Testimony Ends in Sucuzhanay Trial

Ending testimony in the second trial of Keith Phoenix, the accused killer of Jose Sucuzhanay, the defense sought to dampen the impact of the hate crime charges in the case by calling Phoenix’s mother to the stand and eliciting testimony from her that the defendant’s father was Latino.

“Dominican and Puerto Rican,” said Marietta Phoenix on June 24 when Philip J. Smallman, Keith’s attorney, asked about the ethnic heritage of Rollin Grant, Keith’s father.

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, assaulted Jose and his brother Romel after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Romel said an anti-Latino slur was used. Two witnesses heard an anti-gay slur.

Smallman wanted to ask Marietta about Keith’s gay relatives and how he conducted himself in their company, but Patricia M. Di Mango, the judge in the case, barred that. The theory behind the questioning is that if Keith is shown to be related to or have friends who are gay or Latino he is less likely to have been motivated by bias.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

The defense argued that this was an alcohol-fueled dispute that turned vicious and that Phoenix, believing Jose was armed, was defending himself when he beat Jose with a bat.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries. The jury’s rejection of the hate crime element was condemned by gay and Latino community leaders.

During voir dire, Josh Hanshaft and Patricia M. McNeill, the assistant district attorneys who are trying the case, placed a greater emphasis on the hate crime aspect of the case and they have done that during the trial as well.

Defense attorneys see the hate crime label as tending to inflame juries though that did not happen with the Scott jury or Phoenix’s first jury. The label clearly does have political and symbolic meaning for some activists and community leaders.

Before Marietta took the stand, the prosecution ended its case with grim testimony from the city’s medical examiner. Dr. Michael Greenberg, the pathologist who oversaw Jose’s 2008 autopsy, said there were four fractures to Jose’s skull that were spread across a six-by-three inch area.

“I would have to say that a significant amount of force would be required to cause these injuries,” Greenberg said. Jose was admitted to a Queens hospital early in the morning on December 7 and declared “dead by neurological criteria,” or brain dead in the common parlance, on December 8, Greenberg said.

Following Greenberg’s testimony the prosecution played a videotape that showed Phoenix laughing and smiling as he drove his car through a toll plaza on the Triborough Bridge roughly 20 minutes after the attack.

Closing arguments in the case are expected on June 28. Di Mango will then charge the jury and their deliberations could begin late in the day on June 28.

Testimony Nears An End in Sucuzhanay Trial

The fifth and final eyewitness to the attack that left Jose Sucuzhanay dead told a Brooklyn jury that he heard the driver of a red SUV direct an anti-gay slur at Jose and his brother Romel then watched as that driver and another man attacked the brothers.

“The driver in the front was talking to the two Hispanic males,” said Kuson Nelson on June 23 then he quoted the driver saying “Look at those two little faggot motherfuckers right there.”

Nelson was testifying in the second trial of Keith Phoenix, 30, who faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

The Brooklyn district attorney said that Phoenix and Hakim Scott, 27, assaulted the brothers after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Romel said an anti-Latino slur was also used.

The defense argued that this was an alcohol-fueled dispute that turned vicious and that Phoenix, believing Jose was armed, was defending himself.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

Nelson was returning to his home on Bushwick Avenue the night of the incident and saw “two Hispanic males” walking on the sidewalk headed towards Kossuth Place.

“One had his arm around each other, joking, playing around,” Nelson said. After hearing the slur, Nelson saw one man, not the driver, exit the vehicle holding a beer bottle.

“He had a beer bottle, he raised his hand,” Nelson said. “I heard a crash.”

The allegation is that Scott first struck Jose on the head with the beer bottle then Phoenix beat him with a bat. Nelson saw the driver wielding a bat, but he could not see what he was hitting.

“I heard metal hitting concrete,” he said. “I seen the bat in motion, but I couldn’t tell who was being hit or what.”

On cross examination, Philip J. Smallman, Phoenix’s attorney, emphasized where Nelson’s testimony was inconsistent with testimony from other witnesses. Nelson said the first man out of the SUV was in the front passenger seat while other evidence, including Phoenix’s statements and testimony from the third man in the car, have him sitting in the rear. Despite saying he lived on Bushwick for 10 years, Nelson kept referring to Stanhope Street, which is directly across from his apartment building, as Stockholm Street.

The five eyewitnesses generally agreed with each other though there were some differences in their testimony. The bigger problem for the defense is that Phoenix admitted to beating Jose in his oral, written and videotaped statements. By June 23, the jury had heard all of those statements.

No witness has supported Phoenix’s assertion that Jose was armed nor were any weapons found on or near Jose. Most of the witnesses say the brothers were not fighting.

Testimony in the case is expected to end on June 24 and closing arguments will likely be made on June 28.

In Statement, Phoenix Claims Self Defense in Sucuzhanay Killing

In a videotaped statement that was played for the jury at the second trial of Keith Phoenix, the accused killer of Jose Sucuzhanay, Phoenix said he thought Sucuzhanay had a gun and so he beat him twice with a bat.

“I see him going like this reaching for a gun,” Phoenix said as he moved his hand towards the waistband of his pants in a 19-minute statement that was shown to the jury on June 22. “I hit him four times with the bat. I hit him like in the midsection and then the face.”

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

In his statement, Phoenix said that he, Scott, and Demetrius Nathaniel, Phoenix’s cousin, were returning to the Bronx in Phoenix’s car after attending a party in Brooklyn. As they came to the intersection of Kossuth Place and Bushwick Avenue, Phoenix said he saw two people in the path of his car.

“I seen two people in the street so I blew the horn twice,” he said. One of the two men kicked his car and he stopped to look for damage. As he stepped out of the car, Scott had already exited and was battling with the brothers, Phoenix said.

“By the time I hopped out they was already fighting,” he said. Phoenix said he delivered two sets of blows to Jose, four strikes to his body and two to his head. That is generally consistent with statements from the five eyewitnesses to the attack. The jury in Phoenix’s first trial clearly did not believe that he was acting in self-defense when he beat Jose.

When questioning Romel on June 21, the prosecution elicited testimony that he and Jose had been at a club for a drink moments before the attack and that they were searched before entering the club. No weapons were recovered.

Daniel Ludemann, the first police officer on the scene, testified on June 15 that no weapons were found on or near Jose. In his statement, Phoenix said he put the bat back in his car after the attack and discarded it the next day at a Bronx park. The bat was never found.

Also on June 22, William Gonzalez, a detective with a New York City police department warrant squad, testified that when Phoenix was arrested in a Yonkers apartment on February 27, 2009 he said “I killed someone. Does that make me a bad person?”

The trial will continue on June 23.

Romel Sucuzhanay Testifies at Trial of His Brother's Accused Killer

Testifying in the trial of Keith Phoenix, the man who is accused of killing Jose Sucuzhanay, Jose’s brother largely maintained a stoic demeanor, but was overcome with emotion at one point.

“I came to look at my brother and my brother was on the ground and his tongue was out,” said Romel Sucuzhanay through an interpreter on June 21 in Brooklyn Supreme Court.

Romel next saw Jose when he was on life support in a Queens hospital. As he described seeing him then having to sign for his brother’s body at the city morgue, Romel gripped his forehead and hung his head. At other moments, his anger at Phoenix was apparent when he fixed a withering glare on the defendant.

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, attacked the brothers after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

As he did during the first trial, Romel described how he and Jose were out for a night of dancing and drinking after a day of work. At a church dance, Romel said he had three beers and Jose drank 11 or 12. They stopped at a bar where each man had part of a Long Island Iced Tea and then headed to Jose’s home on Kossuth Place.

“We were walking and that night it was very cold and my brother was shivering,” Romel said adding that he took off his jacket and put it over his brother. As they approached the intersection of Kossuth Place and Bushwick Avenue, Romel noticed a red car stopped at the light.

“The driver looked at us with an angry face as if he was upset,” Romel said. “When we were walking towards the house they came out screaming ‘Fucking Spanish’...It was very fast. They jumped out and they hit my brother in the head with a bottle.”

The bottle shattered and Romel said the shards cut his hands, arm and chest. He saw a second man “hitting my brother with a bat.”

The prosecution’s case consists almost entirely of Phoenix’s written, oral, and videotaped statements, in which he admits to beating Jose with a bat, and five eyewitnesses including Romel. The witnesses generally agree though they do diverge in places. Only Romel heard the anti-Latino slur while two other witnesses heard an anti-gay slur.

On cross examination, Philip J. Smallman, Phoenix’s attorney, elicited some testimony that may aid his client in avoiding a conviction on the assault and attempted assault charges. Romel conceded that he was never cut by the broken bottle which was wielded by Scott and that the wounds did not require medical attention.

“And again, you were never treated?” Smallman asked. “No, never,” Romel said.

The trial will continue on June 22.

Testimony Continues in Sucuzhanay Trial

By linking their cell phones calls to cell phone antennas, a detective in the police department’s Intelligence Division was able to approximate the movements of three men, including two who attacked Jose Sucuzhanay and his brother, Romel, in the 2008 assault that led to Jose’s death.

The analysis of the cell phone records, which were obtained with a subpoena, shows “that three cell phones were in close proximity to one another and they traveled from the Bronx to Brooklyn and then from Brooklyn to the Bronx,” said Ronald Weeks, a division detective, during June 17 testimony at the second trial of Keith Phoenix, Jose’s accused killer.

Phoenix, 30, faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

His co-defendant in the first trial, Hakim Scott, 27, faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

The Brooklyn district attorney said that the two attacked Jose and Romel after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Late on December 6, Phoenix, Scott, and Demetrius Nathaniel, Phoenix’s cousin, traveled from their Bronx homes to a party in Brooklyn. They encountered Jose and Romel as they were driving home.

The analysis by Weeks used roughly a dozen calls connected to different antennas among the three to show them first calling each other in the Bronx then later calls as they headed towards Brooklyn then calls in Brooklyn just before the attack and calls in the Bronx following it. Weeks, who has been in the division for three years, works in the Analytical Programs Unit there.

“We maintain and process various forms of data including cell phone data,” he said. He has done a similar analysis in over 20 criminal cases.

While few would dispute that the use of such records in the Sucuzhanay case is a good thing the analysis also shows the increasing and disquieting ability of government to intrude into the lives of taxpayers. Ultimately, the analysis merely corroborates the more significant evidence -- the oral, written, and videotaped statements Phoenix gave to police, in which he admits to beating Jose with a bat, and the five eyewitnesses to the attack. Two of those witnesses took the stand on June 17.

Nathaniel was in Phoenix’s SUV when he saw Jose and Romel looking “like a married couple walking down the aisle.” Phoenix rolled down his car window and yelled “two faggot ass niggers,” Nathaniel said. He heard a loud bang, which may have been Jose kicking the car, and Scott exited to smash a beer bottle on Jose’s head. Phoenix retrieved a “bat, pole or stick” from his car and beat Jose who was lying on the street. Nathaniel saw Phoenix step away then return to deliver a second set of blows to Jose’s head.

“My cousin knocked him right back down with the bat,” Nathaniel said. He heard “bone breaking,” the 19-year-old said.

The second witness, Kimbale Taylor, said she was awakened by a “thumping noise” and looked out her bedroom window to see “a gentleman who was beating on another gentleman who was lying on the ground.”

Taylor, an emergency medical technician, said she saw two sets of blows made with an aluminum bat with the second set to the prone man’s head.

“He walked back to the SUV,” Taylor said of the assailant. “He walked over to him and started beating him again...He hit him very hard.”

Taylor later identified Phoenix as the man wielding the bat in a police line up and she pointed him out in court as well.

Philip J. Smallman, Phoenix's attorney, was unable to shake Nathaniel or Taylor on cross examination though he may have aided his client's case by eliciting testimony from Nathaniel that Jose and Romel were obviously intoxicated.

The trial will continue on June 21.

Sucuzhanay Retrial Begins in Brooklyn

Jury selection began in the retrial of Keith Phoenix, the accused killer of Jose Sucuzhanay, and attorneys selected three jurors by the end of June 10, the trial’s first day.

Phoenix, 30, faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

His co-defendant in the first trial, Hakim Scott, 27, faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

The Brooklyn district attorney said that the two men attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

In questioning prospective jurors on June 10, Josh Hanshaft, an assistant district attorney who is prosecuting the case with Patricia M. McNeill, also an assistant district attorney, pressed the panel on their views on the gay community and hate crime laws, an element of the case that they emphasized less during voir dire at the first trial.

“Have you also seen same sex couples out?” Hanshaft asked. He quizzed potential jurors as to whether or not they felt hate crime laws were correct.

“I think it’s appropriate to have a separate class for murder,” said one woman who was one of the three selected on June 10. A young man who was not selected seemed taken aback that the Sucuzhanay brothers had been mistaken for a couple.

“Me personally I wouldn’t hold my brother’s hand outside,” he said. “Holding my brother’s hand, like you said, people might judge.”

As he and McNeill did during the first trial, Hanshaft also prepared jurors for what they would not see during the case.

The prosecution relied on Phoenix’s statement, in which he admits to beating Jose, and five eyewitnesses to the brutal attack. That testimony was supported by other evidence, such as cell phone records placing the defendants at the crime scene. What the district attorney does not have is fingerprint, DNA or other physical evidence linking Phoenix to the crime. The bat Phoenix used to beat Jose’s body and head was never found.

“I’m telling you now there will be no DNA evidence from this defendant,” Hanshaft said. “I need to know if there is anybody here who requires DNA evidence.”

Philip J. Smallman, Phoenix’s attorney, asked jurors to be patient and to listen to all of the evidence before making up their minds about Phoenix’s guilt or innocence.

“Take a look at Mr. Phoenix and I’m going to ask you if any of you see anything except an innocent man sitting there,” he said. Smallman also asked that jurors not be swayed by the attention that politicians and the press had given the case.

Scott was scheduled to be sentenced on June 9, but that was postponed until July 14. Scott was not on the prosecution’s witness list that was presented to the Patricia M. Di Mango, the trial judge, on June 10. Craig L. Newman, Scott’s attorney, said the postponement was done so he could complete a pre-sentence report.

“I want to make sure the report is as good as possible,” he said on June 9.