Motion to suppress statements denied in police violence case
Primary tabs
Dressed in a black suit with a bright, red, button-down shirt, Scean Gordon walked into Judge Ellen Yacknin's court for his Huntley Hearing on February 9, 2016, where the judge would eventually deny his motion to suppress statements he made to police before being brutalized and arrested by Rochester Police Department officers Nicholas Thomas and Christopher Kosch. What was of more interest that day was what the officers said, under oath, rather than the denial of Mr. Gordon's motion.
Several supporters—many apart of a new chapter of the Black Panther Party wearing t-shirts with the logo emblazoned on it—stood up. A bailiff called out for people to be seated. Mr. Gordon's supporters ignored the plea of the deputy and didn't sit down until he sat next to his lawyer, Assistant Public Defender Christine Seppeler.
Officers Thomas, in a gray suit, and Kosch, in uniform, stood in the lobby of the Hall of Justice waiting to be called by the Assistant District Attorney Hillary Levitt.
Judge Yacknin wasted no time once the proceeding began, an hour and 18 minutes late, and admonished the gallery. Anyone caught audio or video recording would be arrested, she threatened.
What is a Huntley Hearing?
A Huntley Hearing is a pre-trial hearing, in criminal proceedings, where a judge decides if statements made by a defendant to police can be entered as evidence against the defendant. The hearing turns on whether the statements made to police were voluntary or not and the judge must find beyond a reasonable doubt that the statements were voluntary.
Huntley Hearings in New York State come from People v. Huntley whereby Charles Huntley, in 1960, was convicted and sentenced to prison for first degree robbery. A complete confession of the crime was submitted to the jury where its “voluntariness” was explored with the same jury that heard his criminal case. This exploration of whether or not the confession was or was not voluntary tainted the jury and its ability to give the defendant a fair trial. Huntley appealed his conviction on the grounds that the confession used to convict him was not a voluntary confession. His appeal was granted by the Court of Appeals of New York—New York State's highest court—in 1964 after the Supreme Court of the United States handed down its decision in Jackson v. Denno.
In Jackson v. Denno, the Supreme Court wrote that New York's procedure, in which the “trial judge must make a preliminary determination of the voluntariness of a confession,” did not provide an “an adequate and reliable determination of the voluntariness of the confession,” and did not protect “the petitioner's right not to be convicted through the use of coerced confession,”—a violation of the Due Process Clause of the Fourteenth Amendment.
Thus, Huntley was the case where the Court of Appeals of New York determined the “appropriate procedure for providing the separate hearing mandated by Jackson v. Denno.”
Mr. Gordon's Huntley Hearing
ADA Levitt called officer Thomas to the stand first. After he was sworn in, she asked him some general information: where he worked, his rank, what his responsibilities were, etc. He was dressed in a gray suit and seemed confident in his mannerisms and answers to questions. Levitt then asked him specifics about the day in question: November 9, 2015.
In Levitt's direct examination of Thomas, he said that he and officer Kosch were on duty that day looking for individuals on the warrant board. This is a list of people with outstanding warrants who police have been given the job of finding and then taking them into custody. One person they were looking for, Kylo Appleberry, was staying at 53 Grafton Street, according to their information.
Their cruiser went down Grafton Street sometime around 10:40 am and then did a U-turn. Upon turning around, Thomas testified that he saw individuals leaving the house and one of them looked like the person they were searching for. Thomas did note that the officers had a photo of Kylo Appleberry. The officers came up on the two men and got out of their car. They called out to Daryl Appleberry, the man they thought was Kylo, and told him to stop and identify himself. According to Thomas, he refused to speak, but eventually he heard the last name of Appleberry.
At this point, Thomas said that Mr. Gordon began filming the officers on his phone. Thomas told him it was fine to videotape. At the same time, family members began to surround the officers creating a “hostile environment.”
Thomas testified that since Mr. Gordon was obstructing vehicular traffic, the officers asked him to get out of the road and step back from them and their investigation. He said that Mr. Gordon became “combative and hostile” towards them. Mr. Gordon was “calling us niggers and himself sovereign,” according to Thomas.
Levitt asked what Thomas' response to Mr. Gordon's behavior was. He said that he told Mr. Gordon it was ok to tape but not to stand in the street. Thomas then explained why the term “sovereign” heightened his awareness: “These individuals who claim to be sovereign can be extremely violent to law enforcement.”
Thomas told the court that his “demeanor was calm and I attempted to relocate myself to a safe environment.”
Levitt's last question was if officer Kosch had said anything to provoke Mr. Gordon. He replied, “No,”
APD Seppeler then proceeded with the cross-examination of officer Thomas. She began by asking if he had prepared and signed a number of documents with regards to the arrest of Mr. Gordon. Thomas said yes for all of the documents except for the incident report. She also asked him if he had a chance to review his notes before the hearing. He responded in the affirmative.
Ms. Seppeler asked Thomas if officer Kosch was his partner on November 9. He responded in the affirmative. She also asked if he had any other information that described Kylo Appleberry. Thomas said that “there was no other information aside from the photo we had of Kylo Appleberry.”
Ms. Seppeler then proceeded through events leading up to the officers initial approach of Daryl Appleberry and Scean Gordon. She asked Thomas where people were standing on the initial approach. Thomas responded, “They were standing on the property and sidewalk.”
Thomas, on cross-examination, testified that after the two officers had approached Mr. Appleberry and were with him for about a minute, Mr. Gordon appeared and approached them “yelling and screaming.”
Ms. Seppeler asked Thomas what he did when Mr. Gordon approached. He said, “I asked him to step back due to my safety.” She then asked him if he was dressed then, as he was today, in a suit. He responded in the negative, saying, “I was in full uniform in a marked police vehicle. The car was parked in front of 53 Grafton.”
Ms. Seppeler then asked Thomas to describe Grafton Street. “It's a residential street—the houses are pretty much on top of each other."
ADA Levitt objected. The court overruled her objection. Thomas continued, “It's a typical, city street.”
Thomas testified that he and Kosch got out of the vehicle together when they approached the people in front of 53 Grafton Street. He said that the cruiser's emergency flashers were off.
Ms. Seppeler also questioned Thomas as to what he was carrying with him that day: “I did have a taser that day. I had OC spray, my baton, flash light, and handcuffs.” Ms. Seppeler asked if Kosch had a taser that day. Thomas responded in the negative.
Thomas said that as Mr. Appleberry was placed in the backseat of the cruiser, Mr. Gordon followed them along with Mr. Appleberry's family and friends: “They were surrounding the vehicle and yelling obscenities at us. There were other individuals taping.”
According to Thomas' testimony, Mr. Gordon was obstructing a red car from going down Grafton Street. “I advised him to get out of the street as he was obstructing a red car,” said Thomas.
Ms. Seppeler started to ask Thomas if he observed Mr. Gordon blocking the red car but ADA Levitt objected to the question. The judge allowed the question to be asked and answered, overruling Levitt.
“Were you able to see if the red car was able to pass?” asked Ms. Seppeler.
“Mr. Gordon decided to put his body in the way of the red car,” he responded.
Ms. Seppeler then went back to the point when Mr. Appleberry was being placed in the police cruiser. Thomas testified that Mr. Gordon was at the front of the cruiser and he was at the back. Then Mr. Gordon moved to the rear, passenger side of the car and told Mr. Appleberry not to answer any questions or comply with police orders. He said that Mr. Appleberry was calm at that time and cooperative.
Thomas, feeling that Mr. Gordon was creating an unsafe situation, “advised officer Kosch to escort Mr. Gordon to the other side of the street.” At this point, the red car, mentioned above, was able to pass after Mr. Gordon had been removed from the street.
“I didn't know if Mr. Gordon was trying to get information,” Thomas said. “He was given several warnings to stop obstructing vehicular traffic and get out of the street.”
Ms. Seppeler asked Thomas if, at any point, he placed his hand on his gun. “Yes as I tried to arrest Mr. Gordon,” he said. After Thomas attacked Mr. Gordon and the two went to the ground, that's when Thomas claimed he put his hand on this gun. “I wanted to make sure that my firearm was still there,” he said.
Ms. Seppeler then turned to the point in the timeline when Mr. Appleberry was in the back of Thomas' police cruiser ready to leave the scene. She asked him if Mr. Gordon stood in front of his vehicle. He responded, “After Mr. Appleberry was in my patrol car, I attempted to take him down the street in order to identify him.” He continued, “Mr. Gordon stood in front of my car about five feet in front, facing me, and videotaping me. I had to stop due to Mr. Gordon not getting out of the roadway.”
Ms. Seppeler had nothing further to ask the officer. Judge Yacknin excused Thomas.
Officer Kosch was then called and sworn in. He wore his uniform and his answers seemed short. He look uncomfortable. One observer said that he looked terrified.
ADA Levitt opened again with the particulars of the officer's career with the Rochester Police Department. Kosch works in the Clinton Section and has been a patrol officer for 10 years. After he testified to these questions, Levitt went right into the day in question.
On November 9, Kosch said he was partnered with officer Thomas and that they were working from the Clinton Section warrant board. They drove to 53 Grafton Street and he “observed several males standing outside.” They were looking for Kylo Appleberry. Kosch said that they positively identified Kylo. (To reduce confusion, the man Kosch thought was Kylo Appleberry was actually Daryl Appleberry.)
Kosch said the officers got out of their patrol car and approached Mr. Appleberry. When they asked for his identification card, he refused to provide it. Kosch did say that he heard Mr. Appleberry say his last name and so the two officers went about securing him in the back of their patrol car.
As the two officers were putting Mr. Appleberry into the backseat of the patrol car, other people came outside. Somewhere along the line, Mr. Gordon appeared before Kosch. The officer described him as “hostile and failed to comply with verbal commands to step back.”
Kosch also stated that Mr. Gordon said he was "a sovereign citizen."
Levitt asked a series of questions that Kosch responded to in the negative: Were there any threats made toward Mr. Gordon? “No;” Did any other officers on the scene threaten Mr. Gordon? “No;” Before Mr. Gordon was arrested, was any physical contact applied to Mr. Gordon? “No;” Was he threatened at anytime before he was arrested? “No;” Did he every ask for an attorney? “No.”
Levitt's line of questioning with Kosch was short and to the point. With her questions answered, she had no further questions for the officer.
Ms. Seppeler began her cross-examination by asking Kosch if the reports he filled out, such as the SRR [Subject Resistance Report] report and the property sheet, would have been done on the same day as the arrest of Mr. Gordon. He replied in the negative. “The property sheet would have been completed the day after the incident. The SRR report would have been done on the day of the incident or the next day,” he said.
Ms. Seppeler then asked if he and Thomas were following up on a warrant to arrest Kylo Appleberry. Kosch replied in the negative, “There was no warrant. We were investigating an unrelated incident and wanted to speak to him about it.”
Kosch specified that when they turned the car around, there were three people in front of the house, standing in the driveway and on the sidewalk. Kosch testified that he never personally identified Mr. Appleberry but he did say that he expressed their purpose in wanting to question him.
According to Kosch, when Mr. Appleberry was uncooperative in identifying himself, he “attempted to speak to other people at the scene to identify Mr. Appleberry.” According to the officer, they were “uncooperative.”
Kosch testified that Mr. Gordon appeared—he didn't remember from where—and was within one to two feet of him. He also said that he was engaged with Mr. Gordon for three to five minutes. He couldn't recall if he had his hand on his firearm at anytime during his interaction with Mr. Gordon.
Kosch also testified that after Mr. Gordon was placed in custody, he was “unable to understand him.”
Ms. Seppeler had no further questions for officer Kosch; he was excused.
Judge Yacknin began by restating the charges against Mr. Gordon and the motion before her. He was charged with obstruction of governmental administration, resisting arrest, and disorderly conduct. Ms. Seppeler, on behalf of her client, had entered a motion to suppress all statements made by her client to the police.
The judge then delivered a summary of the facts based on the testimony given by the officers. At approximately 10:47 am on November 9, 2015, officers Thomas and Kosch were on the warrant board detail looking for an individual for questioning. The address the officers had was 53 Grafton Street in the City of Rochester. The officers had a photo of the suspect they were looking for. Upon arrival, the officers saw several people standing in front of the location. When the person they were looking for, whom they thought was Kylo Appleberry, refused to provide identification, people at the scene surrounded the officers. Mr. Gordon was one of the people. He called officer Thomas a nigger and claimed he was a sovereign. Mr. Gordon told officers that he didn't have to listen to police directives.
“Other observations made have no bearing on this hearing,” said the judge.
Judge Yacknin's final conclusions were that Mr. Gordon's pre-arrest statements were made intelligently and not made during or after his arrest. His “motion to suppress statements made to officers Thomas and Kosch is denied.”
The trial date was set for March 21, 2016, 9:30 am. The hearing was adjorned.
Rochester Indymedia has requested the transcript of the hearing. When we get it, we'll add it to this story.
Background on Scean Gordon's case
Mr. Gordon was brutalized and arrested by Rochester Police Department officers Nicholas Thomas and Christopher Kosch after video taping them mis-identifying and arresting his neighbor Daryl Appleberry on November 9, 2015. Mr. Gordon pulled out his cell phone and started recording the scene immediately after police said that his neighbor was under arrest. Officers at the scene were uncooperative with Mr. Gordon's questions as he tried to identify them. He was able to record some of their name plates, badge numbers, and car numbers. He told Mr. Appleberry to remain silent and maintain his rights.
As the cruiser was pulling away to the right with Mr. Appleberry in handcuffs in the back seat, officer Thomas stopped the vehicle—telling his partner officer Kosch “I have to get this guy for something [referring to Mr. Gordon],” according to Mr. Appleberry. Officer Thomas jumped out of the cruiser, told Mr. Gordon he was under arrest, and proceeded to tackle him, threw him into the pavement, used a Taser on him, pepper sprayed and choked him. Mr. Gordon was eventually handcuffed and put into the back seat of a different cruiser and taken away.
Originally, Rochester Indymedia had reported that officer Kosch was the person responsible for the needless brutality exacted upon Mr. Gordon. Upon further investigation, corroborated by the Huntley Hearing, it appears that it was actually officer Thomas who brutalized Mr. Gordon with officer Kosch acting in a supporting role.
Mr. Appleberry was released shortly after Mr. Gordon was removed from the scene. When Mr. Appleberry asked to see the photo of the suspect, the officers remained silent. An unknown officer said, “Oh, you all look alike,” according to Mr. Appleberry.
Outlook for criminal trial
Even though Mr. Gordon's motion was denied, his lawyer said that the hearing went well because the officers stated what happened on the record and under oath. There were contradictions between their testimonies. And if one compares the officers' statements to the videos taken at the scene, strong inconsistencies appear.
Trial date and call for support
Mr. Gordon's trial is set to start on March 21, 2016, 9:30 am, in Judge Yacknin's court. Ms. Seppeler said that the trial would probably run three to five days. Mr. Gordon is asking for all the support people can offer during his trial. Even if you can't attend the whole trial, come for an hour or a day.
Mr. Gordon has three demands:
- Drop the charges!
- An apology from the Rochester Police Department for the wrongful arrest of Mr. Appleberry and the brutality that he suffered.
- Discipline officer Kosch and officer Thomas and the other officers who participated in the racial profiling, false arrest, and brutality.
Enough Is Enough!
Related links: Gordon's motions denied by judge in police violence case | Two Black men, one falsely arrested & the other brutalized by RPD, tell their stories | BYP100/We Charge Genocide activist Jason Ware shares his experiences
