Serial rape trial will stay in Yellowstone County

2014-01-27T17:11:00Z 2014-04-14T20:06:07Z Serial rape trial will stay in Yellowstone CountyBy EDDIE GREGG egregg@billingsgazette.com The Billings Gazette

A Billings judge ruled late Monday that the trial of accused serial rapist Toby Griego will be held in Yellowstone County.

In a 25-page order on several pending motions in the case, Judge Russell C. Fagg denied a request by Griego’s attorneys to move the trial out of the county, but agreed to suppress evidence of the man’s previous rape, burglary and robbery convictions out of New Mexico.

The judge also denied a request to exclude a voice recording from the trial and only partially granted a motion to sever the 40 charges against Griego, who is accused of committing a series of home-invasion robberies, sexual assaults, attempted sexual assaults and kidnappings of four young women in the first seven months of 2013.

Griego pleaded not guilty to all the charges in November. His trial is scheduled to begin April 7.

Judge Fagg’s decisions in the case come after a three-hour hearing on Jan. 16. Greigo’s attorneys, David Duke and J. Thomas Bartleson, with the state Office of the Public Defender, argued to keep from trial a voice recording a victim used to identify Griego as her attacker.

The attorneys had argued that the woman’s identification was unreliable, partly because it was the only voice recording police played for the woman and it wasn't part of a voice lineup.

Judge Fagg ruled that prosecutors can use the audio as evidence in part because the victim testified she is “110 percent certain” the voice in the recording is the voice of her attacker. But, Fagg wrote, “the Court would implore (the Billings Police Department) to use a ‘voice lineup’ in the future.”

The judge said Griego’s attorneys have not shown that pretrial media coverage of the case will keep Griego from having a fair trial.

“While the Court agrees the nature of the offenses here may be inflammatory,” Fagg wrote. “Billings has been successful in seating unbiased juries in other cases that are inflammatory in nature … .”

Chief Deputy Yellowstone County Attorneys Rod Souza and Juli M. Pierce, the prosecutors assigned to the case, have pointed out that two recent high-profile cases — one involving a triple homicide, the other animal cruelty — were not moved even though they garnered more pretrial media coverage than the Griego case has.

Griego’s attorneys had also sought to have the 40 charges split into six groups on the grounds that a jury could look at the sheer number of charges and assume that Griego must be guilty. Judge Fagg agreed to separate out three drug charges, but ruled that the rest of the 40 charges will be tried together partly because of their similarities and because trying them separately would be impractical.

Judge Fagg explained his decision on Griego’s criminal history by pointing out that the man’s previous crimes differ significantly from the ones he is charged with in Montana and that the crimes would be unfairly prejudicial if admitted as evidence.

Fagg pointed out that Griego’s actions in those crimes, which included the rape of a 16-year-old, were not as calculated as the sometimes hourslong assaults Griego is charged with committing in Yellowstone County.

The judge added evidence of Griego’s criminal history “is not necessary because it appears the State already has a sufficient amount of evidence at its disposal.”

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

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

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