser occupied by Cleveland Police officers Michael Keane ("Officer Keane") and Daniel Lentz ("Officer Lentz") pulled behind the Chevy. Panicked, Sutton pulled around the corner onto East 65th Street and stopped. Sutton remained with the vehicle. Phillips, Creel, and Tidmore ran due to fear that they would be accused of a crime they did not commit.1 After a chase that culminated within approximately seven minutes, they were arrested.
{¶ 8} The accounts of Officers Keane and Lentz differed vastly from those of the four young men. Officers Keane and Lentz claimed that they were headed north on East 55th Street in response to a police dispatch request to assist with crowd management at the Intersection. The officers proceeded north on East 55th and, just as they approached the Intersection, they witnessed the Chevy suddenly make a wild u-turn in the bumper-to-bumper traffic a short distance in front of their police car. The officers stated they did not activate lights or siren but were able to weave in and out of the barely moving traffic to follow the Chevy to issue a citation.
{¶ 9} The officers turned right onto Woodland Avenue just in time to witness shots fired from the Chevy into a black Lincoln. The officers said they also saw the gold car referenced by appellants, Creel and Tidmore, but opined to the jury that the gold car raced from the scene in fear of the gunshots. Officers Keane and Lentz also testified that all of the suspects ran and that two of the suspects had guns and shot at Officer Lentz during the pursuit.
{¶ 10} The four men were charged with over 20 counts. Phillips was charged with:
Phillips pleaded not guilty to all charges.
{¶ 11} Sutton, as the driver of the Chevy, was charged with:
State v. Sutton, 8th Dist. Cuyahoga No. 90172, 2008-Ohio-3677, ¶ 7.
{¶ 12} 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.
{¶ 13} The men were jointly tried by jury in May 2007. Appellants and Creel testified in their own defense. The victims in the case, driver Tolbert, and passengersK. Tolbert, Lovelady, and Brown testified that they were also out enjoying the weekend driving a black Lincoln.
{¶ 14} The two driver's side victims suffered gunshot wounds to the head that resulted in permanent injuries. The Lincoln's occupants confirmed that a car pulled up to the driver's side of the Lincoln, and a light-skinned arm extended from the passenger window and fired into the Lincoln. The victims could not identify the vehicle but none of them believed that the shots were fired from the Chevy.
{¶ 15} K. Tolbert testified that he slid down in his seat when the shooting started. He first "saw a car like peel off and then" he saw the Chevy. (Emphasis added.) (Tr. 547.) "[A] car looked like it was a white color with a hard top and then made like a hard right-hand turn." (Tr. 547.) "I remember seeing like a few police lights, the top of the police lights, because I still had the dash[board] right here, so the only thing I could see was the top of the car, I couldn't see the wheels at all." Id. "I remember seeing like the police lights and what not." Id. K. Tolbert saw a single police car and estimated that the distance from the shooting to East 65th Street where the Chevy turned right was about one streetlight.
{¶ 16} Lovelady testified that a car pulled up to the left of the Lincoln and a "brown-skinned, light-skinned hand" was extended out of the window. (Tr. 601.) Lovelady heard one gun shot before he was hit followed by several more.
{¶ 17} From his position in the rear passenger seat of the Lincoln, Brown heard shots come from the left and saw a "light-skinned black" arm extended from the rear...
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