No. 30369 & No. 30419 Wednesday, May 11, 2011, 9:00 a.m.

STATE OF HAWAI`I, Plaintiff-Appellee, v. JAMES H. PFLUEGER, Defendant-Appellant.

Attorney(s) for Defendant-Appellant
William C. McCorriston, David J. Minkin and Becky T. Chestnut (McCorriston MillerMukai MacKinnon, LLP)

Attorney(s) for Plaintiff-Appellee
David M. Louie, Attorney General and Kimberly Tsumoto Guidry and Girard D. Lau, Deputy Attorneys General

COURT: Foley, Fujise, and Reifurth, JJ.

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawaiʻi.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

This consolidated case arises from the breach of the Ka Loko Reservoir on March 14, 2006, resulting in the death of seven persons. The State of Hawaiʻi charged Defendant-Appellant James H. Pflueger (Pflueger) with seven counts of manslaughter. The Circuit Court of the Fifth Circuit denied Pflueger’s Motion to Dismiss on Grounds of Double Jeopardy and his Motion to Dismiss for Insufficiency of the Evidence, or in the Alternative, Due to Vagueness. Pflueger separately appealed the denials of the two motions, which the Intermediate Court of Appeals has consolidated.

Pflueger argues that his 2003 conviction for a 2002 grading violation at the Ka Loko Reservoir was for the “same” or “continuing” conduct as the 1997 grading violation. The grading covered the spillway and allegedly led to the breach in the reservoir. Under the “same conduct” test, reasons Pflueger, the Hawaiʻi Constitution protects him from subsequent prosecution for manslaughter on the grounds of double jeopardy.

Additionally, Pflueger contends the grand jury had insufficient evidence to establish probable cause that he acted recklessly with a conscious disregard of a substantial and unjustifiable risk that his conduct in covering the Ka Loko Reservoir spillway could result in the death of another. In the alternative, he contends the reckless-manslaughter statute is unconstitutionally vague as applied and he lacked notice that his conduct in filling the spillway in 1997 could expose him to a manslaughter conviction years later.