Hoffer v. Police Officer Elyssa Tellone, Shield 730387
- Andrew Krause
- 7:18-cv-01197
- U.S. District Court · Southern District of New York
- 8
In Hoffer v. Police Officer Elyssa Tellone, Judge Krause granted in part Hoffer’s motion for free trial transcripts on one substantial appeal issue.
Richard Hoffer received free access to specified portions of the trial transcript for his appeal; the defendant police officers and the Clerk of Court were affected by the underlying appeal and transcript order.
What happened
In Hoffer v. Police Officer Elyssa Tellone, Richard Hoffer appealed after a jury found for all four defendant police officers on his excessive-force and failure-to-intervene claims. The appeals court directed him to seek free transcripts in the district court.
Hoffer identified four possible appeal issues. The court found that three did not present substantial questions: challenges to the denial of a new trial, an unclear claim that evidence had been excluded, and a challenge to the jury’s evaluation of the evidence.
Judge Andrew E. Krause granted Hoffer’s motion in part. The court found that his challenge to the denial of an adverse-inference instruction about allegedly missing evidence presented a substantial question and ordered specified portions of the trial transcript to be provided free of charge.
The detailed version
- Hoffer v. Police Officer Elyssa Tellone, Shield 730387 · No. 7:18-cv-01197
- Andrew Krause
- Jan. 18, 2023
Background
Richard Hoffer brought claims under 42 U.S.C. § 1983, a federal civil-rights statute, alleging that Police Officers Elyssa Tellone, Trevor Goff, Lamont Brown, and Darcy Drummond violated his Fourth Amendment right against excessive force and failed to intervene to prevent or stop excessive force. Hoffer was represented by counsel at trial. After three days of testimony and almost two days of deliberations, the jury returned a verdict for all defendants on both claims.
After judgment was entered, Hoffer moved for a directed verdict against Officer Goff on the excessive-force claim. Because Hoffer had not made the required motion during trial, the court treated the filing as a motion for a new trial and denied it. Hoffer then appealed and later proceeded without a lawyer. The Second Circuit had already granted or recognized his ability to appeal without paying the filing costs, but instructed him to seek free trial transcripts from the district court by showing financial need and that his appeal presented a substantial, non-frivolous question.
The Four Proposed Appeal Issues
Hoffer identified four proposed grounds for appeal:
- He challenged the denial of his post-judgment motion, which the district court understood as a challenge to the denial of a new trial based on the jury’s verdict being against the weight of the evidence.
- He asserted that the court had prevented him from presenting substantial evidence supporting his excessive-force claim.
- He asserted that the jury had failed to credit clear and convincing evidence supporting that claim.
- He challenged the court’s refusal to give the jury an adverse-inference instruction based on alleged destruction or loss of evidence. An adverse-inference instruction can allow a jury to consider missing or destroyed evidence against the party responsible for it.
Court’s Analysis
The court found that the first three grounds did not justify free transcripts. It explained that the denial of a motion to set aside a verdict as against the weight of the evidence is not subject to appellate review. The court also found Hoffer’s second ground too unclear, noting that the opinion did not identify what evidence he claimed he had been prevented from presenting. The court characterized that ground as a vague assertion of error. The third ground was not materially different from the challenge to the weight of the evidence, so the court likewise found that an appeal on that ground would be frivolous.
The court found a substantial appeal question in the fourth ground. Hoffer’s counsel had requested an adverse-inference instruction during trial, and the court had rejected the request in a definitive ruling. The court determined that the issue had been preserved for appeal. It also found the issue important because of the significance of Taser evidence involving Officer Goff. The opinion states that Officer Goff testified that he used his Taser twice before Hoffer was in custody, but the device’s usage report did not show the first deployment, and there was no video of that first deployment.
Ruling
Judge Andrew E. Krause granted Hoffer’s motion for free trial transcripts in part. The court ordered the Clerk of Court to provide, without charge, the following portions by February 10, 2023: the December 3, 2021 jury-charging conference; the discussion between counsel and the court before testimony began that day; all of Officer Goff’s December 2 testimony, including the discussion about the Taser video at the end of that testimony; and all of Officer Drummond’s December 3 testimony. The court did not order the entire trial transcript.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.