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Grega v. Pettengill

United States District Court, D. Vermont

August 18, 2015

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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          For 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.

         For 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.

         For Town of Dover, Defendant: Colin K. McNeil, Esq., Nancy G. Sheahan, Esq., McNeil, Leddy & Sheahan, P.C., Burlington, VT.

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         Geoffrey W. Crawford, United States District Judge.

         Plaintiff 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.

         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.

         I. Factual Background

         Grega's amended complaint alleges the following facts, which for purposes of this motion the court assumes to be true. (Doc. 53 at 6-49.)

         A. Events Preceding Christine Grega's Death

         John 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, New York.

         On 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.

         In the 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.

         Unit 69 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

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emergency call, and ran back to Unit 69. The Unit 72 occupants made an emergency call around 8:30 p.m.

         B. The First Response

         A Dover 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.

         Around 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 CPR.

         A 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 local hospital.

         A 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.

         The 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.)

         The 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. )

         An 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, or bat.

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         C. The State's Investigation

         Defendant 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.)

         Cutting 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.)

         Grega 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 reasonable limits;
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 12;
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 recently used;
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

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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.)

         On 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.)

         Defendants 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.)

         Grega 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.

         Defendants 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 then-girlfriend's

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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.)

         On 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.

         D. Claims that Fabricated Evidence Was Introduced at Trial

         The 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 n.4.)

         Davis 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.[1]

         Instead, 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.

         The 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

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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 it.

         Grega was convicted of aggravated murder on August 4, 1995. He was sentenced to life imprisonment without parole.

         E. The Re-Investigation and Re-Prosecution

         In the 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.

         The 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.

         A 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 ...

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