Mistrial declared in NY beating death of immigrant

by Colleen Long

Associated Press

Wednesday May 12, 2010

A mistrial was declared Tuesday after jurors deadlocked in the case against a man charged with a murder as hate crime in the beating death of an Ecuadorean immigrant.

Keith Phoenix pleaded not guilty in the death of Jose Sucuzhanay and attempted assault of his brother, Romel Sucuzhanay, on Dec. 7, 2008. Prosecutors said Phoenix yelled racial and anti-gay slurs at the men and cracked Jose Sucuzhanay's skull while beating him with an aluminum baseball bat in a Brooklyn neighborhood.

Jurors deliberated for more than 30 hours over four days. They requested hours of testimony and re-watched a video of Phoenix admitting that he hit the victim with a bat. On Monday, they said they were deadlocked on one count but did not specify which one. They were twice given orders by Judge Patricia DiMango that they had to reach a unanimous verdict.

At about 9 p.m. Tuesday, the jury sent a note to the judge saying one of the jurors was refusing to deliberate. DiMango asked them if it would be helpful to go home for the night and resume Wednesday. They shook their heads no.

"We have read back testimony over and over again," she said. "I can't see any other action then to declare a mistrial at this time."

Phoenix will be held until a new trial, set for June 15. Prosecutors declined to further comment.

Phoenix's co-defendant, Hakim Scott, was convicted Thursday of manslaughter but acquitted of a more serious charge and the jury found his actions were not a hate crime. He faces 25 years in prison on the top charge when he is sentenced June 9.

Two juries had been hearing the case in state Supreme Court in Brooklyn because the defendants had implicated each other.

Prosecutors said that Phoenix, 30, and Scott, 26, mistook the brothers for gay men and yelled anti-Hispanic and anti-gay slurs at them. They said Scott smashed the bottle over Jose Sucuzhanay's head and chased after Romel with the broken bottle, while Phoenix beat Sucuzhanay with the bat so badly he cracked open his skull. Sucuzhanay died several days later at a hospital.

Phoenix's mother, Marietta Phoenix, said outside court she was happy that the case was declared a mistrial because her son was wrongly characterized as someone who was capable of murder.

"My son is not an animal as everyone is making him out to be," she said. "I think justice was served at least a little bit."

Romel Sucuzhanay said outside court he was unable to speak much on the mistrial because he will have to testify again.

"My family, we feel very worried. The evidence was there," Sucuzhanay said in Spanish. "I hope that we have success in the new trial."

Phoenix had pleaded not guilty to second-degree murder, manslaughter and attempted assault, all as hate crimes. His attorney, Philip Smallman, said in closing arguments that the case was about a fight that escalated, not a premeditated attack.

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