United States v. Sutton ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 21-0598-1 (PLF)
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TERENCE SUTTON, )
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Defendant. )
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MEMORANDUM OPINION AND ORDER
Defendant Terence Sutton has filed a motion for reconsideration of a portion of
this Court’s opinion granting in part and denying in part Mr. Sutton’s third motion to compel
discovery. See Mr. Sutton’s Motion for Reconsideration of the Court’s Order of April 22, 2022,
and Supplemental Brief in Response to Order (“Sutton Mot. for Reconsideration”) [Dkt.
No. 171]. In its April 22, 2022 opinion, the Court reserved ruling on the question whether
certain MPD Internal Affairs Division (“IAD”) pursuit investigations were discoverable under
Rule 16 of the Federal Rules of Criminal Procedure, reasoning that the pursuit investigations
may be “material” to preparing Mr. Sutton’s defense only to the extent that they were reasonably
accessible to him before October 23, 2020, and therefore may have influenced his state of mind
while pursuing Mr. Hylton-Brown. See United States v. Sutton, Criminal No. 21-0598, 2022
WL 1202741, at *11-12 (D.D.C. Apr. 22, 2022). Mr. Sutton now argues that the IAD pursuit
investigations are discoverable for a different reason: because they are relevant to establishing
the applicable standard of care that a “reasonably prudent police officer” must exercise. See
Sutton Mot. for Reconsideration at 2-3.
After careful consideration of the parties’ arguments, the applicable case law, and
the entire record in this case, the Court will grant in part Mr. Sutton’s motion for reconsideration
and order the government to produce all IAD vehicular pursuit investigations from the five years
prior to October 23, 2020, subject to the confidentiality considerations discussed below.1
I. BACKGROUND
On January 25, 2022, Mr. Sutton filed his third motion to compel discovery,
seeking the production of various internal MPD documents and materials. See Sutton 3d Mot.;
Opp. to Sutton 3d Mot. In that motion, Mr. Sutton requested the production of the “[a]nnual
compendium[s]/report[s] of Pursuit Investigations for the past 10 years maintained by MPD
Internal Affairs Division (“IAD”), and all IAD Pursuit Investigations for the recent years for
which a compendium/report is not available.” Sutton 3d Mot. at 2. Mr. Sutton argued that these
documents were discoverable because they illustrate “[h]ow the various elements of fact in this
case are historically viewed by MPD.” Id. at 15. The government opposed the motion, arguing
that the charges against Mr. Sutton do not require an “evaluation of his conduct relative to other
officers through history” and that, in any event, Mr. Sutton “had no knowledge” of the IAD
pursuit investigations. Opp. to Sutton 3d Mot. at 7-8.
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The documents and the exhibits attached thereto that the Court has considered in
connection with the pending motion include: Mr. Sutton’s Motion to Compel Disclosure of
Requested Discovery (“Sutton 3d Mot.”) [Dkt. No. 122]; the Government’s Opposition to
Defendant Sutton’s Motion to Compel Disclosure of Requested Discovery (“Opp. to Sutton 3d
Mot.”) [Dkt. No. 134]; Mr. Sutton’s Reply in Support of Third Motion to Compel Disclosure of
Requested Discovery [Dkt. No. 142]; Mr. Sutton’s Motion for Reconsideration of the Court’s
Order of April 22, 2022, and Supplemental Brief in Response to Order (“Sutton Mot. for
Reconsideration”) [Dkt. No. 171]; the Government’s Supplemental Brief Concerning Defendant
Sutton’s Discovery Request #8 (“Gov’t Supplemental Brief”) [Dkt. No. 172]; the Government’s
Response to Defendant Sutton’s Motion for Reconsideration (“Opp. to Sutton Mot. for
Reconsideration”) [Dkt. No. 180]; and Mr. Sutton’s Reply In Support of His Motion for
Reconsideration of the Court’s Order of April 22, 2022 (“Sutton Reply”) [Dkt. No. 181].
2
In its opinion of April 22, 2022, this Court reserved ruling on Mr. Sutton’s
request. See United States v. Sutton, 2022 WL 1202741, at *12. Looking to the definition of
second degree murder under D.C. law, the Court observed:
Second degree murder “can only be found where the perpetrator of
the act [himself] ‘was subjectively aware that his or her conduct
created an extreme risk of death or serious bodily injury, but
engaged in that conduct nonetheless.’” Jennings v. United States,
993 A.2d 1077, 1080 (D.C. 2010) (quoting Comber v. United
States, 584 A.2d 26, 39 (D.C. 1990) (en banc)). This in turn “may
be shown by a ‘gross deviation from a reasonable standard of care’
or by other acts that may lead the finder of fact to determine that
the ‘defendant was aware of a serious risk of death or serious
bodily harm.’” Id. (quoting Comber v. United States, 584 A.2d
at 39).
United States v. Sutton, 2022 WL 1202741, at *12. Focusing on the subjective component of
this mens rea element, the Court reasoned that “the IAD pursuit investigations may be relevant
only insofar as they were accessible to Mr. Sutton and [therefore] may have informed his
subjective awareness of the risk of death or serious bodily injury to third persons [based on]
other officer pursuits in comparable circumstances.” Id.On May 31, 2022, at the Court’s request, the government and Mr. Sutton
separately filed supplemental briefs in response to the Court’s order. See Sutton Mot. for
Reconsideration; Gov’t Supplemental Brief. The government represented that “annual
compendiums [of IAD pursuit investigations] were not prepared in the ten years prior to the
incident in this case” and therefore there were none to produce. Gov’t Supplemental Brief at 1.
It also asserted that Mr. Sutton had access to just one IAD vehicular pursuit investigation from
2019, which the government agreed to produce. See id. By contrast, Mr. Sutton asked the Court
to reconsider its prior reasoning and hold that the IAD pursuit investigations are discoverable
“regardless of whether they ‘would have been accessible to Mr. Sutton.’” Sutton Mot. for
Reconsideration at 1-2. He argued that the IAD pursuit reports should be produced because they
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“speak to the standard of care of prudent police officers” generally, id. at 2, and they may inform
the jury’s view of whether Mr. Sutton’s conduct was committed with “malice aforethought”
under the District of Columbia second degree murder statute, id. at 5; see Sutton Reply at 1-2.
II. DISCUSSION
Mr. Sutton now argues that the IAD pursuit investigations are “material to
preparing [his] defense” under Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure
because they “reflect upon the objective reasonableness” of Mr. Sutton’s conduct in pursuing
Mr. Hylton-Brown. See Sutton Mot. for Reconsideration at 3, 5.
Under D.C. law, to prove second degree murder, the prosecution must establish
that the defendant acted with “malice aforethought.” One way to prove this is to show that the
defendant acted with a “depraved heart” – that is, that the defendant engaged in conduct that
“involve[s] such a wanton and willful disregard of an unreasonable human risk as to constitute
malice aforethought even if there is not actual intent to kill or injure.” Comber v. United States,
584 A.2d at 38-39; see 2 WHARTON’S CRIMINAL LAW § 21:7 (16th ed. 2021) (“The defendant
does not intend to kill. The actor is indifferent as to whether death results, or the actor may even
hope that it will not result.”). To act with a “depraved heart,” the perpetrator of the act must be
“subjectively aware that his or her conduct create[s] an extreme risk of death or serious bodily
injury, but engage[] in that conduct nonetheless.” Jennings v. United States, 993 A.2d at 1080(quoting Comber v. United States, 584 A.2d at 39).
Whether a particular defendant acted with a “depraved heart” “may be shown by a
‘gross deviation from a reasonable standard of care’ or by other acts that may lead the finder of
fact to determine that the ‘defendant was aware of a serious risk of death or serious bodily
harm.’” Jennings v. United States, 993 A.2d at 1080 (quoting Comber v. United States, 584
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A.2d at 39) (emphasis added); see also United States v. Lucas, 447 F.2d 338, 370 (D.C. Cir.
1971) (per curiam) (“[E]vidence demonstrating that an act was ‘done so recklessly or wantonly
as to manifest depravity of mind and disregard of human life’ satisfies the malice requirement for
second degree murder.”); McClurkin v. United States, 472 A.2d 1348, 1357-58 (D.C. 1984)
(“Implied malice may be inferred from the circumstances of the killing, such as . . . when an act
which imports danger to another is done so recklessly or wantonly as to manifest disregard for
human life.”). Malice “may be established by evidence of conduct which is reckless and wanton,
and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted
in inferring that defendant was aware of a serious risk of death or serious bodily harm.” United
States v. Water, 413 F.3d 812, 817 (8th Cir. 2005) (internal quotation omitted).
Thus, whether conduct was done with a “depraved heart” turns on whether the
defendant was subjectively aware of the risk created by his or her conduct. See Comber v.
United States, 584 A.2d at 39. But whether there was a “gross deviation from a reasonable
standard of care” – a potential predicate of that subjective inquiry – is necessarily objective:
What is the applicable standard of care, and did the defendant grossly deviate from it? See id.The purpose of an IAD pursuit investigation of a particular police officer is to
assess whether that officer violated MPD General Orders setting forth policies that govern when
and how officers may engage in vehicular pursuits. See Opp. to Sutton Mot. for Reconsideration
at 2; see also MPD General Order No. 301.03 § II (Feb. 25, 2003) [Dkt. No. 150] at 20 (“The
policy of the Metropolitan Police Department is that members who initiate a pursuit shall
exercise caution and operate their vehicle in a safe manner while engaged in the vehicular
pursuit.”). Furthermore, the violation of an MPD General Order “is a factor the jury can
consider in determining whether the officer [grossly deviated] from the [reasonable] standard of
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care.” Tillery v. District of Columbia, 227 A.3d 147, 152 n.17 (D.C. 2020) (internal quotation
omitted). Because IAD pursuit investigations construe and apply the MPD General Orders to a
range of pursuits – including circumstances in which IAD investigators ultimately find that an
officer engaged in misconduct that warrants discipline – the IAD pursuit investigations may
illuminate the contours of the reasonable standard of care that applied to Mr. Sutton as he
pursued Mr. Hylton-Brown on October 23, 2020.
The Court is persuaded that the requested IAD pursuit investigations are
“material” to preparing Mr. Sutton’s defense. See FED. R. CRIM. P. 16(a)(1)(E)(i); see also
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005) (“Rule 16 is intended to provide a
criminal defendant ‘the widest possible opportunity to inspect and receive such materials in the
possession of the Government as may aid him in presenting his side of the case.” (quoting United
States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989))). The IAD pursuit investigations
may assist Mr. Sutton in presenting his defense and may assist the jury in determining whether
Mr. Sutton grossly deviated from a reasonable standard of care when he pursued Mr. Hylton-
Brown in his police vehicle. See Jennings v. United States, 993 A.2d at 1080; see also United
States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003) (“Whether malice is present in a given case
must be inferred by the jury from the whole facts and circumstances surrounding the killing.”
(internal quotation omitted)).
The Court therefore will grant Mr. Sutton’s request in part and require the
government to produce all vehicular pursuit investigations maintained by the MPD Internal
Affairs Division that relate to pursuits that occurred between October 23, 2015, and October 23,
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2020.2 Because IAD pursuit investigations are generally “kept confidential,” Gov’t
Supplemental Brief at 3, and often contain the personal identifying information of complainants,
officers, and investigators, the Court will direct the parties to meet and confer to determine the
appropriate confidentiality protocols for the production of these materials.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Mr. Sutton’s Motion for Reconsideration of the Court’s Order of
April 22, 2022, and Supplemental Brief in Response to Order [Dkt. No. 171] is GRANTED IN
PART; it is
FURTHER ORDERED that the government shall produce to Mr. Sutton all
vehicular pursuit investigations maintained by the MPD Internal Affairs Division that relate to
pursuits that occurred between October 23, 2015, and October 23, 2020; it is
FURTHER ORDERED that counsel for Mr. Sutton and the government shall
meet and confer to determine the appropriate confidentiality protocols for the production of the
IAD vehicular pursuit investigations; and it is
FURTHER ORDERED that the government shall file an affidavit or declaration,
signed by an official with personal knowledge of IAD’s investigation procedures of vehicular
2
The government has represented that no annual compendiums or reports relating
to the IAD pursuit investigations were “prepared, issued, or published by IAD,” Gov’t
Supplemental Brief at 2, despite IAD’s express obligation to “[p]repare an annual report relating
the findings of Department vehicular pursuit investigations,” MPD General Order 301.03
§ VI.I.3. The Court therefore will direct the government to file an affidavit or declaration, signed
by an official with personal knowledge of IAD’s investigation procedures of vehicular pursuits,
attesting to the fact – if indeed accurate – that no annual compendiums or reports relating to the
IAD pursuit investigations have been prepared for the last five years and further explaining
whether the types of information sought by Mr. Sutton are available from another source or in
some other form.
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pursuits, attesting to the fact – if indeed accurate – that no annual compendiums or reports
relating to the IAD pursuit investigations have been prepared for the last five years and further
explaining whether the types of information sought by Mr. Sutton are available from another
source or in some other form.
Digitally signed by
SO ORDERED. Paul L. Friedman
Date: 2022.07.20
13:13:46 -04'00'
________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: July 20, 2022
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