- Associated Press - Tuesday, January 28, 2014

BILLINGS, Mont. (AP) - A man charged with raping three women and assaulting a fourth can receive a fair trial in Billings, but a state judge agreed with a defense request to suppress evidence of a previous rape conviction.

District Judge Russell Fagg issued a 25-page ruling late Monday in the case of Toby Griego, who is charged in a series of home-invasion robberies and assaults in Billings last year. Griego, 41, has pleaded not guilty to 40 charges.

Charging documents allege Griego stalked women and then broke into their homes at night. He is charged with tying them up and repeatedly raping three of them, taking pictures of them and forcing them to bathe afterward. He is charged with forcing two women to withdraw money from ATMs. He is also charged with trying to sexually assault a fourth woman.

Griego’s attorneys sought to separate the charges into six cases - one case for each of the four victims, one drug case and one stemming from photos and videos recovered from Griego’s phone. They also sought to move the trial out of Billing due to pre-trial news coverage and asked the judge to suppress one woman’s identification of Griego through the use of a voice recording.

Fagg heard arguments on the motions by public defenders David Duke and J. Thomas Bartleson and prosecutors on Jan. 16.

On Monday, he agreed to separate out the drug case, but ruled the rest of the charges will be tried together because of their similarities and because trying them separately would be impractical.

Griego’s trial is set to begin on April 7.

The motion to move the trial out of Billings included news clips about the case and copies of comments made on the Gazette website in which people suggested it would be appropriate for Griego to be killed, tortured or sexually assaulted.

Fagg ruled that Billings has been successful in seating unbiased juries in other inflammatory cases, including a triple homicide that received more news coverage that Griego’s case has. He said he would allow the voice identification made by one woman because she testified she was “110 percent certain” the voice in the recording is the voice of her attacker. However, Fagg wrote that “the Court would implore (Billings police) to use a ‘voice lineup’ in the future.”

The judge decided not to allow evidence of Griego’s conviction for raping a 16-year-old in New Mexico in 1997, saying the current cases differ significantly from the earlier rape, which he wrote was not as calculated as the sometimes hours-long assaults Griego is charged with committing in Billings.

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

Griego has been jailed with his bail set at $1 million since his arrest in August.


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