ICA affirms Circuit Court ruling that double jeopardy did not prohbit criminal prosecution in Kauai reservoir breach manslaughter case

On June 23, 2011, the Hawai’i Intermediate Court of Appeals entered its opinion in State v. Pflueger, Nos. 30369 & 30419 (Memorandum Opinion-unpublished, panel: Foley, Presiding J., Fujise and Reifurth, JJ.). This was an appeal from the Circuit Court of the Fifth Circuit, the Hon. Randal G.B. Valenciano presiding. The parties were represented by William C. McCorriston (David J. Minkin and Becky T. Chestnut with him on the briefs) (McCorriston Miller Mukai MacKinnon LLP) for Defendant-Appellant and Mark J. Bennett, Special Deputy Attorney General (Girard D. Lau and Kimberly Tsumoto Guidry, Deputy Attorneys, with him on the briefs) for Plaintiff-Appellee.

Defendant was an owner of property on which a water reservoir was located. The primary issue in this case was whether Defendant’s prior conviction for violating a grading ordinance concerning this reservoir in 2003 prohibited the State from prosecuting Defendant for Manslaughter in 2008 for deaths resulting from reservoir’s breach.

In holding that double jeopardy did not apply, the ICA made the following points:

• “The alleged illegal act of covering the spillway in 1997-98 and not subsequently uncovering it is not the same act as illegally grading another section of the property sometime between February and December 2002. The act of modifying the water systems is also not the same act of illegal grading that constituted the 2003 conviction. Hence, the acts the State intends to use to prove the conduct element of the Manslaughter charges are separate from the act used to prove the conduct element of the 2003 conviction, and double jeopardy is not invoked.”

• Under the "same conduct" test, prosecution of the 2008 Manslaughter charge is barred by double jeopardy if the acts for which Defendant was prosecuted in 2003 are the same acts that will be used to prove the 2008. Here, the ICA held that “there is no danger that the State, in 2003, was using that illegal grading prosecution to pinpoint inadequacies in preparation for its 2008 Manslaughter case because in 2003, the dam had not been breached and there had been no deaths.”

• The ICA also rejected the Defendant’s contention that there was insufficient evidence for the grand jury to return a true bill. The ICA noted that evidence was presented to the grand jury that could show that the Defendant “acted with a conscious disregard of a substantial and unjustifiable risk that death could result.” Thus, the circuit court did not abuse its discretion when it found "sufficient evidence to support the grand jury's finding of probable cause for the offense of Manslaughter."

• The ICA also rejected Defendant’s contention that the Manslaughter statute was impermissibly vague. “In the instant case, the Manslaughter statute puts one on notice that it is a violation of the statute to commit any conduct in conscious disregard of the substantial risk of another person's death. The statute is not void for vagueness.”

Affirmed.