United States v. Sutton
| Decision Date | 23 October 2022 |
| Docket Number | Criminal 21-0598 (PLF) |
| Parties | UNITED STATES OF AMERICA v. TERENCE SUTTON and ANDREW ZABAVSKY, Defendants. |
| Court | U.S. District Court — District of Columbia |
Pending before the Court are five pretrial motions in limine seeking the exclusion and admission of testimony and evidence at trial.[1] The motions relate to the admissibility of Metropolitan Police Department (“MPD”) General Orders and MPD reports, body worn camera videos, character evidence, hearsay objections, and testimony and argument related to other disputed legal and policy issues. The Court heard oral argument on certain issues raised in the motions in limine on September 29, 2022.[2]
As previously described, see United States v. Sutton, Crim. No. 21-0598, 2022 WL 4653216, at *1-2 (D.D.C. Sept. 30 2022), a grand jury returned an indictment charging defendants Terence Sutton and Andrew Zabavsky, both officers of the Metropolitan Police Department of the District of Columbia, with conspiracy to obstruct justice, in violation of 18 U.S.C. § 371, and obstruction ofjustice, in violation of 18 U.S.C. § 1512(b)(3), 2. See Indictment [Dkt. No. 1]. Mr. Sutton is also charged with second degree murder in violation of D.C. Code § 22-2013. Id.
The indictment alleges that on October 23, 2020, Mr. Sutton caused the death of Karon Hylton-Brown by recklessly pursuing Mr. Hylton-Brown in a police vehicle for several blocks and at high speeds. See Indictment ¶¶ 1-2 10-12, 20-27. Mr. Hylton-Brown, who was riding a rental moped, was mortally wounded when he was hit by oncoming traffic as he exited an alleyway, suffering severe head trauma. See Id. ¶¶ 13, 18, 28. The indictment asserts that Mr. Sutton pursued Mr. Hylton-Brown for a traffic violation - “driving a moped, without a helmet, on the sidewalk,” Id. ¶ 10 - in violation of the MPD vehicular pursuit policy, which “prohibit[s] officers from pursuing a vehicle for the purpose of [e]ffecting a stop for a traffic violation,” Id. ¶ 8 (internal quotation omitted). It further alleges that between October 23 and October 24, 2020, in order to prevent an internal investigation and referral to federal authorities for a criminal civil rights investigation, Mr. Sutton and Mr. Zabavsky conspired to conceal from MPD officials the circumstances of the pursuit and collision. Id. at ¶¶ 3, 31, 33-48.
On September 7, 2022, the parties filed motions in limine addressing the exclusion or admission of evidence and testimony at trial. On September 29, 2022, the parties appeared for oral argument regarding three categories of evidence raised in the motions, including (1) the admissibility of MPD General Orders and changes to MPD General Orders; (2) Mr. Hylton-Brown's character, criminal history, and alleged associations with the Kennedy Street Crew and the Kennedy Drug Corridor, as well as community responses to Mr. HyltonBrown's death; and (3) body worn cameras and evidence implying impropriety from the deactivation of body worn cameras. See Order [Dkt. No. 286] at 2-3; see also Transcript of InPerson Motions Hearing, September 29, 2022 (“Oral Arg. Tr.”).
At oral argument, on the second of the three issues discussed above, the Court recognized that the parties were proffering vastly different characterizations of the evidence at issue. The Court therefore decided to hold an evidentiary hearing on limited issues relating to the motions before the start of trial. See Oral Arg. Tr. at 58:22-24 (); Id. at 61:5-6 (“[T]his prejudicial evidence is not coming in unless there is an adequate foundation for it.”). On October 13, 2022, the Court issued a memorandum opinion and order summarizing the underlying issues and disputes between the parties and setting forth the parameters for the evidentiary hearing. See Memorandum Opinion and Order [Dkt. No. 304]. The evidentiary hearing was held on October 14 and 17, 2022. At the close of the evidence, the Court heard additional argument on the portions of the parties' motions that relate to the evidentiary hearing - namely, the admissibility of evidence regarding Mr. Hylton-Brown's character, criminal history, and alleged associations with the Kennedy Street Crew and the Kennedy Drug Corridor.
The Court has carefully considered the parties' filings, the oral arguments presented by counsel, and the applicable authorities, and addresses the remaining issues raised in the motions in limine in this opinion.
Courts evaluate the admissibility of evidence on a pretrial motion in limine according to the framework established by Rules 401 and 402 of the Federal Rules of Evidence. See Daniels v. District of Columbia, 15 F.Supp.3d 62, 66-67 (D.D.C. 2014); see also Democracy Partners, LLC v. Project Veritas Action Fund, Civ. No. 17-1047, 2022 WL 3334689, at *3 (D.D.C. Aug. 12, 2022). First, “the Court must assess whether the evidence is relevant.” Id. at 66. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID. 401. “RELEVANT EVIDENCE IS ADMISSIBLE” UNLESS AN APPLICABLE AUTHORITY PROVIDES OTHERWISE, WHEREAS “[I]RRELEVANT EVIDENCE IS NOT ADMISSIBLE.” FED. R. EVID. 402. THE PROPONENT OF ADMITTING AN ITEM OF EVIDENCE HAS THE INITIAL BURDEN OF ESTABLISHING RELEVANCE. See Dowling v. United States, 493 U.S. 342, 351 n.3 (1990); United States v. Oseguera Gonzalez, 507 F.Supp.3d 137, 147 (D.D.C. 2020).
Even if the proponent of an item of evidence can demonstrate its relevance, however, a court may still conclude that it is inadmissible if “the United States Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme Court” provide for its exclusion. FED. R. EVID. 402. FURTHER, RULE 403 OF THE FEDERAL RULES OF EVIDENCE PROVIDES THAT A COURT MAY “EXCLUDE RELEVANT EVIDENCE IF ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY A DANGER OF ... UNFAIR PREJUDICE, CONFUSING THE ISSUES, MISLEADING THE JURY, UNDUE DELAY, WASTING TIME, OR NEEDLESSLY PRESENTING CUMULATIVE EVIDENCE.” FED. R. EVID. 403.
Mr. Sutton requests that the Court exclude at trial “the presentment of [MPD] General Order 301.03, which pertains to vehicular pursuits.” Sutton MPD Mot. at 1. He argues that a “violation of the MPD General Order on vehicular pursuits is not relevant in this case because General Orders do not establish a standard or evidence of any sort for criminal or civil cases.” Id. at 2. Instead, Mr. Sutton maintains that “the only standard upon which the jury can evaluate his conduct is that applicable to every law enforcement officer in the United States, Graham v. Connor.” Id. at 7. The government responds that MPD General Order 301.03 “is highly relevant to the charges before the jury - in particular, the defendant's subjective state of mind when he chose to chase Karon Hylton-Brown on a moped for minor traffic infractions.” Gov't MPD Opp. at 1. It further emphasizes that Mr. Sutton “may be prosecuted for his conduct that violates the District's criminal laws of general applicability, regardless of whether he is also alleged to have violated the Constitution.” Id. at 5. While the government asks the Court to admit General Order 301.03, it seeks to exclude at trial “changes to the MPD General Orders[] [that were made] more than a year after the charged offenses,” arguing that evidence about these changes “would not only fail to elucidate the standard of care [Mr. Sutton] owed-and thus not assist the jury in any way with respect to the second degree murder count- but it would risk confusing the jury about the terms of the policy that was in place at the time of the charged conduct.” Gov't Mot. at 11-12.
The Court agrees with the government that MPD General Order 301.03 is admissible and concludes that this evidence is probative of Mr. Sutton's state of mind as it relates to the second degree murder charge. For the reasons explained below, the Court rejects Mr. Sutton's contention that “the only standard upon which the jury can evaluate his conduct” is under the Supreme Court's jurisprudence under the Fourth Amendment. See Sutton MPD Mot. at 7. The Court will nevertheless allow Mr. Sutton to present evidence regarding changes to the MPD General Orders that were made after the dates of the charged offenses.
Mr Sutton's first argument - that “the government has failed to carry a coherent message to the Court as to how an alleged violation of the MPD General Order is even relevant to the mens rea for Murder in the Second Degree” - is inaccurate. Sutton MPD Mot. at 2. The government's theory in this case is that Mr. Sutton's conduct constitutes a violation of the D.C. second degree murder statute because he subjectively knew that his conduct “created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless.” Williams v. United States, 858 A.2d 984, 998 (D.C. 2004) (quoting Comber v. United States, 584 A.2d 26, 39 & n.12 (D.C. 1990) (en banc)) (emphasis added); see also Indictment ¶ 29 (). As the Court has previously explained, see United States v. Sutton, Crim. No. 21-0598, 2022 WL 1202741, at *10 (D.D.C. Apr. 22, 2022), this conduct, if proven at trial, would satisfy the mens rea required for second degree murder under D.C. law if the government demonstrates that...
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