Making the case for a new trial
Attorneys: Man’s 2002 kidnapping, armed robbery conviction should be overturned
Attorneys for a man convicted of a 2002 Warren kidnapping and armed robbery say there is overwhelming proof that ruling should be overturned due to confessions 10 years later by two other men along with other new evidence, some of which was not provided by authorities.
Kenyon Clinton, now 40, previously of Detroit, was convicted in February 2005 of kidnapping and robbing a man a gunpoint at the Mobil gas station at Eight Mile and Schoenherr roads around midnight May 14, 2002, following a trial in Macomb County Circuit
Court. He was sentenced to 37 years in prison.
The culprits let the victim go 20 minutes later in a nearby Detroit neighborhood.
Clinton’s attorneys, John Smietanka and Joseph Daly, on Oct. 30 filed a relief frommotion in Macomb Circuit Court, arguing the convictions were based on a faulty identification by the victim and the erroneous — albeit understandable — belief that Clinton must have participated in the incident because he attempted to abduct a woman outside a Target store in Warren 12 hours later with one of the same culprits from the Mobil incident.
The attorneys say the evidence warrants a new trial, at which it is “probable” Clinton would be acquitted.
“All of the newly-discovered evidence has completely contradicted the evidence against Mr. Clinton,” the attorneys say in a 29-page legal brief. “The true perpetrators have been discovered and Mr. Clinton has an alibi.
“Based on the newly discovered evidence, a different result is probable on retrial. We respectfully request that this court set aside his conviction and grant him a new trial.”
The attorneys say committing one crime doesn’t automatically mean he was part of another similar crime 12 hours earlier.
“Clinton ultimately pled guilty to his participation in the (Target) crimes, but to this day he maintains his innocence in the Mobil station incident,” the attorneys say.
Ten years after the incidents, two men — Caprell Hill and Anthony Grice — not only confessed to committing the Mobil crimes but insisted Clinton was not involved. They identified another man — Caprell Ellison, nicknamed “Big Black” — as joining them, according to court documents. (Hill and Ellison share the same first name and are half-brothers, according to documents.)
Hill admitted he was the driver of a Chevy Caprice and ringleader in both incidents, and separately recruited two pairs of friends for each set of crimes, documents say.
In addition, an alibi witness, Ernestine Payton, a female friend of Clinton, swore in 2012 she was with Clinton and having sexual relations with him in a car parked in a park from 11 p.m. May 13 to 1:30 a.m. May 14, during which the crimes took place. She recalled the specific date because it was the day after Mother’s Day, which was May 12.
Those statements in sworn affidavits were secured a decade ago by attorney Randy Rodnick and included in a relief-from judgment motion that was rejected by circuit Judge Mark Switalski, a ruling criticized by Clinton’s new attorneys.
The assistant prosecutor in the case, Steve Kaplan, said he has vague recollection of the case’s details but specifically recalls Clinton hurt his chances by representing himself.
“There’s the old saying that a defendant who represents himself has a fool for a client,” Kaplan said. “A defense lawyer knows how to cross-examine witnesses.”
He said he remembers the case being solid.
“It seemed like a strong case and the jury agreed,” he said. “We didn’t have concerns” about the outcome.
But he said he also knows eyewitnesses can be wrong.
“All of us in the legal system know mistakes can be made in witnessing identifying the wrong person,” he said.
Clinton is currently housed at Muskegon Correctional Facility with a 2040 release date set.
New evidence obtained
On top of those prior developments, attorneys Smietanka and Daly in recent years unearthed several pieces of evidence that were unknown the defense before the trial. The discoveries made in 2018 and 2019 via state Freedom of Information Act requests could constitute a Brady violation under federal common law if it was withheld from the defense. That would automatically trigger a new trial.
According to Clinton’s attorneys, that new evidence that could have been available for the trial includes:
• Two Roseville police reports that potentially point to other suspects who were also involved in similar incidents within a month before the Mobile incident. One occurred outside the Kohl’s store in Roseville on April 22 2002, in which the victim’s car keys were later found in the Caprice; the second occurred outside the Macomb Mall in Roseville on May 8, 2002, in which the victim’s shoe was later found in the Caprice. Ellison was prosecuted for the Macomb Mall incident. The report on the Macomb Mall incident is heavily redacted and could contain relevant information, the attorneys say.
• A Warren police report that says the victim identified the gunman in his abduction as wearing a skull cap and identified Ellison as a possible suspect.
• A fingerprint report by Tracee McIntosh of Michigan State Police shows two other suspects — one of whom was identified as Ellison — were in the vehicle, a Chevy Caprice. Fingerprints also place Clinton in the vehicle, which was also used in the Target incident in which Clinton participated.
• Statements from a witness who undermines the identification by the victim. The witness, Jamahll Boudreaux, was a bouncer at Player’s Club bar on Eight Mile Road, where the victim went to call police after he was dropped off by his assailants. Boudreaux repeated in a sworn statement in 2019 the victim told him the gunman was wearing a mask and had a scar on his right hand. The defense says Clinton does not have a scar on his right hand, and the
mask would have contradicted the victim’s trial testimony he was “100%” certain Clinton was the gunman.
Apart from that evidence, the attorneys argue Clinton should receive a new trial based on trial attorney Mark Haddad’s admission he was unprepared for trial and circuit judge Donald Miller, now deceased, went forward with the trial, resulting in Clinton representing himself and Haddad serving as advisory trial attorney.
Haddad, who had taken over for another attorney who withdrew, shortly before the trial unsuccessfully attempted to have Miller recuse himself from the case. The reason for the recusal request is not provided in online court records.
Haddad, who continues to practice out of Clinton Township, told The Macomb Daily he vaguely recalls the case but not its details.
Clinton’s attorneys also obtained two other pieces of evidence favorable to their client that were not known to police at the time:
• Maurice Frederick bolsters Grice’s confession by relaying a conversation he had with him in which Grice “was describing to Frederick armed robberies he had committed in the past when he described an incident at a Mobil Gas Station in Warren in great detail,” which attorneys say match other accounts. According to Frederick, “Grice did not know Clinton and did not know that anyone was serving time for his crimes,” the attorneys say.
• Eyewitness Kevin Gregory, who was inside the Mobile station when the abduction occurred, “attests that the gunman was wearing a mask,” thereby further demonstrating the victim “would not have been able to make an identification, invalidating the prosecution’s principal piece of evidence,” attorneys assert.
Accepting the case
Smietanka told The Macomb Daily the attorneys would not comment on details of the case outside of the legal documents.
“We are eagerly awaiting our ability to present the case,” he said.
The case is under the jurisdiction of Judge Diane Druzinski, who will determine whether she wants Macomb prosecutors to file a response brief.
Smietanka said his firm, Smietanka Law located in Grandville, near Grand Rapids, accepted the case after Clinton contacted it about a half-dozen years ago. Smietanka’s firm for several years has worked on suspected wrongful-conviction cases similar to those handled by the acclaimed Innocence Project. The firm selected Clinton’s case as one
of a handful it has filed. He said he and his associates have gained four exonerations.
The Conviction Integrity Unit of the state Attorney General’s Office has received an application from Smietanka’s firm to review the case, a spokesman for Attorney General Dana Nessel said.
Smietanka was the U.S. Attorney for the Western District of Michigan from 1982 to 1994, after he was Berrien County Prosecutor for four years. He ran as the Republican nominee for Attorney General in 1994 and 1998.
Crimes and punishment
Clinton, Hill and Charles Crutcher went to the Target store at Dequindre and 11 Mile roads around noon May 14, 2002, where an armed Clinton approached a woman getting her 2-yearold son into a van in the parking lot. The woman yelled for help. People arrived. The suspects fled on foot and were captured by police. Clinton confessed, saying it was Hill’s idea.
Cl inton ult imately pleaded guilty to attempted kidnapping and attempted robbery in the Target incident, although that came after a jury’s guilty verdict at a trial was overturned by the state Court of Appeals. The appeals court opined that Clinton was not sufficiently queried by Judge Miller about serving as his own attorney, according to prior reports.
For the Target incident, Clinton was sentenced by Miller in 2008 to 14-½ to 60 years in prison, 10-½ years for the attempted kidnapping and robbery and four years for two counts of possession of a firearm during the commission of a felony. He had about six years of time served at that point.
Three years earlier, Clinton was convicted for the Mobil incident following a circuit court trial. Clinton was sentenced Feb. 3, 2005, to 35 to 60 years for the kidnapping and armed robbery, and an additional two years for possession of a firearm during the commission of a felony.
Charges against Caprell Hill in the Mobil incident were dismissed as part of a plea deal in which he pleaded guilty to all charges in the Target incident, according to court and prison records. He was sentenced by Miller to 14 to 50 years in prison. He was released from prison at one point but returned to serve one to 30 years following convictions by plea in 2017 to six counts of delivery or manufacture of less than 50 grams of a controlled substance. Now 40, Hill was released last September.
Crutcher pleaded guilty to all charges and, in a sentencing agreement with the judge, was ordered by Miller in July 2004 to 8-½ to 50 years in prison, according to circuit court records.
Identification issues
Within days of his arrest for the Target incident, Clinton was identified by the victim as a suspect in the Mobil incident that took place 12 hours earlier.
But how that occurred also raises que s t ions about the reliability of the identification, Clinton’s attorney contend.
“At the crime scene, (the victim) told Officer Maye that he didn’t believe he could identify the perpetrators if he saw them again,” the attorneys say.
But after Clinton and his two cohorts in the Target incident were arrested, the victim was notified by TV reporter Mike Lewis about their arraignments, documents say. The victim attended the arraignments and told Warren police detective Mark Christian Clinton and Hill they “looked familiar.”
The victim, a man in his 20s, ultimately identified Clinton and Hill as two of the three culprits in his abduction and robbery.
The victim at the 2005 trial said he was “100%” certain of Clinton’s identity, though the victim admitted the gunman was wearing a mask.
However, he testified somewhat differently at a pretrial hearing regarding the victim’s identification of Clinton, known as a Wade hearing. He said at that proceeding Clinton’s face was not covered.
That testimony provided the basis on which Miller ruled the victim’s identification could be allowed at the trial.
Before the trial, Clinton’s prior defense attorney, Thomas Jakuc, complained the victim’s viewing of the Target suspects improperly swayed him to believe they were his assailants. Him seeing those suspects created a bias in his identification, the attorneys contend.
“Judge Donald Miller determined that (the victim) seeing Hill and Clinton at the arraignment was improperly suggestive, but ultimately ruled that his identification of the men was still independent of that incident,” Smietanka and Daly say in the relief-from-judgment brief.
Jakuc withdrew from the case in October 2004, and Haddad was appointed.
So the trial, with Clinton representing himself and Haddad assisting, proceeded and was completed in two days.
Eyewitness testimony’s shaky history
The attorneys also point out that, according to the Innocence Project, 70% of wrongful convictions resulted from misidentification by the complaining witness or another eyewitness.
The victim’s positive identification of Clinton, which is now called into question, was the strongest piece of evidence at his trial, the attorneys note.
“The only piece of evidence remaining against Clinton is the cross-racial identification of a man who contradicted himself many times among the hearings, who interacted with the perpetrators for no more than twenty minutes, who was forced to keep his head down for much of that time, and whose memory of the events was improperly tainted by his seeing Clinton and Hill at an arraignment for a similar crime shortly after,” they wrote.
Fingerprint evidence
The attorneys also addressed the fingerprint evidence that could tie Clinton to the crime. They point out the Caprice was the car used in both crimes, as well as the previous incidents outside Kohl’s and the Macomb Mall.
“It is to be expected that his prints would be present in the vehicle. Therefore, this is merely an extension of the second piece of the prosecution’s evidence,” they say.
Prior attempt to overturn
Attorney Rodnick in January 2013 filed a relief-from judgment motion. Oral arguments were held in April 2013.
Clinton’s attorneys say Judge Switalski’s reasons for his denial of a new trial in September 2013 “can best be described as perplexing.”
The request included sworn statements form Hill and Grice that they committed the crimes along with “Big Black,” believed to be Ellison. Grice admitted he was the gunman. They said Clinton was not there, according to the attorneys. Both statements provide details of the incident that only the culprits could know.
“Mr. Grice’s statement matches Mr. Hill’s statement completely,” the attorneys say.
Switalski wrote in a twopage opinion that the Hill and Grice’s statements “merely provide newly available evidence and therefore not [sic] grounds for relief from judgment.”
The attorneys respond to Switalski’s ruling in the legal brief: “Respectfully, the court’s description of the standard is backwards. The evidence being newly available is a requirement of a Motion for Relief from Judgment under rule 6.500, not a disqualifier. … The affidavits are not ‘merely’ newly available. They are pieces of newly-available evidence which establish Mr. Clinton’s innocence beyond a reasonable doubt.”
Switalski said in his ruling that the defense knew of Hill, since he and Clinton were codefendants, and “could have pursued his testimony.”
But Clinton’s attorney respond in the brief that even so, Clinton’s attorney could not compel him to confess.
“The defense has no control over when a man confesses to serious crimes or when he risks giving up all of his freedom,” they wrote. “The idea that Clinton could have established his innocence simply by putting Hill on the stand and asking him to set aside his 5th amendment rights and confess is an odd proposition.”
Hill explained In his 2012 affidavit: “I never came forward about the gas station robbery because I didn’t want to rat on any one and risk getting myself or any of my family members involved or hurt in any kind of way... The other reason I didn’t come forward was because I was charged with the gas station robbery case, but the case got dismissed as part of my plea deal and I didn’t want my plea deal to be taken away by the prosecutor.”
The attorneys note the defense would not have known about Grice. Hill was the only person known to the defense who knew of Grice’s involvement, they say.
“It would have been impossible to track him down, let alone obtain a confession,” the attorneys wrote.
Prior attorney pleased with new effort
Rodnick said he is “glad” Clinton appears to have a strong case to get a new trial, which he believes Miller should have granted in 2013.
“He should have granted the relief-from-judgment motion based on the fact that two witnesses admitted to the crime,” he said.
He said he cannot recall details of how he garnered the confessions.
Coincidentally, the assistant prosecutor in the case, Kaplan, and Rodnick were law partners in his Warren office about two or three years before Kaplan was elected West Bloomfield Township supervisor in 2016.