Homeless man found guilty of felony battery

By Aisling Swift
Contact:
http://www.naplesnews.com/staff/aisling_swift/contact/

Friday, August 31, 2007

A homeless Immokalee man accused of helping three others kick and stomp on another homeless man -- beating him with a stick, shovel and a machete before ordering him into a shallow grave -- was found guilty of felony battery Friday after the defendant denied any involvement.

A three-man, three-woman jury deliberating the fate of 56-year-old Jose Santos Chavez were stuck 5-1 and had asked Circuit Judge Elizabeth Krier whether they could hear portions of Santos' two-hour testimony, when the court recording system went down for the night and jurors were asked to leave the court until the system was turned back on.

A few minutes after 9 p.m., they sent back a note saying they'd reached a verdict.

Jurors found Santos guilty of a lesser and included charge of felony battery, a third-degree felony, not the original charge of second-degree aggravated assault with a deadly weapon causing great bodily harm or disfigurement.

Santos listened as a court interpreter told him the verdict, but didn't visibly react after being warned earlier not to gesture or show emotion. The victim, Edward Malachowski, wasn't present for the verdict. He suffered a dislocated hip, broken ankle, many cuts and bruises in the July 9, 2006, attack.

Although a presentence investigation is not required for someone with a past felony conviction -- a 1994 burglary -- Krier ordered a PSI and set sentencing for Sept. 28. Chavez, who has been in the county jail since his arrest on July 9, 2006, was returned there to await sentencing.

He faces a maximum of five years in a state prison -- and deportation -- on the charge, instead of the 15 years he'd faced on the original charge. He'd been deported after the 1994 burglary, but returned in 2000.

Three other homeless men still face trials on the aggravated battery with a deadly weapon charge: Sergio Eldezma, 52; Eldias Escalante, 60, and Gerardo Ernesto Ayala Pineda, 35. They remain in jail.

A juror said it was a question matter of credibility, but wouldn't reveal more about their deliberations.

Assistant State Attorney Hoang Dang, who prosecuted the case with Assistant State Attorney Rob Denny, declined comment. Defense attorney Michelle Berthiaume, a court-assigned attorney, commended the jury for following their consciences.

"Based on some of the questions they asked, it obviously was a compromise verdict," Berthiaume said of an earlier question by jurors who wanted to know what had happened to the other three defendants; they were told to focus solely on the evidence before them.

Berthiaume believed jurors agreed with Dang's argument that even if jurors didn't believe Santos participated in all of the assault, he would have to be found guilty under the principal theory because he aided others.

Malachowski testified Thursday that he was struck, beaten, kicked, stomped on and cut during an attack by four men after dinner on July 9, 2006, in a homeless camp in a wooded area off Leed Ave, near the Winn-Dixie supermarket. He said they also urinated on him and poured beer on him, dug his grave and let him smoke his last cigarette before they chopped off his arms and head and buried him.

He said as Escalante lifted the machete to cut off his head, telling him he'd have to be killed so he wouldn't tell police, Escalante fell to the ground, drunk. Malachowski crawled, "like a slug," dragging his left leg and broken ankle on shell and asphalt for an hour. He called the pain excruciating.

He tried flagging down a motorist, but said the sight of men crawling in Immokalee is common due to many drunks. One motorist even stopped and ignored his pleas for help, telling him, "Go home, drunk."

Malachowski testified the others had downed numerous 18-packs, while he had one or two beers and a glass of wine.

He finally arrived at the home of a friend on Leed Avenue, the owner of a scrap yard he often brought cans to. He knocked at the door and was unnoticed lying on the ground, but persisted and the man's son opened the door and that man's mother, Teresa Cruz, came out and asked what had happened.

She called 911, deputies arrived and rounded up the men after Malachowski directed them to the homeless camp. Malachowski spent three weeks in the hospital recovering and now lives with a friend in Naples. Malachowski, who has a two-year college degree, had said he was homeless due to hefty medical bills and had stayed in shelters before arriving at another homeless friend's camp.

Santos took the stand Friday and denied being involved in a fight, saying he and Eldezma went to bed early because they had to work the next day, a Monday. He also denied being intoxicated, saying they had to work the next day.

Santos' testimony rambled on and he often didn't answer questions posed him, or went off on tangents, sometimes causing those in court to stifle giggles. He testified he heard nothing, only arguing before bed, but said that earlier in the day, they'd had asked Malachowski, whom he portrayed as a crazy drunk, to leave because he caused trouble and prompted deputies to search the camp; Malachowski denied being told to leave.

Santos said he was "naky, naky," sleeping without clothing with his close friend Eldezma in a tent when they saw a helicopter circling and lights, and was then awakened around 11 p.m. by a deputy pulling on his leg.


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