People v. Phillips

315 P.3d 136

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Jon Richard PHILLIPS, Defendant–Appellant.

No. 08CA2013.

Colorado Court of Appeals, Div. IV.

Oct. 25, 2012.

Recognized as Unconstitutional

West's C.R.S.A. § 13–25–129John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Samler & Whitson, P.C., Hollis A. Whitson, Eric A. Samler, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge FURMAN.

TABLE OF CONTENTS

I.

C.G.'s Death

143

A.

C.G.'s Bruised Ear

143

B.

The Welfare Check and Visit to the Center

144

C.

C.G.'s Other Statements at School

145

D.

Easter Dinner

145

E.

Berry's Voicemail

145

F.

The Day of C.G.'s Death

145

G.

The Autopsy of C.G.

147

H.

The Search of Defendant's Apartment

147

I.

D.P.'s Testimony

148

J.

D.P.'s Therapist

148

K.

The Detective

148

II.

CCTV Under the Federal and State Constitutions

149

A.

CCTV Proceedings

150

B.

Federal Confrontation Clause

150

C.

State Confrontation Clause

152

III.

Hearsay

153

A.

Overview of the Law Regarding Hearsay

153

B.

Overview of the Law Regarding Confrontation Clauses

153

1.

Federal Constitution's Confrontation Clause

153

a.

The United States Supreme Court

153

b.

The Colorado Supreme Court

155

c.

Summary of Federal Confrontation Clause Analysis

156

2.

State Constitution's Confrontation Clause

156

a.

Post- Crawford

156

b.

Summary of State Confrontation Clause Analysis

157

3.

Confrontation Clause Standard of Review

157

C.

Overview of the Law Regarding the Child Hearsay Statute

157

1.

Statutory Text and Nonexclusive Factors

157

2.

The Child Hearsay Statute and the Federal Confrontation Clause

158

3.

The Child Hearsay Statute Standard of Review

159

D.

Overview of the Law Regarding Constitutional Harmless Error

159

IV.

Defendant's Hearsay Objections

160

A.

Admission of Berry's Voicemail

160

1.

Multiple Levels of Hearsay

160

2.

C.G.'s Statement to D.P.

160

3.

D.P.'s Statement to Berry

161

4.

Berry's Statement to Defendant

161

B.

Admission of C.G.'s Statements to Various Adults

161

1.

C.G.'s Statements to the Public School Employees

161

2.

C.G.'s Statements to the Police Officer During the Welfare Check

163

3.

C.G.'s Statements to the Caseworker

164

4.

Hearsay Statements Made to Mandatory Reporters of Child Abuse Are Not Necessarily Testimonial

165

C.

Admission of D.P.'s Statements to Various Adults

166

1.

D.P.'s Statements to His Mental Health Therapist

166

2.

D.P.'s Statements to the Detective Analyzed Under the Child Hearsay Statute

167

D.

Harmless Error as to C.G.'s and D.P.'s Other Statements

167

V.

Denial of Batson Challenge

169

A.

Law Governing Batson Challenges

169

B.

The Two Challenged Jurors

169

C.

The Trial Court Did Not Clearly Err

171

VI.

Imposition of Consecutive Sentences

172

VII.

Conclusion

172

¶ 1 Defendant, Jon Richard Phillips, appeals his convictions for first degree murder, child abuse resulting in death, and tampering with physical evidence. These convictions stemmed from evidence that defendant starved his stepson, C.G., to death in a linen closet in his apartment.

¶ 2 Defendant challenges his convictions, primarily contending his trial was unfair because numerous child hearsay statements were admitted at trial in violation of the federal and state Confrontation Clauses and state rules of evidence. We affirm the convictions, reverse the sentence in part, and remand for correction of the mittimus.

I. C.G.'s Death

¶ 3 The jury heard the following evidence.

¶ 4 C.G. and his half-brother, D.P., had the same biological mother, who lost custody of the boys in March 2006 through a Jefferson County dependency and neglect action. The Jefferson County Department of Human Services placed custody of both boys with defendant, who was D.P.'s father but not C.G.'s. At the time, defendant lived with his girlfriend, Sarah Berry. D.P. was five years old and C.G. was six years old.

¶ 5 On January 11, 2007, Jefferson County ended protective supervision over the two children.

A. C.G.'s Bruised Ear

¶ 6 On January 17, 2007, in C.G.'s kindergarten class, a teacher's aide saw “red marks on C.G.'s neck” in which “the skin was raised and welts and it looked like fingerprints.” She asked C.G. what happened to his neck, and he said, “My dad squeezed my neck.” She asked him if it hurt, and he said, “No, but my ear hurts.” She then noticed that C.G.'s right ear was “bruised severely.” C.G. told her, “My dad clobbered me.”

¶ 7 C.G.'s kindergarten teacher noticed both that his right ear “was very dark, very blue, very black” and that he had a “[r]ed round mark on his neck.” When she asked him what had happened, he replied, “My dad held me in the shower and kept hitting my ear.”

¶ 8 C.G. was taken to the acting principal, who also noticed that his right ear “was very swollen and very, very bruised” and “completely black and blue, outer ear and inner ear.” She asked him what happened to his ear, and he said, “My daddy put me in the cold shower and he slapped me in the ear over and over again.” She asked, “Why did he do that?” and C.G. said, “He was mad at me because my brother made us steal some candy.” C.G. volunteered that he sometimes had his dinner in the shower.

¶ 9 She also asked C.G. if anyone had attended to his ear, and he said that defendant “had given him some ice and a hat.” C.G. told her that nothing like this had happened before and that he was not worried about going home. After sending C.G. back to his class, the acting principal reported this incident to the Denver Department of Human Services (Department) via the social services hotline.

¶ 10 The following day, the teacher's aide brought C.G. into the school nurse's office. The nurse noticed that “the top three-quarters” of C.G.'s ear “was black and blue and swollen.” She testified, “I asked him what happened, and he said that he had been held under the shower and hit in the ear as punishment.”

B. The Welfare Check and Visit to the Center

¶ 11 On January 19, 2007, a representative of the Department went to defendant's apartment but was unable to speak to anyone. The next day, a social services caseworker with the Department called the Denver Police Department, requesting that officers perform a welfare check on C.G. and D.P. At 1:56 p.m., two Denver police officers responded to defendant's apartment. Berry allowed the officers inside. The first officer spoke with C.G. alone. She asked him if he had any “owies.” He lifted up his hair on the left side of his forehead to reveal a bump and a bruise on his right ear. The officer observed that the bruise was “very purple.” She asked him how he was injured; he said, “I got slapped,” and then told her, “I fell in the bathroom because it was slippery.” She asked, “Who did it?” C.G. did not answer. She asked him if he had eaten breakfast, to which he replied, “I'm not good, I don't get things.”

¶ 12 The officers took the boys to the Department's Family Crisis Center (Center). When the officers arrived with C.G. and D.P., the officers and the caseworker who had called the police took the boys into the Center's receiving area. The caseworker noticed that C.G.'s right ear was bruised and that he had a bump on his forehead and a scratch on his nose. As the first officer took pictures of C.G.'s injuries, the caseworker asked him where he had gotten them. C.G. said that the bruising to his ear had happened because he slipped and fell in the shower but that he did not know where he had gotten the bump and scratch. The officers then left the room and filled out a juvenile case summary. One of the officers testified that she and her counterpart did not hear the caseworker interview C.G. or D.P.

¶ 13 After the officers left, the caseworker began the interview. She occasionally got up and walked around the room with C.G., put on a movie for the boys to watch, and let C.G. and D.P. speak freely to each other. She asked C.G. what was the difference between the truth and a lie; he said that he “wouldn't go to jail” if he told the truth. She asked him what happened to his ear, and he said again that he had “slipped and fallen in the shower.” She later asked him this same question, and he gave the same response, but added that it was not his dad's fault. He also said, “[W]hen [we]'re bad, [we] have to take showers, but when [we]'re good [we]'re allowed to take baths.” She overheard C.G. say to D.P. that C.G. had not been able to get a watch because he was bad. She then asked, “Well, what is it that you did that was bad?” C.G. replied that he “had stolen candy from his mom and dad.” She then watched C.G. turn back to D.P. and say to D.P., “You also weren't listening, and Daddy asked why you were being like me.”

¶ 14 The caseworker then took C.G. and D.P. to the Center's cafeteria. She opened the door to one of the refrigerators: “[C.G.'s] eyes lit up ... [and] [h]e got very excited, very happy, and he started to point to everything in the refrigerator. He wanted a little bit of everything on his plate.” C.G. had three hot dogs, a bag of chips, pudding, and milk.

¶ 15 After consulting with her supervisor, the caseworker filled out a safety plan requiring defendant and Berry to appear at the Center the following Monday. The safety plan required that defendant and Berry not discuss C.G.'s injuries with the boys, and not discipline them.

¶ 16 The caseworker then drove C.G. and D.P. home. During the drive, she heard D.P. say, “Well, sometimes they're bad to us,” and D.P. said “they” were defendant and Berry. She asked D.P. to explain his statement. D.P. said that sometimes defendant and Berry made him “eat nasty food.” C.G. then interjected and said, “[D.P.], you know they respect us, [Berry] says they respect us, she always tells us that they respect us.” D.P. also mentioned that sometimes he and C.G. “ha[d] to take showers instead of baths.”

¶ 17 When the caseworker arrived at the apartment, she returned the boys to defendant and Berry and secured defendant's and Berry's signatures on the safety plan.

C. C.G.'s Other Statements at School

¶ 18 On January 22, 2007, C.G.'s...