State v. Griego

• Decision Date: 23 August 2016
• Docket Number: No. DA 14–0676.,DA 14–0676.
• Citation: 2016 MT 207,377 P.3d 1217,384 Mont. 392
• Parties: STATE of Montana, Plaintiff and Appellee, v. Toby Eugene GRIEGO, Defendant and Appellant.
• Court: Montana Supreme Court

384 Mont. 392

377 P.3d 1217

2016 MT 207

STATE of Montana, Plaintiff and Appellee

v.Toby Eugene GRIEGO, Defendant and Appellant.

No. DA 14–0676.

Supreme Court of Montana.

Submitted on Briefs June 8, 2016.

Decided Aug. 23, 2016.

For Appellant: Chad M. Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Juli M. Pierce, Chief Deputy County Attorney, Billings, Montana.

Justice MICHAEL E. WHEAT

delivered the Opinion of the Court.

¶ 1 Toby Eugene Griego appeals his conviction of ten counts of sexual intercourse without consent, six counts of robbery, four counts of aggravated kidnapping, two counts of intimidation, two counts of aggravated assault, one count of assault with a weapon, one count of attempted sexual intercourse without consent, and one count of misdemeanor surreptitious visual observation or recordation in a residence following a jury trial in the Thirteenth Judicial District Court, Yellowstone County. We affirm.

ISSUES

¶ 2 We restate and review the following issues:

1. Did the District Court err by denying Griego's motion for change of venue?

2. Did the District Court err by denying Griego's motion to suppress voice identification evidence?

FACTUAL AND PROCEDURAL BACKGROUND

A. The Assaults

¶ 3 Between the months of January 2013 and July 2013 a series of home-invasion sexual assaults and robberies occurred in the Billings, Montana, area. The first reported assault occurred in the early morning of January 27, 2013, when twenty-one-year-old victim K.L., asleep in her bed, was awakened by a gloved hand cupped over her mouth, a knife held to her throat, and a man telling her to be quiet. K.L. was blindfolded, gagged, her feet and hands tied together, and she was forced to endure hours of physical trauma. The attacker first punched K.L. in the back of the head, and then used multiple objects, including a vibrator and a toilet plunger, to penetrate her vaginally and anally. After the initial sexual assault, she was ordered to bathe, and after she was finished bathing to his satisfaction her attacker dragged her by her hair back onto her bed and penetrated her both vaginally and anally again, first with the vibrator and then with his penis. When K.L. tried to escape her attacker struck her again in the head. She was forced to bathe a second time, during which her attacker submerged her head in the bathtub. For a second time K.L.'s attacker dragged her from the bathtub by her hair and continued the assault by penetrating her anally with the toilet plunger and forcing her to masturbate with the vibrator. Then her attacker finally left, taking with him K.L.'s purse, jewelry, phone, and a bag of money she used to make change at her job as a server in a restaurant. When K.L. realized that her phone was missing she ran to a neighbor's house to call 911.

¶ 4 In the early morning of April 25, 2013, a second victim, twenty-three-year-old P.C. who was asleep in her bed, was awakened by a man rummaging through her belongings. The man grabbed P.C., put his hand over her mouth, began to choke her around her neck, and told her not to look at him. P.C.'s attacker next gagged her, tied her hands behind her back, turned her onto her stomach, and tried to remove her underwear. When P.C. began struggling to get away her attacker responded by digging his hands into her eye sockets, which caused her to stop struggling. Her attacker then removed her underwear and touched her vaginal area with his hands. P.C. struggled a second time, and this time was able to get herself off of the bed, and spit the gag from her mouth. She crawled to her bedroom door, and screamed at the top of her lungs. When P.C.'s attacker could not regain control of her he punched her in the face and fled from the home taking P.C.'s phone with him. When she could not find her phone she forced her way through her roommate's locked bedroom door and yelled to her roommate that a man had tried to rape her and to call 911. The two women barricaded her roommate's door and called 911.

¶ 5 In the early morning of May 27, 2013, a third victim, twenty-year-old T.C. who was asleep in her bed, was awakened by the sensation of being shocked by a stun gun weapon, and then noticed a hand covering her mouth. The man told her to be quiet and not to look at him. When T.C. tried to look at her attacker he struck her in the back of the head. Next T.C.'s attacker tied her hands behind her back and her legs together, and gagged her. As she was bound and lying on her stomach, she heard her attacker walking through her apartment and rummaging through her belongings. The attacker next blindfolded T.C. and tied a belt from her closet around her neck. He also found the handgun T.C. kept in her bedside table and told T.C. that if she did not cooperate he would shoot her. He then tightened the belt around T.C.'s neck and choked her to the point that she began to lose consciousness.

¶ 6 T.C.'s attacker next went into T.C.'s kitchen and retrieved bottles of red wine, vodka, and rum, which he forced T.C. to consume. He instructed T.C. to drink quickly. He told her if he determined she was not drinking quickly enough he would count down from ten and if he reached one he would strangle her again. T.C. was forced to drink one full bottle of red wine, one quarter bottle of vodka, and one quarter bottle of rum in minutes. T.C.'s attacker used the stun gun weapon repeatedly on various parts of her body, including on her genitals, and forced T.C. to masturbate with her electric toothbrush. He then penetrated T.C. both vaginally and anally with a foreign object, while at the same time T.C. was vomiting due to the amount of alcohol she consumed.

¶ 7 At some point T.C. offered to give her attacker money to make him stop the assault. He untied T.C., dressed her, took her to her car, and drove her to a bank so that T.C. could withdraw money from an ATM. Once they reached the bank T.C. decided to attempt to escape. She began running but was tackled from behind. T.C. was unable to successfully withdraw any money, so her attacker returned to T.C.'s home to continue the assault. T.C.'s attacker used a foreign object, possibly a curling iron, to penetrate T.C. vaginally and anally, and again used the stun gun weapon on T.C.'s genitals. He then forced T.C. to shower and took her back to her bed. Finally, he told her he knew her hometown and threatened to kill her friends and family if she told anyone what happened. He left T.C.'s home taking her handgun and phone with him. When T.C. could not find her phone, still very intoxicated, she attempted to drive to the police department, and when she could not find it she stopped at the Crowne Plaza Hotel and told the night attendant to call 911.

¶ 8 In the early morning of July 2, 2013, a fourth victim, thirty-year-old J.N. who was asleep in her bed, was awakened by a man's voice and the feeling of hands over her face and mouth. The man told J.N. to be quiet, and if she cooperated she would not be hurt. He also told J.N. that he had a partner in her home and that they would be going through the house to look for money and other things. He told her to roll onto her stomach, not to look at him, and to keep her face down. He pressed the back of her head into the pillow and pulled back her comforter to look at her nude body. J.N. heard the man rummage through the drawers and closet in her room. He took items he found to blindfold and gag J.N., and tie her hands behind her back. He told her he had found her roommate's handgun and he would shoot her if she failed to cooperate. He asked her questions about who lived with her and where they were that night. She told him that her roommates were out of town, and the attacker left her room to confirm they were alone.

¶ 9 When J.N.'s attacker returned he positioned her onto her knees and began sexually assaulting her. He used a foreign object to penetrate her vaginally, anally, and orally. He put the object into her hands and forced her to masturbate with it. He made various comments to her throughout the assault, including ordering her to move into different positions, and telling her information about her boyfriend that led her to believe that he had seen them before. He asked her if she had money in the house, and because she did not J.N. told him she would take him to an ATM because she hoped it would make the assault stop. J.N.'s attacker then dressed her with clothes he found in her room and instructed her to get into her car and he took her to an ATM. At the ATM he removed her blindfold and told her not to look at him, and to go withdraw cash; she withdrew $200. Afterward, he instructed J.N. to lay down in the backseat of the car and to keep quiet. They returned to her house and J.N.'s attacker resumed the assaults, penetrating her vaginally with a foreign object, but at one point telling her “I'm getting bored.”

¶ 10 Then J.N.'s attacker removed her blindfold, bindings, and gag and placed duct tape over her eyes and mouth and walked her to a ditch near her house. He forced J.N. to lie on her stomach in the ditch and began shoving her head repeatedly into the water, each time to the point where J.N. nearly passed out. Afterward, J.N.'s attacker took her back to her house to resume his assaults for a third time. First, he ordered J.N. to shower, then he re-bound her hands and feet, pressed a knife against her collarbone, and used some sort of rubber object to hit her several times on the stomach and on her buttocks. He again penetrated her with a foreign object several times vaginally, anally, and orally, forcefully choking her with the object, and then used her comforter to smother her until near unconsciousness. He then wiped her whole body with some type of sanitizing wipe, untied her, forced her to shower with soap, used her...