STATE v. TUUFULI (2026)

PUBLISHED OPINION

¶1 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

¶2 On August 22, 2024, a group of people attacked Harrison. As the final act 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.

¶3 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.”

¶4 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.

¶5 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.

¶6 After granting the request for a short recess, the State and Tuufuli engaged 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.

¶7 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.”

¶8 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. It later denied the State's motion to reconsider, with which the State had included more fulsome declarations from the medical examiner, among others.

¶9 The State timely appeals.

II. ANALYSIS

¶10 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)).

¶11 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 Wash.2d 577, 618-19, 451 P.3d 1060 (2019); Vitale, 447 U.S. at 419, 100 S.Ct. 2260.) 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, 223 U.S. 442, 448-49, 32 S. Ct. 250, 56 L. Ed. 500 (1912) (the “Diaz exception”)).

¶12 Our state has adopted this “Diaz exception.” State v. Lazcano, 188 Wash. 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 Wash. App. 172, 180, 902 P.2d 659 (1995) (emphasis added).

¶13 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 Wash. App. at 358, 354 P.3d 233. 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).)

¶14 In related contexts, whether a party exercised “due diligence” is a mixed question of fact and law. State v. Slanaker, 58 Wash. 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)).

¶15 We review the court's factual findings for substantial evidence. Lazcano, 188 Wash. App. at 359, 354 P.3d 233 (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 Wash.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).

¶16 But we review “ ‘the legal conclusions flowing from such findings and testimony’ ” de novo. Lopez, 190 Wash.2d at 117, 410 P.3d 1117 (quoting In re Pers. Restraint of Brett, 142 Wash.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.

¶17 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)).

¶18 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

¶19 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 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.

¶20 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.

¶21 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 Wash. App. at 180, 902 P.2d 659. If Tuufuli wished to bring a prosecutorial misconduct claim, there is a different avenue for that claim.

¶22 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 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 Wash. App. at 180, 902 P.2d 659. The proposition that the assault merely caused unconsciousness is simply not the same as an assault that kills someone.

¶23 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.

¶24 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 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.

¶25 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.

¶26 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, 100 S.Ct. 2260. 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, 100 S. Ct. 2260 (citation omitted). Then, the state supreme court had concluded “the manslaughter prosecution was barred by the Double Jeopardy Clause.” Id. at 414-15, 100 S. Ct. 2260.

¶27 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, 100 S. Ct. 2260. 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, 100 S. Ct. 2260. But this dicta does not pretend to announce a standard for due diligence, let alone create a rule as Tuufuli suggests, that basic knowledge of the harm caused obviates the Diaz exception.

¶28 As to the latter, the parties disagree over the import of State v. Escobar, 30 Wash. 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, 633 P.2d 100. This court rejected his claim that the latter charge violated double jeopardy, based on the Diaz exception. Id. at 135-37, 633 P.2d 100. 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, 633 P.2d 100.

¶29 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 Wash. App. at 135-37, 633 P.2d 100.²

III. CONCLUSION

¶30 We reverse the dismissal of the State's murder charge and remand the case for further proceedings.

FOOTNOTES

1.   We do not address the State's claim that finding #12 was not supported by substantial evidence.

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.

Díaz, J.

WE CONCUR: Birk, J. Bowman, A.C.J.