UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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)

UNITED STATES OF AMERICA )

)

v. ) Criminal No. 21-0598-1 (PLF)

)

TERENCE SUTTON, )

)

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. 
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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.

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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. 

1 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].
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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. HyltonBrown 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.

SO ORDERED.

________________________

PAUL L. FRIEDMAN

United States District Judge

DATE: July 20, 2022