By ANDY GARDNER

CANTON -- The defense started to make its case this afternoon in the trial of Oral “Nick” Hillary, but not before moving for Judge Felix Catena to dismiss the trial on the grounds that the prosecution has not proved Hillary killed Garrett Phillips.

Meanwhile, the first defense witness was grilled by the prosecution for apparent contradictions between his trial testimony and previous sworn statement and grand jury testimony.

The court also heard from a psychologist who treated Phillips in the months leading up to his death and a state police investigator who said Hillary tried to stuff his cigarette butts down a drain while he was being questioned about the murder.

Hillary is on trial for second-degree murder in St. Lawrence County Court, accused of killing 12-year-old Phillips in Potsdam on Oct. 24, 2011.

 Motion for Trial Dismissal

 Speaking for the defense, attorney Norman Siegel told Catena his side contends the “trial evidence is not legally sufficient to establish the offense charge or any lesser offense.”

He says although the prosecution claims Hillary was obsessed with Phillips’s mother, Tandy Cyrus Collins, there was no proof presented in court. Cyrus Collins and Hillary dated for about a year, ending in the late summer or early fall of 2011.

Prosecutors say Hillary was motivated to kill Phillips as revenge for his causing the break-up.

“None of the evidence produced by the people links Nick Hillary to the murder of Garrett Phillips,” Siegel said. “Although not required to prove motive, the people address motive in their opening statement … no legally sufficient proof of motive was brought before this court.”

Prosecutor William Fitzpatrick said the defense was cherry-picking and the people’s case as a whole points to Hillary’s guilt.

“The mistake that was made by the defense in making the analysis of the motion is they are taking each separate factoid and attempting to paint an innocent explanation of those factoids … the people’s evidence must be considered as a whole and certainly because” things can be explained with innocent explanations does not mean reasonable doubt can’t be broken, Fitzpatrick said.

Each side pointed to testimony from Phillips’s grandmother, Patricia Phillips, who said Hillary called her the night of Phillips’s death but she hung up the phone on him. She said Hillary got out the words “Did he talk” before she hung up the phone.

“This statement is far from legally sufficient evidence linking Nick Hillary to the crime,” Siegel said.

“The only curiosity (about Phillips’s death) he shows the entire evening is when he talks to Patty Phillips, ‘Did he talk’,” Fitzpatrick said.

 Assistant Coach Grilled for Discrepancies

 Ian Fairlie, a former Clarkson University assistant soccer coach, took the stand as the first defense witness and said he noticed nothing unusual about Hillary in the hours after Phillips was killed. He was on the Clarkson soccer coaching staff at the same time as Hillary, who was head coach.

He testified that Hillary showed up at his apartment around 5:23 p.m. on Oct. 24, 2011 and said he did not seem to be acting oddly.

“Anything unusual about the way he spoke … the way he moved … anything at all,” defense attorney Earl Ward asked.

“No,” Fairlie replied.

The prosecution presented evidence that the killer escaped from the 100 Market St. murder scene by jumping out of a second-story window. They also entered evidence that Hillary had an ankle injury two days after the murder, which a forensic medical examiner earlier in the day opined was only a day or two old at the time it was photographed at the Potsdam Police station on Oct. 26, 2011.

Fairlie said he and Hillary kicked a soccer ball around prior to the Oct. 24, 2011 Clarkson soccer practice and he didn’t appear to have an injury.

“Did you observe anything unusual in the way he kicked the ball around?” Ward asked Fairlie. “Anything unusual about his gait?”

“No,” Fairlie replied.

Part of the state’s case involves showing Hillary on camera at Potsdam High School around the time Phillips left school the day he died, then slowly leaving in his car as the youngster walks toward his home. The defense says Hillary was scouting the Potsdam varsity soccer game.

Fairlie testified he and Hillary talked about this in person on the morning of the murder, but he came under intense scrutiny from the prosecution.

“No doubt in your mind that earlier that morning you had spoke with the defendant and he said he was going to be scouting a game at Potsdam High School,” Fitzpatrick said.

“Yes,” Fairlie answered.

But reading a transcript from Fairlie’s earlier grand jury testimony, Fitzpatrick said Fairile contradicted himself. Fitzpatrick read from the document “‘Did Nick tell you he was scouting before he went to your house at 9:21?’ No.’”

“Do you recall that sir?” he asked Fairlie, beginning to raise his voice.

“No,” Fairlie answered, later calling the grand jury testimony “a mistake.”

At the end of the testimony, Fitzpatrick brought up Hillary and Fairlie’s friendship that he said lasts through today.

“Are you close enough to have contributed to his (Hillary’s) defense fund?” the prosecutor asked.

“Yes,” Fairlie answered.

 Psychologist Says Victim Never Mentioned Defendant

Dr. Thomas Doyle, a now-retired psychologist, testified for the defense and said he treated Garrett Phillips in a half dozen sessions in 2011 after being referred by Potsdam Central School.

He said Phillips never even mentioned Hillary until their fifth session on June 21, 2011. He said he believes Phillips’s conflict was not with Hillary, but with his daughter, Shanna-Kay Hillary.

“The discussion there involved, at least in part, conflict between Shanna-Kay and Garrett,” Doyle testified.

He testified that he was told Hillary would attend Phillips’s soccer games, but the boy was starting to make “racial comments.”

“Mr. Hillary often attended those (sports games) as a support, which I think was appreciated, at the same time there was a concern Garrett had used some racial comments when angry and frustrated and mom and Mr. Hillary were trying to help him not do that as often,” Doyle said.

“As it turns out, Garrett said what made him angry and upset was his peers who would make comments about Mr. Hillary or about his mom and that was what was upsetting him.”

Doyle said the tensions between Shanna-Kay Hillary and Phillips resolved after Cyrus Collins and the defendant split.

“At any time did he (Garrett Phillips) complain about Mr. Hillary?” Ward asked.

“He did not,” Doyle said.

 Cigarette Butts in the Drain

 Raymond Planty, a retired senior investigator with the New York State Police, said he was present when police interviewed Hillary at the Potsdam Police Department days after Phillips died.

He said Hillary smoked several cigarettes in a break room and despite there being an ash tray, he stuffed them down a sink drain and ran water over them.

“When he finished smoking the cigarette, he put the butt out and pushed the butt down the sink drain … and then he ran water over the top of that cigarette butt,” Planty testified, later adding that Hillary did this more than once.

He said they later had someone take apart the drain to get the cigarette butts and test them for DNA.

Under cross-examination, he said Hillary gave a reason for this.

“He answered ‘I didn’t want to start a fire, correct?” defense attorney Peter Dumas asked.

“Yes,” Planty replied.

“You were upset he didn’t make it easy on you,” Dumas asked.

“I didn’t get upset at all,” Planty answered.

The trial resumes Wednesday morning in St. Lawrence County Court with more witnesses for the defense.

View today's earlier trial stories:

• Prosecution in Potsdam murder trial rests; former Clarkson soccer player coached by Hillary testifies

• Medical examiner who performed autopsy on Garrett Phillips takes the stand; discusses injury to ankle of accused murderer