Believable Podcast, Episode 4: The Gun in the Dark Backyard Transcript

Silvon was shot by the police outside his home, and woke up handcuffed to a chair, fighting for his life in more ways than one.

Believable Podcast, Episode 4: The Gun in the Dark Backyard Transcript

Noah: Hey, it’s Noah. Just want to give you a quick warning that this story has some strong language and violence. So as always, use your discretion and thanks for listening.

Silvon: Well, like I say, it was a regular day, so, nobody was expecting what was going to happen to happen was a regular Friday, so, you know, we just enjoy the Friday night. We just got to celebrate it with a few beers and barbecue. Another friend came by, he just got off of work and we was going to grill. So we went to the store and then we came back home.

Come back home, regular. Back in the driveway, regular. And then boom, the nightmare happened. Somebody got a gun pointed at me. All of a sudden I take off, running for my life. I was running to my back door.

One shot hit me inside my head. I’m thinking now I know I just didn’t get shot, and before the thought could happen that I just got shot, two more shots hit me. I ended up diving over a fence, which led to my backyard. Mmm. As I’m laying on the ground, I hear the police. The only conversation I heard between them is I think he, dead, I got him real good.

I’m terrified right now. You know what I’m saying? You see this on the news and it’s really happening right now for real. Like this is, this is the first step of how it happens.  I get dragged. They moved me deeper into the backyard, deeper into the dark. If you could just get the ambulance here, I’m thinking I got the chance to survive.

You could look at pictures of my backyard. It’s just puddles and puddles and puddles of blood. Like I was there forever. Like I got four holes in my body.

The ambulance came and they cut my clothes off and the air hit me and, like, it gave me my second wind. It just seemed like God just blew some more breath into me that he gave me that final breath to make me… to push me through.

I asked the cop that night, why he shot me. He tried to tell me because I shot him.

ARCHIVAL NEWSTAPE: We are learning more details tonight about last night’s shooting involving a Rochester police officer. An eight year veteran of the forest service serves his weapon, when police say the suspect fired at him, I’m a night of April 1st, 2016.

Noah: Silvon Simmons was shot three times by a police officer behind his home in Rochester, New York. The shooting didn’t make national news or inspire marches. There were no videos or eye witnesses to tell the story of what happened in the dark of that backyard. And in the days after the shooting, the Rochester police department took hold of the narrative.

POLICE DEPARTMENT: One of the men runs off, the other individual fired the shot at the officer. We want to confirm as much of this information as we can, but clearly someone who fires a gun at a police officer, the officer is entitled to protect himself.

Noah: Silvon Simmons survived the shooting, but found himself in another struggle for his life.

It was his word against the word of the police.

NEWS ARCHIVAL:  Police found a nine-millimeter semiautomatic handgun next to the suspect.

Silvon: When they shot me, they was the only ones talking. The news ain’t come to interview me to hear what the hell I had to say. I know what happened. I was there. I know the story. When they tell a story, the story don’t add up because that’s not the story.

I’m Noah Rosenberg. And this is Believable from Narratively. It’s a show about how our stories define who we are. Our producer, Ryan Sweikert has this story.

Ryan: Silvon Simmons wakes up in Rochester Strong Memorial hospital in a lot of pain. He has gunshot wounds in his back and leg. He has broken ribs and a collapsed lung, and he’s handcuffed to a chair next to his bed.

Silvon: It was a thousand police in the hospital, like I was never alone and it was a couple of them and a couple of them outside of the room.

All of them walking past is doing weird shit. I’m screwed and facing. I’m just thinking like, okay, when they look into this, they’re going to have to let me go. That’s what I’m thinking. They going to have to let me go. Let me go now. I can’t talk. I got like three different tubes, a feeding tube of vomit tube and an air tube.

Ryan: When he needs to communicate, Silvon has to write, he writes notes to the nurses.

He even writes to one of the officers who’s guarding him. He didn’t know at the time that his notes were being kept as evidence. Did they check me for residue? He writes, he underlines residue. He writes it again. Residue gunpowder. Can you ask, please?

Silvon is slowly weaned off the ventilator. The tube is taken out of his throat and two investigators from the Rochester police department show up to question him.

Silvon: It must be a good cop, bad cop thing. So the little short woman, dead ass serious saying, we got to investigate this to the end. If we find out you’re done. Go for it!

Like the other cop is trying to be friendly, but he’s trying to trick me, he’s trying to put these words in this story in my head. He tried to place me with a gun. He was like, you went and got a gun. Fuck. No, I didn’t though. I asked him, what’s my charges? At the time he said he don’t know, but it was going to be some assault stuff.

I’m like assault for what, man? That’s when shit got real. When he starts trying to tell me that I shot at an officer. I’m like, hell nah, hell nah, hell nah, hell nah, hell nah, hell nah.

Ryan: Halfway through the interview, Silvon says that he wants to talk to a lawyer and he gets a visit from the public defender: Liz Riley.

And I remember going behind the curtain to see him. And he just lit up immediately because I think he recognized that we were there to help him. He had been in RPD custody for days and they wouldn’t let him see the news. He didn’t know what he was being charged with. He didn’t know anything. And while we had the curtain drawn for a bit, there was a police officer who came and just stood in the doorway, staring in through the glass.

And I couldn’t believe he was doing that. So I just stood on the other side of the glass and stared right back at him. I mean, if they’re willing to do that while there’s lawyers in the room, I can’t imagine what was going on while we weren’t there.

Silvon: We had a talk and they assured me that they was going fight.

Ryan: On April 26, Silvon was indicted by a grand jury for attempted aggravated murder, attempted aggravated assault of a police officer, and two counts of second-degree criminal possession of a weapon. When he was well enough to be moved, he was transferred to the Monroe County jail.

Silvon: Well, at first, when I got there, they was, they was super rude. They had me in chains, cuffs, shackles. They read the paper, looked at the stuff and they thought I actually tried to shoot the police.

Ryan: Outside the jail, Silvon’’s father spoke to the news cameras.

Silvon’s Father: We believe that he is totally innocent of these charges. This is way out of his character. So, this is a grieving process for us because it’s him that’s going through it, really not us.

Ryan: On the day Silvon went to jail he was almost 35. He was a father to three kids and he’d been a delivery driver at the same company for over 15 years.

Silvon:  Day in my life. I’ll wake up, get the kids ready for work and get all their snacks together. Go to work. Then I just get in my truck, do my deliveries, and I just meet new people every day and see big, beautiful homes.

My job kept a lot of dreams alive. Like I got to see stuff that people in the hood don’t see every day. I get off of work, come home. And, um, after that shower, I immediately turn on the grill and we  just barbecue. Then on the weekends, we go to amusement parks, bowling alleys. We go wherever it is where it’s fun. I had a lot of hope and a lot of dreams and a lot of ambition.

I still do.

Ryan: Silvon would spend almost 18 months in jail, waiting for the trial. During that time, the forensic report came back. Silvon’s fingerprints and DNA weren’t on the gun found in the backyard. The district attorney made Silvon an offer: plead guilty and do 15 years.

Silvon: So now I’m like, no, I’m not taking it. Hell no, I’m not taking it with all the stuff that’s going on with white cops shooting black males. People don’t get a chance to take it to trial, because they go to the funeral home. I couldn’t just not go there and fight for my life.

Ryan: Silvon’s attorneys started to prepare.

Liz: We knew the mountain that we were getting over just because of the way people are programmed. We’re all educated to respect the police and go to the police when you have a problem. How are we ever going to convince people that the police are the bad actors or the police might not be telling the truth?

Noah: After the break Selvon fights for his freedom.

AD  BREAK.

Silvon: The day the trial started, it was super real. Like it’s like it’s happening now. This is the first step to freedom or life behind bars. That was scary, not knowing was just terrifyingly scary, but I had a lot of hope and a lot of faith.

Ryan: Silvon’s council decided that it wasn’t in his best interest to testify. They worried that his anger about the incident would be misunderstood by the jury. You would have to sit quietly and listen.

Here’s how the prosecution described the events of April 1st. Around 8:10 PM, there was a shots fired call on Immel street, about a block from Silvon’’s house. Officers Joseph Ferrigno, and Sam Giancursio arrived and cleared the scene. They cruised around the neighborhood and their respective squad cars.

They were looking for a suspect from their wanted list who said to be driving a tan or silver Chevy Impala. They passed an Impala that fit the description. Two black males were in the front seats. The car sped up and turned onto Immel street. Ferigno followed it. Giancursio went up the street parallel to Immel, hoping to have the Impala off at the end of the block shortly after turning onto Immel. The Impala stopped and backed into a driveway.

Ferrigno stopped in front of the driveway and jumped out gun drawn.

I want to mention that the Rochester Police Department denied multiple requests for comment. They wouldn’t allow officer Ferigno or officer Giancursio to be interviewed. So you won’t be hearing from them. Their account was taken from court transcripts. Officer Ferigno was brought to the stand to testify, and Silvon had to face the man who had shot him.

Silvon: I could  take everything else into trouble. At that moment, when he got up there, it was just like…he made eye contact with me. Like I was a piece of shit for even taking this to trial.

Ryan: In selection, jurors have been told that they would hear from an officer with a history of allegations of excessive force. Officer Ferigno was the subject of more than 20 citizen reports of misconduct.

This is Katie Higgins. The other public defender assigned to Silvon’s case.

Katie: Officer Ferigno is a pretty large figure. He’s tall. He’s muscular. So this guy takes a stand. And I think that when I really kind of started being more hopeful was watching the jury as Ferigno testified, because here is the person who was a police officer, who is serving the community, who is the victim of an attempted murder.

And instead of the jury watching him testify, they seem to really be avoiding eye contact

Ferigno had been named in several lawsuits. In a 2012 incident, he allegedly hit a handcuffed man repeatedly with his Baton. In 2013, he and his partner pushed a man over in his motorized wheelchair during an arrest. That incident was caught on video.

Archival Video Tape: Oh my God. And they maced him!. He was at the bus stop! He’s kicking him!

Liz: He had a history of not taking well to people, not succumbing to his authority. Somebody challenges his authority and they get roughed up. Something seemed to be bound to happen with him. Ferrigno testified that the Impala slammed on its brakes and reversed into the driveway at seven Emill. He pulled up, blocking the driveway, and shined his spotlight on the car. Inside the Impala, the dome light came on.

They were looking back and forth, Ferigno said, as if they were trying to either reach for something or they were trying to hide something. He testified that the passenger jumped out and ran. Ferigno chased him. The passenger disappeared into the dark behind seven Emill.

That’s when Ferrigno says he heard a shot and saw a muzzle flash, he fired four shots into the darkness. As Ferrigno testified, he was calm and professional.

Liz: I was actually very surprised and disappointed because he came across quite well.

Ryan: But on cross examination, Riley says his demeanor changed.

Liz: I was trying to make a point of the fact that he was white and Silvon was black.

I said and you are sir, for the record, you’re a white man. He, he looked down at his skin and he goes, yeah I guess so!

Liz: And Riley says that a lot of Ferrigno’s answers were combative. He came across a little bit more like a bully, which is what I was trying to convince the jury that he was, you know, a reactive, aggressive person. And I really don’t know why he let himself testify that way.

Ryan: And then it was officer Sam, Giancursio’s turn on the stand. Giancursio said that he arrived at the scene. Joseph Ferigno was running up the driveway that made him the prosecution’s most important witness. In earlier hearings. Giancursio said he’d known Ferrigno now for two years. Ferrigno said he liked to work with Giancursio whenever he could.

But then, at the actual trial, it was the very first question.

Katie: Do you know officer Ferrigno? He said, no.

Ryan: That answer set the tone for how Giancursio would act on the stand.

Liz:  I don’t know if this is correct to say this, but he just had the most ridiculous testimony I think I’ve ever heard in my life.

Ryan: Again and again, Giancursio contradicted his past testimony, and Riley had to read his words back to him from the transcripts of the hearings.

Of all his inconsistencies. There were two moments that are really important. Number one, when Ferrigno followed the Impala to Immel street, Giancursio said he took a side street to head it off. It took him a couple of minutes to get around the block.

Dawn Darrow: It seemed pretty obvious that there there’s no way he could have traveled the distance that he did and arrived at the same time that Ferrigno did.

Dawn Darrow, neighbor across the street said she watched Ferrigno chase Siloan across the backyard, but she didn’t see any other patrol car.

This all suggests that Giancursio wasn’t there at the time of the shooting.

Ryan: And there was another major inconsistency. Giancursio said that Ferrigno never entered the backyard where Silvon was shot.

Dawn: If that were true, it would make it very difficult for Ferrigno to move a gun or plant a gun or whatever argument I might’ve been coming up with.

Ryan: But four officers who arrived later testified that Giancursio and Ferrigno were both in the backyard when they got there.

Dawn: I think that that contrast was really stark. I have to believe it made an impact on the jury. They were just so inconsistent and so incredible and they made it a lot easier than I thought it was going to be.

Ryan: For Silvon, the testimony was hard to listen to.

Silvon: Deep in your heart, you know, you shot me for nothing. Know what I’m saying? And then deepen your partner’s heart knew he wasn’t there and he came and just to help you out, he was going to lie for you and say, whatever the hell it took for me to get buried under a jail cell, somewhere.

Ryan: The testimony of the officers alone was not going to make the state’s case. What they needed was a motive, a story that explained how Silvon started the night at a barbecue and ended up shooting at a cop. Silvon’s neighbor, Dawn Darrow, testified that earlier on the night of April 1st, she heard an argument in front of Silvon’s home on Immel street when she looked out her window.

Silvon was standing in the street with his arms up, yelling at a car as it drove away. A few minutes later, she heard what she thought were fireworks and got up again to look out the window. And that’s when she saw someone she didn’t recognize. They were standing next to a car in the middle of the street, arms outstretched, firing shots at Silvon’s house.

I reached out to Silvon on the phone to ask him about this incident.

Silvon: Yeah. Some people was acting out of line. So I had to ask them to leave. And, um, I guess one of the people felt I disrespected him or… I was in the house at that time. They say that somebody was shooting at my house. I didn’t have no bullet holes in my house. And I will remember hearing nothing. That was part of the storyline to make it convincing that I had a gun.

Ryan: The incident gave the prosecution a motive. Assistant DA Julie Hahn argued that when someone shot at Silvon’s house, he left with a neighbor to get a gun for protection.

Silvon: You went out and got a gun to protect you and your family. No, I did not! Like, those is your words! That’s not what happened.

Ryan: The DA said that when Silvon returned home, he was followed and confronted by Ferrigno. He ran and Hahn said that he shot at Ferrigno to avoid being caught. It’s likely that someone did shoot at Silvon’s house that night. Two witnesses heard shots, one of them saw the shooter, but there was a big problem with the prosecution’s narrative: there was no evidence that Silvon ever held the gun.

Dawn: They weren’t able to put his DNA on the gun. There was nothing in his car or his house that went with a gun.

Ryan: The gun that Silvon was accused of firing, was never found.

And the gun itself was found with no bullets in the magazine and oddly, a shell lodged in the chamber.

Dawn: The way that the gun was found on the ground is completely inconsistent with him having just fired the last round. And the police had gathered another piece of evidence that suggests Silvon didn’t fire the gun: the notes he had written in the hospital.

Dawn: He was bagging them before he was sedated to test him for gunshot residue and they didn’t do it.

Ryan: But there was one really important piece of evidence that backed up the prosecution’s narrative, an audio recording. The Rochester police department uses “ShotSpotter,” a third party service that alerts the department when shots are fired.

Basically, there’s a system of sensors all around the city that are constantly listening for loud, sound pulses. The system then classifies those sounds. If it thinks they’re gunshots, the police are notified. And on the night in question ShotSpotter did record some impulses near Immel street.

This is the recording ShotSpotter provided to the Rochester police department. And when I first heard the audio, it sounded like proof of the prosecution’s narrative. One shot that’s supposed to be Silvon’s, followed by four shots of return fire from Ferrigno.

But the story of how this piece of audio came to be evidence is more complicated. On the night of the shooting, ShotSpotter only recorded three impulses at first, and they classified those impulses as helicopter blades, not shots. ShotSpotter only learned of the shooting later when they were called by the Rochester police department.

Katie: RPD contacted ShotSpotter and said we had an officer involved shooting. There were probably four, if not five gunshots in this area. And ShotSpotter immediately responded with, we will reclassify it as gunfire and change it from three impulses to four.

Ryan: Later, when it was learned that five shots were fired, RPD asked ShotSpotter to look again. And that’s when they found a fifth shot.

Katie: The fact that it was reclassified, just because RPD said, hey, this is what happened, to me, seemed incredibly biased and just not how objective evidence should work.

Ryan: Following the police narrative, ShotSpotter provided a piece of evidence that became crucial in the case against Silvon

As the jury deliberated, it became clear. They were mostly interested in the ShotSpotter recording.

Liz: They asked for very little testimony, their notes were can we have headphones? Can you use bigger speakers? Can we hear it again? So they kept listening to it over and over and over and over and over again.

Silvon: I was up in the little cement cell and, um, he was just walking back and forth, walking back and forth, nervous as hell. And I was trying to prepare myself, but I couldn’t. I used to wake up in the morning. And when I washed my face, I looked in the mirror. I just, nah, this ain’t my life. There’s this saying that I’m not, I’m not about to be doing this for the rest of my life.

I’m not, I’m not about to be in prison for the rest of my life.

Liz: For summations, there was standing room only, and then we take this verdict. And there was maybe six people in the audience.

Silvon: They came up with the verdict that… man, this was the moment right here in my heart, just like my whole attitude changed.

And then when they said that my lawyer’s done. They put their hand on my shoulder and they said just like, listen, just keep your chin up. As they’re coming out, I’m looking at jurors. And, um, few of them gave me like some fast looks like they looked at me when we made eye contact. They just looked at the ground as they went.

I’m just thinking like, man, some of them didn’t look at me at all. They just seemed like they all came out, looking at the ground.

Katie: When you hear a verdict, there’s just this immense tension in the room. It’s like, everyone has this huge collective breath that’s everyone’s holding. The first count was the most serious one, which was the attempted aggravated murder of a police officer.

Silvon: Count one, attempted aggravated murder. We find the defendant, not guilty. Holy shit. Like I feel like crying right now. Like the tears just started coming. Cause that’s the 25 to 40 minimum.

Katie: I remember hearing his mother just breathe out and the next count attempted aggravated assault.

Silvon: Find the defendant: not guilty. There’s just like, man, I couldn’t breathe at this moment.

Ryan: On the third count, criminal possession of a weapon with intent to use unlawfully, Silvon was found not guilty.

Silvon: The last one, it was like on count four, we find the defendant guilty.

Ryan: Silvon was convicted of criminal possession of a weapon.

Silvon: We assumed if I beat the first gun charge, then that means I had no gun!

Liz: He was acquitted of possession with intent to use it unlawfully and he was convicted of possession of a gun. So I think that the only conclusion you can take from that is that based on the ShotSpotter evidence, they must have believed that Silvon had a gun and threw it and it fired or something to that extent. But if they believed that Silvon fired a gun in this cop’s direction, they would have at a minimum convicted him of possession with the intent to use it unlawfully.

Silvon: That’s three and a half to 15 years. I didn’t know what was going to happen, but I’m just like, man, I still got to do some time.

Ryan: A few weeks later Silvon and his lawyers were in court again for the sentencing.

Silvon: Before I got there, I done gave my hugs and kisses and my goodbyes away and then I came downtown to get sentenced.

Katie: It was just completely packed with officers in uniform and then Silvon sitting there by himself with his parents. In fact, there was a whole row of officers standing behind the seated officers. So it really was a completely packed courtroom. I think they were there, um, to send a message to the judge and to just be intimidating and show their force.

Ryan: Liz Riley had submitted a motion to set aside the verdict. She made the case that the ShotSpotter evidence shouldn’t have been admitted.

Liz: This evidence and the way it was being used needed to be scrutinized. ShotSpotter is a tool, it’s not supposed to be used as evidence in and of itself. Judge Ciaccio said that if the jury had believed, Curzio his account of events, they would have convicted Silvon of attempted murder.

The jury discredited the testimony of the officers. They relied on the ShotSpotter evidence to convict Silvon of the weapons charge. And the judge agreed that that evidence and the way it was gathered was questionable. To the shock of the courtroom. The judge dismissed the indictment.

Archival Courtroom tape: Quiet courtroom!

Liz: Instead of being sentenced, Silvon was going to go free.

Liz: He granted the motion and I think it took everybody by surprise. Ferrigno’s father, I was just kind of looking at him. That’s when he said something to me. How do you sleep at night? Yeah, some females yelled. You do devil’s work. And, and then that’s when police were trying to intimidate Silvon by yelling things at him and.

Silvon: Ferrigno, the one who shot me talking about how should be lucky and come harder next time.

Liz: He was leaning over and pointing at him and saying, you’re lucky, you’re lucky. And he just kept saying, you’re lucky.

Katie: Ferrigno’s a reactive person. And the fact that he and his family were that reactive in a packed courtroom in front of their chief while the media is filming it, I guess it makes you wonder what happens in a dark backyard.

Silvon walked out of the courthouse, a free man, and on the surface, it was a huge and unlikely victory. And maybe, a small indication of shifting attitudes.

Liz: That a jury was willing to scrutinize and ultimately reject the testimony of police officers. I think it’s good. I think that the public wants accountability.

Ryan: But in the end, no one was held accountable. The police department never reprimanded Ferrigno or Giancursio. They were named RPD officers of the month for April 2016. The month of the shooting, they were given awards for distinguished service at the end of the year.

Silvon was free to return to his life, but the life he returned to wasn’t the one he left.

Silvon: When I was packing my stuff to leave my feelings was, what am I going to do now? It ain’t that I got out and could start my life. When I got out, I just wanted to be normal. Like my life wasn’t normal, everybody was paranoid.

Everybody try and give me advice. They don’t want me to go here. They don’t want me to go here. Everybody around me was scared that the police was going to come back and kill me anyway. I just want to be regular, normal. That’s it!

Ryan: What are some of like the long term physical effects and mental health and that kind of thing?

Silvon: Pause it right quick.

Ryan: Silvon asked me to turn off the recorder. Off tape, he levels with me. Talking about the mental health impact of the shooting is hard for him. It’s affected how he sees the world and how he lives his life. He lives with constant reminders. He points to a spot on his chest just below his shoulder and tells me to feel it.

There’s an object there under his skin. We turn the microphone back on.

Silvon: Okay. So, you know, um, I, my leg is like, messed up. I got a bullet stuck in my pelvis. I got nerve damage from the back of my back to the sole of, my feet. I got a bullet in my chest, as you just felt. I think about the episode a lot. I dream about it sometimes. As far as talking to somebody I’m just, I’m just not ready to sit down and talk to shrinks. Like I probably do need to talk to somebody and I’m trying to get past it. You know what I’m saying? I’m focused on work, focus on trying to get my life together. It’s just a lot of things I need to do to get back where I was already at.

I went through something and it’s fucked up what I went through. You know what I’m saying? It’s real fucked up. Don’t, don’t get me wrong. You know what I’m saying? But like I say, I’m going, nobody feels sorry for me. I’m here talking to you right now. So like I’m on track.

Ryan: Do you think about what might’ve happened? If you hadn’t survived?

Silvon: I wouldn’t have been alive to speak. I wouldn’t have been alive to fight. It wouldn’t have been no story to tell. You only would have heard the police story.

One of my cousins once told me and like, and this is one of the most important things that I ever heard somebody saying, I’m never gonna forget this. It’s like everything that you go through ain’t for you to learn the lesson, sometimes it’s for the people that surround you, who watching you cause people watch it is for them to learn something.

Noah: Silvon filed a civil suit against the city of Rochester in August 2018, the suit, which is still pending claims. The police use excessive force against him and fabricated evidence. Silvon still lives in Rochester with his three sons. The story was produced by Ryan Sweikert, with help from Emily Rostek, and me, Noah Rosenberg. Ryan did the mix and sound design, fact-checking by Traci Stocker. Brendan Spiegel is our story consultant. Our episode art is by Zoe van Dijk and art direction by Vinny Neuberg. Additional support from Ula Kulpa, Russell Gragg and Veronica Volk. Special. Thanks to Ted Forsyth, Donna Jackel and the Made In New York Media Center.

You can read Donna Jackel’s original reporting on the Silvon Simmons case called “He Was Shot In The Back By a Cop, Then Spent 18 Months in Jail” on Narratively.com. We’re taking a break next week. So this is a great opportunity to tell all your friends about Believable and let them catch up.