People v. Phillips, 2012 WL 5266041

Defendant Jon Richard Phillips was convicted of first-degree murder, child abuse resulting in death, and tampering with physical evidence for starving his stepson C.G. to death in a linen closet.
C.G. and his half-brother D.P. were placed with Phillips in Jefferson County; protective supervision ended in January 2007; C.G. died in May 2007, with evidence of severe malnourishment and dehydration.
Evidence included multiple contemporaneous injuries to C.G., statements by C.G. about abuse, and extensive physical evidence from the apartment and a closet where C.G. was confined.
Motions and evidentiary rulings admitted a large volume of out-of-court statements by C.G., D.P., and Berry under the Child Hearsay Statute and other theories; several statements were challenged as Confrontation Clause violations.
The jury heard CCTV testimony of D.P. via court-approved CCTV; the trial court found it necessary to protect D.P.’s welfare and to avoid trauma.
On appeal, Phillips challenged CCTV, numerous hearsay admissions, Batson challenges, and the imposition of consecutive sentences; the court affirmed the convictions, reversed the consecutive sentences, and remanded for mittimus corrections.

Issue	Plaintiff's Argument	Defendant's Argument	Held
CCTV testimony violated Confrontation Clause?	Phillips contends CCTV denied face-to-face confrontation.	Phillips argues state and federal Confrontation Clauses require in-person confrontation.	No federal or state violation; CCTV permitted under Craig and congruent Colorado law.
Admissibility of child hearsay statements under Confrontation Clause and Child Hearsay Statute?	The statements should have been excluded as testimonial or improperly admitted.	The statements were either non-testimonial or properly admitted under the statute.	Admissibility upheld for many statements under state rules or non-testimonial framework; some concerns addressed under the Child Hearsay Statute and Dement Bryant analyses.
Batson challenge to prosecutor’s peremptory strikes?	The strikes of two African-American jurors were racially motivated.	The strikes were race-neutral explanations for removing potentially unfavorable jurors.	Trial court did not clearly err; Batson challenge denied; explanations deemed race-neutral.
Consecutive sentences for murder and child abuse error?	Superior evidence supports separate punishments.	Convictions were based on identical evidence; should be concurrent.	Consecutive sentences reversed and remanded to impose concurrent sentences on first-degree murder and child abuse resulting in death.

Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial vs non-testimonial evidence governs Confrontation Clause scope)
Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (child witness testimony via CCTV permissible to protect welfare)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (primary purpose test for testimonial statements)
Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011) (contextual primary purpose inquiry for statements)
People v. Dist. Court, 776 P.2d 1083 (Colo. 1989) (guides reliability factors for child hearsay under Dement)
People v. Fry, 92 P.3d 970 (Colo. 2004) (Colorado adopts federal framework for testimonial hearsay)
Compan v. People, 121 P.3d 873 (Colo. 2005) (Colorado congruence with federal Confrontation Clause for non-testimonial evidence)
People v. Moreno, 160 P.3d 242 (Colo. 2007) (limits Child Hearsay Statute where testimonial statements are involved)
State v. Vigil, 127 P.3d 922 (Colo. 2006) (test for government involvement in non-law-enforcement questioning)
People v. Gash, 165 P.3d 779 (Colo. App. 2006) (firmly rooted hearsay exception considerations under state law)