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Witness who claims to have seen another person at scene of Phillip's murder won't testify; defense renews call for mistrial

Posted 9/14/16

By ANDY GARDNER CANTON -- A man who says he saw someone other than Oral “Nick” Hillary at the scene of Garrett Phillips’s murder around the time the boy died will not take the witness stand in …

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Witness who claims to have seen another person at scene of Phillip's murder won't testify; defense renews call for mistrial

Posted

By ANDY GARDNER

CANTON -- A man who says he saw someone other than Oral “Nick” Hillary at the scene of Garrett Phillips’s murder around the time the boy died will not take the witness stand in Hillary’s murder trial.

Meanwhile, the defense has renewed their motion for Judge Felix Catena to declare a mistrial.

Hillary is facing a second-degree murder count in St. Lawrence County Court, accused of strangling to death 12-year-old Phillips on Oct. 24, 2011 at the boy’s home in Potsdam.

The defense recently learned a man named Gregory Brown made a claim last year that he saw John Jones leaving 100 Market St., where Phillips died, shortly before his death. Brown is serving a prison sentence for rape at Attica Correctional Facility and was transported to the St. Lawrence County jail on Wednesday so he could be interviewed by defense council. Both Jones, a St. Lawrence County Sheriff deputy, and Hillary are former paramours of Phillips’s mother, Tandy Cyrus Collins.

In April 2015, state police Inv. Ted Levison and Potsdam Police Lt. Mark Murray traveled to Attica and interviewed Brown. Levison said he questioned him while Murray took handwritten notes, which Levison says he typed up and sent to the district attorney.

“After an approximately 90-minute conversation with Mr. Brown, it’s apparent he doesn’t remember everything we have from the document we received from Mr. Levison,” defense attorney Earl Ward said in court on Wednesday. “It’s apparent his memory has deteriorated, that he doesn’t recall certain critical details, details which are in the statement … no way we are going to be able to use him as a witness. We showed him the document … it did not refresh his recollection.”

On Tuesday, Brown’s attorney, Efstathia Kyriakopoulos, took the witness stand and told the court he was not testifying to get a lighter sentence for his rape conviction.

“He was trying to get a deal,” prosecutor William Fitzpatrick asked Kyriakopoulos.

“My client indicated he did not want to trade information,” she answered.

On Monday the defense moved for a mistrial because the prosecution did not disclose their knowledge of Brown’s claim. Catena denied the motion the next day. He said although the prosecution should have turned over the potentially exculpatory evidence, the defense still had ample time to work it into their case, therefore Hillary was not prejudiced.

Ward on Wednesday said since they don’t have the original handwritten notes from Murray and because Brown’s memory has become foggy, it prejudices their case.

“This issue of the memory did not come into play (in the April 2015 prison interview). I renew my application for a mistrial. We have been prejudiced by a late disclosure. We still don’t have the original notes,” Ward said.

Both sides did agree that Levison’s synopsis of Murray’s notes would be entered as evidence.

Prosecutor William Fitzpatrick said Brown is too unreliable of a witness for the judge to call a mistrial.

“Our position is very simple - Mr. Brown has a memory that defies reason … he was specifically asked by Lt. Murray … he had no knowledge of who committed this murder,” Fitzpatrick told the judge on Wednesday. “After John Jones had been identified in the media as a suspect … he suddenly remembers ‘I saw the dead kid going into the house with John Jones.”

“He’s not testifying because he doesn’t remember certain details … if we had the opportunity to speak to Mr. Brown in April 2015, he would very likely be a witness in this courtroom,” Ward countered. “The issue is whether the prosecution is required to turn over certain documents … and they didn’t. We have been prejudiced.”

Catena said he would reserve his decision until a later date.

During testimony on Wednesday, Phillips’s grandmother, Patricia Phillips, collapsed in court while a witness who lived next door to her grandson recounting what was likely him calling for help as he was being murdered. Read more about that here.

Wednesday’s witnesses included two neighbors who heard the murder happen, a person who was outside the building changing a tire at the same time and a person who installed security cameras that captured Hillary and Phillips near the time of the killing.

Marissa Hall and Shawn Hall testified that they lived at 100 Market St. Apt. 3A, next door to Phillips. They are now married and were engaged and attending SUNY Potsdam at the time.

They each said they heard a loud bang followed by what they believe were muffled calls for help. They phoned Potsdam police, who eventually gained access to the apartment and found Phillips near death.

“I heard a big crash next door … sounded like somebody knocked a big bookcase over and crashed it on the floor … we didn’t know what was going on,” Shawn Hall said. “I heard a low voice like it was moaning, ‘help’ or ’no,’ hard to distinguish what it was … around three times … it sounded like a young boy.”

His wife gave similar testimony, during which Patricia Phillips collapsed.

Andrew Carranza took the stand and testified he saw someone in the window of 100 Market St. Apt. 4 during the time of the murder, but couldn’t tell who it was.

The address, 100 Market St., is actually two buildings. There is a red one near the street side, where Phillips lived, and a green one toward the back of the property, where Carranza lived.

He said he was changing a tire in a driveway between the two on Oct. 24, 2011. He said he had a view of the window from which police believe the killer jumped to escape.

“When I was in the vehicle and under the wheel well, I heard a scraping noise … I inspected the side of the building looking for where the noise may have come from … I saw somebody peeking out the window, maybe somebody being noisy,” Carranza testified.

Under cross-examination by Ward, he was asked why during police interviews on Oct. 31 and Nov. 11, 2011, he omitted seeing someone in the window.

“You never mentioned anything about anyone peeking out a window?” Ward asked.

“I just thought it was someone being nosey,” Carranza answered.

Ward said in the Nov. 11 interview, police asked Carranza to draw a diagram of where he was changing the tire, and he didn’t mention seeing anyone in the window.

“You didn’t say anything about seeing anyone in the window?” Ward asked again.

“No sir,” Carranza replied.

Also taking the stand was Christopher Baxter, a technical account manager for Capital Region BOCES.

He briefly testified that he installed four security cameras on Potsdam High School from which video evidence used at trial was taken.

Fitzpatrick put up a photo exhibit of a security camera that in his opening statement he called “the people’s most important witness.” Baxter said he installed it.

The prosecutor said during openings that video evidence taken from that camera in combination with other recordings and testimony will prove Hillary’s guilt.

The trial resumes in St. Lawrence County Court on Monday at 10 a.m.