CANTON — Judge Felix J. Catena has reserved decision on a renewed request for a mistrial by the defense team of Oral “Nick” Hillary.
The defense renewed its request for a mistrial — this time, with prejudice, which would prevent the prosecution from re-presenting the case to a grand jury — after a recess from proceedings in Hillary’s murder trial Wednesday morning so they could interview a convicted rapist who said he saw a St. Lawrence County sheriff’s deputy entering the home of 12-year-old Garrett Phillips moments before the boy was murdered nearly five years ago.
Earl S. Ward, New York City, a member of Hillary’s defense team, said they decided not to use the statement or testimony of Gregory E. Brown Jr.
Brown gave a statement to investigators in April 2015 saying he observed Deputy John E. Jones Jr., ex-boyfriend of Garrett’s mother, Tandy Collins, entering Garrett’s 100 Market St., Potsdam, apartment building just minutes before Garrett did on the afternoon of his death. He also allegedly saw Mr. Jones’s vehicle in the parking lot at 100 Market St.
While Brown was considered “very credible” by the defense, Mr. Ward said there were two issues in regard to his statement. The first is that Brown didn’t remember everything in his statement.
“(Prosecutors) didn’t turn the document over to us back last year when they should have,” Mr. Ward said. “If they had done that, we could have gone to Gregory Brown and I think his memory would have been better than it was today.”
The second concern was Brown’s denying having said several things that were written in the statement.
“We still don’t have the notes from which that report was generated,” Mr. Ward said. “If we had the notes from which that statement was generated, then we would be in a position to say, ‘Mr. Brown, look, these are the handwritten notes that reflect contemporaneous reports that they made when they spoke to you.’”
Without those notes, the defense said, they couldn’t take the chance of allowing Brown to testify. But what was still clear to Brown after their 90-minute conversation Wednesday morning was that Mr. Jones was the person he saw entering Garrett’s apartment building on the day of the boy’s death, Mr. Ward said.
But Onondaga County District Attorney William J. Fitzpatrick, who is assisting St. Lawrence County District Attorney Mary E. Rain in Hillary’s prosecution, told Judge Catena that he believed Brown’s memory suddenly lapsed because he feared being indicted for perjury, calling Brown a career criminal.
Brown’s statement was previously withheld from the defense by Ms. Rain, according to members of Hillary’s defense team. As a result, they pushed for a dismissal or mistrial prior to hearings held Tuesday morning in court.
That request was denied at that time, but could be granted at a later date, as could possible other sanctions against prosecutors.
The discovery of Brown as a possible witness to another person potentially tied to the murder of Garrett is a game-changer, the defense team said Tuesday.
Hillary, 42, of 131 Leroy St., Potsdam, is charged with second-degree murder for allegedly strangling Garrett on Oct. 24, 2011, at the Market Street apartment.
During Wednesday afternoon’s testimony, at about 2:45 p.m., Garrett’s grandmother, Patricia Phillips, was walking to a bathroom in the back of the courtroom when she collapsed during the testimony of Marissa Hall.
Mrs. Hall, formerly Marissa Vogel, lived across the hall from Garrett and his family at 100 Market St. on the day he was killed with her then-fiance, now husband, Sean Hall.
Mr. and Mrs. Hall both testified to the timeline of what they heard and what took place on the evening of Garrett’s death, including the sound of running down Garrett’s apartment hall, a crash, three weak cries of “help” or “no ” and her call to 911.
But it was during Mrs. Hall’s testimony — when she was telling the court that she heard running down the hallway in Garrett’s apartment that headed toward her, followed by a crash, like something on a hardwood floor — that Garrett’s grandmother also fell to the floor.
Commotion quickly stirred in the courtroom as Brian Phillips, uncle of Garrett and son of Mrs. Phillips, stood over her calling out, “Mom! Mom!”
Hillary’s sister, Pauline Winters, a nurse from New York City, rushed across the courtroom to her aid.
Mrs. Winters was heard telling those surrounding her that Mrs. Phillips appeared to be dehydrated, but she was able to tell Mrs. Winters her name and knew where she was.
Shortly after her collapse, the courtroom was cleared and Canton Volunteer Rescue Squad was called to the scene. Outside the courthouse, Mrs. Winters said that as a nurse, her reaction to aid Mrs. Phillips came naturally.
“I don’t care who you are, it comes natural,” she said. “At the end of the day, she is still someone’s grandmother, sister or mother.”
Norman Siegel, another member of Hillary’s defense team, spoke on behalf of the defense, wishing her a swift recovery.
“There was an ironic and very human point about what happened,” Mr. Siegel said. “So it’s interesting, a Hillary helping a Phillips at that critical moment.”
The last witness of day, Andrew Carranza, a U.S. Marine currently stationed in Hawaii, had also lived at 100 Market St. at the time of Garrett’s murder.
On the afternoon of Garrett’s murder, Mr. Carranza said, he was out in the parking lot of the apartment changing a tire on his car about 5 p.m. when he heard a scraping noise coming from the direction of the window from which Garrett’s killer is alleged to have escaped.
When he looked up, Mr. Carranza said, the screen was intact, but he saw someone peeking out a window, “like a neighbor being nosy.”
Mr. Carranza told defense attorneys he did not recall his statements to police following Garrett’s death, but after reviewing them under cross-examination, he admitted that on Oct. 31, 2011, and Nov. 11, 2011, he never mentioned to police that he saw someone peek out.
Mr. Ward said the defense didn’t ask Mr. Carranza about the ethnicity of the person who he said was peeking out the window because if it had been an African-American person, the witness would have said so.
“That’s the key to his testimony right there. He looks up, sees a person; if it was an African-American person, he may not have been able to see features and details, but if the person was African-American, that would have been communicated,” Mr. Ward said. “Because there were no African-Americans that lived in that complex ... and he lived in that apartment complex for some time.”
Mr. Siegel said after three days at trial and 11 people testifying on behalf of the prosecution, it was the defense’s “strong belief” that the prosecution “confirmed our major theme here, which is that there is no credible evidence linking Nick Hillary to the killing of Garrett Phillips.”
In a trial that was scheduled to take four to five weeks, Mr. Siegel said the defense likely will put its case forward next week and anticipated its conclusion by the end of next week or the beginning of the following week.
Testimony is scheduled to continue at 10 a.m. Monday.