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Sex assault convictions overturned

The appeals court blames an overzealous prosecutor. The defendant, accused of repeatedly molesting a 9-year-old girl, will get a new trial.

By CHASE SQUIRES

© St. Petersburg Times, published May 13, 2000


DADE CITY -- An appeals panel on Friday overturned four sexual assault convictions and subsequent life sentences leveled last year at a Wesley Chapel man, saying an overzealous prosecutor badgered the suspect and tainted the jury pool during opening remarks.

Chief Assistant State Attorney Bruce Bartlett said Friday the judges' ruling would be taken seriously and could result in disciplinary action.

In a three-page ruling penned by 2nd District Court of Appeal Judge John Blue, the judges found enough prosecutorial misconduct to overturn the Feb. 10, 1999, conviction of Theodore Hugh "Bear" Kellogg.

"This case is yet another example where the prosecutor's overzealousness in prosecuting the state's cause worked against justice, rather than for it," Blue wrote. "Once again, we caution prosecutors against over zealousness and improper prosecutorial conduct."

Kellogg, 28, was convicted by a six-member jury on four counts of capital sexual battery. He was charged with repeatedly assaulting a 9-year-old girl over the course of a year.

During the trial, the girl -- by then she had turned 11 -- testified that Kellogg started molesting her almost as soon as he moved into her house in the summer of 1997. At the time he was dating the girl's aunt and was one of eight people living in the home, according to court testimony.

Prosecutors accused Kellogg of a variety of sexual attacks on the girl, including one instance where he used pliers.

The appeals court ruling does not set Kellogg free, Bartlett said. It does order a new trial, and Bartlett said prosecutors would prepare to try the case again.

Kellogg confessed to the crimes on videotape after his arrest in 1998, and the confession was played in court. He claimed before the trial in a handwritten motion that he had just been through a nine-day crack cocaine and whisky binge and only confessed so detectives would go easy on him and give him some food.

"I was high and tweaked out of my mind and hallucinating," Kellogg claimed.

Public defender Alan Howell said there was no physical evidence and said the girl came up with the story because she wanted Kellogg out of the crowded house.

The appeals court found that Assistant State Attorney Stacy Sumner unfairly influenced the jury pool from the moment she introduced herself. A transcript of her introduction is included in the ruling.

"Obviously, you know my name and the fact that I'm an attorney and what type of law I practice," she told potential jurors. "You know Mr. Howell is a public defender and the fact that he defends criminals."

Telling jurors that Howell's clients are criminals "was a clearly improper character attack on both defense counsel and Kellogg," Blue wrote.

The appeals panel also found that Sumner commented on facts not entered into evidence in her closing arguments, added an improper personal comment and "the prosecutor's cross-examination of Kellogg included 13 separate incidents of badgering and the prosecutor's expression of her personal belief in Kellogg's guilt."

Sumner was out of town Friday at a legal seminar and could not be reached for comment, but Bartlett said he would review the ruling and the trial.

Bartlett said if it is determined that Sumner's acts were egregious enough, she could be disciplined by the State Attorney's Office. In rare instances, cases of prosecutorial misconduct can be forwarded to the Florida Bar, he said.

Bartlett said his office understands the point the appeals court is making and takes the opinions seriously.

"Obviously, they are sending us a message," he said.

Howell said he did not make his appeal out of malice toward Sumner or the State Attorney's Office. He said it is his job to make sure he defends every client the best way he can and he must object to actions that appear improper.

Howell said he expected to represent Kellogg again at the new trial, probably sometime later this year.

"It's a do-over," he said. "It makes it harder for the prosecution because witness memories fade, people move away . . .. We'll have six more jurors come in and we'll start again."

Howell said his client, held at a prison near the North Florida city of Madison, would likely be returned to a Pasco County jail where he could be held without bail, although he expected to ask that a bail be set.

"He's innocent until proven guilty," Howell said.

Circuit Judge Maynard Swanson, who oversaw the case and did not grant a mistrial or allow a new jury panel to be seated, was overruled by the appeals court. He said Friday he does not take the decision personally and made the decision he felt was right at the time.

"It's a case where we disagreed," he said.

Judge Blue does not accuse Swanson of anything improper.

Sadly, Blue wrote, it is the young girl and her family who will feel the effects of the prosecution's errors.

"It is unfortunate that the witnesses are the true victims of the prosecutor's misconduct," Blue wrote. "It is the witnesses that will have to suffer through the trial again."

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