People v. Jones, 1-08-1885.

• Decision Date: 30 September 2010
• Docket Number: No. 1-08-1885.,1-08-1885.
• Citation: 344 Ill.Dec. 403,404 Ill.App.3d 734,936 N.E.2d 1160
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Bryant JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

936 N.E.2d 1160 404 Ill.App.3d 734 344 Ill.Dec. 403 The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Bryant JONES, Defendant-Appellant. No. 1-08-1885. Appellate Court of Illinois, First District, Sixth Division. Sept. 30, 2010.

Anita Alvarez, Cook County State's Attorney, Chicago (James E. Fitzgerald, Assistant State's Attorney, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender of Cook County, Chicago (La Roi Williams, Assistant Appellate Defender), for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

[344 Ill.Dec. 405, 404 Ill.App.3d 734]

Following a bench trial, defendant, Bryant Jones, was found guilty of first degree murder and sentenced to 22 years' imprisonment. Onappeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt. For the reasons that follow, we reduce defendant's conviction and remand for resentencing.

Defendant was arrested and charged with two counts of first degree murder. Count I alleged that defendant intentionally and knowingly asphyxiated the victim, Michael Howell, with his foot, while count II alleged that defendant asphyxiated and killed Howell with his foot, knowing that such act created a strong probability of death or great bodily harm to the victim.

The following evidence was presented at defendant's trial.

Jasmin Reyes testified that she met defendant in 1994 and that they had two children together. In April of 2007, Reyes and defendant were dating and Reyes was living with her brother and his wife while defendant lived in a separate apartment with the couple's children. Reyes met Howell at the Target store where they both worked. In early 2007, Reyes and Howell, who was married at the time, began to have a sexual relationship. Reyes and Howell were both working on April 9, 2007, and sent each other text messages throughout the day about meeting after work. When Reyes said she did not have money to go anywhere, Howell suggested that they go to defendant's apartment.

Reyes and Howell traveled to defendant's home in separate vehicles. Reyes testified that she did not have to tell Howell how to get to defendant's apartment because she and Howell had met there on a previous occasion in order to have sex. According to Reyes, Howell "knew the situation I was in" and knew that the apartment belonged to defendant. Reyes arrived at defendant's home at approximately 5:15 p.m. and Howell arrived approximately 15 minutes later. Reyes described defendant's home as a two-bedroom attic apartment above a single-family home. The apartment had only one entrance and exit, which was accessed by

[344 Ill.Dec. 406, 936 N.E.2d 1163]

a stairway attached to the rear of the building.

Reyes testified that she did not have a key to defendant's apartment but that she knew where he kept his spare key. When Howell arrived at the apartment, he and Reyes immediately had sex on defendant's bed. About 20 minutes later, as they were preparing to leave the apartment, Reyes looked out the back window and saw defendant in the backyard putting his dog into a pen. Reyes was confused because she did not expect defendant to be home until 10 p.m. She told Howell to hide in the children's bedroom.

Defendant entered the apartment and asked Reyes what she was doing there and how she got into the apartment. Reyes unsuccessfully tried to pick a fight with defendant in order to get him to leave. Defendant then went to the bathroom and when Reyes thought she heard him turn on the shower, she went to the children's bedroom andtold Howell to leave. Howell left the bedroom but was delayed leaving the apartment because he tried to push instead of pull on the apartment door. As Howell and Reyes were standing at the door, defendant exited the bathroom, looked at Howell, and said, "who the f*** are you?" Howell responded that he "didn't know [Reyes] was with someone," and Reyes said, "let me explain." Reyes was standing between defendant and Howell at this point and then Howell opened the apartment door, pushed Reyes into defendant, and ran outside. Defendant caught Reyes, put her to the side, and followed Howell out of the apartment. According to Reyes, neither Howell nor defendant touched each other while they were inside defendant's apartment.

When the two men were outside, Reyes, who had remained in the apartment, heard Howell tell defendant that he was a police officer and defendant asked to see Howell's badge. Reyes testified that Howell was lying about being a police officer. Reyes began to look for her cell phone inside the apartment until she heard defendant and Howell "yelling" outside. Reyes ran outside and, upon reaching the bottom of the stairs, saw defendant and Howell on the ground near the gangway. Reyes explained that "[Howell] was on the ground on the side, [and defendant] was coming off of him." She further explained that Howell "was laying down diagonally" and defendant "was on top of him" getting up off of Howell's stomach. Howell was not moving at the time but Reyes could hear that he was still breathing. When defendant stood up, he told Reyes to take him to his children. Reyes stepped over Howell and, as she glanced back, saw that he was still breathing and that his lips were "shivering." Reyes and defendant then drove to pick up their children and went to dinner. Reyes later drove to the police station with defendant.

The State's next witness was Marcos Cervantes, who lived in the same building as defendant. Cervantes described the house as a single-family home with a gangway next to the house that led to the backyard. The backyard consisted of a cement area and a staircase leading up to an attic apartment. Cervantes stayed in the basement of the house while his mother and daughters resided on the first floor. Defendant lived in the attic apartment with his two children.

Cervantes testified that on April 9, 2007, defendant arrived at home with one of his friends at approximately 5 p.m. Defendant, his friend, and Cervantes then left to walk their dogs at a nearby park. Upon returning home, defendant's friend left and defendant went upstairs to his apartment, telling Cervantes that he was going to feed his dogs and take a shower. Cervantes remained in the backyard playing with his

[344 Ill.Dec. 407, 936 N.E.2d 1164]

dogs. After some time, Cervantes heard defendant yell that someone was in his house. Cervantes looked up to the top of thestaircase and saw defendant "fall towards the side a little bit." Cervantes tried to contain his dogs because they were barking and were "really riled up." As defendant descended the stairs, Cervantes saw defendant's arm outstretched as if he was "grabbing for something." Cervantes did not hear any sounds or see who was in front of defendant because he was trying to control his dogs. Cervantes put one of his dogs in the pen and took the others to the gangway to put them in the basement. As he was doing so, Cervantes saw defendant and an unknown man, whom he identified as Howell, coming toward him by the back door. Defendant and Howell were pushing each other and it appeared to Cervantes that defendant was holding Howell back and that Howell was pushing defendant in order to get past him and leave the backyard. Defendant was punching Howell in the head with both of his fists and when asked by the prosecutor if defendant could have punched Howell in the head more than five times, Cervantes said yes. Howell was "swinging" or "flapping" his arms but Cervantes did not see Howell hit defendant.

Cervantes further testified that at some point defendant hit Howell in the face, causing him to spin around and fall to the ground. After Howell fell to the ground, defendant "stood over" Howell and punched him in the head a "couple more times" and kicked him in the head, although Cervantes did not recall how many times defendant did so. Cervantes pushed defendant off of Howell and said "that was enough." Defendant stopped punching and kicking Howell, stood up, and asked Cervantes "why, do [you] know him?" Cervantes told defendant that he did not and that he was calling the police. Defendant then put his left foot between Howell's "chest and his head" and "held [Howell] down." Cervantes characterized defendant's actions as "standing there" and "holding [Howell] down" by pressing his foot "anywhere between the upper chest and by his head." When asked if defendant's foot was between Howell's chin and upper chest, Cervantes testified that "[Howell] was kind of big, so I couldn't get to see [defendant's] foot." When asked if defendant used his foot in a "quick movement like a kick" or if he "held it there," Cervantes responded that defendant "held it there" but by that time Cervantes was turning around to call the police and he did not know how long defendant held his foot in that position. Defendant eventually took his foot off of Howell and, according to Cervantes, Howell's lips were moving, he was not choking, and he was still breathing at this time. Cervantes thought that Howell had been "beat up," and so he put a garden hose by Howell's mouth and, according to Cervantes, it "looked like [Howell] took a little bit" of water. Cervantes then told Howell to remain still because the police were on their way. Defendant was not at the house when the police later arrived.

A paramedic testified that he arrived at the scene at approximately 6:30 p.m., and found Howell lying face down in the gangway. He had no pulse and was confirmed to be dead.

Detective Daniel Gorman of the Chicago police department arrived at the scene at approximately 7:30 p.m. The detective observed blood and vomit coming from Howell's nose and mouth. The detective spoke with Cervantes and, based upon that conversation, began to look for defendant and Reyes. The detective later learned that defendant had gone to the police station and been arrested there. Detective Gorman met with defendant at Area...