The Brooklyn Ink

By Jeannette Neumann

The defense called its only witness on Monday, bringing to a close three weeks of testimony in the alleged hate-crime murder of an Ecuadorian immigrant.

The mother of defendant Keith Phoenix told jurors that her husband – Phoenix’s father – is of Puerto Rican and Dominican descent. A minor detail, but one that defense attorney Philip J. Smallman indicated could be pivotal to bolster his argument that Phoenix’s alleged murder of Jose Sucuzhanay was not a hate crime – a designation that carries an elevated sentence.

Kings County Supreme Court. Courtesy of NYS Courts.

The alleged murder is being prosecuted as a hate crime because witnesses have testified that Phoenix and fellow defendant Hakim Scott shouted anti-Hispanic and homophobic remarks at Sucuzhanay and his brother Romel before jumping out of their red Mercury Mountaineer and repeatedly beating Jose on the head with a baseball bat and a Budweiser beer bottle as Romel tried to run away. The Sucuzhanays had been walking home from a party in the early morning hours of December 7, 2008, hooking arms tightly to fight the bitter 30-degree weather.

Smallman also proposed calling to the witness stand Phoenix’s mother-in-law, who he said was a lesbian. Her testimony would further build the case that Sucuzhanay’s alleged murder was not a hate crime, Smallman said. The testimony of both women would have shown that Phoenix’s family “never observed him to have any bias, animus, hatred or to have acted negatively toward them because of race or sexuality,” Smallman said.

“We are dealing with a case that has at its core the word hate,” he added.

The defense needs to convince the jury that the alleged murder was not about hate or Phoenix and Scott could face the maximum sentence of life in prison.

Judge Patricia DiMango had initially denied Smallman’s requests to call both witnesses. Smallman conferred with Phoenix during the lunch break and when he returned, he withdrew his initial requests to call Phoenix’s mother-in-law and church pastor to testify.

In the end, only Marietta Phoenix testified for the defense. Neither Phoenix, 30, nor Hakim, 26, testified during the trial.

The prosecution called its last two witnesses on Monday – a police detective and a forensic biologist who oversaw the analysis of blood samples gathered from the scene of the crime and the butt of a cigarette.

Assistant District Attorney Josh Hanshaft examined Detective Geoffrey Hernandez for the second time in the trial. Hernandez told jurors that he had questioned Scott for nine hours in the 90^th precinct on February 25, 2009 and that over the course of the day he had offered Scott cigarettes. After the questioning was finished, Hernandez took one of the cigarette butts and had it analyzed by the New York City Office of Chief Medical Examiner for potential traces of DNA.

That DNA matched the DNA from the reddish-brown bloodstains found on the rear passenger side of Phoenix’s Mercury Mountaineer, said forensic biology expert Scott Hodgson, who works as a supervisor at the city agency.

Hodgson said the DNA was from Scott.

Scott wrote in a statement to the police that he was sitting in the rear passenger seat before he jumped out to attack Sucuzhanay with a Budweiser beer bottle. Scott wrote that Sucuzhanay had spit on him through an open car window.

Prosecutors will pull together the strands of testimony from Hodgson and other witnesses during summations, which are scheduled for Wednesday.