IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 88372-1-I
Appellant,
DIVISION ONE
v.
PUBLISHED OPINION
GREGORY WILLIAM TUUFULI,
Respondent.
DÍAZ, J. — The State alleges that Gregory William Tuufuli was among a
group of teenagers who assaulted Troy Harrison. Harrison died several weeks
after the assault, though initially the cause of death was unclear. The State then
located, arrested, and first charged Tuufuli with assault, to which—to the State’s
surprise—he pled guilty at arraignment in juvenile court. The State then charged
him with murder predicated on the assault, after it had received a
neuropathologist’s report concluding that the assault caused Harrison’s death.
The trial court dismissed that charge for violating the right to be free from double
jeopardy, finding that the State was not duly diligent in bringing the second charge.
We reverse the trial court’s decision and remand for further proceedings.
I. BACKGROUND
On August 22, 2024, a group of people attacked Harrison. As the final act No. 88372-1-I/2
in the assault and as captured on video, the State claims that Tuufuli kicked him in
the head and knocked him unconscious. Harrison never regained consciousness
and died at the hospital on September 8.
Tuufuli was arrested on September 26 for murder. As part of a detention
hearing the next day, a detective certified to the court that the medical examiner
was “conducting additional analysis with a neuropathologist and a final
determination of cause and manner of death is anticipated soon.” Still, at the
hearing itself, the State sought a determination of probable cause for murder in the
second degree. In response, Tuufuli’s counsel argued that “it is very unclear what
the cause of death here is” and “the Court needs to have facts that support . . . that
that assault resulted in the death. It has to be the cause of the death.” They added,
“It's very likely this person could have been having a heroin overdose, given the
response of the medics in this case.”
The court declined to find probable cause to hold Tuufuli on a murder
charge “without more information.” But, as the State asked for in the alternative,
the court found probable cause for assault in the second degree. The State
represented that it would be “supplementing, obviously” and charged Tuufuli with
assault in the second degree on October 1.
At his arraignment on that charge the next day, Tuufuli asked the court to
enter a plea of guilty. The State’s counsel asked the court “to pass on this matter
and to return to it” or, alternatively, for a brief pause so they could consult with
others in their office. Tuufuli objected to both requests.
After granting the request for a short recess, the State and Tuufuli engaged
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in the following colloquy:
STATE: I just wanna make sure that it’s very clear . . . that it is
the State’s understanding that if new information
comes to light in the future that provides new evidence
supporting a murder charge, double jeopardy does not
attach as a result of this plea and conviction to assault
in the second degree, and in fact the State would be
permitted to use this plea as evidence in support of the
murder charge. Your counsel may disagree with that
analysis, but have you had a chance to discuss with
your counsel and are you moving . . . forward
understanding that risk?
TUUFULI: Yes.
Tuufuli then pled guilty and the court accepted the plea.
The next day, on October 3, a forensic neuropathologist conducted the
anticipated examination of Harrison’s brain tissue. On October 11, the medical
examiner’s office determined that Harrison's death was a homicide, whose cause
was a cerebral intraparenchymal hemorrhage resulting from the assault.
Specifically, the hemorrhage from which Harrison died was “caused by an acute
hypertensive episode, induced and exacerbated by the stress and adrenaline spike
from an ongoing assault.” It continued, “It was the stress placed on [his] body
during the ongoing and extended assault, and resultant spike in his blood pressure,
that was the primary cause of his fatal hemorrhage.”
The State learned of that determination on October 16. Two days later, the
State charged Tuufuli as an adult with felony murder in the second degree,
predicated on the assault to which he had pled guilty. At his arraignment on this
new charge, Tuufuli pled not guilty and moved to dismiss the charge on double
jeopardy grounds. The court granted Tuufuli’s motion and dismissed the charge.
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It later denied the State’s motion to reconsider, with which the State had included
more fulsome declarations from the medical examiner, among others.
The State timely appeals.
II. ANALYSIS
The double jeopardy clause of the Fifth Amendment provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. CONST. amend V. “The constitutional prohibition of double jeopardy has been
held to consist of three separate guarantees: (1) ‘It protects against a second
prosecution for the same offense after acquittal. [(2) I]t protects against a second
prosecution for the same offense after conviction. [(3)] And it protects against
multiple punishments for the same offense.’” Illinois v. Vitale, 447 U.S. 410, 415,
100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980) (alterations in original) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)).
This case involves only the third type of guarantee. And as the State rightly
acknowledges, “separate convictions for both felony murder based on assault as
well as the assault itself ordinarily violates double jeopardy.” (Citing State v.
Muhammad, 194 Wn.2d 577, 618-19, 451 P.3d 1060 (2019); Vitale, 447 U.S. at
419.) And the State is also correct that there are exceptions to this rule. Id.
Namely, “[a]n exception may exist where the State is unable to proceed on the
more serious charge at the outset because the additional facts necessary to
sustain that charge have not occurred or have not been discovered despite the
exercise of due diligence.” Brown v. Ohio, 432 U.S. 161, 169 n.7, 97 S. Ct. 2221,
53 L. Ed. 2d 187 (1977) (emphasis added) (citing inter alia Diaz v. United States,
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223 U.S. 442, 448-49, 32 S. Ct. 250, 56 L. Ed. 500 (1912) (the “Diaz exception”)).
Our state has adopted this “Diaz exception.” State v. Lazcano, 188 Wn.
App. 338, 358, 354 P.3d 233 (2015). As this court has held, the double jeopardy
clause does not bar further prosecution “if, when jeopardy attached to a lesser
charge, a fact essential to support the greater charge was not in existence or not
discoverable by the State in the exercise of due diligence.” State v. Higley, 78 Wn.
App. 172, 180, 902 P.2d 659 (1995) (emphasis added).
As Tuufuli rightly states, the second prong seems to be less frequently
invoked and, in general, the exception has been described as “narrow.” Lazcano,
188 Wn. App. at 358. Moreover, here, the State has not disputed that, as Tuufuli
asserts, it has the burden to demonstrate the exception applies. (Citing United
States v. Stricklin, 591 F.2d 1112, 1124 n.5 (5th Cir. 1979).)
In related contexts, whether a party exercised “due diligence” is a mixed
question of fact and law. State v. Slanaker, 58 Wn. App. 161, 166 n.3, 791 P.2d
575 (1990) (considering “due diligence” in finding whether newly discovered
evidence justified relief from a final judgment under CrR 7.8(b)(2)).
We review the court’s factual findings for substantial evidence. Lazcano,
188 Wn. App. at 359 (holding that “the determination of what constitutes due
diligence or a thorough investigation, in this context, is generally left to the
discretion of the trial court”); see also State v. Lopez, 190 Wn.2d 104, 116-17, 410
P.3d 1117 (2018) (holding, in cases “involv[ing] mixed questions of law and fact,”
we review a trial court’s factual findings for substantial evidence).
But we review “‘the legal conclusions flowing from such findings and
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testimony’” de novo. Lopez, 190 Wn.2d at 117 (quoting In re Pers. Restraint of
Brett, 142 Wn.2d 868, 873-74, 16 P.3d 601 (2001)). That is, we review the
application of the law to sufficiently established facts—here, whether the facts
support the due diligence exception—de novo. Id.
Importantly, “‘[d]ue diligence is a context-specific concept’ that requires a
movant to ‘exercise a degree of diligence commensurate with that which a
reasonably prudent person would exercise in the conduct of important affairs.’”
United States v. Rivera Rodríguez, 75 F.4th 1, 21 (1st Cir. 2023) (considering
diligence in the context of a motion for reconsideration based on inter alia newly
discovered evidence) (quoting United States v. Maldonado-Rivera, 489 F.3d 60,
69 (1st Cir. 2007)).
We conclude the court, in determining that the Diaz exception did not apply,
made at least one finding of fact that lacked substantial evidence and erred in
applying the law to the remaining facts. 1
As to the former, we hold that there is not substantial evidence for the court’s
finding that the State “unquestionably had knowledge of the facts underlying the
felony murder charge” prior to the first charge. While the State knew that a person
had been assaulted and had died thereafter, there is no evidence in the record
that—prior to the completion of the neuropathologist’s report, which occurred after
the first charge—the State knew that the assault had been the medical cause of
Harrison’s death. It certainly did not know that the medical examiner had
1 We do not address the State’s claim that finding #12 was not supported by
substantial evidence.
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concluded the death was a homicide because the examiner simply had not yet so
concluded. Thus, this finding of fact is not supported by substantial evidence.
Furthermore, we deem several other points made by the trial court and the
parties to be immaterial. First, much is made of certain statements from the State’s
probable cause argument at the first appearance. See Br. of Resp’t at 25 (noting
the State stated that it “will be supplementing, obviously” and that Harrison’s “head
was kicked like it was a soccer ball, and then he died[.]”). However, there is no
authority which binds the State to such representations for purposes of double
jeopardy, which otherwise serves to torpedo the due diligence exception, or which
establishes that the State’s speculative choice of words is itself evidence of its
knowledge of the medical cause of death.
It is also a red herring whether the missing facts are best characterized as
“causative” or necessary to establish culpability beyond a reasonable doubt.
Likewise, any suggestion that the State misrepresented its intentions, or sought to
take a procedural advantage by not requesting a continuance when Tuufuli sought
to plead guilty, is speculative and also not relevant to the legal question at issue.
That is, applying the Diaz exception simply requires that we decide whether or not
(1) the State lacked a “fact essential” to the murder charge at the time it charged
Tuufuli with assault, and (2) it acted diligently in seeking that evidence. Higley, 78
Wn. App. at 180. If Tuufuli wished to bring a prosecutorial misconduct claim, there
is a different avenue for that claim.
On the two relevant questions, we hold the timeline of events in the record
indicates that the State indeed lacked such a fact and did proceed with due
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diligence. To summarize the uncontested pertinent facts:
• The assault was committed on August 22, 2024.
• On September 9, an autopsy was performed.
• On September 10 and 26, the medical examiner informed the State
that the initial autopsy had been inconclusive and a forensic
neuropathologist consultation would be necessary to determine
cause of death.
• On October 1, 2024, the State charged Tuufuli with only assault in
the second degree, to which he pled guilty the next day.
• On October 3, the neuropathologist conducted an examination of
Harrison’s brain tissue and the medical examiner determined on
October 11 that his death was a homicide.
• Within days, law enforcement completed a new certification of
probable cause, and the State charged Tuufuli with murder.
This simple, clear sequence of events demonstrates that the State had not yet
obtained or discovered “a fact essential to support the greater charge”—namely,
the medical cause of his death—until the neuropathologist results were returned.
Higley, 78 Wn. App. at 180. The proposition that the assault merely caused
unconsciousness is simply not the same as an assault that kills someone.
Stated otherwise, in our de novo review, we hold that a “reasonably prudent
person . . . in the conduct of important affairs,” here a prosecutor, would wait for
this information—again whether the assault medically caused the death—before
deciding to charge someone with murder. See Rivera Rodríguez, 75 F.4th at 21.
In response, Tuufuli offers little argument that, as a matter of law, the facts
do not support the due diligence exception. He merely avers that the State (a)
never informed the court or defense of the timeline for the neuropathologist
consultation and (b) never requested to expedite the evaluation. But he does not
establish why either point is material where it is clear that all parties knew the
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forensic results were pending, the results came back within a matter of weeks, and
the State charged him with the greater crime within days of receiving it.
Finally, we disagree with Tuufuli’s final claims that inter alia (i) Vitale
undermines the State’s exercise of due diligence, and (ii) the State advances a
position which is wholly unsupported by federal or Washington precedent.
As to the former, in Vitale, the United States Supreme Court considered
whether the double jeopardy clause prohibited prosecuting the driver of an
automobile involved in a fatal accident for involuntary manslaughter, when he had
previously been convicted for failing to reduce speed to avoid the collision. 447
U.S. at 411. The lower court had “found it unnecessary to reach a constitutional
question because it held that the manslaughter prosecution was barred by . . . the
state compulsory joinder statutes.” Id. at 414 (citation omitted). Then, the state
supreme court had concluded “the manslaughter prosecution was barred by the
Double Jeopardy Clause.” Id. at 414-15.
The primary focus of the United States Supreme Court’s decision revolved
around its “doubts about the relationship under Illinois law between the crimes of
manslaughter and a careless failure to reduce speed to avoid an accident,” i.e.,
whether one was encompassed by the other—a point to which the State here has
stipulated. Id. at 421. In passing, the Court also mentioned the Diaz exception,
and in a brief footnote, it stated the “exception is not applicable here because the
trial court found that the prosecution was aware that Vitale’s accident had resulted
in two deaths at the time he was prosecuted for failing to reduce speed.” Id. at 420
n 8. But this dicta does not pretend to announce a standard for due diligence, let
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alone create a rule as Tuufuli suggests, that basic knowledge of the harm caused
obviates the Diaz exception.
As to the latter, the parties disagree over the import of State v. Escobar, 30
Wn. App. 131, 633 P.2d 100 (1981). There, the defendant was first convicted of
driving while intoxicated and subsequently charged and convicted of negligent
homicide. Id. at 132. This court rejected his claim that the latter charge violated
double jeopardy, based on the Diaz exception. Id. at 135-37. We reasoned that
at the time it filed the initial charges, the State lacked facts establishing that his
driving was the cause of the death, and it was not until it obtained evidence from
an expert, later on, that it had the elements to charge homicide. Id. It noted that,
according to the prosecutor, this necessary evidence was not available at the time
they tried the initial charge. Id. 137.
Tuufuli fails to materially distinguish the case by simply asserting that it
involved “a genuine lack of proof” compared to facts here, where, he claims in a
conclusory fashion “the mechanism of death is captured on video and corroborated
by witnesses.” Again, evidence showing that Tuufuli and his co-defendants struck
and kicked Harrison does not by itself establish that he medically caused
Harrison’s death. Therefore, we find Escobar’s holding as to double jeopardy
persuasive. As there, the State did not yet have evidence—which it obtained later
from the medical examiner—that Tuufuli’s actions killed Harrison at the time it
charged him with assault. See Escobar, 30 Wn. App. at 135-37. 2
2 As we reverse the dismissal order, we do not reach the State’s claim that the
court abused its discretion by denying its reconsideration motion.
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III. CONCLUSION
We reverse the dismissal of the State’s murder charge and remand the case
for further proceedings.
WE CONCUR:
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