The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
Vv. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON )
and )
ANDREW ZABAVSKY, )
)
Defendants. )
)
ORDER
On October 23, 2022, the Court issued a written opinion setting forth its rulings
on the admissibility of certain evidence subject to five motions in limine submitted by the
parties. See United States v. Sutton, Criminal No. 21-0598, 2022 WL 13940371 (D.D.C.
Oct. 23, 2022). And on October 24, 2022, defendants and counsel for all parties appeared in
open court to hear the Court’s oral ruling on a sixth motion in limine, which was the subject of
an evidentiary hearing held on October 14 and 17, 2022. See Minute Entry (Oct. 24, 2022); see
also Memorandum Opinion and Order [Dkt. No. 304] (summarizing the underlying issues and
setting forth the parameters for the evidentiary hearing). For the reasons stated in the Court’s
October 23, 2022 Opinion and set forth orally on the record on October 24, 2022, it is hereby
ORDERED that Defendant Andrew Zabavksy’s Motion to Suppress Tangible
Evidence, Statements, and Identification Evidence [Dkt. No. 255] is DENIED; it is
FURTHER ORDERED that Government’s Omnibus Motion in Limine [Dkt.
No. 256] is GRANTED IN PART and DENIED IN PART; it is
FURTHER ORDERED that Terence D. Sutton, Jr.’s, Motion in Limine to Permit
Evidence Regarding Decedent’s Criminal Background, the Kennedy Street Crew, and Kennedy
Street Drug Corridor [Dkt. No. 257] is GRANTED IN PART and DENIED IN PART; it is
FURTHER ORDERED that Terence D. Sutton, Jr.’s, Motion in Limine to
Preclude Admission of Body Word Camera Videos and Sound [Dkt. No. 258] is GRANTED IN
PART and DENIED IN PART; it is
FURTHER ORDERED that Terence D. Sutton, Jr.’s, Motion in Limine to
Preclude Admission of 404(b) Evidence Noticed by Government [Dkt. No. 259] is GRANTED;
it is
FURTHER ORDERED that Terence D. Sutton, Jr.’s, Motion in Limine to
Exclude Evidence Regarding the Metropolitan Police Department’s General Order on Vehicular
Pursuits [Dkt. No. 260] is DENIED; it is
FURTHER ORDERED that Ofc. Sutton Motion to Preclude Late Noticed
Rule 404(b) Evidence [Dkt. No. 302] is DENIED AS MOOT; it is
FURTHER ORDERED that Metropolitan Police Department (“MPD”) General
Order 301.03 may be offered into evidence at trial; it is
FURTHER ORDERED that the amended MPD General Orders, including
the 2021 General Order on Vehicle Pursuits (GO-OPS-301.03) and the 2022 General Order on
Use of Force (GO-RAR-901.07), may be offered into evidence at trial; it is
FUTHER ORDERED that MPD Form 163 arrest reports and MPD Form 10
traffic crash reports prepared by defendant Terence Sutton, as well as MPD internal affairs
vehicular pursuit investigations prepared by other officers, may be offered into evidence at trial;
it is
FURTHER ORDERED that Mr. Sutton’s, Mr. Zabavsky’s, and Officer Cory
Novick’s body worn camera (“BWC”) videos may be offered into evidence at trial in full. The
Court will decide at trial whether to admit portions of the BWCs from some or all of the six other
officers listed in Mr. Sutton’s motion; it is
FURTHER ORDERED that the government must identify the statements it wants
to admit in the BWCs and provide specific reasons why the statements do not fall under the
definition of hearsay set forth in Rule 801 of the Federal Rules of Evidence or are admissible as
an exception to the rule against hearsay under Rule 803; it is
FURTHER ORDERED that the government is permitted to make inferences
regarding the deactivation of BWCs at trial; it is
FURTHER ORDERED that evidence concerning an interaction between Karon
Hylton-Brown and Mr. Sutton on the night of April 18-19, 2020 may not be offered into
evidence at trial; it is
FURTHER ORDERED that evidence regarding Mr. Zabavsky’s previous Driving
While Intoxicated training may be offered into evidence at trial; it is
FURTHER ORDERED that the grand jury testimony of MPD Detective Victor
DePeralta may not be offered into evidence as a statement of an opposing party under
Rule 801(d)(2) of the Federal Rules of Evidence; it is
FURTHER ORDERED that the Court will decide at trial whether to admit
Detective DePeralta’s Major Crash Report; it is
FURTHER ORDERED that Mr. Sutton may offer evidence that he was
authorized by Mr. Zabavsky to pursue Mr. Hylton-Brown. Mr. Sutton is not permitted to make a
legal argument that implies that. authorization hy Mr. Zahavsky to pursue Mr. Hylton-Brown is
per se evidence of his innocence; it is
FURTHER ORDERED that defendants are permitted to offer good character
evidence in the form of reputation and opinion testimony. Defendants’ prior good acts in the
form of commendations and awards may also be offered into evidence at trial; it is
FURTHER ORDERED that defendants may not introduce any evidence at trial
related to (1) allegations of selective or unprecedented prosecution; (2) Brady violations by the
government; and (3) potential consequences of prosecution; it is
FURTHER ORDERED that defendants may elicit testimony regarding
community responses to Mr. Hylton-Brown’s death only for the narrow purpose of
impeachment; it is
FURTHER ORDERED that the parties may not introduce evidence or make any
argument that involves a legal determination of a Terry stop, but evidence about Mr. Sutton’s
knowledge and training regarding Terry stops may be offered into evidence at trial; it is
FURTHER ORDERED that evidence about crime rates and criminal activity in
the neighborhood where the events in this case took place may be offered into evidence at trial; it
is
FURTHER ORDERED that evidence related to the Kennedy Street Crew or
KDY, including “the beat book,” law enforcement gang databases, music videos with Mr.
Hylton-Brown, and any allegations of Mr. Hylton-Brown’s connection to or membership in the
Kennedy Street Crew or KDY, may not be offered into evidence at trial; it is
FURTHER ORDERED that any evidence related to Mr. Hylton-Brown’s criminal
arrest record may not be offered into evidence at trial; and it is
FURTHER ORDERED that the Court will decide at trial whether to admit
evidence of Mr. Hylton-Brown’s civil protective order and other legal action pending at the time
of the events at issue in this case after reviewing a proffer from defendants. The Court will also
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decide at trial whether to admit evidence of information discovered about Mr. Hylton-Brown at
the hospital or through his autopsy report.
SO ORDERED.
PAUL L. FRIEDMAN
United States District Judge
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DATE: 44 [>-/2~