Attorneys for alleged serial rapist want his past convictions kept from jury

2014-01-16T15:00:00Z 2014-06-18T17:08:13Z Attorneys for alleged serial rapist want his past convictions kept from juryBy EDDIE GREGG egregg@billingsgazette.com The Billings Gazette

A Billings judge said Thursday he will decide within two weeks whether to move the trial of an accused serial rapist to another county.

Toby Griego — the man charged with committing a string of vicious home-invasion rapes and attempted rapes — was present during the three-hour hearing in which attorneys argued over whether extensive media coverage of the case is grounds for moving the trial.

Chief Deputy Yellowstone County Attorney Rod Souza said two recent high-profile cases were not moved despite extensive pre-trial media coverage.

One case involved James Leachman, a prominent livestock breeder convicted of animal cruelty. The other case involved Richard Covington, who a jury convicted of triple-homicide. There was more pre-trial coverage of both cases than there has been of the Griego case, Souza said.

Judge Russell C. Fagg will also decide within two weeks whether to approve motions by Griego’s attorneys to suppress some evidence in the case and to split the 40 charges against the defendant into six groups.

Griego, 41, is charged with a series of home-invasion robberies, sexual assaults, attempted sexual assaults and kidnappings of four young women in the first seven months of 2013. He denied all charges during an arraignment in November.

Billings Police Detective Ken Paharik on Thursday presented graphically detailed accounts of the four attacks, along with some previously unreleased details.

In three of the attacks, Griego allegedly sneaked into a young woman’s home, placed a hand over her face while she was in bed, blindfolded and bound her, and then physically and sexually assaulted her over a period of hours, Paharik testified.

In two of the cases, the detective alleged Griego took the women to ATMs and forced them to give him money.

In a fourth attack, the woman was physically assaulted in her home, but fought off her attacker.

Police identified Griego as a person of interest last summer after a Crimestoppers tip from a woman who said he had been stalking her in Hobby Lobby, Paharik said.

Police visited the store and learned that Griego was well known in the store for stalking female customers, Paharik said.

Police put Griego under surveillance and spotted him at Lake Elmo State Park, Rose Park, a downtown bar, JC Penney and T.J. Maxx, apparently searching for possible victims, the detective said.

Paharik described Griego as a sophisticated perpetrator, using what the detective described as “counter-surveillance” techniques to search for victims.

The detective also described the 10 videos and multitude of photos investigators were able to “carve” from Griego’s phone, even though the suspect had deleted the data or concealed it with an application called Hide It Pro.

Griego is clearly visible in some of the footage, which includes documentation of the assaults and photos of numerous other women taken without their knowledge, the detective alleged.

One of the legal arguments Thursday involved the possibility of excluding from trial a voice recording of Griego that one rape victim used to identify him.

Defense counsel argued that the recording shouldn’t be admitted in trial because it is the only way the woman identified Griego as her attacker.

After Griego became a person of interest in the case last summer, police played a recording of his voice for the victim, about a month after she was assaulted, Paharik testified.

The victim testified Thursday that she only had a brief glimpse of her attacker, but that she could identify him by his distinct voice — low, with a slight Hispanic accent.

She testified she is “110 percent” certain that the voice on the recording was her attacker.

After listening to the recording, the woman said the recording made her feel sick. “It takes me back there,” she said. “That voice is so recognizable.”

Defense counsel also suggested the recording should be barred on the grounds that it was the only voice police played for the woman.

Public Defender J. Thomas Bartleson argued that Griego’s voice should have been played for the woman as part of a group of recordings, similar to a photo lineup.

Defense attorneys also want the judge to exclude evidence of Griego's extensive criminal past.

Prosecutors plan to present at trial evidence that Griego has been previously convicted of raping a 16-year-old girl, robbery and aggravated burglary in New Mexico in the late 1990s.

Griego’s attorneys argued that evidence would unfairly prejudice the jury.

Deputy Yellowstone County Attorney Juli M. Pierce said that the rape in New Mexico is "eerily similar" to those Griego is charged with in Billings.

If convicted of any of the rape charges, Griego would face a mandatory life sentence without the possibility of parole because of his sexual offense conviction in New Mexico, court records say.

The public defenders are seeking to split the charges against Griego into six groups and have them tried as independent cases: One case for each of the four victims Griego is accused of attacking, one case for the drugs police say they found in his home and one case for the charges stemming from the videos and photos recovered from Griego’s phone.

David Duke, Griego’s other public defender, argued that not splitting up the counts would cause a jury to look at the quantity of charges and assume that Griego is a “bad man” and must be guilty.

Griego remains in custody at the Yellowstone County Detention Facility on a $1 million bond.

Judge Fagg recently rescheduled Griego’s trial from Jan. 22 to early April. Jury selection is set for April 3 and 4, with the trial set to begin the following week, on April 7.

Fagg has said the trial is expected to last for a week and a half.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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