Suspect Freed, Man Arrested After Voluntary Testimony

Suspect Freed, Man Arrested After Voluntary Testimony

Washington Post - 11/13/03 - By Ruben Castaneda - Washington Post Staff Writer

For four months, Tyran L. Sutton insisted that he did not throw 23 plastic bags of crack cocaine into some bushes in Forestville on June 21, as alleged by Prince Georges police and prosecutors.

Sutton, 24, of Forestville, turned down a deal offered by prosecutors that would have involved drug counseling and kept him out of jail. He told his defense attorney he knew who owned the drugs, which police said were worth $800 on the street. Sutton brought the man, Etrell McClennon, with whom he was friendly, to his attorney's office.

McClennon-who had not been charged in the case-gave Sutton's defense attorney a statement, which was tape-recorded, in which he admitted the drugs were his. He later gave another statement to a defense investigator, reiterating that the crack belonged to him.

On Nov. 3, just before Sutton was to go on trial on a felony cocaine distribution charge, McClennon-who has no criminal record-testified in Circuit Court that his statements to the defense that the drugs belonged to him were true.

At the request of a prosecutor, Circuit Court Judge William B. Spellbring Jr. dropped the charges against Sutton. Minutes later, at the request of Assistant State's Attorney Joseph Wright, the same county police officer who had arrested Sutton caught up with McClennon outside the Upper Marlboro courthouse and arrested him on the same charges.

McClennon was eventually jailed on a $75,000 bond. Adding to the cases intrigue, on Friday a prosecutor filed a motion seeking to reduce McClennon's bond to personal recognizable. On Monday, a District Court Judge signed the request, and McClennon was released from jail.

It is very rare for prosecutors to file a motion to reduce a defendant's bond. Defense attorneys said such a request could mean that prosecutors are hoping to use the defendant as a witness against someone else; or an acknowledgement that the case against the defendant is weak; or an acknowledgement that the original bond was too high.

The request by prosecutors to reduce an alleged drug dealers bond was just the latest twist in an unusual case.

Defendants often claim someone else committed the crime they are charged with; rarely are they able to produce any evidence to support their claims. At the Upper Marlboro courthouse, McClennon's admission, under oath, that the drugs were his was the courthouse equivalent of a verified Bigfoot sighting.

"I've been around this courthouse since 1971. I've never seen that before, or heard of it-someone coming forward and saying. "Those aren't his drugs, they're mine." Spellbring said in an interview.

By the end of the day, McClennon, 22, of Fort Washington, was jailed and facing charges that carry collective maximum sentences of more than 40 years in prison.

Meanwhile, the police officers who had charged Sutton with tossing the drugs could be called as witnesses for McClennon's defense, should his case go forward. If McClennon is prosecuted, his defense attorneys could call the officers to testify that they believe they saw Sutton, not McClennon, toss the drugs, defense attorneys, prosecutors, and judges said.

State's Attorney Glenn Ivey (D) said he questioned McClennon's motives in coming forward.

"The big question is, what prompted him to come forward?" Ivey said in an interview. "We don't know. This is still an ongoing investigation."

James N. Papirmeister, Sutton's defense attorney and a former Prince Georges prosecutor, responded, "I can categorically and unequivocally say I did nothing to intimidate or induce Mr. McClennon to come forward. That's just speculation based on the fact that it's unusual for someone to come forward to right an impending injustice."

Spellbring said prosecutors did the right thing in dismissing charges against Sutton, given McClennon's statement.

According to a charging document filed by county police Officer Nicholas Cicale, the events that led to McClennon coming forward and being jailed began in Forestville shortly before 6 p.m. June 21.

Police had received numerous reports of people using and selling drugs in the 6500 block of Pennsylvania Avenue, the charging paper said.

Officers chased the men, and Cpl. Gerald Caver saw a man he identified as Sutton throw something into some bushes, the charging paper said. Cicale wrote that he found a plastic bag with 23 small plastic bags, which turned out to contain rocks of crack cocaine, the charging paper said. Sutton was arrested.

Police arrested a second man, Brian L. Toles, and charged him with possession with intent to distribute cocaine, said David M. Simpson, Toles attorney. Toles was with Sutton when Sutton allegedly tossed the drugs, a police charging document alleges.

Sutton had $390 in cash and a cell phone when he was arrested, the charging paper said. Toles was carrying $1,150, according to the charging document for Sutton. There is no indication police encountered McClennon at the scene where the drugs were found.

Papirmeister said Sutton immediately insisted that he was innocent, but knew who owned the drugs. On June 25, Sutton brought McClennon to Papirmeister's office.

Papirmeister told McClennon he wanted the truth. Papirmeister said he warned McClennon that admitting the drugs were his might put him at risk of prosecution.

After thinking about it for a few minutes, McClennon provided a tape-recorded statement admitting the drugs were his. Papirmeister said. On Sept. 2, McClennon admitted his admission in a statement tape-recorded by Sharon Weidenfeld, a private investigator for the defense.

A transcript for McClennon's second statement was provided to the State's Attorney's Office on Oct. 3, Papirmeister said.

When he testified before Spellbring on Nov. 3, McClennon told Papirmeister that his statement to Weidenfeld was the truth.

When Wright, the prosecutor, tried to question McClennon about what occurred the night Sutton and Toles were arrested, McClennon invoked the 5th Amendment and refused to testify.

On Nov. 4, District Court Judge Leo E. Green Jr. raised McClennon's bond from $25,000 to $75,000 but this week, after a prosecution motion, reduced that to personal recognizance, and McClennon was released. The prosecution said in its motion that McClennon was not considered a flight risk, Green said.

Green said he raised the initial bond because McClennon allegedly had the drugs near an elementary school and because police suggested in a charging document that he ran from them outside the courthouse.

Appearing via closed-circuit television. McClennon, wearing an orange jail jumpsuit, told Green he didn't run from police but he was walking to his car when he realized officers were behind him. McClennon said he went to the officers when he realize they were there for him.

Simpson, Toles attorney, said he planned on filing a motion to dismiss charges against Toles, based on McClennon's admission that the drugs were his.