Spear sentencing now set for April 4

LIHU‘E — Dr. Harold “Tex” Spear III was in 5th Circuit Court Wednesday, but his sentencing on state charges was continued once more.

Spear was brought before Judge Kathleen Watanabe from O‘ahu, where he had been held in a federal detention center since his March 1 sentencing in U.S. District Court in Honolulu. His sentencing on Kaua‘i in 5th Circuit Court had been delayed pending conclusion of the federal cases.

The hearing Wednesday was continued after Watanabe heard arguments on a motion to dismiss the 2009 indictment on grounds of issues with jurisdiction and foundation that led a grand jury to find probable cause. The sentencing hearing is now scheduled April 4.

State Deputy Public Defender Stephanie Sato introduced the motion to dismiss and represented Spear for the sentencing. She said the court has no jurisdiction, and that the indictment is flawed in not presenting the essential elements of conduct for a grand jury to find probable cause.

The prosecution used dictionary definitions for the terms “distribute, dispense and prescribe.” In the context of the statute, Sato said each of the terms has a specific purpose and were not clearly alleged in the indictment process.

Another flaw, according to Sato, was presenting the testimony of former Spear employees, who she said stated they know now what they were doing then was illegal — but were not aware of it at the time. This amounted to telling the grand jury Spear was guilty, rather than allowing the panel to come to its own conclusion, she said.

The grand jury did not know whether Spear was operating a primary care clinic, a dentist’s office or a pharmacy, Sato added. This would have been crucial information for the grand jury, she said.

Hawai‘i Deputy Attorney General Gary Senaga was present for the state. He said the defense arguments were outside the scope of the motion and should have been presented in pretrial motions.

The grand jury process including testimony was proper, Senaga said. It covered the four corners of the indictment, a legal term for applying the entire document in matters and not selecting from its isolated parts.

Senaga noted that the motion comes late in the process and presented transcripts from Spear’s change of plea hearing on March 31, 2010.  He pleaded guilty on two counts of felony prohibited acts related to controlled substances, in this case prescription medications, through a Hanapepe clinic.

Together with possible extended sentences for drug crimes, Spear faces up to 20 years in prison with no mandatory minimum jail time. Spear stated in open court last March that he understood and accepted the terms, Senaga added.

Wearing a white jumpsuit and walking with the aid of a cane, Spear appeared in good spirits. He turned to smile and greet friends and supporters in the gallery during lulls in the proceeding.

Watanabe said the continuance would allow her time to review transcripts and video testimony.

In U.S. District Court in Honolulu,  Judge David A. Ezra last month sentenced Spear to 12 years and seven months in prison. In that case, the charges were for illegally dispensing Schedule III drugs in Alabama in 2008.

• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.


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