Evidence said withheld in ex-cop's trial on rape charge

A defense attorney contends prosecutors failed to include evidence that would have exonerated a former Modesto police officer in the eyes of the criminal grand jury that indicted him for rape, according to filed court documents.

Grand jurors in March indicted Lee Freddie Gaines, 27, on charges he sexually assaulted a woman in a motel room.

The woman, 37, said she works as a massage therapist at a local motel. She has told The Bee that the incident occurred Jan. 5 after she got a call for service and the officer came to her motel room. She said the officer handcuffed her and demanded oral sex.

The Bee is not disclosing the woman's name because she is an alleged victim of sexual assault. She told the grand jury she was a prostitute, lied about who she was and has been convicted of misdemeanors and felonies, according to court documents.

Mary Lynn Belsher, Gaines' attorney, filed a motion for dismissal in Stanislaus County Superior Court last month. Belsher will challenge the indictment in a hearing Wednesday, arguing the prosecution didn't present exculpatory evidence in the closed-door grand jury proceeding.

Belsher says Gaines told a police sergeant he went to see the woman because he was trying to turn her into an informant. She argues this was evidence not given to the grand jury.

In a motion filed in response, Chief Deputy District Attorney Dave Harris argues a fellow police officer, Latisha Leap, told investigators Gaines did not have any informants of which she was aware.

"Additionally, Officer Leap said that it was not normal for patrol officers to develop informants, unless they had been in a prior investigative assignment before patrol where they had cultivated informants and continued to use them in a patrol function," Harris wrote.

Belsher also claims that no witnesses in the grand jury proceeding testified about the procedures used or their reliability when analyzing the case's DNA evidence — saliva found on the inside of the zipper on Gaines' uniform pants.

Testing procedures omitted

In his closing argument to the grand jury, Harris said, "Her saliva, her DNA, was transferred to the inside of the zipper of Lee Gaines, and it's on his uniform, and there is no other reasonable explanation … as to how her DNA got to the inside of the zipper unless she's telling you the truth," according to Belsher's motion.

Belsher points to testimony from state Department of Justice criminalist Nancy Seger. She argues Seger didn't testify about her DNA testing procedures, but jumped straight to her conclusions.

In a hearing Thursday, Judge Marie Silveira denied Belsher's motion to obtain records from the Department of Justice crime lab in Ripon, where the DNA evidence was analyzed. Instead, crime lab officials will give some of the sought-after information to prosecutors who will then provide it to the defense.

Gaines was a Modesto police officer for five years. An internal investigation by the department began Jan. 8; he resigned Feb. 10.

Six fellow officers have told Detective Craig Grogan that they have never seen Gaines act inappropriately with women; instead, he has treated women professionally and respectfully, according to the court documents. Belsher argues that this evidence also was not presented to the grand jury.

Belsher also says officer Felton Payne told Grogan that he had heard that Gaines had "had sex with a gal on duty" who was now claiming that he raped her.

"Officer Payne said that the accusation of Mr. Gaines forcing himself on a woman didn't make any sense, because he had observed that women just threw themselves at Mr. Gaines," Belsher wrote in her motion.

The prosecutor argues that the this evidence clearly does not disprove the defendant's guilt, doesn't impeach witnesses or lessen the defendant's moral culpability.

"The actual statements of the witnesses are a far cry from the claimed character evidence the defendant wishes them to be," Harris wrote.

Officer Joe Lamantia told investigators Gaines is a "pretty boy," with whom women would often flirt and he would flirt back. But Lamantia did not notice unprofessional conduct other than an occasional exchange of phone numbers with women he met while on duty, according to Harris' response.

Officer Orrin Nelson told investigators Gaines seemed to act professionally with women, but he noticed Gaines spent "an inordinate amount of time" outside of his patrol beat to be in downtown Modesto, "where younger ladies would gather to go to clubs."

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.