Grega v. Pallito, No. 587-11-10 Wmcv (Wesley, J., S ept. 2, 2011)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT

S UPERIOR C OURT

J OHN C. G REGA │

Plaintiff │ │ W INDHAM U NIT , C IVIL D IVISION

v. │ Docket No. 587-11-10 Wmcv Andrew Pallito, Vermont Commissioner

Of Corrections │

Defendant │ │

OPINION & ORDER

Petitioner seeks relief pursuant to 13 V.S.A.§5566 (a)(1) compelling the State to submit specimens maintained as evidence for further DNA testing. A bench trial was held on August 4, 2011. Petitioner was represented by I an Carleton, Esq. The State was represented by Ass’t Attorney General David Tartter , Esq.

At the trial, each party presented a single witnes s. Dr. Steven Laken, a forensic DNA expert, testified on behalf of Petitioner. Dr. Margaret Schwartz, senior forensic chemist at the Vermont Forensic Laboratory, testifi ed on behalf of the State.

Factual Background & Procedural History

Based on a jury verdict, John Grega was convicted o n August 4, 1995 of murdering his wife while they were vacationing at a rented condominium near Mt. Snow. He was also convicted of aggravated sexual assault, which was subsequently reversed. He was sentenced to life without parole. His convictio n for aggravated murder was upheld, State v. Grega , 168 Vt. 363 (1998), his petition for post-convict ion relief based on ineffective assistance of counsel was denied and up held on appeal, In re Grega , 2003 VT 77, and his federal petition for habeas corpus was denied, In re Grega , 2007 WL

2446781.

Christine Grega was found nude in the downstairs ba throom of the condominium. Her autopsy revealed blunt trauma injuries to her h ead, neck, trunk and extremities. There were also multiple lacerations in the anal/rectal r egion. The medical examiner concluded that the cause of death was asphyxia and classified the death as a homicide. A forensic pathologist testified that the anal injuries were c aused by a foreign object about twice the size of a normal penis that was inserted in the vic tim’s rectum with moderate to severe force. Grega gave several accounts of the events s urrounding his wife’s death, which included conflicting details. He told police the re ason for his trip with his wife was to get their marriage “back on track”, after they had disc ussed divorce. He stated that he had been away from the condominium with his young son, and returned to find his wife in the downstairs bathtub. After unsuccessfully trying to resuscitate her, he ran next door to have the neighbors call an ambulance. The police re sponded to an emergency call for2

assistance for someone who had “fallen in a bathroo m”. After learning about the victim’s anal injuries, he gave different versions of his re cent sexual relations with his wife, at first stating that they had sex twice on the mornin g of her death, and later saying that they had vaginal sex in the morning and anal sex in the afternoon. At first he explained that he sometimes grasped his wife neck during sex, unle ss she complained that “it was too rough”, and said that his wife’s head injuries migh t have been caused by her hitting a wall or the bed during sex. Later, in the presence of his attorneys, he changed the timing

of some of the events he had earlier described, and disclaimed having his hands around his wife’s neck while having sex with her earlier i n the day, further describing her condition as “fine” after sex with no complaints of being disabled or in pain.

Consistently throughout these legal proceedings, P etitioner has insisted that someone else committed the murder, focusing attenti on on two painters working in the vicinity, Bryant Comi and Michael Carpenter. Both men testified at Petitioner’s trial and denied any involvement. The trial court excluded ev idence of the criminal histories of these men; their alleged sexual practices, history of assaultive behavior and prior thefts; and a hearsay statement attributed to Comi in which he purportedly claimed responsibility for the crime. These rulings were su stained on appeal as proper applications of V.R.E.404(a), and the Supreme Court endorsed the trial court’s characterization that, in an effort to implicate Co mi and Carpenter, Petitioner had merely gathered together “a number of remote acts, unsubst antiated statements, and unconnected activities and proclivities”. State v Grega at 378.

The Court also rejected Petitioner’s argument that the circumstantial evidence was insufficient to support the conviction. The Court n oted the presence of bloody clothes left at mid-cycle in a washing machine in the condominiu m, and the otherwise unusual

cleanliness of the crime scene. These facts indicate that the person who raped and murdered Mrs. Grega took time to clean and wipe down surfaces in the co ndominium, and to place the bloody clothes in the washing machine, le t the machine fill up, and stop the machine mid-cycle so the clothing woul d soak in the soapy water. Only defendant would have been free to take his time cleaning up the scene, secure in the knowledge that no one else would be returning to the condominium. Defendant’s isolated fingerprint o n the washing machine was also evidence that he had placed the bl oody clothes in the

washer.

Id. at 380. The Court also found that “most damaging to defendant was his attempt to explain his wife’s death as an accident”. It also construed the evidence as inconsistent with the theory that the perpetrator was a stranger , since there was no sign of forced entry, and there was no logical explanation for a s tranger taking the time to clean and put the clothes in the wash. Regarding a piece of cardb oard from a carton of Marlboro cigarettes found inside the toilet, when neither Gr egas smoked and the two painters were

known to favor Marlboros, the Court observed, “the piece of cardboard was closely adhered to the side of the toilet, and not part of the wad of towels clogging the toilet. The jury could have reasonably concluded that the cigar ette package was disposed of long3

before the paper towels, and was in no way related to the Gregas or to the murder.” Id. at

381.

Discussion

Effective July 1, 2008, persons convicted of qualif ying crimes are entitled to seek post-conviction DNA testing “of any evidence which may contain biological evidence that was obtained during the investigation or prose cution of the crime”. 13 V.S.A.§ 5561(a). In the course of the proceedings created by the Innocence Protection Act, and following a hearing, the court shall grant the peti tion and order DNA testing upon making statutorily required findings, beginning with: “A r easonable probability exists that the petitioner would not have been convicted or would h ave received a lesser sentence for the crime for which the petitioner claims to be innocen t of in the petition if the results of the requested DNA testing had been available to the tri er of fact at the time of the original prosecution.” 13 V.S.A.§ 5566(1).

By their pre-trial framing of the issues invoked b y Petitioner’s request for DNA testing in this case, the parties have stipulated t o certain additional testing of evidence preserved from the investigation of the homicide fo r which Petitioner was convicted. By the Joint Specification of Factual and Legal Issues No Longer in Dispute, and

Consolidated Trial Memorandum filed June 30, 2011, the parties agreed: 1) to narrow the list of samples in dispute to 32 from the 70 origin ally specified by the petition; and 2) that of the 32 samples, the State acknowledged the duty under the statute to submit five of them for further DNA testing. This evidence is iden tified generally as “swabs and/or fingernail scrapings taken from the victim’s body”, and more specifically as: i) A-16-1, vaginal swab taken from victim; ii) A16-2, oral swa b taken from victim; iii) A16-3, anal swab taken from victim; iv) A1, right hand fingerna il scraping from victim; and v) A2, left hand fingernail scraping from victim.

Ex. 1 admitted in evidence is titled Table of Disp uted Samples, (attached as an addendum to this opinion), which lists other preser ved specimens within the following categories: i) hair samples taken from various loca tions at the crimes scene, including 3 found in or on body bag, 3 found in trash, 7 found in washing machine, 3 found in other specified locations in apartment, and 3 whose locat ion when retrieved is unclear; ii) bath and shower stains possibly containing biological ma terial; iii) piece of Marlboro carton and paper towels clogging upstairs toilet; iv) item tested positive for phenolphthalein from base of upstairs toilet; v) items listed in 11 /14/94 lab report indicating presence of blood or unidentified DNA, including cutting from g ray shorts and two cuttings from pink towel.

Although each party presented expert opinion for t he Court’s consideration, the issue in dispute is only tangentially informed by s uch testimony. Petitioner’s position, supported by Dr. Laken, is that the science of DNA profiling has significantly advanced since the investigation in 1994, that each of the 3 2 disputed samples has the possibility of including biological material from which a full or partial DNA profile might be

reconstructed, and that the identification of a DNA profile associated with evidence4

gathered from anywhere in the condominium, matching either Carpenter or Comi, or even an unknown male, would inescapably yield the c onclusion that Petitioner probably

would not have been convicted had such evidence bee n known to the jury.

The State disputes the logic of each aspect of this assertion. As a threshold matter, and in reliance of Dr. Schwartz’s opinion, the Stat e contests whether most, if not all, of the specimens are likely to yield identifiable DNA material. Many of the samples were gathered from places in the condominium where conta ct with water makes it likely that any biological material would be too degraded to pe rmit DNA reconstruction; for example, cuttings from shorts and towels that were soaking in the washing machine, the cardboard from the cigarette carton and the towels plugging the toilet, and samples from stains on the bath and shower. According to Dr. Sc hwartz’s credible testimony, the latter samples were tested for blood, which was negative a t the time, and the methods to screen for blood have not changed significantly. Furthermo re, even Dr. Laken acknowledged that problems associated with testing hair samples frequently result in no identifiable DNA, or at best a partial profile. Nor does he disp ute Dr. Schwartz’s observation that hair is easily transferred, thus the presence of hair fr om an unknown subject anywhere in the condominium has so many possible explanations that it can’t reasonably be said to be probative of Petitioner’s innocence.

While acknowledging that “an unknown male, DNA prof ile on a biological sample taken from within the victim’s body” would r aise sufficient doubts as to

Petitioner’s innocence, the State insists that, eve n if such a profile might arguably be developed from the other disputed specimens, the pr esence of such unknown male DNA would not likely change the outcome of the case, an d therefore the Court is without authority to order testing even it might produce su ch an outcome. Except as to the 3 hair specimens found on the body bag, the Court agrees.

Dr. Schwartz credibly explained that the further fr om the body specimens were collected, the less likely they were to be tested i n a typical crime scene investigation due to the probability that they would yield no useful information. Further, she stated that without other indications to support likely relevan ce, the testing of likely irrelevant material is wasteful, and potentially confusing, as it requires resources and time to be directed in what is most likely an unproductive fas hion. On this score, she squarely disagreed with Dr. Laken, whose view as a forensic expert primarily engaged by the subjects of criminal investigations is fairly summa rized, “if it is capable of being tested, it

should be tested, because the more information, the better”. As the State argues, however, this view supports a much broader scope of testing than the standard incorporated in the statute.

Nevertheless, on cross-examination Dr. Schwartz con ceded that further testing of the hair samples found on the body bag was justifie d by the logic of the standard testing protocol which she espoused. While other explanati ons for the presence of the hair samples are possible that are consistent with Petit ioner’s guilt, including the deposit of one or all during the course of the investigation, on the current record the Court concludes that the possible explanations consistent with innocence might be strong5

enough to possibly alter the outcome of the origina l verdict. However, as to the remaining samples, they are too remote from the immediate cri me scene, and too unlikely to yield probative DNA evidence, to qualify as likely to res ult in evidence that would alter the outcome of Petitioner’s convictions. There is a hig h degree of speculation associated with any assumption that there will be testable material on most of these specimens. Furthermore, even were the Court to speculate that testing of one or more of the specimens might result in a DNA profile of an unkno wn male, it is doubtful such evidence would even be admissible, much less likely to alter the outcome. Much like the Rule 404(a) evidence excluded by the trial court, u nknown DNA unconnected by time of deposit, or from the immediate location in the down stairs bathroom where Christine Grega’s was found, could only be used to generate u nsupported speculation that a different perpetrator murdered her. 1

Two other aspects of the expert testimony bear comm enting upon. First, as further justification for the opinion that all disputed sam ples should be tested, Dr. Laken explained that it might be possible that one of the samples stipulated for testing would yield only a partial profile, but that such test re sults could become much more significant if matched with a fuller profile developed from an other sample found elsewhere in the condominium. The Court rejects this rationale as re lying on a ladder of speculation too flimsy at present to support the required finding f or ordering testing. However, this ruling is made without prejudice to a renewed request for more expanded testing, if the results of any tests of those specimens covered by the stip ulation and this order plausibly justify such a further request.

Second, although it is apparently conceded that Car penter and Comi have likely been subject to DNA sampling as a result of their c riminal histories, such that the DNA profile of each is included in the CODIS database, the State took the position in its pretrial memorandum that the Court had no authority to order any particular comparison using CODIS. According to that argument, only sampl es taken from “putative perpetrators” are eligible for entry into CODIS, a determination made in the sole discretion of the Vermont Forensic Lab applying COD IS protocols. Nonetheless, Dr. Schwartz’s testimony appears to have obviated any n eed to squarely address this asserted jurisdictional limitation. She acknowledged that if the Court concluded that testing was warranted, and if testing generated a DNA profile, it would be logical and expected that a CODIS comparison would result from such testing. Th us, the Court need not at this time make any specific order as to CODIS comparison, rel ying on the expectation that it would occur as explained by Dr. Schwartz. Should th at expectation go unfulfilled, the extent of the Court’s authority will doubtless be r e-examined under the circumstances as they may exist upon further request for relief.

1 Petitioner argues that if such unknown DNA matched Carpenter’s of Comi’s through a CODIS comparison, that result would have a dramatic impac t in light of the testimony by each disclaiming any knowledge or involvement, as well as in further con sideration of other inaccurate statements they gave to the police. While the Court doesn’t disagree such e vidence would meet the statutory test, assuming it was developed, Petitioner’s basis for claiming any like lihood that it will develop is presently founded on the same unsupportable speculation that has been repeat edly rejected at each level of judicial review.6 In sum, the Court concludes that, on the current re cord, Petitioner has failed to demonstrate that testing of any of the specimens li sted in the Table of Disputed Samples would likely produce evidence that would alter the outcome of his conviction, except for the three hair samples found on the body bag. As t his issue was the only one presented by the Joint Specification of Factual and Legal Iss ues and Consolidated Trial Memorandum, the Court makes no order as to the spec ifics of further DNA testing of those samples stipulated for such testing, as well as for those added for testing by this

order. The Court assumes that these mechanics have been stipulated; if either party believes that they must be incorporated into a judi cial order, the Court will expect a stipulated proposal to that effect.

WHEREFORE it is hereby ORDERED: The petition for D NA testing is GRANTED as to specimens A-16-1, A16-2, A16-3, A1, & A2, based on the parties’ stipulation, and as to specimens A13-1, A13-2 & A14 based on the reasoning above. As to each of the other specimens listed in the Table of Disputed Samples, the petition for DNA testing is DENIED.

Dated at Newfane this day of , 2011.

_____________________________ John P. Wesley Superior Court Judge