In 2015, the 17-year-old
defendant’s live-in girlfriend, Dalona Tillman, died by suffocation after a
severe beating. Defendant told police that the victim returned home from a trip
to the grocery store badly beaten and that he called 911. The cause of death
was determined to be asphyxiation, but the victim also had extensive “fresh”
bodily injuries. Defendant was charged with first-degree premeditated murder
and first-degree felony murder, with the predicate felony being torture, which
was not separately charged. At trial, the jury was instructed on second-degree
murder as a lesser included offense for both charges. After two days of
deliberation, the jury acquitted defendant of first-degree murder and the
lesser offense of second-degree murder. The jury was unable to reach a verdict
on the felony-murder charge and the trial court declared a mistrial. The
prosecutor again charged defendant with felony murder, and defendant pleaded
guilty to second-degree murder. However, after appointment of appellate
counsel, defendant filed a motion to withdraw his plea, vacate his conviction,
and dismiss the charge against him on double jeopardy grounds. The prosecutor
conceded that defendant was entitled to this relief under Yeager v United States, 557 US 110 (2009), but argued that Yeager was wrongly decided. The Court of
Appeals affirmed in an unpublished opinion and the Supreme Court denied leave
to appeal. The U.S. Supreme Court also denied certiorari. The prosecutor then
charged defendant with torture, and defendant again moved to dismiss, arguing
that the charge constituted a violation of double jeopardy and a vindictive
prosecution. The trial court denied defendant’s motion to dismiss. In a split unpublished
opinion, the Court of Appeals majority agreed with defendant that the torture
charge was barred by the issue preclusion aspect of double jeopardy; it found
no prosecutorial vindictiveness, however. The dissent would have affirmed, opining
that, by acquitting defendant of first- and second-degree murder, the first
jury had not necessarily determined that defendant did not commit any acts of
violence against the victim. The Supreme Court has ordered oral argument on the
prosecutor’s application for leave to appeal to address whether the Court of
Appeals erred when it concluded that the jury in the defendant’s first trial,
when it acquitted him of first- and second-degree murder, necessarily decided
an issue of ultimate fact such that the issue-preclusion aspect of the Double
Jeopardy Clause bars prosecution for the crime of torture arising out of the
same criminal incident. The Supreme Court has denied defendant’s application
for leave to appeal as cross-appellant on the issue of prosecutorial
vindictiveness.