People v. Neasom, 1-14-3875

• Court: United States Appellate Court of Illinois
• Citation: 2017 IL App (1st) 143875,89 N.E.3d 854
• Docket Number: No. 1-14-3875,1-14-3875
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel NEASOM, Defendant-Appellant.
• Decision Date: 15 September 2017

2017 IL App (1st) 143875
89 N.E.3d 854

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Daniel NEASOM, Defendant-Appellant.

No. 1-14-3875

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed September 15, 2017
Rehearing denied October 13, 2017

Michael J. Pelletier, Patricia Mysza, and Jessica D. Ware, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Daniel Neasom was convicted of first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2010)) and sentenced to 27 years' imprisonment. Defendant appeals his conviction, arguing that his trial counsel was ineffective for failing to advance a theory of second degree murder. Defendant also contends that his 27-year prison sentence is excessive. For the reasons set forth herein, we affirm the judgment of the trial court.

¶ 2 Defendant was charged with two counts of first degree murder ( 720 ILCS 5/9-1(a)(1), (2) (West 2010)). Defendant waived his right to a jury trial and, on July 29, 2014, and the case proceeded to a bench trial.

¶ 3 At trial, Calvin Sperling testified that, on the morning of July 23, 2011, he and his co-worker Jonathan Schutt were traveling southbound on South Kedzie Avenue after leaving a worksite. As he drove his truck through the 5800 block of South Kedzie, Sperling heard the sound of breaking glass and a woman's voice screaming for help. Schutt, who was a passenger in Sperling's vehicle, stuck his head out of the truck's window and informed Sperling that a woman was hanging out of the window of a nearby building. Seconds later, Schutt exclaimed, "Oh, my god, she just fell from the window." Sperling called 911 to report the incident and drove his vehicle to an area one block north of the scene to wait for the police to arrive.

¶ 4 When the police arrived, Sperling and Schutt told officers what they had observed. As Sperling was speaking to police officers, he observed a man climb out of a window located above the woman's body. The man was hanging from a ledge and attempted to scale the wall "as if he was Spiderman." The man lost his grip and fell backward onto the sidewalk below. On cross-examination, Sperling explained that he did not observe the woman hanging out of the window but did hear the glass break and woman scream.

¶ 5 Schutt testified that morning he left a worksite at the intersection of 55th Street and South Kedzie Avenue with Calvin Sperling. As they were traveling in the 5800 block of South Kedzie, Sperling told Schutt that he heard the sound of breaking glass, and Schutt stuck his head out of the passenger side window to investigate the sound. Schutt noticed broken glass on the sidewalk outside an apartment building. He looked up and observed a woman hanging headfirst out of a window. The woman's

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upper torso was completely out of the window, her arms were flailing, and she was screaming for help. Ten to fifteen seconds later, Schutt observed the woman fall from the window and land head-first on the sidewalk. Schutt told Sperling to call 911, and Sperling drove his truck to a location just north of the scene.

¶ 6 When police arrived at the scene, Sperling and Schutt approached the officers and described the incident. Schutt then observed a man hanging from the window out of which the woman had fallen. Schutt turned away because he did not want to see another person fall from the building, but he heard the sound of the man hitting the ground.

¶ 7 On cross-examination, Schutt admitted that he did not observe anyone push the woman out of the window and did not observe anyone else near the window at that time.

¶ 8 Michael Divorski testified that he was the brother of the woman who had fallen out of the window, whom he identified as Cynthia Barnes. Divorski talked to Barnes the night before her death. Barnes was homeless at the time, and told Divorski that she was going to try to find somewhere to stay that night because it was raining.

¶ 9 Officer Hector Fuentes testified that, on July 23, 2011 he was conducting routine patrol with his partner Officer Peter Gurskis. At 5:17 a.m., the officers received a "person down" call at the location at South Kedzie Avenue. When they arrived on the scene, Fuentes observed the body of a female, whom Gurskis recognized as Cynthia Barnes, lying on the ground, surrounded by broken glass. Her body was located in front of an apartment building with retail units on the first floor. Fuentes looked up and observed a shattered window on the third floor, directly above the body. He could hear someone moving around inside the apartment building. He remained on the sidewalk while Gurskis went inside the building to investigate. Moments later, fire department personnel followed Gurskis into the building with a sledgehammer.

¶ 10 Fuentes could hear Gurskis and fire department personnel using the sledgehammer. He then heard glass shatter, and looked up to observe defendant shattering a window with a clothes iron. Defendant, who was not wearing any clothes, exited the building through the window. Fuentes shouted at defendant, telling him to go back inside the building, and defendant climbed back through the window. A few seconds later, defendant climbed out of the previously shattered window directly above the body. Defendant was wearing a pair of sweat pants, and he attempted to climb down the building wall. Fuentes observed defendant fall from the wall, and land headfirst on the sidewalk. Paramedics rushed to assist defendant, placed him on a stretcher, and placed him inside an ambulance.

¶ 11 Officer Fuentes heard the paramedics calling for help from inside the ambulance. He ran to the ambulance and observed defendant flailing his arms and trying to get off the stretcher. Fuentes assisted in holding defendant down while the paramedics restrained him. The paramedics then transported defendant to a hospital.

¶ 12 Officer Gurskis testified that he and Officer Fuentes were on routine patrol on July 23, 2011, when they received a "woman down" call and drove to South Kedzie Avenue. There, Gurskis observed the body of Cynthia Barnes lying on the sidewalk in front of an apartment building. She had blood in her hair and was surrounded by broken glass. Gurskis looked up and observed a broken window on the third floor of the building. He entered the building and attempted to enter apartment 304, but

89 N.E.3d 858

the door was locked. He could hear someone walking on the wooden floor of the apartment. After attempts to kick in the door failed, Gurskis called for the fire department to come to the apartment with tools to open the door.

¶ 13 Fire department personnel arrived at the apartment door with a sledgehammer and a prying tool. When the door was opened, the responders had to move a refrigerator that had been placed in front of the door. Gurskis described the apartment as "in complete disarray," with blood all over the apartment and broken glass near the windows. After observing that nobody was in the immediate living area, Gurskis headed toward an area of the apartment where a door had been barricaded by a box spring and bed frame. After removing the barricades, he entered a bedroom, where he observed two windows, one of which was broken. The broken window had blood on it, and was situated directly above the victim's body. After finding a large knife with blood on it, Gurskis left the apartment and drove to the hospital where paramedics had taken defendant. Two days later, on July 25, 2011, Gurskis arrested defendant at the hospital. Defendant was released without being charged, but was rearrested after DNA and toxicology tests were completed.

¶ 14 Detective Keith Smith testified he arrived at South Kedzie Avenue to investigate the death of Cynthia Barnes. When he arrived, Barnes's body was still lying on the sidewalk. While walking through the apartment, he noticed that the bedroom had two windows, one of which was broken and situated directly above Barnes's body.

¶ 15 Doctor Adrienne Segovia testified that she was an assistant Cook County medical examiner and had conducted the autopsy of Cynthia Barnes. Segovia detailed numerous external injuries that Barnes had sustained and classified them as sharp force injuries, blunt force injuries, and injuries that had characteristics of both blunt and sharp force trauma. Notable sharp force injuries were consistent with injuries inflicted by glass, and included: a cut on the top of Barnes's head and incised wounds on her face, left forearm, left wrist, left hand, and left thigh. Notable blunt force injuries included: a star shaped wound on the top of Barnes's head, lacerations on the inside of her lips, bleeding of her left eye and ear, and bruises and scrapes on her face, neck, chest, abdomen, arms, legs and feet.

¶ 16 Regarding internal injuries, Dr. Segovia detailed hemorrhages, a broken sternum, broken ribs, dislocation and fracturing of the spine, and a fractured skull. Dr. Segovia determined that the cause of death was multiple injuries due to a fall from a large height. She also concluded that the manner of death was homicide.

¶ 17 On cross-examination, Dr. Segovia testified that she based her initial opinion regarding the manner of death on information that she had at the time. Specifically, she based her opinion on the fact that the apartment had been barricaded, the fact that there was a knife in the apartment, and the fact that Barnes fell out of a window. She learned this information by viewing a police report and photographs taken by one of the medical examiner's investigators.

¶ 18 On April 10, 2014, Dr. Segovia met with defendant's counsel and another assistant public defender and viewed photographs of the crime scene taken by the Chicago police department. She had not...