Hate Crime Murder Conviction in Sucuzhanay Case

After initial mistrial, Keith Phoenix also guilty in attempted assault on victim’s brother

The Brooklyn jury hearing the second trial of Keith Phoenix, the killer of José Sucuzhanay, convicted him of second-degree murder as a hate crime as well as attempted assault as a hate crime in the attack on Romel Sucuzhanay, José’s brother.

“This verdict sent the right message,” said Diego Sucuzhanay, another of José’s brothers, after the jury announced its verdict at roughly 9:30 p.m. on June 28. “We believe that justice has been done for our brother.”

Phoenix, 30, 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 used. Two other witnesses heard an anti-gay slur.

Phoenix was convicted on the top counts he faced and could get as much as 40 years in prison for the killing when he is sentenced on August 5. His first trial ended in a mistrial after one juror held out for a manslaughter conviction while the other 11 wanted to convict on second-degree murder. The first 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. Scott will be sentenced on July 14.

Phoenix was tried with Scott in his first trial, but there were separate juries.

The Scott jury’s rejection of the hate crime tag drew condemnation from gay and Latino community leaders.

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

In contrast to jury deliberations in Phoenix’s first trial, which went on for four days, it was apparent within hours of the June 28 closing arguments that Phoenix was in trouble. The jury of six men and six women began deliberating at roughly 2:15. Their instructions were to first weigh the murder, manslaughter, and assault charges in the attack on José and then move on to consider the attempted assault charges in the attack on Romel.

At 6:13, the jury sent out a note asking for the legal definition of attempted assault and to hear testimony about the attack on Romel. That suggested that they had completed work on the charges related to José’s killing. At 8:10, they asked for more legal definitions and to hear more testimony related to the attempted assault, and at 9:17 they announced they had a verdict.

Altogether, the jury in the second trial sent out five notes, including the 9:17 note. The jury in the first trial sent out 23 notes.

When the verdict was read, the Sucuzhanay family members and their friends, as well as representatives of the Ecuadorian government, began shaking hands and hugging. Just two of Phoenix’s relatives were in court on June 28, and one rushed from the courtroom after the verdict was read.

“I think he’s kind of surprised by this result,” Philip J. Smallman, Phoenix’s attorney, said of his client, following the verdict. Phoenix had not expected to be convicted on the hate crime charge or the assault on Romel, Smallman said.

Josh Hanshaft, the assistant district attorney who prosecuted the case with Patricia M. McNeill, also an assistant district attorney, made a brief statement.

“We never look behind a jury’s verdict,” he said when asked to comment on the verdict and any message it might send.