United States District Court, D. Vermont
JEFF GREGA, in his capacity as Executor of Estate of JOHN C. GREGA, Plaintiff,
WILLIAM PETTENGILL, in his individual capacity; DAN M. DAVIS, in his individual capacity; GLEN CUTTING, in his individual capacity; RICHARD HOLDEN, in his individual capacity; and TOWN OF DOVER, Defendants
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Jeff Grega, in his capacity as Executor of estate of John C.
Grega, Executor-Plaintiff: Bernard Aiden Flanagan, Esq., Chad
W. Higgins, Esq., Dalton C. N. Randall, Esq., Jacob N. Tabor,
Esq., PRO HAC VICE, Goodwin Procter LLP, Boston, MA; Ian P.
Carleton, Esq., Sheehey Furlong & Behm P.C., Burlington, VT;
Joseph F. Savage, Jr., Esq., Goodwin Procter LLP, Boston, MA.
William Pettengill, in his idividual capacity, Dan M. Davis,
in his individual capacity, Glenn Cutting, in his individual
capacity, Richard Holden, in his individual capacity,
Defendants: Jonathan T. Rose, Esq., Todd Daloz, Esq., Vermont
Office of the Attorney General, Montpelier, VT.
Town of Dover, Defendant: Colin K. McNeil, Esq., Nancy G.
Sheahan, Esq., McNeil, Leddy & Sheahan, P.C., Burlington, VT.
AND ORDER RE: DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE
TO STATE A CLAIM (Docs. 25, 59)
W. Crawford, United States District Judge.
John C. Grega brought this action under 42 U.S.C. § 1983
against defendants William Pettengill, Dan M. Davis, Glen
Cutting, and Richard Holden in their individual capacities,
and against the Town of Dover, Vermont. John Grega died in a
motor vehicle accident on January 23, 2015. His executor,
Jeff Grega, has been substituted as the plaintiff in this
action. For simplicity, this order refers to the claims and
allegations made by John Grega.
claims that defendants violated his constitutional rights and
state laws in connection with the investigation and
prosecution of Grega for the murder of his wife, Christine.
Presently before the court are defendants' motions to
dismiss Grega's claims for failure to state a claim. A
motions hearing was held on June 16, 2015. For the reasons
set forth below, the Town of Dover's motion (doc. 59) is
GRANTED, and the individual defendants' motion (doc. 25)
is GRANTED in part and DENIED in part.
amended complaint alleges the following facts, which for
purposes of this motion the court assumes to be true. (Doc.
53 at 6-49.)
Events Preceding Christine Grega's Death
and Christine Grega met as students at St. John's
University in 1983. They married in 1985, after each had
graduated. The couple settled in New York in 1987, when Grega
joined his family's window cleaning business. The Gregas
had their first and only child, John Henry Grega, Jr., in
1992. In September 1994, the family was living in Lake Grove,
September 10, 1994, the Grega family drove from Long Island,
New York to the Timber Creek Condominium Complex in Dover,
Vermont, for the first leg of a family vacation. They stayed
in Unit 69, owned by a former business associate of the
family window cleaning business. The Gregas planned to
continue their vacation in a family cabin in upstate New York
after their stay in Dover. On September 11, 1994 the Gregas
shopped, attended a ski show, and dined at a local
restaurant. On September 12, the Gregas went to Santa's
Land in Putney, Vermont, ate lunch at a McDonald's, and
returned to the condo in the mid-afternoon.
late afternoon of September 12, Grega took John Jr. out while
Christine stayed in the condo alone. Grega and John Jr. went
to a playground, and then drove around looking for a
restaurant. Grega never stopped at a restaurant, and
eventually John Jr. fell asleep in his car seat. Grega
returned to the condo to prepare John Jr.'s bed, leaving
him asleep in the car. Grega discovered Christine motionless
in the bathtub downstairs. He pulled her out of the bathtub,
placed her face-up on the bathroom floor, and attempted to
perform CPR on her.
had no telephone, so Grega ran to the closest occupied unit,
Unit 72, in order to make an emergency call. The Unit 72
occupants heard Grega yell something to the effect that his
wife had fallen in the tub and his son was asleep in the car.
Fearing for their own safety, they refused to open the door
to Grega until he produced his son. Grega retrieved John Jr.
from the car, handed him over to the Unit 72 occupants, told
them to make an
emergency call, and ran back to Unit 69. The Unit 72
occupants made an emergency call around 8:30 p.m.
The First Response
police officer (" Dover Officer" ) arrived at Unit
69 at 8:36 p.m. He found Grega sobbing on the floor next to
Christine. Upon noting Christine's pallid blue color, he
determined--" contrary to standard operating
procedure" --that attempting to resuscitate her would be
of no use, and did not do so. ( Id. at 12.) He
called dispatch to inform them there had been a fatality.
8:40 p.m., an emergency medical technician (" First
EMT" ) arrived. The First EMT evaluated Christine's
vital signs, thought he felt a pulse, and instructed the
Dover officer to help him perform CPR. The initial chest
compressions resulted in copious amounts of water flowing out
of Christine's nose and mouth, followed by large
quantities of vomit. The First EMT then stopped attempting
Deerfield Valley Rescue ambulance along with a senior EMT
(" Senior EMT" ) arrived a few minutes later. The
Senior EMT entered the unit to hear a man's " primal
scream," which was Grega crying hysterically in the
downstairs bedroom while the Dover Officer tried to console
him. ( Id. ) Upon arrival, the Senior EMT was "
shocked" that neither the Dover Officer nor the First
EMT was performing CPR, and noted that the First EMT seemed
overwhelmed and disoriented. ( Id. ) The Senior EMT
ordered that CPR recommence. CPR was unsuccessful, and
Christine was carried to an ambulance, which departed for the
regional medical examiner continued life-saving efforts in
the ambulance, but was unsuccessful. He pronounced Christine
Grega dead at 9:10 p.m., and rerouted the ambulance to the
Deerfield Valley Health Center and then to a funeral home.
Chief of the Dover Police (" Police Chief) arrived at
Unit 69 at 9:10 p.m. He observed no crime scene tape
cordoning off the unit. However, he did not order the Dover
Officer to secure the scene or restrict access to it, even
after he became suspicious that Christine's death was not
accidental. ( Id. at 13-14.)
Police Chief then ordered a detective (" Dover
Detective" ) to come to the unit and secure the scene.
The Dover Detective arrived around 10:00 p.m. He designated
only the downstairs bathroom as a crime scene, and responders
" move[d] freely" through the upstairs portion of
the unit. ( Id. at 15.) Consequently, the top floor
of the unit had been " contaminated" by around
midnight that night, according to a Vermont State Police
detective. ( Id. ) No log was maintained recording
the people who entered or exited the crime scene. Nor did the
Dover Detective or Dover Officer preserve any evidence "
of a temporary nature" in the downstairs section of the
unit. ( Id. ) Grega alleges that this procedure did
not comply with Dover Police Department training materials
regarding identifying and securing a crime scene. According
to the Dover Detective's testimony, " he was not
aware of any protocol to secure a scene" and he did not
recall " receiving any training on securing a crime
scene." ( Id. )
autopsy was performed on Christine's body on September
13. It revealed evidence of extreme trauma including blunt
force head wounds, bruises and abrasions, evidence of
choking, severe vaginal injuries, and multiple lacerations to
the rectal area. An expert who subsequently examined the
autopsy results also identified a fractured hyoid bone. A
State forensics medical expert concluded that the rectal
injuries were caused by an object the size of a fist, pipe,
The State's Investigation
William Pettengill, a Detective Sergeant with the Vermont
State Police (" VSP" ), and Defendant Glen Cutting,
a VSP Detective Lieutenant, conducted the investigation of
Christine Grega's murder. Cutting was in charge of the
investigation, and Pettengill was the lead investigator
working under Cutting's supervision. Defendant Dan Davis,
the Windham County State's Attorney, led the State's
prosecution. Davis " was intimately involved in all
aspects of the investigation . . . [and] there were continual
discussions with . . . Davis as to how to proceed." (
Id. at 24.)
and Pettengill arrived at Unit 69 at approximately 1:36 a.m.
on September 13, 1994. The area was still not cordoned off
upon their arrival. However, they " did not order that
the scene be secured in any fashion, that efforts be taken to
preserve the evidence of a fleeting nature, or that
individuals present in the upstairs of the [u]nit be removed
so as to preserve the integrity of any evidence"
upstairs--despite the fact that Pettengill " concluded
almost immediately" that a homicide had occurred. (
Id. at 14, 16-17.) Cutting did not declare the
entire unit to be a crime scene until after taking a
statement from Grega. Still, no crime scene tape was put up
around the perimeter of the crime scene, nor was any
tamper-proof tape affixed to the unit's doors until after
a search was conducted on September 13. ( Id. at
27.) Grega alleges that Cutting's and Pettengill's
conduct did not comply with VSP's death investigation
training manuals. ( Id. at 17.)
alleges that defendants' investigation was additionally
deficient in the following respects:
o Over the course of several hours, nearly two dozen local
police officers, state troopers, EMTs (who remained in the
condo long after Christine was removed), and other
individuals entered and exited the condo unit without
o Doors, door knobs, faucets, and surfaces were touched
without regard for the forensically destructive consequences
of doing so;
o Some of the investigative team members did not wear gloves;
o Nobody wore protective booties;
o No photographs of Unit 69 were taken the night of September
o Rooms were disturbed and personal items were moved;
o One EMT used the bathroom and flushed the toilet;
o The fixtures and drain on the bathtub where Christine was
found were fiddled with, even though they were at the
epicenter of forensic inquiry;
o No forensic samples were collected from the bathtub or the
floor of the downstairs bathroom despite the fact that this
was the epicenter of forensic inquiry;
o Nothing was done to preserve and collect samples of what
appeared to be dried vomit in the shape of a shoeprint in the
downstairs bathroom, and no one attempted to identify the
source of the vomit shoeprint;
o No forensic samples were taken from the downstairs toilet
despite the fact that it appeared as though it had been
o An empty potato chip bag was tossed into a bundle of the
forensically sensitive sheets on which Christine had been
carried out to the ambulance;
o No log was maintained to document exactly who entered and
exited the scene and at what times;
o Several EMTs wiped down and cleaned up the area where
Christine's body was found and treated before any
biological evidence was collected from that area. As a
result, Deerfield Valley Rescue members failed to collect and
preserve any blood from Christine's rectal injuries that
pooled onto the backboard on which she was treated;
o No investigator requested the recording of Grega's
emergency call to the police from the Unit 72 occupants'
phone before it was routinely destroyed.
( Id. at 12, 18-19, 21). Grega asserts that these
actions and omissions indicate noncompliance with Dover
Police Department and VSP training manuals as well as VSP
written policies and procedures. ( Id. at 19-20.)
September 13, 2014, Detective Cutting assigned a VSP
detective (" Search Detective" ) to oversee the
search, identification, collection, and preservation of
evidence in the condo unit. His oversight was required due to
" past issues of professional misconduct among the
technicians." ( Id. at 25.) Nevertheless, the
Search Detective's only supervisory act was to "
may[be] have asked one of [the technicians] to check for
prints on the washing machine." ( Id. ) One of
the lab technicians who collected and evaluated evidence in
the investigation was subsequently decertified as a
fingerprint expert " for giving erroneous opinions"
in a different trial. ( Id. at 26.)
focused on Grega as the only suspect within a few hours of
his emergency phone call. Defendants interviewed him at least
five times during the thirty-six hours following his
emergency phone call without informing him of his
Miranda rights. Grega alleges that they also
selectively tape-recorded the interviews in order to make
Grega appear in the most culpable light possible. (
Id. at 24.) Pettengill testified that he "
never considered the possibility that someone other than . .
. Grega had entered Unit 69 and killed Christine." (
Id. at 31.)
alleges that the focus on him as the primary suspect led to
additional investigatory failures. Defendants only attempted
to obtain fingerprints from the washing machine, which the
State's fingerprint expert testified matched Grega's.
Because they did not consider that the perpetrator could have
been an intruder, defendants never attempted to fingerprint
any doors or door knobs to the unit. They also never
attempted to fingerprint the door or doorknob to the
downstairs bathroom, the tub, the " switch for the
ceiling heat fixture," or the toilet in the downstairs
bathroom. ( Id. at 26.) Nor did defendants attempt
to obtain fingerprints from Christine's body. Cutting
testified that he did not know what had been fingerprinted
but that " he would like to think the entire [u]nit was
processed for fingerprints because that would be 'good
police practice.'" ( Id. at 27.) Pettengill
knew that only the washing machine had been fingerprinted but
did not order anything else to be fingerprinted.
also allegedly ignored other leads. Two seasonal workers,
Bryant Comi and Michael Carpenter, had been painting the
building in which the condo unit was located on the day of
Christine's death. They provided false addresses to
investigators and gave conflicting stories about their
whereabouts that day. Comi had a criminal record, "
including a history of sexual aggression towards women"
; smoked Marlboro cigarettes (a piece of a Marlboro cigarette
carton had been found in a toilet in Unit 69); admitted to
having previously burglarized a condo unit in that complex;
and stated that he " 'may have joked about the death
of a lady and joked that he had killed the lady' to his
girlfriend." ( Id. at 29.) The testimony of
Carpenter's then-wife and of Comi's
case worker corroborated Comi's implication in the
murder. Moreover, the locks to Unit 69 could be opened by
keys not meant for the locks; many workers had access to a
lock box of keys to the condo units in the complex; and other
condo units had recently been broken into. ( Id. at
31.) Despite these facts, Comi and Carpenter were not
interviewed until June 1995, two weeks before Grega's
trial. ( Id. at 30.)
December 19, 1994, Davis and Pettengill filed an information
against Grega that charged him with the murder of Christine
Grega. Grega was arrested on December 21, 1994.
Claims that Fabricated Evidence Was Introduced at
Search Detective wrote a report detailing the results of his
September 13, 1994 inspection of Unit 69. According to his
report, the contents of the refrigerator included "
'a full six pack of Long Trail Ale bottles in their
container.'" ( Id. at 33.) At a deposition
that took place in 2012, during Grega's re-prosecution,
the Search Detective confirmed that he found all six bottles
in the six-pack container in the refrigerator during his
search. He also testified that he pulled one bottle out of
the six-pack, placed it on the counter, and photographed it
there, in order to show that the brand was Long Trail Ale. (
Id. at 34.) The Search Detective replaced the bottle
on a shelf in the refrigerator, and not back inside
the six-pack container. A photograph was subsequently taken
of the contents of the refrigerator. This photograph was
introduced at trial as Trial Exhibit 84. ( Id. at 34
conducted the direct examination of the Search Detective at
Grega's trial. To prepare himself and witnesses for
trial, as a general practice Davis reads all of the
witnesses' written reports and prior statements.
Therefore, Davis knew or should have known that at the time
of the Search Detective's search of the condo unit on
September 13, 1994, all six Long Trail Ale bottles were
inside their container. At trial, the Search Detective
testified that " '[t]here was a 6 pack of Long Trail
Ale bottles.'" ( Id. at 35.) Davis did not
ask the Search Detective to elaborate on the location of all
six of the Long Trail Ale bottles. Davis questioned the
Search Detective about a video and other photographs that had
been taken at the time of the search under the Search
Detective's supervision. However, Davis did not question
the Search Detective about Trial Exhibit 84.
Davis questioned Detective Pettengill about Trial Exhibit 84.
Davis asked Pettengill if the photograph accurately depicted
the contents of the refrigerator as he had observed them on
September 19 and not on September 13, before the Search
Detective had removed the Long Trail Ale bottle and replaced
it in a different location.
State's forensic medical expert had concluded that the
object that had caused Christine Grega's severe rectal
injuries was the size of a fist, pipe, or bat. In closing,
Davis argued to the jury that Grega had used a Long Trail Ale
bottle to assault Christine Grega and that the very Long
Trail Ale bottle used was the one depicted in Trial Exhibit
84 standing on a shelf in the refrigerator apart from the
others inside the six-pack container. Davis argued:
The photo of the Long Trail Ale, there is one out of the six
pack on the shelf of the refrigerator. The state submits that
the Defendant when he came back put the Long Trail Ale there.
Ask yourself why is the one beer off to the side there? Looks
just a little smaller than the head of a baseball bat.
( Id. at 33.) Defendants never fingerprinted the
Long Trail Ale bottle, nor did they run any forensic tests on
was convicted of aggravated murder on August 4, 1995. He was
sentenced to life imprisonment without parole.
The Re-Investigation and Re-Prosecution
spring of 2010, Grega filed a petition for post-conviction
DNA testing under Vermont's Innocence Protection Act.
After a bench trial on September 2, 2011, the Windham County
Superior Court ordered the State to perform testing on eight
items, including swabs from the rape kit. On May 14, 2012,
DNA testing revealed the presence of an unknown male's
DNA on rectal swabs from the kit. Grega was excluded as the
source of that DNA. As a result, the Windham County Superior
Court vacated Grega's conviction on August 21, 2012.
After serving seventeen years and eight months in prison,
Grega was freed on August 22, 2012.
Windham County State's Attorney continued the prosecution
against Grega for Christine's murder after his conviction
was vacated. Defendant Richard Holden, a VSP Detective
Sergeant, had responsibility for re-investigating Christine
Grega's murder. The re-investigation centered on
attempting additional testing of DNA evidence preserved from
the crime scene.
laboratory identified by Grega as " Strand" tested
the DNA evidence from Grega's case. Grega alleges that an
Assistant Attorney General involved in the case falsely told
Strand that the rectal swab containing the unknown male's
DNA was " 'negative for seminal fluid.'" (
Id. ) Consequently, the laboratory " discarded
the extract," rendering it impossible to conclusively
determine whether the unknown male's DNA came from sperm
cells. ( Id. ) Dr. Buel, Director of the Vermont
Crime Laboratory, stated in part in an email to the Windham
County State's Attorney:
[T]he extraction technique [Strand] used would not have lysed
the sperm cells so the profile they generated is probably
mostly epithelial cells (the DNA from the sperm--if they were
present on this swab--was thrown away....) I was quite
surprised by this.... Was I involved in having this swab
analyzed by Strand?
( Id. at 41.) Two minutes later, the State's
Attorney responded: " The sperm, if any, was thrown
away!?!?!??!?!!? No, neither you nor I was involved in the
Strand analysis. The AG's office, working with the ...