Appeal No.

16-CO-136

DISTRICT OF COLUMBIA COURT OF APPEALS

DARREN VAUGHN,

Appellant,

v.

UNITED STATES OF AMERICA,

Appellee.

Appeal from the Superior Court of the District of Columbia

Criminal Division

BRIEF FOR APPELLANT

SAMIA FAM

ALICE WANG

*BENJAMIN MILLER

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200

*Counsel for Oral Argument

 DISCLOSURE STATEMENT

Appellant Darren Vaughn was represented at trial by Public Defender Service (PDS)

attorneys Jacqueline Cadman and Pierce Suen, and is represented on appeal by PDS attorneys

Samia Fam, Alice Wang, and Benjamin Miller. Appellee, the United States, was represented at

trial by Assistant United States Attorneys Michael Truscott and Michelle Bradford and is

represented on appeal by Elizabeth Trosman, Chief of the Appellate Division of the United

States Attorney’s Office for the District of Columbia.

 TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

ISSUE PRESENTED .......................................................................................................................1

STATEMENT OF THE CASE........................................................................................................2

STATEMENT OF FACTS ..............................................................................................................3

ARGUMENT .................................................................................................................................21

I. COLLATERAL ESTOPPEL BARS FURTHER LITIGATION OF

WHETHER MR. VAUGHN ACTED IN SELF-DEFENSE WHEN HE
KILLED MR. SWANN. ....................................................................................................21

A. THE ACQUITTALS ON MURDER, BURGLARY, AND ASSAULT

WITH A DANGEROUS WEAPON INDICATE THAT THE JURY
REJECTED THE GOVERNMENT’S THEORY AND DECIDED
THE CENTRAL ISSUE OF SELF-DEFENSE IN MR. VAUGHN’S
FAVOR ........................................................................................................................25

B. THE TRIAL COURT ERRED IN SPECULATING THAT THE

JURY MIGHT HAVE ACQUITTED MR. VAUGHN OF MURDER
BASED ON A FINDING, CONTRARY TO THE EVIDENCE AND
ARGUMENTS, THAT HE ACTED IN THE HEAT OF PASSION. .........................29

CONCLUSION ..............................................................................................................................33

i
 TABLE OF AUTHORITIES

Page

Cases
*Ashe v. Swenson, 397 U.S. 436 (1970) ........................................................................... 22, 23, 24

Blockburger v. United States, 284 U.S. 299 (1932)...................................................................... 22

Bostick v. United States, 605 A.2d 916 (D.C. 1992) .................................................................... 31

Brown v. Ohio, 432 U.S. 161 (1977) ............................................................................................ 22

*Ferrell v. State, 567 A.2d 937 (Md. 1990) ........................................................................... 30, 32

High v. United States, 972 A.2d 829 (D.C. 2009) ................................................................... 30-31

Jamison v. United States, 373 A.2d 594 (D.C. 1977) ................................................................... 31

McAdoo v. United States, 515 A.2d 412 (D.C. 1986) ................................................................... 26

People v. McMullan, 771 N.W.2d 810 (Mich. Ct. App. 2009) .................................................... 32

State v. Cole, 525 S.E.2d 511 (S.C. 2000 ..................................................................................... 32

State v. Hahn, 37 S.W.3d 344 (Mo. Ct. App. 2001) ..................................................................... 32

Swann v. United States, 648 A.2d 928 (D.C. 1994)...................................................................... 30

*United States v. Felder, 548 A.2d 57 (D.C. 1988).............................................. 22, 23, 24, 25, 29

United States v. Grover, 485 F.2d 1039 (D.C. Cir. 1973) ............................................................ 32

*Yeager v. United States, 557 U.S. 110 (2009) ................................................................ 22, 23, 24

* Authorities chiefly relied upon are denoted with an asterisk.

ii
 ISSUE PRESENTED

Whether, after a murder trial involving a claim of complete self-defense, the government

is collaterally estopped from retrying Darren Vaughn for voluntary manslaughter, where the only

dispute at trial was whether Mr. Vaughn deliberately murdered Tyrell Swann after forcing his

way into the house, or whether he killed Mr. Swann in complete self-defense after Mr. Swann

attacked him outside the house; and where the jury’s acquittals on burglary, first-degree felony

murder, first-degree premeditated murder, second-degree murder, and assault with a dangerous

weapon indicate that the jury rejected the government’s account of the events, and instead

resolved the issue of complete self-defense in Mr. Vaughn’s favor.

1
 STATEMENT OF THE CASE

By indictment filed June 26, 2013, Appellant Darren Vaughn was charged with first-

degree felony murder while armed (D.C. Code §§ 22-2101, -4502); first-degree premeditated

murder while armed (D.C. Code §§ 22-2101, -4502); first-degree burglary while armed (D.C.

Code §§ 22-801(a), 4502); assault with a dangerous weapon (ADW) (D.C. Code § 22-402); and

carrying a dangerous weapon (D.C. Code § 22-4504(a)). (R. 12). On March 24, 2014, a trial

commenced before the Honorable John Ramsey Johnson. On April 9, 2014, the jury returned a

partial verdict, finding Mr. Vaughn not guilty of first-degree premeditated murder while armed,

first-degree burglary while armed, first-degree felony murder while armed, second-degree

murder while armed, and assault with a dangerous weapon. (R. 26). Ultimately, the jury was

unable to reach a verdict on voluntary manslaughter while armed or carrying a dangerous

weapon, and, on April 10, 2014, the court declared a mistrial on both charges. (T. 4/10/14 at 25).

On April 17, 2014, the government indicated an intention to retry Mr. Vaughn for

voluntary manslaughter while armed and carrying a dangerous weapon. (R. 28, 56). On August

26, 2014, Mr. Vaughn filed a Motion to Dismiss Remaining Counts of the Indictment Pursuant to

Double Jeopardy and Collateral Estoppel, (R. 56), to which the government filed a response on

September 12, 2014. (R. 61). On February 4, 2016, the court issued a written order denying Mr.

Vaughn’s motion. (R. 65). On February 12, 2016, Mr. Vaughn filed a notice of appeal. (R. at 66).

2
 STATEMENT OF FACTS

On September 27, 2012, Darren Vaughn fatally stabbed Tyrell Swann a single time in the

chest. The central dispute at trial was whether he did so in self-defense. By all accounts, the two

men were neighbors and close friends who saw each other nearly every day and never argued

about anything of consequence. But, during a social gathering in Mr. Swann’s backyard on

September 27, 2012, Mr. Swann suddenly punched Mr. Vaughn in the face and pushed him

against a window, for no apparent reason. After this incident, which lasted only a few seconds,

Mr. Vaughn walked back to his own house and returned to Mr. Swann’s house a few minutes

later. What happened during the ensuing encounter was hotly disputed at trial, with each side

presenting a completely different account of the events leading up to the fatal stabbing.

The defense contended that, after leaving Mr. Swann’s backyard, Mr. Vaughn went home

to treat his bloody lip with rubbing alcohol and then returned to Mr. Swann’s house to speak with

Nakita Bourn—Mr. Swann’s sister and Mr. Vaughn’s girlfriend—to see if she knew why her

brother had lashed out at him. Believing Mr. Swann would still be in the backyard, Mr. Vaughn

approached Mr. Swann’s house from the front. As he got close, however, the much-bigger Mr.

Swann emerged from the front door, threw a chair at Mr. Vaughn, and placed his hands around

Mr. Vaughn’s throat. Struggling to breathe, and fearing for his life, Mr. Vaughn pulled out the

pocket knife that he always carried for protection and stabbed Mr. Swann a single time in the

chest while they were in the front yard outside Mr. Swann’s house.

The government’s version of the events involved a different weapon, a different location,

and a different intent. The government theorized that, after being punched by Mr. Swann in the

backyard, Mr. Vaughn went home to arm himself with a kitchen knife, and then returned to Mr.

Swann’s house with the intention of killing (or at least assaulting) his friend in retaliation for the

3
earlier punch. According to the government’s witnesses, Mr. Vaughn approached Mr. Swann’s

house wielding a large kitchen knife, threatened Nakita Bourn with the knife, pushed past her

and her mother, and forced his way inside the house, where he charged at Mr. Swann and

deliberately stabbed him a single time in the chest while they were in the front hallway.

Given the evidence and arguments presented at trial, the jury’s only task was to choose

between these two starkly divergent narratives: either Mr. Vaughn stabbed Mr. Swann outside

the house in complete self-defense with a pocket knife that he always carried for protection, or

he stabbed Mr. Swann after threatening Nakita Bourn and forcing his way inside the house with

a kitchen knife that he brought for the specific purpose of killing or at least assaulting his friend

in retaliation for the earlier punch. The jury’s acquittals on first-degree burglary while armed,

first-degree felony murder while armed, first-degree premeditated murder while armed, second-

degree murder while armed, and assault with a dangerous weapon (of Nakita Bourn) indicate that

the jury necessarily rejected the government’s theory that Mr. Vaughn was the first and only

aggressor, and instead resolved the central issue of complete self-defense in Mr. Vaughn’s favor.

Thus, collateral estoppel bars the government from re-litigating that same issue in a second trial

for voluntary manslaughter while armed.

The Uncontested Facts

In 2012, twenty-one-year-old Darren Vaughn lived with his mother, his brother Darrell,

and his sister Briana in a row house at 507 50th Place NE, where he had lived his entire life. (T.

4/3/14 at 350). Around 2005, Evelyn Bourn moved into a row house two doors away, at 503 50th

Place NE, with her daughter Nakita Bourn,1 her son Tyrell Swann, and her two grandchildren.

(T. 3/31/14 at 168-69). Darren Vaughn, Darrell Vaughn, Tyrell Swann, and William Malloy,

1
To avoid confusion, we will refer to Evelyn Bourn and Nakita Bourn by their first names.

4
who lived next door to Mr. Swann at 501 50th Place NE, developed a close friendship that was

like a “brotherhood.” (Id. at 92-93). The four men would see each other almost daily. (T. 3/27/14

at 6-10). Mr. Malloy viewed Darren Vaughn like a “brother,” but Mr. Vaughn and Mr. Swann

were even closer friends. (Id. at 6, 9-10). Mr. Vaughn and Mr. Swann never argued about

anything, besides sports or who could cook better. (Id. at 11, 14; T. 3/31/14 at 93-94). Mr. Swann

was by all accounts bigger, taller, stronger, and more athletic than Mr. Vaughn. (T. 3/27/14 at

64-65; 4/1/14 at 243; 4/3/14 at 369).

On the night of September 27, 2012, the four friends were at Mr. Swann’s house,

drinking vodka in the backyard. (T. 3/27/14 at 17-20). Mr. Vaughn’s brother Darrell left at some

point. Mr. Malloy was watching videos on his phone, using headphones, when suddenly, and for

no apparent reason, Mr. Swann punched Mr. Vaughn in the face and shoved him against the

house, causing the window to break. (Id. at 23-27). Mr. Vaughn did not punch Mr. Swann in

return, and no words were exchanged during the incident, which lasted just a few seconds. (Id. at

25-29). Mr. Malloy quickly separated the two friends, and Mr. Vaughn went back to his house.

(Id. at 28, 60). Mr. Swann had a “look in his eye” as if he was enraged, and Mr. Malloy tried to

calm him down and told him to go inside the house. (Id. at 28, 61). After Mr. Swann went inside,

Mr. Malloy cleaned up the glass from the broken window. (Id. at 30). He then climbed over the

backyard fence and returned to his own house to change his shirt, which had gotten wet with

rain. (Id. at 31). By that point, Mr. Malloy figured “that was it” between Mr. Swann and Mr.

Vaughn, and that it would all “blow over” because they were “like brothers.” (Id. at 63).

Several minutes later, Mr. Vaughn approached Mr. Swann’s house from the front yard.

What happened next—and why—was hotly contested by the parties, but the encounter ended

with Mr. Vaughn stabbing Mr. Swann a single time in the chest, inflicting a six-inch-deep wound

5
that punctured Mr. Swann’s left lung and heart, and resulting in his death. (T. 4/2/14 at 99).

Officer Matthew Fitzgerald went to Mr. Vaughn’s house shortly after the stabbing. (T.

3/24/14 at 112). As he approached the front door, he overheard Mr. Vaughn say to his mother,

“That was my man. I didn’t mean to do it. I’ll turn myself in.” (Id. at 116). When the officer

entered the house, Mr. Vaughn placed his hands in the air and said, “I give up.” (Id. at 115). Mr.

Vaughn was transported to the police station, where he was interrogated by Detective Robert

Arrington. (Id. at 44-45). Detective Arrington testified that Mr. Vaughn kept asking about his

friend and said that things had “escalated” between them. (Id. at 47). At that point, Mr. Vaughn

did not know that Mr. Swann had died; when Detective Arrington told him, Mr. Vaughn

“became extremely emotional.” (Id.). Mr. Vaughn began to cry, saying, “Don’t tell me he’s dead,

he’s not dead,” and that he “wanted to kill himself.” (Id. at 95; T. 4/7/14 at 561). Detective

Arrington observed that Mr. Vaughn had a bruise around his left eye, dried blood on his lip, and

a mark on his neck. (T. 3/24/14 at 98). Additionally, Mr. Vaughn’s shirt was ripped near the

shoulder. (T. 4/1/14 at 342).

The Government’s Account

The government argued at trial that the stabbing was a premeditated murder, deliberately

committed in retaliation for the earlier confrontation in Mr. Swann’s backyard. The government

theorized that, after Mr. Swann punched Mr. Vaughn in the backyard for no apparent reason, Mr.

Vaughn went home angry, armed himself with a large kitchen knife, returned to Mr. Swann’s

house for the purpose of killing or at least assaulting Mr. Swann with the knife, threatened

Nakita Bourn with the knife when she tried to stop him, forced his way inside the house, and

deliberately stabbed Mr. Swann a single time in the heart, killing him in cold blood. To support

that theory, the government relied primarily on the testimony of Evelyn and Nakita Bourn, who

6
testified that Mr. Vaughn came to the front door armed with a knife, forced his way inside the

house, and reached around Evelyn to stab Mr. Swann in the front hallway as the first and only

aggressor. William Malloy and Darrell Vaughn both testified that they saw Mr. Swann and

Darren Vaughn engaged in a “scuffle” in the front yard, but neither saw the actual stabbing or

saw Mr. Vaughn holding a knife.2

Nakita Bourn testified that she met Mr. Vaughn in 2005, and the two began dating at

some point in 2006 and were still dating on September 27, 2012. (T. 4/2/14 at 28-31). That night,

she was in the backyard of her house with her brother, Mr. Vaughn, and Mr. Malloy. (Id. at 32-

33). They were all drinking vodka together. (Id. at 34). After about forty minutes, Nakita went

inside the house to talk to her mother. (Id. at 38).

While upstairs in her mother’s room, she heard what sounded like glass breaking in the

backyard and followed her mother down the stairs to the back door. (Id.). She looked outside and

saw her brother and Mr. Malloy in the yard and Mr. Vaughn climbing over the fence headed in

the direction of his own house. (Id. at 38-39). Her brother did not say anything to her but entered

the house from the backyard and went to the front door. (Id. at 40-41). He then opened the door

and walked onto the front porch, with Nakita directly behind him. (Id. at 41, 72). They both were

outside when Nakita saw Mr. Vaughn walking towards the front of their house. (Id. at 41).

She testified that, although it was dark outside, she could see that Mr. Vaughn had a

“long kitchen knife” in his hands. (Id. at 41-42). In response to seeing Mr. Vaughn coming at

them with a knife, her brother picked up a blue plastic chair from the porch and threw it at Mr.

Vaughn, but Mr. Vaughn continued to approach the house. (Id. at 42). According to Nakita, she

2
No knife was introduced into evidence at trial. The police searched the area for weapons on
the night of the stabbing but did not find anything. (T. 4/2/14 at 22-23). Detective Arrington
testified that, the day after the stabbing, Evelyn Bourn called to say that her daughter had found a
knife stuck in a tree across the street. (T. 3/24/14 at 49-53).

7
“jumped” in between Mr. Vaughn and her brother, and Mr. Vaughn told her to “Get the F out my

way” while raising the knife and pointing it directly at her. (T. 4/2/14 at 42-43). She claimed

that, when she did not move, Mr. Vaughn “pushed” her out of the way and continued after her

brother, who had backed up into the house. (Id. at 44). She “went in after them” and tried to get

Mr. Vaughn out of the house. (Id. at 44-45).

According to Nakita, her brother backed up down the front hallway inside the house, and

her mother was standing in between her brother and Mr. Vaughn. (Id. at 45). As soon as Nakita

entered, she saw Mr. Vaughn reach “around [her] mother and stab[] [her] brother” one time.

(Id.).3 Mr. Vaughn then ran out the front door, and Nakita ran upstairs to get a knife to go after

him. (Id. at 47-48, 76). When she came back downstairs and went outside, she saw Mr. Vaughn

standing across the street. (Id. at 48). Instead of going after him, she went back inside her house

to check on her brother and found him on the kitchen floor. (Id. at 48-50). She saw a lot of blood,

and before police or paramedics arrived, she saw that her brother had stopped breathing. (Id. at

51). Nakita testified that she later wrote Mr. Vaughn letters asking what happened and why, and

he responded that he did not know why it happened, he did not remember why it happened, he

never planned for it to happen, and it was an accident. (Id. at 79-80).

Like Nakita, Evelyn Bourn testified that Mr. Vaughn forced his way into the house and

reached around her to stab her son in the front hallway. Unlike Nakita, however, Evelyn did not

3
That night, Nakita told police that her mother was standing by the door, and not in between
her brother and Mr. Vaughn. (T. 4/2/14 at 68). When police showed Nakita a photograph of Mr.
Vaughn and asked her how many times she saw her brother get stabbed, she answered that she
did not know, and said, “I ain’t even know that he had stabbed him.” (Id. at 53, 166). Officer
Faraz Khan testified that, when she spoke to Nakita on the night of the stabbing, Nakita said that
she was upstairs, “heard that there was a knock and a couple minutes later she came down and
found her brother in the kitchen” lying in a pool of blood. (Id. at 202). Nakita testified at trial that
she did not want to tell Officer Khan what happened because she believed that Officer Khan had
lied to her about whether her brother was still alive. (Id. at 83-85).

8
see her son throw a blue plastic chair from the front porch, but instead saw him use an antique

swivel chair in the front hallway to block Mr. Vaughn’s advance toward him. Nor did Evelyn see

Nakita go out to the front yard or see Mr. Vaughn threaten Nakita with a knife. Evelyn explained

at trial that she and her daughter “didn’t always agree [on what happened] because we probably

wasn’t always right at the spot where each other was at all times[.]” (T. 4/1/14 at 252).

Evelyn Bourn testified that, on September 27, 2012, after getting home from work, she

went upstairs to her bedroom. (T. 3/31/14 at 177). Nakita was with her when they both “heard

like a noise.” (Id.). To Evelyn, it sounded as if something had broken, and she ran down the

stairs with her daughter behind her. (Id. at 177-78). Once downstairs, she saw Mr. Swann enter

the house through the back door and walk directly to the front. (Id. at 179-81). Evelyn followed

her son, all the while asking him what had happened. (Id. at 181-82; 4/1/14 at 235). He did not

answer or say anything, but because she thought he was “acting different than normal” and “saw

a different sort of look in his eyes,” she believed something was wrong. (T. 4/1/14 at 235-37).

When Mr. Swann got to the front door, he immediately opened it, while Evelyn and

Nakita stood behind him. (T. 3/31/14 at 181-82). Looking through the door, Evelyn saw Mr.

Vaughn by the front gate. (Id. at 185). Although she told the grand jury that she saw “something

shiny” in Mr. Vaughn’s hands, Evelyn testified at trial that she could not be sure because it was

raining outside. (Id. at 189-90). Mr. Vaughn then “launched towards the door” and forced his

way inside. (Id. at 185-86). Despite the fact Mr. Swann was “bigger” and “stronger” than Mr.

Vaughn, and that Evelyn and Nakita assisted him in “trying to shut the door,” Mr. Vaughn still

managed to force the door open and push the three of them “back in the hallway.” (Id. at 187).4

After Mr. Vaughn forced his way inside, Mr. Swann picked up an antique wooden swivel

4
Nakita Bourn testified she was never inside trying to keep the door closed. (T. 4/2/14 at 68).

9
chair from the hallway in an effort to keep Mr. Vaughn away. (Id. at 188). Evelyn claimed that

she stood directly between her son and Mr. Vaughn, and that Mr. Vaughn reached around her to

swing at her son. (Id. at 190-191; 4/1/14 at 228, 247). Suddenly, Mr. Vaughn stopped, backed up,

and left the house. (T. 3/31/14 at 193). Evelyn did not realize that her son had been injured until

he lifted his shirt to reveal the stab wound. (Id.; T. 4/1/14 at 228). Immediately, she ran upstairs

to call 911. (T. 3/31/14 at 194). Evelyn testified at trial that she had no idea why her son and Mr.

Vaughn were fighting, as the two were good friends. (T. 4/1/14 at 251).

William Malloy testified that, after breaking up the fight in Mr. Swann’s backyard, he

cleaned up the glass from the broken window and returned to his own house to change his shirt.

He was inside his house for three to five minutes when he heard a “commotion” and a woman’s

voice. (T. 3/27/14 at 32). He looked out his kitchen window and saw Mr. Vaughn and Mr. Swann

having “like a scuffle” in the front yard of the house and Mr. Swann trying to strike Mr. Vaughn

with a chair. (Id. at 55, 57). He did not see Mr. Vaughn threaten Nakita or force his way inside

the house. (Id. at 64). Nor did he ever see Mr. Vaughn with a knife. (Id. at 57). Mr. Malloy raced

outside, but by the time he got to Mr. Swann’s front yard, the two men were no longer there. (Id.

at 35, 57). Mr. Malloy entered the house and saw Mr. Swann lying on the kitchen floor. (Id. at

38). Mr. Swann lifted up his shirt, which revealed a bloody stab wound. (Id. at 38-39).

Mr. Vaughn’s brother, Darrell Vaughn, testified that on September 27, 2012, he had been

hanging out in Mr. Swann’s backyard with his brother, Mr. Swann, and Mr. Malloy, but he left

early to go home to watch television. (T. 3/31/14 at 136). While he was watching TV, he saw his

brother walk inside the house and into the kitchen. (Id.). As far as he could tell, his brother was

acting normally; he was not yelling, screaming, or rushing. (Id. at 136-37). He did not hear the

opening or slamming of doors, drawers, or cabinets. (Id. at 137). His brother was in the kitchen

10
for two to three minutes, but he did not see what his brother was doing there. (Id. at 115). A few

minutes later, he saw his brother walk out the front door, but he did not see anything in his

brother’s hands. (Id. at 115, 138). His brother did not run or rush out of the house. (Id. at 138).

The next thing he remembered was his mother saying there was “some commotion out

front.” (Id. at 115). He went outside and saw his brother and Mr. Swann “scuffling” outside Mr.

Swann’s house, near the front door. (Id. at 118-19, 140). He did not see his brother brandish a

knife or threaten Nakita. (Id. at 142). Nor did he see his brother enter the house. (Id. at 140-41).

Darrell went back inside his own house to get his mother, and then a few minutes later he headed

back to Mr. Swann’s house, where he saw his brother standing by the front gate. (Id. at 124).

They did not exchange words, and Darrell did not see a weapon in his brother’s hands. (T.

3/31/14 at 127). When he got to Mr. Swann’s house, Darrell saw Mr. Swann in the front

doorway. (Id. at 124-25). Mr. Swann told him that Mr. Vaughn had stabbed him, and Darrell

called 911. (Id. at 128). He briefly tried to help Mr. Swann but decided to go outside to look for

the ambulance. (Id. at 131-32). About five minutes later, Nakita came outside to tell him that Mr.

Swann had died. (Id. at 132).

The Defense Account

At trial, Mr. Vaughn testified that, after Tyrell Swann and his family moved into the

house at 503 50th Place, he came to “love” Mr. Swann and his entire family. (T. 4/3/14 at 352).

Mr. Swann was his best friend; he dated Mr. Swann’s sister, Nakita; and Evelyn Bourn was “like

a mom” to him. (Id. at 352-54). Mr. Vaughn would see Mr. Swann almost every day, and they

almost always got along. (Id. at 353-54). On a few occasions, however, Mr. Vaughn saw Mr.

Swann unleash his temper against his loved ones when he had been drinking alcohol, which

revealed “a different side” of his friend. (Id. at 354). Mr. Swann once threw a drink in his sister’s

11
face and hit her; another time he pushed his own mother. (Id. at 354-56). And when Mr. Vaughn

once interrupted a conversation between Mr. Swann and his sister, Mr. Swann lost his temper,

and the two men “exchanged words.” (Id. at 356). Mr. Vaughn also knew that Mr. Swann had

two handguns that he kept inside his house. (Id. at 357-58).

About a year prior to September 27, 2012, Mr. Vaughn was the victim of an attempted

robbery in his neighborhood. (Id. at 358-59). After that happened, Mr. Vaughn began carrying a

small folding knife in his pocket for general protection. (Id. at 358-59). He carried it with him

nearly every day, including on September 27, 2012. (Id. at 359-60).

On September 27, 2012, Mr. Vaughn had two vodka drinks before he went to Mr.

Swann’s house. (Id. at 360). He entered Mr. Swann’s backyard by climbing over the backyard

fence, and there he had a drink with Mr. Swann and Mr. Malloy. (T. 4/3/14 at 361). Though at

the time he did not think much of it, looking back he believed Mr. Swann was “acting a little

strange” towards him because he “really wasn’t talking to” Mr. Vaughn. (Id. at 362).

Otherwise, nothing out of the ordinary occurred until suddenly, and without warning, Mr.

Swann punched Mr. Vaughn in the eye and shoved him into the window of the house. (Id. at

363). Mr. Vaughn managed to push Mr. Swann away, and then he climbed over the back fence

and headed back to his own house. (Id. at 363-64). From being punched and pushed into the

window, Mr. Vaughn did not suffer any serious injuries, but he had a bruise on his eye and a cut

to his lip. (Id. at 364).

When he got home, Mr. Vaughn went to the kitchen to treat his “busted” lip with rubbing

alcohol. (T. 4/3/14 at 364).5 He was feeling a “little upset,” but mostly “confused” about what

had just happened. (Id. at 365). After staying in the kitchen for a few minutes, he decided to talk

5
The government introduced a photograph of Mr. Vaughn’s kitchen taken on the night of the
stabbing, in which a bottle of rubbing alcohol is visible. (T. 4/3/14 at 364-65).

12
to his girlfriend Nakita to see if she knew why her brother had lashed out at him. (Id. at 365).

Because he did not have a phone at the time, he went back to Mr. Swann’s house so that he could

speak with her in person, but this time he approached the house from the front. (Id. at 366-67).

He figured Mr. Swann would still be in the backyard and planned to get Nakita to step outside

into the front yard to talk to him. (Id. at 366-67).

Mr. Vaughn was walking into the front yard, about half-way to the front door, when he

saw Mr. Swann open the door. (Id. at 367). He asked if he could talk to Nakita, but instead of

responding, Mr. Swann picked up a blue plastic chair from the porch and attacked Mr. Vaughn

with it over his head. (T. 4/3/14 at 367-68). Mr. Vaughn tried to push Mr. Swann away, but Mr.

Swann grabbed him by his throat with both of his hands. (Id. at 368-69). Mr. Vaughn testified

that he struggled to get Mr. Swann off of him: “I tried everything. I hit him. Pushed him. Tried to

grab his hand.” (Id. at 368-69). But nothing worked, and Mr. Vaughn felt like he “was going to

die.” (Id. at 369). Not knowing what else to do, and feeling as if he could not breathe, Mr.

Vaughn reached into his pocket for the pocket knife and stabbed Mr. Swann a single time. (Id. at

369-70). He testified that he “just wanted to get [Mr. Swann] off of” him. (Id. at 370).

Mr. Vaughn then left the house and began walking towards 51st Street, where he had

been earlier in the day. (Id. at 370). He did not realize that Mr. Swann was injured until he

noticed blood on the knife and on his pants. (Id. at 370). He then threw the knife because he was

scared he had hurt his friend, and he went back to his house. (Id. at 371). He thought he might

have seriously injured Mr. Swann and wanted to tell his mother what had happened. (Id. at 371).

On his way home, he walked past Mr. Swann’s house but did not stop because he just wanted to

get home. (Id. at 371). When he heard sirens he told his mother that he would turn himself in to

police. (Id. at 372). Though he did not specifically explain that he had acted in self-defense, he

13
told his mother that he “didn’t mean to do it.” (T. 4/3/14 at 381). When Mr. Vaughn learned from

the detective that Mr. Swann had died, he was “devastated” and a “wreck.” (Id. at 373, 403).

To corroborate Mr. Vaughn’s testimony that the stabbing occurred outside the house in

the front yard—and not inside the house in the front hallway as Nakita and Evelyn claimed—the

defense called Sergeant Toyd Green from the D.C. Fire Department, who testified that, when he

responded to the scene of the stabbing, he saw what “appeared to be a trail of blood on the

pathway” in the front yard. (T. 4/2/14 at 189). The defense also presented Ross Martin Gardner,

an expert in bloodstain pattern analysis, who opined that the bloodstain pattern on the frame of

the front door indicated that “Mr. Swann was stabbed outside and walked into the residence.” (T.

4/3/14 at 283-84). In rebuttal, the government called its own expert, Paul Erwin Kish, who

opined that there was no way to conclude whether the bloodstains on the front doorframe came

from a person entering the house or exiting the house. (T. 4/3/14 at 315-19).

Closing Arguments

In closing arguments, the parties presented two completely different theories of how,

where, and why Mr. Vaughn stabbed his best friend on September 27, 2012. The government

argued that Mr. Vaughn, motivated by vengeance, armed himself with a kitchen knife with the

intent to kill Mr. Swann, threatened Nakita with the knife, and forced his way inside the house,

where he killed his friend according to plan; the defense argued that Mr. Vaughn went to Mr.

Swann’s house to talk to Nakita and stabbed Mr. Swann in complete self-defense with the pocket

knife that he regularly carried for protection after Mr. Swann attacked him outside the house.

Each side asked the jury to completely discredit all aspects of the other party’s account, with

neither side pointing to any evidence of mitigating circumstances that would reduce the killing

from murder to manslaughter.

14
 The government told the jury that the stabbing was a retaliatory murder and “not a case of

self-defense.” (4/7/14 at 535). It argued that, after Mr. Vaughn and Mr. Swann “got into a brief

argument” in Mr. Swann’s backyard, which “resulted in Mr. Vaughn getting punched and thrown

up against [the window],” Mr. Vaughn “became angry” and “went and got a knife and decided to

come back and get a little bit of revenge by plunging it into Tyrell Swann’s heart.” (Id. at 517-

18, 524). The prosecutor argued that, although Mr. Vaughn was understandably angry about the

confrontation in the backyard, that anger did not excuse his actions or prevent him from acting

with premeditation and deliberation: “You can’t blame him for being angry, but what you have

to remember are the next series of steps that this man took.” (Id. at 518). “When he got angry and

went and picked that knife up to use [as] his weapon, he had reached the decision that he was

going to kill his friend. Think about the moments that went [by]. . . . It’s not far but he had to go

all the way home. He had to go into his house, into the kitchen, get a weapon, come all the way

back and confront Tyrell . . . at the front of that house.” (Id. at 536-37). Then, “[w]hen he came

back after going and getting a knife that could kill a man . . . [h]e knew who his target was and

he knew who it wasn’t. He had never any intention to harm Nakita but he sure as heck put that

knife up in her face and said ‘Get the F out of my way’ because he wants to get at Tyrell.” (Id. at

521). “He pushed his way past two women. He’s not swinging wildly in self-defense, otherwise

one of these women might have, should have gotten nicked with a cut. He was very careful to get

who he wanted to get. He never injured any of those women.” (Id. at 537).

The only alternative theory that the prosecutor offered to the jury was that, even if Mr.

Vaughn went to Mr. Swann’s house “not with the intent to kill but . . . because he was going to

get a little bit of get back for getting his butt kicked at the back of the house,” he would still be

guilty of first-degree felony murder because the killing occurred during a first-degree burglary

15
when Mr. Vaughn forced his way inside the house with the intent to assault Mr. Swann with the

knife. (Id. at 537). The government did not suggest any theory, or point to any evidence, of how

Mr. Vaughn might have killed Mr. Swann in the heat of passion caused by adequate provocation

or in imperfect self-defense. Instead, it urged the jury to completely discredit Mr. Vaughn’s

testimony about Mr. Swann attacking him in the front yard because, on the night of the stabbing,

when Mr. Vaughn spoke with his mother and the police, “not one single time does he claim that

he acted in self-defense.” (Id. at 528, 533, 565-67).

The defense argued that the evidence did not support the government’s theory that Mr.

Vaughn became “enraged” and murdered his best friend “in cold blood” to “get back” at him for

the earlier confrontation in the backyard. (Id. at 538). Rather, “Tyrell Swann was the one who

was enraged” and who attacked Mr. Vaughn first: “he attacked Mr. Vaughn and he puts his

hands on Mr. Vaughn’s neck and he choked him and he choked him to the point where he

couldn’t breath[e] and Mr. Vaughn defended himself.” (Id. at 538-39).

The defense emphasized that the government’s motive theory was implausible because

the confrontation in the backyard was not such a “big deal” that it would have made Mr. Vaughn

angry enough to kill his best friend: “It’s a few quick punches and then he’s thrown into the

window. Then Mr. Vaughn gets away. He jumps the fence and leaves.” (Id. at 556). Indeed,

defense counsel noted, the government’s own witnesses established that Mr. Swann’s demeanor

was more consistent with being the “enraged” first aggressor: “Everyone agrees that Mr. Swann

is the one who was acting different that night.” (T. 4/7/14 at 556-57). “No one has testified that

Mr. Vaughn was enraged.” (Id. at 538).

Defense counsel further argued that the story told by Nakita and Evelyn Bourn—that Mr.

Vaughn threatened Nakita with a knife, forced his way inside the house, and reached around

16
Evelyn to stab Mr. Swann—was “not reliable” and “not credible” because it “doesn’t match up

with the physical evidence and it doesn’t match up with the other witness[es’] testimony.” (Id. at

540). “No one except Nakita and Evelyn Bourn put Mr. Vaughn inside that house at any point

because he wasn’t there. . . . Everything happened outside of the house.” (Id. at 555). By

contrast, Mr. Vaughn’s testimony was corroborated by the physical evidence—the bottle of

rubbing alcohol in his kitchen, the mark on his neck, the rip in his shirt, and the bloodstain

pattern evidence, (id. at 556-58), as well as the testimony of Mr. Malloy and Darrell Vaughn,

who saw Mr. Swann and Mr. Vaughn “scuffling” outside the house but did not see Mr. Vaughn

enter the house or wielding a knife. (Id. at 555-59).6 Finally, the defense argued that Mr.

Vaughn’s demeanor and statements on the night of the stabbing—“I didn’t mean to do it,” “I

give up”—showed that he “didn’t intend to kill Mr. Swann” and instead “stabbed him in self-

defense.” (Id. at 560-61).

The Jury Instructions

At the close of evidence, the trial court instructed the jury on the charged offenses of

first-degree felony murder and first-degree premeditated murder, as well as the lesser-included

offenses of second-degree murder and voluntary manslaughter.7 The court explained that, to

convict Mr. Vaughn of either first-degree premeditated murder or second-degree murder, the jury

must find that he did not act in self-defense and that there were no mitigating circumstances. (T.

4/7/14 at 492-94). The court explained that mitigating circumstances “reduce the level of guilt

from murder to manslaughter.” The court defined mitigating circumstances:

Mitigating circumstances can exist in two situations. They exist where a person acts in
6
The trial court itself acknowledged that “[t]wo of the government’s own witnesses—
William Malloy and Darrell Vaughn—presented an account of the events in question that more
closely aligned with Defendant’s rather than the government’s factual theory.” (App. 112).
7
Neither party requested the instructions on the lesser-included offenses.

17
 the heat of passion caused by adequate provocation. Heat of passion includes such
emotions as rage, resentment, anger, terror and fear. Adequate provocation is conduct on
the part of another that would cause an ordinary, reasonable person in the heat of the
moment to lose his self control and act on impulse and without reflection.

For a provocation to be considered adequate, the person’s response must not be entirely
out of proportion to the seriousness of the provocation. An act of violence or an
immediate threat of violence may be adequate provocation. But mere words, no matter
how offensive, are never adequate provocation.

The provocation must be such as would provoke a reasonable, sober person. Therefore, if
a person was provoked simply because he was intoxicated and a sober person would not
have been provoked, the provocation would not be considered as adequate. Mitigating
circumstances also exist when a person actually believes that he is in danger of serious
bodily injury and actually believes that the use of force that was likely to cause serious
bodily harm was necessary to defend against that danger. But one or both of those beliefs
are not reasonable[.]

(Id. at 495-96).

The court instructed the jury that self-defense is a “complete defense to first-degree

murder, second-degree murder and manslaughter where Darren Vaughn actually believed that he

was in danger of serious bodily injury and actually believed that the use of deadly force was

necessary to defend against that danger and both of those beliefs were reasonable.” (Id. at 500).

A person may use deadly force in self-defense if “he actually and reasonably believes at the time

of the incident that he is in imminent danger of death or serious bodily harm from which he can

save himself only by using deadly force against his assailant.” (Id. at 501). The court then

explained the amount of force that can be used and when it can be used:

Excessive force. Even if the other person is the aggressor and Daren Vaughn is justified
in using force in self-defense, he may not use any greater force than he actually and
reasonably believes to be necessary under the circumstances to save his life or avoid
serious bodily harm. In deciding whether Daren Vaughn used excessive force in
defending himself, you may consider all the circumstances under which he acted.

A person acting in the heat of passion caused by an assault does not necessarily lose his
claim of self-defense by using greater force than would seem necessary to a calm mind.
In the heat of passion, a person may actually and reasonably believe something that
seems unreasonable to a calm mind.

18
 Self-defense where the defendant might have been the aggressor; mere words not
provocation. If you find that Daren Vaughn was the aggressor or provoked the conflict
upon himself, he cannot rely upon the right of self-defense to justify his use of force. One
who deliberately puts himself in a position where he has reason to believe that his
presence will provoke trouble cannot claim self-defense. Mere words without more by
Daren Vaughn however, do not constitute aggression or provocation.

(Id. at 501). The court then clarified the difference between complete self-defense and self-

defense that reduces murder to manslaughter:

In evaluating self-defense, the difference between a complete defense, which acquits of

both murder and manslaughter and a mitigating circumstance, which reduces an offense
from murder to manslaughter[,] is that for a complete defense, the person’s actual beliefs
about both the danger and the need to use deadly force must be reasonable.

Whereas for a mitigating circumstance, one or both of these actual beliefs are not
reasonable. It is the Government’s burden to prove beyond a reasonable doubt the
absence of self-defense and for murder the absence of mitigating circumstances.

(Id. at 502-03).

Additionally, the court instructed the jury on the charged offenses of first-degree burglary

while armed, assault with a dangerous weapon (of Nakita Bourn), and carrying a dangerous

weapon. The court instructed the jury that, to convict Mr. Vaughn of first-degree burglary while

armed, it must find that he entered Mr. Swann’s house, and that he “intended to assault Tyrell

Swann” and was armed with a knife at the time he did so. (Id. at 503). The court also instructed

the jury that “[v]oluntarily pointing a dangerous weapon at another in a threatening manner or

voluntarily using it in a way that would reasonably create in another person a fear of immediate

injury would be an assault with a dangerous weapon,” and the government “need not prove the

defendant intended to injure Nakita Bourn.” (Id. at 504).

On April 9, 2014 the jury acquitted Mr. Vaughn of first-degree burglary while armed,

first-degree felony murder while armed, first-degree premeditated murder while armed, second-

degree murder while armed, and assault with a dangerous weapon. (T. 4/9/14 at 27-28). It could

19
not reach a verdict on the remaining counts of voluntary manslaughter while armed and carrying

a dangerous weapon. (T. 4/10/14 at 25).

The Collateral Estoppel Litigation

A week after the jury entered its verdicts, the government indicated that it intended to

retry Mr. Vaughn on voluntary manslaughter while armed and carrying a dangerous weapon. On

August 26, 2014, Mr. Vaughn filed a Motion to Dismiss Remaining Counts of the Indictment

Pursuant to Double Jeopardy and Collateral Estoppel, arguing that the government was barred

from relitigating the issue of self-defense in a second trial for voluntary manslaughter because

the jury’s acquittals at the first trial indicated that it necessarily rejected the government’s

account of the events and resolved the sole disputed issue of self-defense in Mr. Vaughn’s favor.

(R. 56; App. 74-86). The government argued in its opposition that the acquittals did not

necessarily include a finding that Mr. Vaughn acted in self-defense because the jury could have

acquitted Mr. Vaughn of murder based on a finding that he killed Mr. Swann in a heat of passion

caused by adequate provocation. (R. 61; App. 87-101).

On February 4, 2016, the trial court denied Mr. Vaughn’s motion to dismiss. (R. 65; App.

108-17). The court reasoned that, because the jury was instructed on mitigating circumstances

and the prosecutor argued that Mr. Vaughn was “enraged” and “angry” when he stabbed Mr.

Swann, a “rational jury could have grounded its” murder acquittals on a finding that Mr. Vaughn

acted in a heat of passion caused by adequate provocation, rather than a finding that he acted in

self-defense. (App. 115).8

8
In its motion to dismiss, the defense also argued that collateral estoppel would preclude the
government from presenting a factual theory that the jury necessarily rejected at the first trial.
(App. 83-85). The court did not decide what “[s]pecific evidence . . . can or cannot be admitted”
at a new trial and instead reserved that issue for “the trial court’s rulings pursuant to motions in
limine.” (App. 116). The court stated: “For example, because Defendant was acquitted of first

20
 ARGUMENT

I. COLLATERAL ESTOPPEL BARS FURTHER LITIGATION OF WHETHER MR.

VAUGHN ACTED IN SELF-DEFENSE WHEN HE KILLED MR. SWANN.

In this case, the jury was presented with two completely different accounts of how,

where, and why Darren Vaughn fatally stabbed his best friend Tyrell Swann. According to the

government, Mr. Vaughn returned to Mr. Swann’s house brandishing a large kitchen knife with a

plan to exact revenge: he threatened Nakita Bourn with that knife when she tried to block his

approach, forced his way inside the house, and deliberately reached around Evelyn Bourn to stab

Mr. Swann in the heart while they were in the front hallway. According to the defense, Mr.

Vaughn came to Mr. Swann’s house with the intent to speak with Nakita Bourn and acted in

complete self-defense when he stabbed Mr. Swann with the pocket knife that he always carried

for protection after Mr. Swann attacked him with a chair and choked him in the front yard.

Based on the evidence and arguments, the only question for the jury was whether Mr.

Vaughn was the first and only aggressor in a murder, after having assaulted Nakita with a knife

and burglarizing Mr. Swann’s home, as the government argued, or whether he acted in complete

self-defense and never entered the house or threatened Nakita with a knife, as the defense

argued. The jury’s acquittals on murder, burglary, and ADW indicate that the jury wholly

rejected the government’s account of the events and decided the sole contested issue in Mr.

Vaughn’s favor—that he acted in complete self-defense. Accordingly, the collateral estoppel

doctrine embodied by the Double Jeopardy Clause precludes Mr. Vaughn from having to face a

second trial for voluntary manslaughter, when an essential element of that charge has already

degree burglary while armed, the Government cannot argue that Defendant entered the home of
another while a person was present with the intent to assault Mr. Swann and that Defendant was
armed with a knife at that time. But the Government may proffer other theories to support
voluntary manslaughter, including that Defendant never entered the home or that he entered the
home with an intent other than to assault Mr. Swann.” (Id.).

21
been decided in his favor.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution

“embodies two vitally important interests.” Yeager v. United States, 557 U.S. 110, 117 (2009).

The first interest protects a defendant against prosecution for the same offense after acquittal or

conviction, and “against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S.

161, 165 (1977) (quotations omitted).9 The second interest—the interest that is the focus of this

appeal—is “the preservation of the finality of judgments.” Yeager, 557 U.S. at 118 (citation

omitted). To protect this second constitutional interest, the government is precluded “from

relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Id. This is

the long-established doctrine of “collateral estoppel,” which the Supreme Court in Ashe v.

Swenson, 397 U.S. 436 (1970), determined was “embodied in the Fifth Amendment guarantee

against double jeopardy.” 397 U.S. at 445.10 Claims of collateral estoppel based on the Double

Jeopardy Clause are questions of law that are reviewed de novo. United States v. Felder, 548

A.2d 57, 65 (D.C. 1988).

Under the collateral estoppel doctrine, “when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated by the same parties

in any future [trial].” Ashe, 397 U.S. at 443. A double jeopardy claim based on collateral

estoppel does not depend on a Blockburger elements analysis. Rather, the “fundamental

requirement” is “the ability to conclude what the jury must necessarily have determined at the

prior trial.” Felder, 548 A.2d at 66. When a jury acquits on one count but hangs on another, the
9
A court determines whether a subsequent prosecution is for “the same offense” and
therefore barred by double jeopardy by applying the familiar test of Blockburger v. United
States, 284 U.S. 299 (1932): two crimes are considered the same offense unless “each requires
proof of a fact that the other does not[.]” Brown, 432 U.S. at 166 (quotations omitted). Here, Mr.
Vaughn does not rely on this “same offense”-based, successive prosecutions doctrine.
10
Collateral estoppel is also known as “issue preclusion.” Yeager, 557 U.S. at 124.

22
court may not consider the jury’s inability to reach a verdict on the hung count in deciding the

preclusive effect of the acquittal, for a jury may hang for a “host of reasons—sharp

disagreement, confusion about the issues, exhaustion after a long trial, to name but a few”—and

“there is no way to decipher what a hung count represents.” Yeager, 557 U.S. at 121.

In criminal cases, collateral estoppel should “not be applied with the hypertechnical and

archaic approach of a 19th century pleading book, but with realism and rationality.” Ashe, 397

U.S. at 444. Therefore, a court must “examine the record of [the] prior proceeding, taking into

account the pleadings, evidence, charge, and other relevant matters, and conclude whether a

rational jury could have grounded its verdict upon an issue other than that which the defendant

seeks to foreclose from consideration.” Id. (quotations omitted). In doing so, a court “must not . .

. strain[] to postulate hypertechnical and unrealistic grounds on which the . . . jury could

conceivably have rested its conclusions.” Felder, 548 A.2d at 67. Rather, the court’s analysis

“must be set in a practical frame and viewed with an eye to all the circumstances of the

proceedings.” Ashe, 397 U.S. at 444 (quotations omitted).

The Supreme Court in Ashe applied this realistic approach. That case involved a robbery

of six men at a poker game. 397 U.S. at 437. Ashe was tried for committing the robbery against

one of the six men. Id. at 438. Defense counsel made no attempt to challenge that a robbery

occurred but instead “aimed primarily at exposing the weakness of [the government’s witnesses’]

identification testimony.” Id. Ashe was acquitted, but then stood trial again for committing the

robbery against another of the six robbery victims. Id. at 439. At the second trial, the “testimony

was substantially stronger on the issue of the petitioner’s identity,” and Ashe was found guilty.

Id. at 440.

The Supreme Court held that the second trial violated Ashe’s rights under the Double

23
Jeopardy Clause. At the first trial, because Ashe did not challenge the fact that a robbery had

taken place, the Court determined that the “single rationally conceivable issue in dispute before

the jury [in the first trial] was whether the petitioner had been one of the robbers.” 397 U.S. at

445. Therefore, the government was precluded, pursuant to the collateral estoppel doctrine from

seeking to prove that Ashe was one of the robbers at the second trial, albeit for the robbery of a

different complainant and with stronger identification evidence. Id. See also Yeager, 557 U.S. at

119-22 (after a jury acquitted defendant of fraud but hung on insider trading, Court held that

collateral estoppel precluded a second trial when “possession of insider information was a

critical issue of ultimate fact in all of the charges against [defendant], and a “jury verdict that

necessarily decided that issue in his favor protects him from prosecution for any charge for

which that is an essential element”).

This Court followed Ashe’s realistic approach in Felder. There, Felder was tried on

charges of felony murder while armed, attempted robbery while armed, and carrying a pistol

without a license (CPWL). 548 A.2d at 58. The jury acquitted him of CPWL, but was unable to

reach unanimous verdicts on the felony murder and attempter murder counts. Id. This Court

affirmed under the trial court’s conclusion that collateral estoppel foreclosed the government

from prosecuting Felder for the “while armed” portions of the felony murder and attempted

robbery charges. Id. at 68. In doing so, the Court focused on the fact that the government’s

theory was that Felder “had [a] pistol in his actual possession,” used it to shoot and kill the

decedent, and did not have a license, and that Felder never contested the government’s proof that

he lacked a license or that the gun was operable. Id. at 67-68. Felder’s only defense was that he

was innocently present when someone else used the gun to shoot the decedent. Therefore,

because the “single rationally conceivable issue in dispute . . . was whether Felder possessed

24
(carried) the pistol at the relevant time [and] the jury by its verdict found he had not,” the Court

concluded that the “collateral estoppel component of the Double Jeopardy Clause prevents the

government from relitigating these facts.” Id. at 69 (quotations omitted).

A. THE ACQUITTALS ON MURDER, BURGLARY, AND ASSAULT

WITH A DANGEROUS WEAPON INDICATE THAT THE JURY
REJECTED THE GOVERNMENT’S THEORY AND DECIDED THE
CENTRAL ISSUE OF SELF-DEFENSE IN MR. VAUGHN’S FAVOR.

Here, the government is collaterally estopped from retrying Mr. Vaughn for voluntary

manslaughter because: (1) the “single rationally conceivable issue in dispute” at the first trial was

whether Mr. Vaughn was the first aggressor in a murder, or whether he acted in complete self-

defense, and (2) the jury’s acquittals on murder, burglary, and ADW indicate that it rejected the

government’s account of the events and necessarily decided the sole contested issue of complete

self-defense in Mr. Vaughn’s favor.

Because the parties presented the jury with two completely different accounts of the

events and asked the jury to discredit all aspects of the other side’s account, the jury was forced

to choose whether Mr. Vaughn was the first-aggressor, as the government claimed, or whether he

acted in complete self-defense, as the defense contended. The government, in arguing that Mr.

Vaughn was guilty of murder, burglary, and ADW, urged the jury to credit the testimony of

Nakita and Evelyn Bourn, who claimed that Mr. Vaughn approached Mr. Swann’s house

wielding a large kitchen knife, threatened Nakita with the knife when she tried to block him,

forced his way inside the house in pursuit of a retreating Mr. Swann, and deliberately reached

around Evelyn to stab Mr. Swann in the heart. The government argued that, not only did this

testimony establish that Mr. Vaughn was guilty of ADW (for threatening Nakita with the knife)

and burglary (for entering the house with the intent to assault Mr. Swann), but it also showed that

the killing was a premeditated murder:

25
 [T]hink about that for a moment when you consider premeditation and deliberation.
When he came back after going and getting a knife that could kill a man. He knew who
his target was and he knew who it wasn’t. He had never any intention to harm Nakita but
he sure as heck put that knife up in her face and said ‘Get the F out of my way’ because
he wants to get at Tyrell.

(T. 4/7/14 at 521).

Premeditated murder . . . [i]t’s reaching the decision to kill and turning it over in your
mind. It doesn’t take weeks, days, hours, it can be just a matter of seconds. When he got
angry and went and picked that knife up to use his weapon, he had reached the decision
that he was going to kill his friend. . . . He had to go into his house, into the kitchen, get a
weapon, come all the way back and confront Tyrell at the . . . front of that house. He
pushed his way past two women. He’s not swinging wildly in self-defense, otherwise one
of these women might have, should have gotten nicked with a cut. He was very careful to
get who he wanted to get. He never injured any of those women.

(T. 4/7/14 at 536-37). See McAdoo v. United States, 515 A.2d 412, 427-28 (D.C. 1986) (holding

that a “sequence of events” reflecting a “calculated plan,” including defendant’s decision to bring

the murder weapon to the scene, is “highly probative of premeditation and deliberation”).

Alternatively, the government argued that, even if the jury did not find that the killing was

premeditated, Nakita’s and Evelyn’s testimony at least showed that Mr. Vaughn entered the

house with the intent to assault Mr. Swann with the knife, which would make him guilty of

felony murder. (T. 4/7/14 at 537). The government urged the jury to completely discredit Mr.

Vaughn’s testimony about Mr. Swann attacking him in the front yard, noting that he did not

make any claim of self-defense when he spoke to his mother and the police on the night of the

stabbing, and arguing that he fabricated his self-defense claim after hearing all of the evidence at

trial. (T. 4/7/14 at 565-68).

The defense did not dispute that the testimony of Nakita and Evelyn, if credited,

established that Mr. Vaughn was guilty as charged. Instead, the defense urged the jury to

completely discredit their account of the events because: “it’s not what happened,” (T. 4/7/14 at

540); their stories “don’t match up,” (T. 4/7/14 at 540); and their claim that Mr. Vaughn stabbed

26
Mr. Swann inside the house conflicted with the physical evidence and the other witnesses’

testimony indicating that “[e]verything happened outside of the house.” (Id. at 555). Further, the

defense stressed to the jury that the government’s motive theory—that Mr. Vaughn murdered his

best friend in retaliation for “a few quick punches”—made no sense and was not supported by

any testimony that Mr. Vaughn was actually “enraged.” (T. 4/7/14 at 556).

The defense urged the jury to credit Mr. Vaughn’s testimony that, after the brief

altercation in the backyard, which was not the “big deal that the Government is trying to make it

out to be,” Mr. Vaughn went home to treat his bloody lip and decided to return to Mr. Swann’s

house to speak with Nakita. (T. 4/7/14 at 567). As he approached, however, Mr. Swann emerged

from the front door, attacked him with a chair, and choked Mr. Vaughn until he could not

breathe, prompting Mr. Vaughn to pull out the pocket knife that he always carried for protection

and stab Mr. Swann a single time in complete self-defense while they were outside the house, in

the front yard. (T. 4/7/14 at 558). The defense argued that, unlike Nakita’s and Evelyn’s

testimony, Mr. Vaughn’s testimony “ma[de] sense,” was supported by the physical evidence

(including the photograph of the rubbing alcohol in his kitchen, the marks on his neck, the rip on

his shirt, and the blood pattern evidence on the front doorframe), “correspond[ed] with what [Mr.

Malloy and Darrell Vaughn] said happened,” and was corroborated by the “uncontroverted”

testimony that it was Mr. Swann, and not Mr. Vaughn, who appeared “different” and “enraged”

that evening. (T. 4/7/14 at 555-59). The defense argued that Mr. Vaughn “did what the law

allows any of us to do. He stabbed [Mr. Swann] in self-defense and he is not guilty of any of

these charges.” (T. 4/7/14 at 538-39).

Neither side offered the jury any other alternatives. The defense never suggested that if

the jury believed the government’s theory of a stabbing inside the house that it could return a

27
verdict of manslaughter. And, the government never suggested that the jury, if it believed the

defense theory of a stabbing in the front yard, could still find Mr. Vaughn guilty of

manslaughter. For that reason, the jury’s verdict as a whole—considering the acquittals for

murder, burglary, and ADW—indicates it necessarily rejected the government’s case and

decided the issue of first-aggressor in Mr. Vaughn’s favor.

The acquittal of the burglary charge is particularly telling. The government’s case hinged

on convincing the jury that the incident happened inside the house, as both Nakita and Evelyn

testified, with Mr. Vaughn having entered with the intent to harm Mr. Swann. (T. 4/7/14 at 537).

The defense argued Mr. Vaughn never went inside. (Id. at 555). Since there was zero evidence or

argument that the incident could have happened inside the house without Mr. Vaughn having

already formed the intent to harm Mr. Swann, there is no rational way to conclude the jury

believed any portion of the government’s case if it did not think Mr. Vaughn entered the house.

And so, by acquitting Mr. Vaughn of burglary, the jury’s verdict decided that Mr. Vaughn never

entered the house, signifying it rejected the government’s version, sided with the defense, and

decided the issue of first aggressor in Mr. Vaughn’s favor.

In short, the jury was asked to choose between two completely different accounts of the

events: either (1) Mr. Vaughn armed himself with a kitchen knife with the intent to assault or kill

Mr. Swann in retaliation for the earlier punch, threatened Nakita with the knife (ADW), forced

his way into the house for the purpose of assaulting or killing Mr. Swann (burglary), and reached

around Evelyn to stab Mr. Swann in the heart (premeditated murder or felony murder), as the

government argued, or (2) he went to Mr. Swann’s house with the intent to talk to Nakita, was

attacked and choked by Mr. Swann in the front yard, and stabbed Mr. Swann with the pocket

knife that he always carried for protection in complete self-defense, as the defense argued. If the

28
jury had credited Nakita and Evelyn, and accepted the government’s account of the events, its

only “rationally conceivable” conclusion would have been to convict Mr. Vaughn of ADW,

burglary, and first-degree murder (either premeditated murder or felony murder, or both). The

fact that the jury acquitted Mr. Vaughn of those offenses indicates that it rejected the

government’s account of the events and resolved the sole disputed issue of complete self-defense

in Mr. Vaughn’s favor. Thus, the government is precluded from relitigating that issue in a second

trial for voluntary manslaughter.

B. THE TRIAL COURT ERRED IN SPECULATING THAT THE JURY

MIGHT HAVE ACQUITTED MR. VAUGHN OF MURDER BASED
ON A FINDING, CONTRARY TO THE EVIDENCE AND
ARGUMENTS, THAT HE ACTED IN THE HEAT OF PASSION.

In denying Mr. Vaughn’s motion to dismiss, the trial court ruled that the jury did not

necessarily decide the issue of self-defense in Mr. Vaughn’s favor when it acquitted him of

murder because it could have concluded that he killed “in the heat of passion caused by adequate

provocation”—a mitigating circumstance that reduces murder to voluntary manslaughter. (App.

115). Although “the government offered no evidence at trial that Defendant acted in the heat of

passion caused by adequate provocation,” the trial court noted that “the government in closing

arguments did argue that Defendant ‘became enraged’ after a physical altercation between

Defendant and decedent,” and “the jury was given an instruction on mitigating circumstances

and could have concluded that the fight preceding decedent’s death left Defendant in an enraged

state such that mitigating circumstances were present.” (Id.). That ruling was erroneous.

Although it is true that the jury was instructed on mitigating circumstances, that does not

mean that “a rational jury could have grounded its verdict upon [that] issue” when neither party

presented any evidence or argument in support of such a finding. In Felder, for example, the jury

was instructed on the licensure and operability requirements for CPWL, but this Court held that

29
the jury could not “conceivably have rested its conclusions” on those grounds because they were

not in dispute at trial. 548 A.2d at 67-68 (citations omitted). In deciding what factual issues the

jury necessarily determined at the first trial, a court “must not . . . strain[] to postulate

hypertechnical and unrealistic grounds on which the . . . jury could conceivably have rested its

conclusions.” Id. at 67. “A court should not, as did the trial court in the instant case, ignore the

evidence and disputed issues at the earlier trial and speculate that the jury’s acquittal might have

been based on a theory having nothing to do with the evidence and issues presented to the jury.”

Ferrell v. State, 567 A.2d 937, 942 (Md. 1990).

Here, there was simply no evidence or argument that Mr. Vaughn acted in the heat of

passion caused by adequate provocation.11 That issue was never mentioned by either party in

closing. Although the government did argue that Mr. Vaughn was “enraged” and “angry” about

the earlier altercation in the backyard, it argued that such anger was the motive for a

premeditated and deliberate murder, and not evidence that Mr. Vaughn acted on sudden

impulse, in the heat of passion. See supra pp. 25-26. Moreover, as the defense pointed out, not a

single witness testified that Mr. Vaughn appeared “enraged” or “angry” after the brief altercation

in Mr. Swann’s backyard. (T. 4/7/14 at 538). To the contrary, the government’s own witnesses

testified that it was Mr. Swann who appeared “different” and “enraged.” (Id. at 556-57).

In any event, even if the jury had accepted the government’s argument that Mr. Vaughn

was “enraged” about the earlier altercation in the backyard, nothing in the record would have

supported the conclusion that he stabbed Mr. Swann in the “sudden heat of passion caused by

adequate provocation”—a circumstance that exists “in only the most exceptional cases.” High v.
11
Nor was there any evidence or argument that Mr. Vaughn acted in imperfect self-defense.
See Swann v. United States, 648 A.2d 928, 930-31 (D.C. 1994) (discussing that to reduce murder
to manslaughter, there must either be sudden heat of passion caused by adequate provocation or
imperfect self-defense).

30
United States, 972 A.2d 829, 834 (D.C. 2009) (provocation mitigates murder to manslaughter

only in the rare situation where the decedent “provoked a defendant by committing an offense

that was so grave, and so heinous, that society partially excuses or justifies the defendant’s

response because people provoked so strongly cannot be expected to behave any differently”)

See also T. 4/7/14 at 495 (“Adequate provocation is conduct on the part of another that would

cause an ordinary, reasonable person in the heat of the moment to lose his self control and act on

impulse and without reflection.”). Factors affecting the adequacy of the provocation include “the

means and severity of the provocation, the proportionality of the retaliation, and the timing of the

retaliation.” Bostick v. United States, 605 A.2d 916, 919 (D.C. 1992). A defendant does not act

“in the heat of the moment” if he has had time to “cool down” and reflect after the initial

provocation. Id. (citing Jamison v. United States, 373 A.2d 594, 596 (D.C. 1977)).

Here, the undisputed evidence at trial established that, after the brief altercation in Mr.

Swann’s backyard, Mr. Vaughn had ample time to reflect before approaching Mr. Swann’s front

door a few minutes later and, thus, was not acting in the heat of passion. According to the

defense, Mr. Vaughn went home, treated his bloody lip with rubbing alcohol, reflected on Mr.

Swann’s strange behavior, and decided to return to Mr. Swann’s house so that he could talk to

Nakita. According to the government, a sequence of events happened after Mr. Swann hit Mr.

Vaughn in the backyard that allowed ample time for premeditation and deliberation. The

government argued that Mr. Vaughn went home, formed a plan to kill Mr. Swann in retaliation

for the earlier assault, armed himself with a kitchen knife, walked back to Mr. Swann’s house,

threatened Nakita in the front yard, forced his way into the house, and reached around Evelyn to

stab Mr. Swann. (T. 4/7/14 at 536-37). The government insisted that Mr. Vaughn was acting in

such a deliberate manner—the opposite of heat of passion —that he made the conscious decision

31
to avoid harming Nakita and Evelyn in any manner in order to stab Mr. Swann inside the house a

single time. (T. 4/7/14 at 521, 537).

On facts like these, courts have held that no rational jury could find provocation

sufficient to mitigate murder to manslaughter. See People v. McMullan, 771 N.W.2d 810, 816

(Mich. Ct. App. 2009) (no heat of passion caused by adequate provocation due to a “lapse in

time, during which a reasonable person could have controlled his passions,” when the decedent

retreated to his car after a fistfight in a parking lot, and the appellant retrieved a gun from his

wife and walked to the decedent’s car to shoot him); State v. Hahn, 37 S.W.3d 344, 353 (Mo. Ct.

App. 2001) (holding that appellant “had an opportunity to cool off from the prior confrontation”

when he went downstairs to retrieve a knife and came back upstairs to stab the decedent); State v.

Cole, 525 S.E.2d 511, 513 (S.C. 2000) (“Even if Appellant had been in the heat of passion

during the confrontation in his apartment, three to five minutes had passed in which he had time

to go to his mother's apartment and find his gun. Far from passion, these actions indicate ‘cool

reflection.’”); United States v. Grover, 485 F.2d 1039, 1045 (D.C. Cir. 1973) (a “one-punch

fight,” followed by a period of disengagement, could not have been relied upon to establish heat

of passion).

Although it is technically possible that the jury could have acquitted Mr. Vaughn of

murder “based on a theory [of mitigation] having nothing to do with the evidence and issues

presented to the jury,” Ferrell, 567 A.2d at 942, the collateral estoppel doctrine does not permit

such a “hypertechnical and unrealistic” interpretation of the jury’s verdict. Rather, the acquittals

must be “viewed with an eye to all of the circumstances of the proceedings,” including the

evidence and arguments presented by the parties and the disputed issues at trial. Here, as

explained above, the “single rationally conceivable issue in dispute” at trial was whether Mr.

32
Vaughn was the first aggressor in a murder (after assaulting Nakita with a knife and forcing his

way into the house), or whether he stabbed Mr. Swann outside the house in complete self-

defense. By acquitting Mr. Vaughn of murder, burglary, and ADW, the jury necessarily rejected

the government’s account of the events and decided the central contested issue of self-defense in

Mr. Vaughn’s favor. Thus, the government is collaterally estopped from relitigating that same

issue in a second trial for voluntary manslaughter.

CONCLUSION

For the foregoing reasons, this Court should reverse the trial court’s order denying Mr.

Vaughn’s motion to dismiss the voluntary manslaughter count on collateral estoppel grounds.

Respectfully submitted,

Samia Fam
Bar No. 394 445

Alice Wang
Bar No. 495 098

*Benjamin Miller
Bar No. 503 001

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200

*Counsel for Oral Argument

33
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing brief for Appellant Darren Vaughn has been
delivered by hand to Assistant United States Attorney Elizabeth Trosman, Esq., Chief of the
Appellate Division at the Office of the United States Attorney, 555 Fourth Street, N.W.,
Washington, D.C., 20530, this 11th day of April, 2016.

__________________________
Benjamin Miller
Public Defender Service
633 Indiana Avenue, NW
Washington, DC 20004
(202) 824-2374