                                                                                                 08/23/2016


                                           DA 14-0676
                                                                                             Case Number: DA 14-0676

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 207



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TOBY EUGENE GRIEGO,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 13-0726
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                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



                                                     Submitted on Briefs: June 8, 2016

                                                                Decided: August 23, 2016


Filed:

                        __________________________________________
                                          Clerk
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


                                            2
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

                                            3
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



                                              4
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

                                            5
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

                                             6
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 toothbrush to brush an acidic,

metallic substance into her mouth, and swabbed her genital area with the same substance.

J.N.’s attacker told her to stay in the shower with her eyes closed, and he left her house

taking her purse and her phone with him. J.N. remained in the shower until she was

certain her attacker was gone and then drove to a coffee shop where she called 911.

Based on the time J.N. went to bed, the timestamp of her ATM transaction, and the time

she called 911 the total attack occurred over a period of about five hours.

¶11       During each assault all four women reported that they believed they were being

photographed and many heard the sound of a clicking noise as though it came from a

camera or a camera phone.

          B. News Media Coverage, Police Investigation, and Griego’s Arrest

¶12       After the third assault, the assault of T.C., the local Billings Gazette newspaper

began running news articles about the home-invasion sexual assaults, which were also

picked up by other news outlets. There were two articles reported in May 2013, eight

articles reported in July 2013, and one article reported in August 2013 prior to Griego’s

arrest.    The subjects of these articles alerted the Billings population of the known

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physical characteristics of the perpetrator (five-foot, five-inch white male, twenty-five to

thirty-five years old, thin build with light-colored hair), as well as provided general safety

tips (lock windows and doors, tell friends of whereabouts, do not take drinks or rides

from strangers, etc.) and informed residents of available self-defense classes. After the

news outlets ran these articles the Billings Police Department (BPD) began receiving

phone calls of tips and leads to its CrimeStoppers hotline.

¶13    On July 15, 2013, a woman reported to the BPD hotline that a man had followed

her in the Hobby Lobby store, which had made her very uncomfortable. As a result, a

BPD detective followed up on the woman’s complaint and learned from a Hobby Lobby

store manager that a man had been frequenting the store for several years who rarely

purchased anything, but appeared to follow women around the store with his cellphone

out. In fact, about five years prior to the 2013 assaults the Hobby Lobby manager had

alerted employees to inform her if this man came into the store. The store manager was

able to identify the man from store surveillance videos, and the BPD later identified him

as Griego.

¶14    Once the BPD identified Griego, detectives discovered Griego had worked at

Mattress Land in Billings and had delivered mattresses to T.C.’s home, and to a home

located near P.C.’s home just prior to their respective attacks. Officers began to surveil

Griego and observed him surreptitiously watching women. The BPD discovered Griego

had a criminal record in New Mexico that included a previous conviction for the

abduction and sexual assault of a sixteen-year-old female. The BPD obtained a voice

recording of Griego that was created during an investigation of an unrelated incident in

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2010. The recording clearly indicated the speaker was accused of criminal activity and

included Griego making the following statements: “because I am not going to be

railroaded into anything”; “I told you that I didn’t know what you were talking about, and

I didn’t do anything”; “you told me what I was being accused of and I told you I didn’t

do it”; and “I’ll tell you right now that you explained all that, I didn’t do that either.”

¶15    On August 8, 2013, the BPD asked J.N. to listen to Griego’s voice sample to see if

she could identify the voice on the recording. She was given preprinted instructions that

stated it was equally important to rule out a voice as it was to identify a voice. Upon

hearing the voice sample J.N. experienced an extreme physical reaction that caused her to

shake and her heart to race. She stated she was absolutely “110%” certain the voice

belonged to her attacker. However, J.N. only listened to the single voice sample. She

was not given any other samples for the sake of comparison.

¶16    On August 22, 2013, the BPD conducted a search of Griego’s home. As a result

of the search detectives discovered photographs on Griego’s phone of J.N., taken from

outside of her home, T.C., including one that showed her in the shower, crying, with

blood streaming down her face, and multiple other unidentified females, taken through

windows.     The BPD was later able to identify P.C.’s body parts in some of the

photographs. Detectives also discovered videos on Griego’s phone of the sexual assaults

of K.L. and T.C. During the video of the sexual assault of T.C. Griego’s face is visible

on two occasions.

¶17    After Griego’s arrest various news outlets reported the story as a top news story.

The news media reported some of the details of the assaults found in Griego’s charging

                                               9
documents, as well as details of his previous conviction for the abduction and sexual

assault of a sixteen-year-old female in New Mexico. Some members of the Billings

community expressed shock, outrage, and disgust on the online public comment sections

of the news stories.

       C. Procedural History

¶18    On September 5, 2013, the State charged Griego by information of thirty-eight

counts (eventually amended to forty), twenty-seven of which were tried together and

apply to this appeal. Applicable here, Griego was charged with ten counts of felony

sexual intercourse without consent, in violation of § 45-5-503, MCA; six counts of felony

robbery, in violation of § 45-5-401(1)(b), MCA; four counts of felony aggravated

kidnapping, in violation of § 45-5-303(1)(b), MCA; two counts of felony intimidation, in

violation of § 45-5-203(1)(a), MCA; two counts of felony aggravated assault, in violation

of § 45-5-202, MCA; one count of felony assault with a weapon, in violation of

§ 45-5-213(1)(b), MCA; one count of felony attempted sexual intercourse without

consent, in violation of §§ 45-5-503 and 45-4-103, MCA; and one count of misdemeanor

surreptitious visual observation or recordation in a residence, in violation of

§ 45-5-223(1)(b), MCA. On December 16, 2013, Griego filed a motion to change venue

based on the amount of pretrial publicity surrounding the investigation, Griego’s

background and previous crimes, and his arrest. On December 18, 2013, Griego filed a

motion to suppress evidence, which included the request to suppress J.N.’s voice

identification of Griego. The District Court conduced a hearing related to both motions



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on January 16, 2014. At the hearing the State presented documentary evidence and

testimonial evidence from J.N. and a BDP detective.

¶19    On January 27, 2014 the District Court issued its order denying both motions to

change venue and to suppress the evidence of J.N.’s voice identification. In its order the

District Court found that Griego was unable to show presumed prejudice that would

make an unbiased jury pool unavailable, and that voir dire was “the best way to sift

through any bias that may exist” to determine actual prejudice. In regard to the motion to

suppress, the District Court found, based on the totality of the circumstances, there were

“sufficient indicia of reliability to admit the voice identification into evidence.”

¶20    Beginning on April 2, 2014, the District Court presided over a nine-day jury trial.

For the first three days counsel conducted voir dire of the potential jurors. On April 14,

2014, Griego was found guilty of all twenty-seven charges.            He was sentenced on

July 25, 2014.

                               STANDARDS OF REVIEW

¶21    We review a district court’s ruling on a motion for a change of venue for an abuse

of discretion. However, when exercising its discretion, a district court must uphold the

criminal defendant’s constitutional right to a trial by an impartial jury. State v. Kingman,

2011 MT 269, ¶ 40, 362 Mont. 330, 264 P.3d 1104.

¶22    We review a district court’s denial of a motion to suppress evidence to determine

whether its findings of fact are clearly erroneous and whether its conclusions of law are

correct. State v. Van Kirk, 2001 MT 184, ¶ 10, 306 Mont. 215, 32 P.3d 735. The review

of whether a criminal defendant’s constitutional due process right was violated is a

                                              11
question of constitutional law, of which our review is plenary. State v. Lally, 2008 MT

452, ¶ 13, 348 Mont. 59, 199 P.3d 818.

                                      DISCUSSION

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

¶24    A criminal defendant is guaranteed the constitutional right to a fair trial by an

impartial jury. Mont. Const. art. II, §§ 17, 24. If it is determined that a fair trial cannot

be held in a county then a district court must either transfer the case to another county,

select a jury from another county, or take some other action that will ensure a fair trial

will occur. Kingman, ¶ 18 (citing § 46-13-203, MCA). Underlying the implication of

unfairness is the presumption that the criminal defendant has been prejudged by an

outside influence to such an extent that jurors from a community will be unable to remain

objective during the trial and evaluate the evidence impartially. Kingman, ¶¶ 19-20.

¶25    A defendant can establish prejudice by one of two ways: 1) by demonstrating the

jury pool is actually prejudiced against him, or 2) by demonstrating there is presumed

prejudice in the community where the jury pool is taken due to pretrial publicity.

Kingman, ¶ 20. Actual prejudice is established through the voir dire process to show that

the potential jurors harbor “actual partiality or hostility against the defendant that cannot

be laid aside.” Kingman, ¶ 32. For presumed prejudice to occur the pretrial publicity

must be “so pervasive and prejudicial that [a court] cannot expect to find an unbiased jury

pool in the community.” Kingman, ¶ 21 (quoting Goss v. Nelson, 439 F.3d 621, 628

(10th Cir. 2006)). The publicity must be both “extensive and sensational in nature.”

Kingman, ¶ 21 (emphasis in original). The bar for presumed prejudice is extremely high

                                             12
and the defendant must demonstrate “a circus atmosphere or lynch mob mentality.”

Kingman, ¶ 32. See, e.g., State ex rel. Coburn v. Bennett, 202 Mont. 20, 655 P.2d 502

(1982); State v. Dryman, 127 Mont. 579, 269 P.2d 796 (1954); State v. Spotted Hawk, 22

Mont. 33, 55 P. 1026 (1899); Rideau v. La., 373 U.S. 723, 83 S. Ct. 1417 (1963); and

Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507 (1966).

¶26    In arguing that the pretrial publicity caused presumed prejudice a defendant must

demonstrate that the news reports were inflammatory and that the reports actually

inflamed the prejudice of the community so that a reasonable possibility exists that the

defendant may not receive a fair trial. State v. Hill, 2000 MT 308, ¶ 51, 302 Mont. 415,

14 P.3d 1237. Inflammatory publicity is:

       publicity which, by its nature, has the tendency to stir up in the community
       pervasive and strong passions of anger, hatred, indignation, revulsion, and
       upset such that there are reasonable grounds to believe that juror chosen
       from this community could not determine the defendant’s guilt or
       innocence in a fair and unbiased manner and based solely upon the
       evidence admitted at trial.

State v. Devlin, 2009 MT 18, ¶ 24, 349 Mont. 67, 201 P.3d 791. While the determination

of whether publicity is inflammatory is fact-specific to each case, factors to consider are:

the size of the jury pool, the nature of the offense charged, the type and content of the

media reports, the readership of the publication, the relative size of the audience, the time

lapse between the publicity and the trial, whether the reports appear to take a position on

the defendant’s guilt, whether the reports contain extrajudicial statements by prosecutors

or law enforcement that are prejudicial to the defendant, and whether there is any

apparent adverse community reaction to the publicity. Devlin, ¶ 24.


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¶27    Griego argues his constitutional right to a fair trial by an impartial jury was

violated because the publicity surrounding the crimes and his arrest dictates a finding of

presumed prejudice.      He argues the nature of the publicity was inflammatory, the

community was in fact inflamed, and his conviction on all counts presumes prejudice.

He cites primarily to two cases, Coburn and Dryman, where prejudice was found to

support his arguments.

¶28    In Coburn, where we found that inherent prejudice existed warranting a change of

venue, the defendant was accused of the kidnapping and sexual assault of an

eleven-year-old girl. Coburn, 202 Mont. at 22, 34, 655 P.2d at 503, 509. Upon arrest,

Coburn’s bail was set at $100,000 and then later reduced to $15,000. His arrest made

front-page news of the Helena Independent Record newspaper, and included the

information about the reduction in bail along with a quote from the sheriff criticizing the

District Court Judge’s decision to reduce Coburn’s bail. Coburn, 202 Mont. at 22-23,

655 P.2d at 503. A second news article included statements made by county attorneys of

their opinions about the victim, her credibility, and Coburn’s guilt. Coburn, 202 Mont. at

23-24, 655 P.2d at 503-04.

¶29    Incidents continued to occur throughout the pendency of Coburn’s case. A group

of more than 300 demonstrators gathered on the courthouse lawn in protest of the judge’s

decision to reduce Coburn’s bail. Coburn, 202 Mont. at 24, 655 P.2d at 504. A billboard

was put up in the community stating that the presiding judge’s decision was wrong.

Coburn, 202 Mont. at 25, 655 P.2d at 504. Community forums were held about sex

offenders, where the County Attorney spoke at on at least one occasion, and a committee

                                            14
was formed to find a write-in candidate to oppose the presiding judge in the upcoming

primary election. Coburn, 202 Mont. at 26-27, 655 P.2d at 505. Sixty Helena stop signs

were vandalized with stencils and white paint to read “STOP RAPE.” Coburn, 202

Mont. at 27, 655 P.2d at 505. The County Attorney, who was up for reelection, used the

case as a platform, championing high bail amounts for serious crimes. Coburn, 202

Mont. at 28-29, 655 P.2d at 506. Coburn received death threats, and pending trial, he and

his wife were forced to move from their home out of fear of retaliation. Coburn, 202

Mont. at 27-28, 655 P.2d at 506.       All of above the incidents were reported in the

Independent Record. Coburn, 202 Mont. at 22-28, 655 P.2d at 503-06.

¶30    In Dryman, where we likewise found that a change of venue was necessary, the

nineteen-year-old defendant was accused of murder in rural Toole County. Dryman, 127

Mont. at 580, 590, 269 P.2d at 796, 801. Initially Dryman, without counsel, entered a

guilty plea. The trial court conducted an evidentiary hearing to determine the degree of

murder to charge Dryman and then sentenced him to death. Dryman, 127 Mont. at 580,

269 P.2d at 796. The hearing was well-attended by the community, with the courtroom at

capacity and standing room only. Dryman, 127 Mont. at 582, 269 P.2d at 797. After

hiring counsel Dryman attempted to change his plea, which was denied by the trial court

but remanded on appeal with directions to enter a plea of not guilty and to conduct a trial.

Dryman, 127 Mont. at 580-581, 269 P.2d at 796.

¶31    Subsequent to Dryman’s initial hearing and sentencing, local newspaper reports

published a photo of the defendant with the word “killer” written across, and in news

stories referred to Dryman as a “cold blooded killer,” described his deeds as “dastardly,”

                                            15
reported that complete evidence of his guilt had been obtained, and stated that Dryman

was “so steeped in criminal tendencies that nothing could appeal to his warped and stony

mind.” Dryman, 127 Mont. at 582-583, 269 P.2d at 797. Further, the local sheriff

requested for Dryman to be moved to the state prison pending trial for his own safety

because the community sentiment was so fervent, to which the prison commission, which

included the governor, secretary of state, and attorney general, agreed. Dryman, 127

Mont. at 583-84, 588, 269 P.2d at 798, 800. Witnesses testified that they believed

Dryman was guilty because he had confessed. Dryman, 127 Mont. at 586, 269 P.2d at

799.

¶32    Both Coburn and Dryman demonstrate instances where the community as a whole

was actively embroiled in prejudicial sentiment about the defendants, the news outlets

reported on the sentiment, and further, the news outlets reported biased, provocative

commentary. They are inapposite to the instant case. Here, in regard to whether the

nature of the publicity substantiates a showing of presumed prejudice, the news media did

report on the assaults, the investigation, safety tips, and Griego’s past, his current arrest

and subsequent trial, but did so in a manner that was objective and factual. Further, the

articles that contain extrajudicial statements made by prosecutors or law enforcement are

factual reports, and law enforcement are also quoted as refusing to release more detailed

information in order to protect the investigation. Moreover, we have stated that news

reports that contain the factual accounts of the background of the case as well as the trial

proceedings are not inflammatory. Devlin, ¶ 21.



                                             16
¶33    Prior to Griego’s arrest when the crimes were still occurring and the perpetrator

was unknown, the news media reported on general safety tips and the availability of

community resources for those who felt unsafe and fearful, because there was a

legitimate community concern. Griego argues that this perpetuated the fear; however, it

could just as equally be viewed as providing information to calm any fear. Regardless,

the safety information was provided when the perpetrator was unknown and ceased once

a suspect was apprehended. While the dissemination of the types of facts involved in the

instant case, and Griego’s previous conviction of sexual assault in New Mexico, should

be considered in the analysis of whether the nature of the publicity was inflammatory

they account for one of the factors, which is not alone conclusive.

¶34    Griego argues that there was a public sentiment that presumed prejudice, as shown

by comments made on the online versions of the Billings Gazette articles and the links to

the articles on its Facebook page. He further argues that the conviction on all counts is

itself proof of presumed prejudice.      Again, these are factors to consider and not

themselves conclusive.    However, we disagree with Griego’s contention that public

comment on news articles shows community-wide prejudice. A smattering of online

comments found on news stories hardly substantiates a finding of community prejudice in

a large community such as Billings. We agree with the District Court that the best

method to uncover this type of potential prejudice is through the voir dire process. In

regard to Griego’s conviction on all counts, alone it does not substantiate a finding of

presumed prejudice, and it needs no further discussion.



                                            17
¶35    Griego has failed to show anything “beyond [a] bare allegation . . . to prove that

the community [was] actually infected with prejudice.” Devlin, ¶ 30 (quoting State v.

Link, 194 Mont. 556, 560, 640 P.2d 366, 368 (1981)). He was given the opportunity to

ferret out any actual prejudice caused by the alleged inflammatory pretrial publicity

through the voir dire process to show he would not receive a fair trial by an impartial

jury. The District Court was cognizant of potential impartiality issues and conducted

three days of voir dire.     All potential jurors were required to submit two juror

questionnaires: one relating to their personal background, and a second relating to issues

particular to the case. The parties voir dired potential jurors individually until they

collected a pool of 80 potential jurors. Then, the parties conducted a general voir dire of

the potential jurors to select twelve jurors and three alternate jurors. Griego passed the

jury for cause and did not renew his motion to change venue. We hold that the District

Court did not abuse its discretion by denying Griego’s motion to change venue.

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

¶37    At the outset we echo Justice Brennan’s sentiment that “[t]he vagaries of [witness]

identification are well-known; the annals of criminal law are rife with instances of

mistaken identification.” U.S. v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933 (1967).

       A major factor contributing to the high incidence[s] of miscarriage of
       justice from mistaken identification has been the degree of suggestion
       inherent in the manner in which the prosecution presents the suspect to
       witnesses for pretrial identification. . . . “[I]mproper suggestion . . .
       probably accounts for more miscarriages of justice than any other single
       factor—perhaps it is responsible for more such errors than all other factors
       combined.”


                                            18
Wade, 388 U.S. at 228-29, 87 S. Ct. at 1933 (citation omitted). Justice should be leery of

suggestive identification procedures.

¶38    A criminal defendant has the constitutional right to be free from the admission of

evidence that is derived from suggestive identification procedures “where there is a

substantial likelihood of irreparable misidentification,” thus violating the defendant’s due

process right.    Lally, ¶ 14 (citations omitted).         We have historically viewed law

enforcement’s voice identification techniques similarly to visual identification

techniques. In State v. Johnson, 207 Mont. 214, 674 P.2d 1077 (1983) we clarified that

we review the totality of the circumstances to determine if a voice identification

procedure was impermissibly suggestive. Johnson, 207 Mont. at 217-222, 674 P.2d at

1079-1081. Under the totality of the circumstances test we first determine whether the

pretrial identification procedure was impermissibly suggestive. If we deem it so, then we

review the totality of the circumstances to determine whether the suggestive procedure

created a substantial likelihood of irreparable misidentification. Lally, ¶ 15.

¶39    Griego argues his constitutional right of due process was violated when J.N.’s

voice identification evidence was admitted at trial.         He argues that he was unduly

prejudiced by the method of voice identification, and further that J.N.’s identification

does not satisfy the totality of the circumstances test.

¶40    “The practice of showing suspects singly to persons for the purpose of

identification, and not as part of a line up, [is] widely condemned.” Stovall v. Denno, 388

U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967). The stage in the process at which a suspect

identification occurs is a critical and irreversible moment for the defendant.        Once

                                              19
identification occurs a witness is highly unlikely to go back on his word, so for all

practical purposes identity is determined at that pretrial moment of identification. Wade,

388 U.S. at 229, 87 S. Ct. at 1933.

¶41    Here, the witness, J.N., was also a victim of the defendant’s crimes and was no

doubt motivated to help find the perpetrator of those crimes. She was given one single

voice exemplar to review and was not given the benefit of comparison. While the officer

conducting the voice identification gave the witness preprinted information directing her

that it was as equally important to rule out a suspect as it was to identify one, the

exemplar was of Griego’s voice disputing accusatory statements while involved in police

questioning. Furthermore, the investigating officer himself testified it would have been

better to use a voice line-up procedure, and our review of the record fails to show any

exigent circumstances to warrant the use of a single-person identification technique.

Based on these facts, we conclude that the method of witness identification used in this

case was impermissibly suggestive.         Next, we turn to whether the impermissibly

suggestive witness identification technique in this case violated the defendant’s right of

due process when viewed under the totality of the circumstances.

¶42    To determine the totality of the circumstances surrounding the witness

identification we review the following factors: 1) the opportunity of the witness to view

the criminal at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy

of the prior description; 4) the witness’s level of certainty at the confrontation; and 5) the

time between the crime and the confrontation. Johnson, 207 Mont. at 219-22, 674 P.2d at

1080-81.

                                             20
¶43    Here, as in Johnson, J.N. was unable to adequately view her attacker. However,

she was able to provide a general description that he was approximately her height, of

average build, and with a shaved head or no hair. She was able to describe the color of

the pants and shirt he was wearing, and provide a description to the best of her abilities

under the circumstances. Similar to Johnson, we find that these facts indicate the first

factor of the test is satisfied.

¶44    Second, she stated that she tried to pay close attention to the details of a horrific

assault. She tried to look at her attacker’s body type and appearance, and listen to the

sound of his voice, including his accent and cadence, because she was blindfolded

through most of his assaults. Further, he spoke conversationally to her, and instructed her

to do certain things, all throughout the total amount of time of the assaults, which

amounted to around five hours. J.N. told detectives and also testified that she would be

able to identify her attacker’s voice if she ever heard it again. We find that these facts

satisfy the second factor of the test.

¶45    Third, the general physical description she provided of her attacker describes

Griego. J.N.’s description of her attacker’s accent likewise describes Griego’s accent.

We find that the third factor of the test is satisfied. Fourth, at confrontation J.N. stated

that she was “110%” positive that the voice she heard on the exemplar was the voice of

her attacker. She also experienced a notable negative physical reaction to the sound of

the voice exemplar. We find the fourth factor of the test satisfied. Fifth, thirty-eight days

passed between J.N.’s attack and the confrontation. While this is a notable length of

time, she spent a significant amount of time, nearly five hours, with her attacker and was

                                             21
forced to endure unforgettable trauma. In this case we will not find this lapse of time to

render the identification inadmissible.

¶46    The facts of this case indicate sufficient indicia of reliability to allow J.N.’s voice

identification into evidence. Johnson, 207 Mont. at 222, 674 P.2d at 1081. We conclude

that the District Court’s findings of fact are not clearly erroneous. Further, based on the

totality of the circumstances, we hold that the suggestive witness identification procedure

used in this case did not violate Griego’s constitutional right to due process. We note that

the total evidence in this case overwhelmingly proved that Griego was the perpetrator of

his convicted crimes, but it is not a stretch to imagine a circumstance with less

incriminating total evidence where such a suspect identification technique would cause

otherwise valid witness identification evidence to be suppressed. Therefore, we reiterate,

absent exigent circumstances, a single-person witness identification procedure is

inherently unreliable and we implore law enforcement to refrain from using this

technique.

                                     CONCLUSION

¶47    For the foregoing reasons, we conclude that the District Court did not err by

denying Griego’s motion for change of venue or his motion for suppression of evidence.

The District Court’s order denying these motions is affirmed.



                                                  /S/ MICHAEL E WHEAT




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We Concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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