THIRD DIVISION June 4, 2014

No. 1-12-1169

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 10 CR 3064 ) BRANDON STARKS, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman specially concurred, with opinion, joined by Justice Pucinski.

OPINION

¶1 Following a jury trial, defendant Brandon Starks was convicted of first degree murder

and sentenced to 50 years in prison. On appeal, Starks contends that (1) the State failed to prove

him guilty beyond a reasonable doubt where he had no connection to the victim, the police

suspected him on the basis of an uncorroborated anonymous tip, and the eyewitness

identifications two months after the shooting were unreliable; (2) the State violated the trial

court's ruling on other crimes evidence by introducing testimony and photographs of other

weapons that had no connection to the shooting or to Starks; (3) the trial court abused its

discretion when it barred expert testimony on eyewitness identifications without considering the

relevance and weight of the proffered testimony; (4) the trial court erred when it failed to exclude

the lineup identifications where the lineups violated Starks' right to counsel and due process; and

(5) the trial court erred when it failed to ask prospective jurors whether they accepted and

understood all of the principles enumerated in Illinois Supreme Court Rule 431(b) (eff. July 1, No. 1-12-1169

2012). Because we conclude that certain of the issues identified by Starks have merit and

because the resulting errors deprived Starks of a fair trial, we reverse the judgment of the circuit

court of Cook County and remand for a new trial.

¶2 BACKGROUND

¶3 At approximately 10 a.m. on November 3, 2009, Robert Shine was shot and killed near

79th and St. Lawrence Streets in Chicago. There were three eyewitnesses to the shooting, and

they each gave statements to the police, but none of them were able to give police the name of

the shooter.

¶4 After learning of her son's death, Shine's mother, Andrea Reed, contacted people who

were acquainted with her son in an attempt to find out what had happened. A few days later,

Reed received an anonymous voice mail message. The caller stated that someone known as

"Turd" shot her son. Reed contacted the police and informed them of the phone call.

¶5 The police were able to associate the nickname "Turd" with Starks. They obtained a

photograph of Starks and assembled a photo array. Shortly after the occurrence, two of the three

eyewitnesses identified Starks in the array as the person who shot Shine. An investigative alert

was then issued for Starks. Starks was apprehended two months later on January 6, 2010, and a

weapon of the same caliber as the gun used in the shooting was also recovered on that date. Two

of the eyewitnesses later identified Starks in separate physical lineups. The third eyewitness did

not identify anyone in the lineup, but informed the assistant State's Attorney after the lineup that

he realized that Starks was the shooter. Starks was charged with first degree murder.

¶6 Prior to trial, Starks filed a motion to suppress the identifications. At the hearing on the

motion, Detective Robert N. Barnes testified that the description the police received at the scene

of the shooting was that the shooter was a black male with a dark complexion and dreadlocks or

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twisted hair. Detective Barnes testified that the police did not rely on the physical description to

assemble the photo array. Instead, the police learned that the shooter was someone who went by

the nickname "Turd" and were able to determine that Starks used that nickname.

¶7 After Starks was apprehended, three separate physical lineups were conducted with one

eyewitness viewing the lineup on January 6, 2010, and the other two eyewitnesses viewing the

lineup at separate times on January 7. An attorney who represented Starks came to the police

station between the two lineups on January 7 and was allowed to speak with Starks. After Starks'

attorney left, the third lineup was conducted. Nobody at the police station attempted to contact

Starks' attorney to return to the police station for the third lineup.

¶8 In denying the motion to suppress, the trial court found that the young men in the photo

array looked similar to one another and there was nothing inherently wrong with the photo array.

The trial court further found that because the third lineup occurred prior to the indictment, Starks'

rights were not violated when his attorney was not notified of the lineup.

¶9 On the date the trial was originally scheduled to begin, counsel for Starks told the trial

court that he anticipated filing a motion in limine to allow expert testimony concerning

eyewitness identification. However, before counsel said the word "identification," the trial court

said:

"Denied. Denied. You file whatever motion you want. We are not going

to do that. That's going to be denied. I am telling you right now. Don't expect it.

Go ahead and file it. *** It is not going to happen."

Defense counsel pointed out that the supreme court said the admission of expert testimony

regarding eyewitness identification was discretionary and the trial court responded, "Denied. It's

nonsense."

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¶ 10 On the date the trial began, Starks filed a motion in limine to bar evidence that he had

another murder charge and a separate drug charge pending. The State confirmed that it did not

plan to refer to either of the pending cases, or to the fact that narcotics were also recovered in the

apartment where the murder weapon was found. Starks then filed his motion to allow expert

testimony concerning eyewitness evidence. Starks' motion did not identify an expert or indicate

what topics the expert testimony would address other than to indicate generally that the expert

would address the effect that stress and the presence of a weapon have on the accuracy of

memory. The trial court explained that the motion was denied because the court felt that the

subjects that such an expert would discuss, including human emotion, are things that a layperson

could understand and that all jurors already know. The court said that it would allow Starks

latitude to cross-examine eyewitnesses about being distracted, excited or nervous, but that the

court viewed expert eyewitness testimony as more of a hindrance than a help.

¶ 11 Jury selection proceeded. In instructing the venire, the trial court explained that (1) the

defendant is presumed to be innocent, (2) an indictment is not an indication of guilt, (3) the

defendant has to be proven guilty beyond a reasonable doubt, and (4) the defendant does not

have to testify or call any witnesses and the failure to do so cannot be held against him. After

explaining each proposition, the trial court asked the venire as a group if anyone had a

disagreement or problem with that proposition. No member of the venire responded.

¶ 12 At trial, Reed testified that the police had not given her the names of anyone who may

have been suspected in the shooting death of her son. She further testified that she did not know

the individual who left the message that Turd had shot her son, and that she had never met Starks

and did not know of any connection between Starks and her son.

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¶ 13 Keona Cherry, Shine's girlfriend, testified that Shine was driving her vehicle on the

morning of the shooting. He dropped her off at her grandmother's house on 80th and St.

Lawrence Streets so that she could change her clothes for a job interview and said he would be

back to pick her up in a few minutes. When Shine did not return or answer his cell phone,

Cherry looked out the window and saw police cars driving past. She went outside and walked

toward 79th Street. When she got closer to 79th Street, she saw her vehicle across the street

from a store on 79th Street, still running, and then she saw Shine on the ground near the store.

Cherry confirmed that she did not know Starks and had never heard of him prior to the shooting.

¶ 14 Ronald Draper testified that he pulled his car into the parking lot of Pride Cleaners at

79th Street and St. Lawrence Street on the morning of the shooting. Draper had just exited his

car and was turning toward the trunk when he heard a pop from somewhere behind him. At first,

Draper thought the sound was a firecracker, but after taking another step, he heard two more

pops and realized it was gunfire. Draper ducked down beside his vehicle and heard four or five

more shots in rapid succession.

¶ 15 After a few seconds, Draper stood up and looked around. He saw a man stepping from

the street onto the sidewalk in front of the cleaners. Draper identified Starks in court as the man

he saw. Draper saw that Starks had a gun in his left hand and watched him put the gun in his

front pants pocket. Starks then walked north on St. Lawrence Street.

¶ 16 Draper called the police and waited at the scene, where he gave a description of Starks to

the police when they arrived. On November 12, 2009, a detective brought a photo array to

Draper's house. Draper testified that he recognized the photograph of Starks as the person he had

seen with the gun, but told the detective that although he was sure he could identify the shooter,

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he would prefer to see a physical lineup before he made an identification. On January 6, 2010,

Draper went to the police station and identified Starks as the shooter in a physical lineup.

¶ 17 Geraldine Howard testified that she was also in the parking lot of Pride Cleaners the

morning of the shooting. Howard was putting some clothes in the backseat of her car when she

heard two gunshots. She stood up and saw a man running and another man chasing him with a

gun in his hand. The man who was running fell to the ground in the parking lot of a convenience

store across the street and the other man stood over him and shot him two or three more times.

The shooter then ran away and Howard walked over to the man who was on the ground because

she wanted to pray for him. Howard got a good look at the shooter and described him as a man

with dreadlocks, a description she gave the police when they arrived.

¶ 18 On November 19, 2009, approximately two weeks after Shine's murder, police officers

came to Howard's home and showed her a photo array. Howard identified Starks in the photo

array, and also at a physical lineup in January. When Howard viewed the physical lineup, all of

the subjects in the lineup were wearing skullcaps so she could not tell whether anyone had

dreadlocks, but she identified Starks because she remembered his face.

¶ 19 Bailey Wright testified that he went to the currency exchange on 79th and Rhodes Streets

at approximately 10 a.m. on November 3 and was walking from the currency exchange toward

the cleaners when he heard several gunshots. Wright saw a young man running toward a

convenience store and another young man with a gun in his hand running behind him and firing a

gun. Wright identified Starks in court as the shooter. Wright knew Shine, the victim, from the

neighborhood. He saw Shine fall near the entrance to the convenience store, and then Starks

stood over him and shot him five more times. Starks then ran from the scene and Wright ran

toward Shine, who was coughing up blood, and told him to hold on, but Shine's eyes rolled back

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in his head and Wright knew he was dead. Wright called 911 and spoke to the police when they

arrived.

¶ 20 On November 12, Wright met with detectives, viewed a photo array, and identified a

photograph of Starks as the person who shot Shine. On January 7, Wright went to the police

station to view a physical lineup. Wright viewed the lineup but was not able to identify anyone.

However, Wright testified that he went back to a room and sat down, and then it dawned on him

that the first person in the lineup was the shooter. Wright told an assistant State's Attorney that

the shooter was the first person in the lineup. Wright confirmed in court that the first person in

the lineup was Starks.

¶ 21 On cross-examination, Wright stated that there were other people in the parking lot in

front of the cleaners, but that he was the only one who went over to Shine immediately after he

was shot. As Wright was standing next to Shine, another individual on a bike came up, but

nobody walked over from the parking lot in front of the cleaners. Wright also confirmed that

after he identified Starks in the photo array, he told police he had seen Starks around the

neighborhood previously. Although Wright testified that he told the assistant State's Attorney he

recognized Starks in the lineup after the attorney asked him about it, on redirect Wright said that

nobody asked him about the lineup before he told the assistant State's Attorney that he realized

the shooter was the first person in the lineup.

¶ 22 Detective William Filipiak was assigned to investigate Shine's murder. After Reed called

and told the police about the anonymous tip she received and after two of the three eyewitnesses

subsequently identified Starks in the photo array, the police issued an investigative alert for

Starks. Detective Filipiak explained that an investigative alert is an electronic notification that is

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entered into the police computer system so that if the police stop someone on the street and look

that person's name up, they will be able to determine that police are looking for that individual.

¶ 23 Detective Filipiak learned that Starks had been apprehended on January 6 and that three

weapons were also recovered on that date. One of the weapons was a .45 Glock, and the

cartridge cases recovered at the scene of Shine’s murder were also .45 caliber. The weapon was

sent for fingerprinting and ballistics and DNA testing. A physical lineup was conducted, and

Draper and Howard identified Starks in the lineup. Wright did not initially identify anyone in

the lineup, but during an interview with the assistant State's Attorney and a detective, he told

them that Starks was the person he saw shoot Shine.

¶ 24 Detective Filipiak confirmed that although Wright told him at the photo array that he

recognized Starks from the neighborhood, he did not tell police at the scene that he recognized

the shooter. He also confirmed that Howard never told him that she walked over and stood

beside Shine after the shooting, and Howard was not standing in the vicinity of Shine's body

when the police arrived at the scene.

¶ 25 Detective Lorne Gushinere testified that she was assigned to the fugitive apprehension

team on January 6, 2010. She was working with other officers in the vicinity of 80th Street and

Ellis Avenue looking for an individual in an unrelated case. The officers were conducting

surveillance of an apartment building when they observed the individual who was wanted in the

other case. Two officers exited their vehicle and chased this individual, who began running

when he saw the officers.

¶ 26 Detective Gushinere drove around to the alley behind the apartment building and saw two

males exit the rear of the apartment building and run through the alley. One of the young men

was wearing a T-shirt and no shoes, and when Detective Gushinere stopped them, he told her his

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name was Brandon Starks. Detective Gushinere recognized Starks' name because he was the

subject of an investigative alert and she had been assigned to locate him.

¶ 27 Detective Brian McKendry was part of the fugitive apprehension team on January 6. He

pursued an individual inside the apartment building with other officers and detained that

individual on the stairs. Detective McKendry and the officers who were with him then heard

footsteps and doors opening and closing on the third floor. Detective McKendry went with some

other officers to the third floor where they noticed that the door to apartment 3 North was ajar.

The officers entered the apartment and realized no one was there. Detective McKendry

approached the kitchen and observed three handguns on the kitchen counter. Evidence

technicians were called to recover and process the weapons.

¶ 28 On cross-examination, Detective McKendry acknowledged that he did not see Starks in

the apartment or running out of it, and that the back door to the apartment was gated and

padlocked. On redirect, Detective McKendry pointed out that a window on the third-floor

landing was pushed all the way up and there was access from the window onto the rear porch of

the building.

¶ 29 No latent fingerprints suitable for comparison were found on the .45-caliber handgun, the

magazine, or the live cartridges recovered from the apartment. Ballistics testing on the handgun,

the fired cartridge cases from the scene, and the bullets removed from Shine determined that the

.45 Glock recovered from the apartment was the weapon used in the shooting.

¶ 30 Katrina Gomez testified as an expert in the field of forensic DNA analysis. Gomez

compared the DNA on swabs taken from the .45-caliber handgun with a buccal swab from

Starks. The DNA on the gun was identified as a mixture of the DNA profiles of at least three

people. Gomez was able to identify a major male contributor, meaning that one person

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contributed his DNA at a higher level than other persons who also handled the weapon. When

Gomez compared that DNA profile to Starks' DNA profile, she determined that Starks could not

be excluded as the contributor. Gomez also calculated how rare the profile from the handgun

would be in the general population, and testified that approximately 1 in 15 quadrillion unrelated

black individuals could not be excluded from having contributed to the profile.

¶ 31 On cross-examination, Gomez acknowledged that she prepared three reports with the

results of the DNA testing, and that one of those reports stated that one in three unrelated black

individuals could not be excluded. Gomez removed that statement from her report at the request

of her supervisor. Gomez also confirmed that concluding that someone cannot be excluded is

not the same thing as an identity match. On redirect, Gomez explained that the 1-in-3 calculation

applied to the mixture of at least three individuals, while the 1 in 15 quadrillion calculation

applied to the profile of the major contributor.

¶ 32 Karl Reich testified on behalf of Starks as an expert in the field of DNA analysis. Reich

explained that when you have a mixture of three or more people, it becomes more difficult to

make use of the results and one person cannot be uniquely identified in such a mixture. If you

are using a mixture with three contributors, many people can be identified because, on average,

any two random people will share between four and eight results. Reich further explained that

just because one person can be found in the mixture, it does not mean that he is the only option

for that mixture but rather that he is one of many who could be identified using that mixture.

¶ 33 An allele is a choice at a particular genetic locus, such as eye color or whether the

earlobes are attached or free. In a DNA profile, there are options at all of the loci that are

measured. The process of establishing a DNA profile involves determining the specific alleles at

each defined region. The current FBI view is that one person can be uniquely identified by

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determining the alleles at each of 13 defined regions. Reich agreed that Starks' profile could be

found in the mixture that was tested from the handgun, but explained that because there were

multiple results at each one of the defined loci, other people would also fit that profile.

¶ 34 Reich explained that if an analyst selects the alleles desired at each loci, the analyst can

uniquely identify one person, but it is just one choice out of many possible choices. Thus, Reich

observed that the statistic given in the earlier report that 1 in 3 unrelated black individuals could

not be excluded from the mixture was not inconsistent with the later report that stated that 1 in 15

quadrillion could not be excluded from the profile that the police lab identified as the major

contributor profile. However, with DNA profiles for three black males, an analyst could identify

any one of the three of them from the mixture in the same manner, by selecting the alleles

desired at each loci.

¶ 35 There is also no way to tell from the DNA when or in what order the contributors left

their DNA on the weapon or what any individual contributor did with the weapon, namely,

whether a contributor fired the weapon, cleaned it, or merely picked it up. The fact that the

weapon was not recovered until two months after the shooting was also significant because DNA

evidence cannot tell the intervening history of what occurred with the weapon over that time

period.

¶ 36 In Reich's opinion, the initial report from the police lab that provided statistics on the

mixture itself as well as on the selected profile was the more neutral report. There was no

explanation in the later report as to why the statistics related to the mixture were excluded.

¶ 37 On cross-examination, Reich explained that it is possible to isolate a major contributor

where a sample only contains DNA from two contributors and one person contributed more

DNA, and where there is an unambiguous major and minor contributor at every locus. If it is not

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possible to identify the major contributor at every locus, then a complete profile is lacking and

only a partial profile or a subset is available. Reich acknowledged that the State's analyst did not

violate any recognized standard and followed the correct procedures in her analysis.

¶ 38 The defense rested and the jury began deliberations. Approximately one hour into

deliberations, the jurors sent out a note asking what would happen if they could not reach a

verdict. After consulting with both parties, the trial court simply advised the jury to continue

deliberating. After another hour-and-a-half of deliberations, the jurors asked for the transcripts

of the eyewitnesses' testimony. The transcripts were sent back to the jury room. Approximately

30 minutes later, the jury reached a verdict, finding Starks guilty of first degree murder.

¶ 39 Starks filed a timely posttrial motion. At the hearing on the motion, defense counsel

argued that, at the very least, an evidentiary hearing should have been held on the issue of expert

testimony related to eyewitness identification, especially in light of the fact that the jury asked

for the transcripts of the eyewitnesses' testimony. The trial judge explained that he had read

Starks' motion and some of the supporting documentation that had been filed, and had listened

carefully and weighed how it would play out in front of the jury, but found the testimony to be

completely unhelpful because eyewitness identification is something a lay witness can

comprehend.

¶ 40 Starks also argued that his constitutional right to counsel was violated when the police

conducted the third lineup without notifying his attorney. The trial court noted that once Starks

invoked his right to counsel, the police did not interrogate him further. However, the court ruled

that because Starks had not yet been indicted at the time of the lineup, he did not have the right

to have counsel present. The posttrial motion was denied.

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¶ 41 At the sentencing hearing, Starks' mother, father and sister all testified that they were in

shock and that the crime for which Starks was convicted was completely out of character for

him. The assistant principal at the high school Starks attended, who also was his guidance

counselor all four years, testified that Starks was a good student, volunteered regularly for

community service activities, and mentored younger students. Both the assistant principal and

the dean of students at the high school testified that they were shocked by the charges against

Starks.

¶ 42 The trial court observed that although Starks had no prior criminal convictions or juvenile

adjudications, came from a good family, did well in school, and had people still willing to vouch

for him from his high school years, the police found him "in possession of something of a fearful

looking arsenal of guns," including the murder weapon. The court further noted that when Starks

first came into the courtroom, he was accused of two separate murders. The trial judge stated,

"So there's a terrible disconnect here. I don't understand how this happened." Starks was

sentenced to 25 years on the first degree murder charge and a consecutive sentence of 25 years

for personally discharging a firearm and causing Shine's death, for a total of 50 years. Starks

timely filed this appeal.

¶ 43 ANALYSIS

¶ 44 A. Sufficiency of the Evidence

¶ 45 Starks first contends that the State failed to prove beyond a reasonable doubt that he shot

Shine where no connection was shown between Shine and Starks, the police tip was based on an

uncorroborated, anonymous voice mail message, and the eyewitnesses' lineup identifications

made two months after the shooting were unreliable. When reviewing a challenge to the

sufficiency of the evidence, a reviewing court must determine "whether, [after] viewing the

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evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." (Internal quotation marks

omitted.) People v. Austin M.,

. Under this standard, a reviewing court

does not retry the defendant or substitute its judgment for that of the trier of fact with regard to

the credibility of the witnesses, the weight to be given to each witness's testimony, and the

reasonable inferences to be drawn from the evidence.

A criminal conviction will not be

overturned on insufficient evidence grounds unless the proof is so improbable or unsatisfactory

that a reasonable doubt as to the defendant's guilt exists. People v. Pollock,

(2002).

¶ 46 We have examined the evidence in light of the foregoing principles and conclude that a

rational trier of fact could have found beyond a reasonable doubt that Starks shot Shine. While

we do not agree that the State presented "a remarkably strong case," there were three eyewitness

identifications and it is the province of the jury to determine the credibility of those witnesses.

We cannot say that the identifications were so improbable or unsatisfactory that a reasonable

doubt as to Stark's guilt exists.

¶ 47 We agree with Starks that no direct physical evidence links him to the crime. Even when

viewing the DNA evidence in the light most favorable to the prosecution, that evidence

establishes only that Starks cannot be excluded from having contributed his DNA, along with at

least two other people, to a gun that was never shown to be in his possession and was not

recovered until two months after Shine was killed. Therefore, the DNA evidence establishes

only a possible circumstantial connection between Starks and the murder weapon. There was

also no evidence presented of any connection between Starks and Shine or any motive for the

killing. While it is not necessary for the State to prove a motive for a crime (see People v. Parks,

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(1971)), the lack of any identifiable motive can certainly give rise to a

reasonable doubt.

¶ 48 Thus, the primary evidence upon which Starks' conviction is based is the eyewitness

identification of three individuals. It is well established that a single witness's identification is

sufficient to sustain a conviction if the witness viewed the accused under circumstances

permitting a positive identification. People v. Lewis,

(1995). In assessing

identification testimony, Illinois courts rely on the factors set out by the Supreme Court in Neil v.

Biggers,

(1972). Lewis,

. Those factors are: (1) the

opportunity the witness had to view the offender at the time of the crime; (2) the witness's degree

of attention; (3) the accuracy of the witness's prior description of the offender; (4) the level of

certainty demonstrated by the witness at the identification confrontation; and (5) the length of

time between the crime and the identification confrontation.

¶ 49 Detective Barnes testified at the motion to suppress that the description the police

received at the scene of the shooting was that the shooter was a black male with a dark

complexion and dreadlocks or twisted hair. The only evidence presented at trial regarding the

description given to police came from the testimony of Howard, who testified that the shooter

had dreadlocks. Draper simply testified that he had given police a description, but he did not

provide any details of that description. Moreover, Howard was the only eyewitness who

identified Starks in both the photo array and at the lineup.

¶ 50 In considering the Biggers factors in relation to Howard's identification, we conclude that

all of the factors weigh in the State's favor. Howard testified that she stood up from placing

something in the backseat of her car when she heard the gunshots, got a good look at the

shooter's face as he ran past her, watched while he stood over Shine and fired a few more times,

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and saw him run away. She testified that the shooter had dreadlocks, she identified him in the

photo array and there was nothing to suggest this identification was uncertain; she identified him

again at the lineup where he was wearing a cap to cover his hair, testifying that she was able to

do so because she remembered his face. Moreover, her initial identification was made on

November 19, just over two weeks after the shooting. Compare Biggers,

(noting

that a lapse of seven months would be a negative factor in most cases), and People v. Piatkowski,

(2007) (stating that a delay of six months did not favor the State), with

People v. Simpson,

(1996) (concluding that an identification less than six

days after the crime occurred weighed in favor of the State). Thus, Howard's identification was

sufficient to sustain the conviction, without reaching the question of whether the Biggers factors

also favored the State with regard to Draper's and Wright's identifications.

¶ 51 Starks further argues that the inconsistencies between Howard's account and the accounts

of Draper and Wright support his contention that the identifications were unreliable. However,

those inconsistencies were fully explored at trial during cross-examination and it is the province

of the jury to determine the credibility of the witnesses and the weight to be given to each

witness's testimony.

¶ 52 B. Other Crimes Evidence

¶ 53 Starks next contends that the State violated the trial court's ruling excluding other crimes

evidence by introducing photographs of multiple weapons and ammunition that had no

connection to Shine's murder and commenting on this evidence in closing argument. Starks

concedes in his opening brief that he did not object to the introduction of the evidence at trial and

did not include it in his posttrial motion, but he asks this court to review the issue under the

plain-error exception to normal forfeiture principles.

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¶ 54 To preserve a claim of error for review, a defendant must both object at trial and include

the alleged error in a posttrial motion. People v. Thompson,

(2010)

(citing People v. Enoch,

(1988)). The plain-error doctrine allows a

reviewing court to consider an unpreserved error if either: (1) the evidence is so closely balanced

that the error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error; or (2) the error was so fundamental and of such magnitude that it

affected the fairness of the trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence.

at 613 (citing Piatkowski,

). In plain-error

review, we must first determine whether an error in fact occurred (People v. Walker,

(2009)), and the burden of persuasion rests with the defendant (People v. McLaurin,

(2009)).

¶ 55 The State argues that Starks' motion in limine regarding other crimes evidence was

related specifically to evidence that Starks had another murder indictment and a narcotics case

pending, and contained no indication that it included a request to bar evidence of the weapons

that were recovered at the time of Starks' arrest, nor was any mention made of the weapons

during the hearing on the motion. Starks responds that he is arguing that he was prejudiced by

the erroneous admission of other crimes evidence, and the motion to bar other investigations and

alleged crimes encompassed investigations related to the other weapons that were recovered that

had no connection to Shine's murder.

¶ 56 Because the issue was not preserved, the fact that Starks may not have specifically

referenced the weapons in his motion in limine is not dispositive in our determination of whether

the admission of such evidence constituted plain error. Therefore, we must first determine

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whether the admission of evidence regarding weapons that were not connected to Shine's murder

was, in fact, error.

¶ 57 As an initial matter, we do not believe that other crimes principles apply to the evidence

in question. While evidence of other crimes committed by the defendant is admissible if it is

relevant for any purpose other than to show a propensity to commit crime, it is well settled that

before introducing such evidence, the State must show that a crime was committed and that the

defendant either committed it or participated in its commission. People v. Thingvold,

(1991).

¶ 58 Here, the evidence in question is merely the recovery of multiple weapons, so the

relevant crime would be the illegal possession of weapons, but the State presented no evidence

that Starks was in possession of the recovered weapons. Starks was not arrested inside the

apartment in which the weapons were recovered and did not reside there. Evidence presented

regarding Starks' DNA related solely to the murder weapon and no other evidence linking Starks

to the remaining weapons was presented. The State presented no direct evidence that Starks was

ever in the apartment, such as testimony that Starks was seen entering or leaving the apartment,

or evidence that any items shown to belong to Starks were recovered from the apartment. The

State merely presented circumstantial evidence of an open window on the third floor that

provided access to the rear porch of the building, and evidence that Starks was first observed

exiting the rear of the apartment building and running through the alley. Thus, the State did not

show that Starks was ever in possession of the weapons in question and this evidence is not

properly characterized as other crimes evidence.

¶ 59 However, this does not end our analysis. Our supreme court has held that where

evidence is improperly characterized as other crimes evidence, the admissibility of the evidence

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should be judged under ordinary relevancy principles. People v. Pikes,

.

The Pikes court concluded that because the evidence showed the defendant in that case was not

involved in the other crime, there was no need to analyze the evidence under terms such as

"extrinsic," "intrinsic," or "inextricably intertwined."

Similarly, we reject the State's

contention that the recovery of the weapons concerned acts that were intrinsic to or inexplicably

intertwined with Shine's murder. The State's argument conflates the recovery of the weapons

with the separate crime of possession of the weapons. Thus, as in Pikes, we will analyze the

evidence under general relevancy principles.

¶ 60 Evidence is generally admissible if it is relevant (Ill. R. Evid. 402 (eff. Jan. 1, 2011)), but

even relevant evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice (Ill. R. Evid. 403 (eff. Jan. 1, 2011)). Evidence is relevant if it has any

tendency to make any fact of consequence to the action more or less probable than it would be

without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011).

¶ 61 The State relies on People v. Williams,

(1994), and People v.

Braxton,

(1980), for the proposition that evidence of weapons recovered at

the time of a defendant's arrest constitutes an admissible detail of the arrest. This reliance is

misplaced.

¶ 62 The Williams court began its analysis by noting that a gun found in a defendant's

possession is generally inadmissible unless it has some connection to the crime charged.

Williams,

. In order for the evidence to be admissible, there must be proof

to connect the weapon both to the defendant and to the crime charged.

(citing People v. Free,

(1983)). Evidence that the weapon is suitable for the commission of the

crime is sufficient to satisfy the second required element.

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¶ 63 The problem the State faces here is that, in addition to not meeting either component of

the required proof, the State failed to meet the threshold requirement of showing that the

weapons were found in Starks' possession. As previously noted, there was no evidence

connecting Starks to either of the other weapons recovered from the apartment, and no evidence

even connecting Starks to the apartment. There was similarly no evidence connecting either of

the other weapons to Shine's murder. In Williams, the weapon in question was suitable for the

crime charged because there was evidence that three guns had been used and only two bullets

had been recovered, so the gun found in the defendant's car at the time of his arrest could have

been the third gun used in the offense. Id. at 821-22. Here, only one gun was used in Shine's

murder and that specific gun had been identified; thus, the remaining weapons could not be

considered suitable for the crime charged as the State contends.

¶ 64 The State cites to Braxton and a number of other cases in which guns that were found in a

defendant's possession at the time of arrest were admissible as details of the arrest, even if the

weapons had no connection to the crime charged. These cases are inapposite. Here, once again,

the weapons in question were not found in Starks' possession when he was arrested and thus, are

not properly characterized as details of his arrest. Starks was stopped because he was seen

running in an alley behind an apartment building in January wearing a T-shirt and no shoes when

the police were in the process of pursuing other suspects for unrelated crimes. When Starks gave

his name to the officer who stopped him, she recognized that there was an investigative alert for

his arrest and he was taken into custody. No weapons were found on Starks and no direct

evidence linked Starks to the location where the weapons were recovered, an apartment searched

by the police during the course of their pursuit of at least one other individual with no

demonstrated connection to Starks. It was only after testing determined that one of the guns was

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used to kill Shine that an attempt was made to link that particular weapon to Starks through DNA

testing. Thus, none of the weapons, including the gun that was later determined to have been

used in Shine's murder, were admissible as details of Starks' arrest. Detective McKendry's

testimony was relevant only to explain why the police were inside that particular apartment

building and how they came to recover the weapon that was ultimately connected to Shine's

murder.

¶ 65 Because Starks was never shown to be in possession of the weapons in question, the

general rule regarding the admissibility of weapons found in a defendant's possession does not

apply. Moreover, the State did not offer any proof that the weapons were connected to Starks in

any other way, or that the weapons were used in Shine's murder. Under general relevancy

principles, it is clear that the evidence related to the other weapons does not have any tendency to

make any fact of consequence more or less probable, thus, we need not reach the issue of

whether the evidence was more prejudicial than probative. The introduction of evidence relating

to the other weapons recovered was error because the evidence simply had no relevance to this

case.

¶ 66 Considering the first prong of the plain-error doctrine, we conclude, after careful review

of the record, that the evidence in this case was closely balanced. The DNA evidence, even

when viewed in the light most favorable to the State, simply established that Starks could not be

excluded as a contributor to DNA from at least three contributors found on the murder weapon

two months after Shine's murder. The evidence against Starks consisted primarily of the

testimony of three eyewitnesses who provided inconsistent accounts, only one of whom

identified Starks in both the photo array and the physical lineup. The State emphasized the

erroneously admitted evidence in closing argument, noting that the police recovered a "stash of

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weapons" and a "drawer full of ammo" from the building Starks was seen running from in his

shirt sleeves and bare feet. It is clear from the trial court’s comments at sentencing just how

prejudicial this evidence was to Starks. The trial court stated at sentencing that Starks had been

found in possession of “a fearful looking arsenal of guns,” a statement that did not accurately

reflect the evidence presented at trial and demonstrated how even the trial judge was influenced

by the erroneous admission of the other weapons evidence. Therefore, we conclude that the

introduction of evidence related to other weapons that had no connection to Starks or to Shine's

murder constituted reversible error under the first prong of the plain-error doctrine. We reverse

Starks' conviction and remand for a new trial. However, because the remaining issues are likely

to arise on retrial, we will address them briefly.

¶ 67 C. Expert Testimony on Eyewitness Identification

¶ 68 Starks contends that the trial court abused its discretion in summarily rejecting his request

to allow expert testimony concerning the reliability of eyewitness identification without

considering the relevance and weight of the proffered testimony. Although we agree, as

discussed below, that the trial court failed to give serious consideration to the request to present

expert testimony on the reliability of eyewitness identifications (and the motion Stark's

ultimately filed may have been influenced by the trial court's categorical rejection of the

relevance of such testimony), we note that Stark's motion was nonspecific either as to the

identity of the expert or the topics of his or her testimony other than the fact that stress and the

presence of a weapon can affect memory. See Ill. S. Ct. Rule 413(c) (eff. July 1, 1982)

(requiring disclosure on written motion of expert reports and qualifications). In his brief on

appeal, Starks raises other issues he claims such an expert would address but, of course, we are

unable to comment on these as they are not included in the record. And even though the attitude

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toward such expert testimony is shifting in favor of admissibility, it is nevertheless the

proponent's initial burden to establish the relevance of the proffered testimony in the context of a

particular case (People v. Jordan,

(1984)).

¶ 69 It is well settled that a trial court has broad discretion in determining the admissibility of

expert testimony. People v. Enis,

(1990). However, in the exercise of that

discretion, a trial court should carefully consider the necessity and relevance of the expert

testimony in light of the facts of the particular case, and should balance the probative value of

such testimony against its unfairly prejudicial effect.

¶ 70 Here, although the trial court stated at the hearing on the posttrial motion that it had read

at least some of the documentation Starks submitted, there is no indication in the record that the

trial court's ruling was based on a consideration of the relevance of the proffered testimony in

light of the facts of this particular case. In fact, the record supports the opposite conclusion. The

trial court initially informed Starks that his motion to allow the expert testimony would be denied

before it was even filed, an obvious indication that the trial court's decision was based on the trial

judge’s expressed view that expert testimony on the issue of eyewitness identification is never

relevant, regardless of the facts of a particular case. The trial court clearly indicated it would

summarily deny the motion without consideration of the facts before the motion was even filed,

stating: "Denied. It's nonsense." After the motion was filed, the trial court gave reasons for its

denial of the motion, but again those reasons were stated in general terms regarding the trial

court's view of what a layperson can understand, noting that this issue "has come up from time to

time."

¶ 71 Contrary to the trial court's assertion, this court has noted that numerous studies in the

area of eyewitness psychology indicate there is significant potential for eyewitness error and

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jurors have misconceptions about the abilities of eyewitnesses and the reliability of their

testimony. People v. Tisdel,

(2003). In People v. Allen,

(2007), this court reversed the defendant's conviction and remanded the case for a

new trial where the trial court did not conduct a meaningful inquiry into the proposed eyewitness

expert testimony under the specific circumstances of the case. More recently, in People v.

McGhee, although we noted that the trend in Illinois has been to preclude expert testimony on

the reliability of eyewitness identification, we commented that "[t]he efficacy of eyewitness

identification testimony and current safeguards regarding its reliability is one of the most cutting-

edge topics in modern criminal procedure, and the law is rapidly evolving." People v. McGhee,

.

¶ 72 The importance of considering the specific circumstances of the case is illustrated by the

facts here, where no direct physical evidence links the defendant to the crime and the State's case

consists primarily of the eyewitness testimony of three individuals who did not know the

defendant, gave a very general description of the shooter, and gave conflicting accounts of

important details such as whether the shooter walked or ran away and who walked over to the

victim after the shooting. None of the eyewitnesses had the opportunity to observe Starks for

more than a few seconds and all did so under stressful circumstances. Courts across the country

have recognized that, contrary to longstanding assumptions, fallibilities in eyewitness

identifications are not readily understood by juries and that expert testimony on such subjects as

(i) the weak correlation between a witness's confidence in his or her identification and its

accuracy, (ii) how the presence of a weapon can diminish the reliability of an identification, and

(iii) how stress at the time of observation can render a witness less able to retain an accurate

perception and memory of the event, can assist the jury in evaluating such evidence without

- 24 - No. 1-12-1169

usurping the jury's factfinding function. See State v. Guilbert,

, 721-22 (Conn.

2012) (collecting cases). Because we are already reversing on other grounds, we hold that on

remand, Starks' request to present expert testimony on eyewitness identification must be given

serious consideration under the specific facts of this case.

¶ 73 D. Motion to Suppress

¶ 74 Starks also contends that the trial court erred in denying his motion to suppress the

identification evidence from the three lineups. Starks argues that the denial was a violation of

due process and his right to counsel. While Starks only sought to suppress the third

identification at trial, he argues on appeal that there is no evidence in the record that he

knowingly and intelligently waived his sixth amendment right to counsel for purposes of the

lineups. However, the State correctly notes that the right to counsel must be invoked, and the

record is clear that Starks did not invoke his right to counsel until after the first two lineups had

taken place.

¶ 75 An individual's sixth amendment right to counsel attaches "only at or after the time that

adversary judicial proceedings have been initiated against him." Kirby v. Illinois,

(1972). Starks contends that because the Supreme Court stated in Rothgery v. Gillespie

County, Texas,

(2008), that the sixth amendment right to counsel attaches

when a defendant initially appears before a judge to learn the charge against him, regardless of

whether the prosecution is involved, that the right attaches when an arrest warrant is issued.

Starks acknowledges that no Illinois court has yet interpreted Rothgery to find that the issuance

of an arrest warrant triggers the sixth amendment right to counsel.

¶ 76 We decline Starks' invitation to revisit this issue in light of Rothgery on the facts of this

case. No arrest warrant was issued for Starks; thus, there was no judicial involvement in

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adversary proceedings against him. Starks acknowledges that he was arrested on an investigative

alert but contends that if we do not hold that an investigative alert also triggers the sixth

amendment right to counsel, we allow the State to circumvent both the warrant requirement and

the sixth amendment right to counsel. But even if we equate an investigative alert with an arrest

warrant, this court has found that the sixth amendment right to counsel does not attach at a lineup

conducted prior to the initial appearance before a judge. People v. White,

(2009) (recognizing that under the federal standard reaffirmed in Rothgery " 'an accusation

filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute

it sufficiently concrete, when the accusation prompts arraignment and restrictions on the

accused's liberty to facilitate the prosecution' " and finding that defendant's sixth amendment

right to counsel had not attached at lineup conducted prior to presentment to a judicial officer

(quoting Rothgery,

)).

¶ 77 We reiterate previously expressed concerns over the use of investigative alerts in place of

arrest warrants. Both the United States and Illinois Constitutions provide for the use of warrants,

issued on probable cause and supported by affidavit. U.S. Const., amend IV; Ill. Const. 1970,

art. I, § 6. See Wong Sun v. United States,

(1963) ("The arrest warrant

procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be

interposed between the citizen and the police, to assess the weight and credibility of the

information which the complaining officer adduces as probable cause."). The use of

investigative alerts, which allow police, without judicial oversight, to make probable cause

determinations, which are then used as a basis to arrest the subject of the alert, bypasses these

important constitutional protections. See People v. Hyland,

("Allowing the practice of investigative alerts to continue to side-step judicial review gives arrest

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warrant power to the police, and constitutes an impermissible violation of the suspect's

constitutional rights." (Salone, J., specially concurring, joined by Neville, J.)). We can easily

envision circumstances where a court's later assessment of the existence of probable cause differs

from the police, thus jeopardizing the results of a criminal investigation. But that is not the case

here. Given the existence of three eyewitness identifications of Starks prior to the issuance of

the investigative alert, there clearly existed probable cause for his arrest. Therefore, whether the

failure of the police to obtain an arrest warrant and instead pursue an individual via an

investigative alert poses issues of constitutional dimension must await another case. The trial

court did not err in denying the motion to suppress.

¶ 78 E. Supreme Court Rule 431(b) and Mittimus Correction

¶ 79 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires the trial court to ask

prospective jurors whether they "understand" and "accept" that: (1) the defendant is presumed

innocent; (2) the State must prove the defendant guilty beyond a reasonable doubt; (3) the

defendant is not required to offer any evidence; and (4) the defendant's failure to testify cannot

be held against him. The State concedes that the trial court's failure to ask whether the venire

understood the principles constitutes error under our supreme court's holding in People v.

Wilmington,

. Again, because we are reversing on other grounds, we need

not address whether this error alone – or in conjunction with other errors – would warrant

reversal. Thus, on remand, the trial court needs to ask prospective jurors whether they both

understand and accept the principles, not merely whether they accept them.

¶ 80 Finally, because we are reversing defendant's conviction and remanding for a new trial,

we need not order that the mittimus be corrected.

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¶ 81 CONCLUSION

¶ 82 For the reasons stated, we reverse defendant's conviction and remand for a new trial.

Because we have concluded that the evidence was sufficient to convict defendant of first degree

murder, no double jeopardy impediment to retrial is present. See People v. Ward,

.

¶ 83 Reversed and remanded.

¶ 84 PRESIDING JUSTICE HYMAN, specially concurring.

¶ 85 How trustworthy are eyewitness identifications? The New Jersey Supreme Court

concluded there was "a troubling lack of reliability in eyewitness identifications." State v.

Henderson,

(N.J. 2011). Empirical evidence reveals eyewitness identification

to be "the single greatest cause of wrongful convictions in this country." (Internal quotation

marks omitted.) Perry v. New Hampshire, __ U.S. __, __,

(2012)

(Sotomayor, J., dissenting). The Oregon Supreme Court found the handling of eyewitness

identifications "incomplete and, at times, inconsistent with modern scientific findings." State v.

Lawson,

(Or. 2012). The Supreme Judicial Court of Massachusetts stated, "

'[e]yewitness identification of a person whom the witness had never seen before the crime or

other incident presents a substantial risk of misidentification and increases the chance of a

conviction of an innocent defendant.' " Commonwealth v. Silva-Santiago,

(Mass. 2009) (quoting Commonwealth v. Jones,

(Mass. 1996)). This court

observed that research belies "the claim that the jury does not require expert assistance," and

"[n]umerous studies in the area of eyewitness psychology indicate there is a significant potential

for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses."

(Internal quotation marks omitted.) People v. Allen,

(2007).

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¶ 86 While the issue of allowing an expert to testify on eyewitness identification will be re-

examined on remand, the subject of eyewitness identification generally deserves attention and

reform. I write separately to urge that the State of Illinois join the growing number of states

adopting comprehensive changes to their eyewitness identification procedures. Underscoring the

urgency for systemic reforms in Illinois is our state's appalling and well-known record on

wrongful convictions. The current system is unacceptable in a society devoted to the notion that

a fair trial is the birthright of all people.

¶ 87 Federal and state courts have become increasingly more critical of eyewitness

identification procedures and evidence. See, e.g., Young v. Conway,

(2d Cir.

2013) (acknowledging scientific studies indicate certain circumstances surrounding a crime may

impair witness's ability to accurately process what he or she observed. Because many of the

factors are counterintuitive, the court "concluded that it was a good idea to make trial judges

aware of the existence of this information, in effect, as additional tools to help them with their

work"); United States v. Greene,

(4th Cir. 2013) (addressing impermissibly

suggestive procedure used to obtain an in-court identification); see also State v. Avery,

,

,

(Bradley, J., dissenting, joined by Abrahamson,

C.J.) ("[t]his court has been critical of the reliability of eyewitness identification testimony,

observing that studies confirm that eyewitness testimony is often 'hopelessly unreliable' ");

Tillman v. State,

(Tex. Crim. App. 2011) ("[E]yewitness identification has

continued to be troublesome and controversial as the outside world and modern science have cast

doubt on this crucial piece of evidence. *** [A] vast body of scientific research about human

memory has emerged. That body of work casts doubt on some commonly held views relating to

memory."); State v. Clopten,

(Utah 2009) ("Empirical research has

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convincingly established that expert testimony is necessary in many cases to explain the

possibility of mistaken eyewitness identification." (Capitalization removed.)); Brodes v. State,

(Ga. 2005) (holding juries cannot be instructed to consider a witness's level

of certainty when assessing the reliability of an identification because of the "scientifically-

documented lack of correlation between a witness's certainty in his or her identification of

someone as the perpetrator of a crime and the accuracy of that identification").

¶ 88 Similarly, Justice Sotomayor, the only Justice to serve as a trial judge, noted that her

court "has long recognized" inherent deficiencies in eyewitness identifications, "their

unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the

ordinary tests of the adversarial process—can undermine the fairness of a trial." Perry v. New

Hampshire, __ U.S. __, __,

(2012) (Sotomayor, J., dissenting).

Specifically, Justice Sotomayor pointed out that in an eyewitness identification (i) witnesses

were highly susceptible to distortion by post event information or social cues, (ii) jurors regularly

overestimate the accuracy of eyewitness testimony, (iii) jurors overwhelmingly favor the

testimony of eyewitnesses who project confidence even though confidence is a poor gauge of

accuracy; and (iv) suggestiveness can stem from sources other than police-orchestrated

procedures.

(Sotomayor, J., dissenting).

¶ 89 New Jersey modernized its approach after determining, in addition to issues of reliability,

its practices did not adequately deter inappropriate police conduct and were too trusting of the

jury's ability to evaluate identification evidence. State v. Henderson,

(N.J. 2011).

The Supreme Court of Oregon in State v. Lawson,

(Or. 2012), considered it

"imperative" to be informed of current scientific research and literature “because, as an

evidentiary matter, the reliability of eyewitness identification is central to a criminal justice

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system dedicated to the dual principles of accountability and fairness."

. The

Massachusetts high court formed a study group which issued "scientifically grounded

recommendations *** geared toward reducing juror confusion and increasing judicial

involvement in implementing procedures and remedies" that "reduce the risk of wrongful

convictions." Report and Recommendations to the Justices, Supreme Judicial Court Study Group

on Eyewitness Evidence (July 25, 2013), http://www.mass.gov/courts/docs/sjc/docs/eyewitness-

evidence-report-2013.pdf, at 5, 11 (last visited on May 15, 2014); see also N.C. Gen. Stat. §

15A-284.50 et seq. (2007) (Eyewitness Identification Reform Act).

¶ 90 The Henderson opinion issued by the New Jersey Supreme Court should be required

reading for every law enforcement officer, prosecutor, criminal defense attorney, and judge

interested in ensuring fairness and integrity in the criminal justice system. Just one example. On

juror decision-making, the court stated:

"We presume that jurors are able to detect liars from truth tellers. But as

scholars have cautioned, most eyewitnesses think they are telling the truth even when

their testimony is inaccurate, and '[b]ecause the eyewitness is testifying honestly

(i.e., sincerely), he or she will not display the demeanor of the dishonest or biased

witness.' See Jules Epstein, The Great Engine that Couldn't: Science, Mistaken

Identity, and the Limits of Cross–Examination, 36 Stetson L.Rev. 727, 772 (2007).

Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude

supreme confidence in their identifications." Henderson,

.

For present purposes, suffice it to say that Henderson provides one State's thoughtful effort to

apply psychological sciences to the legal system so as to prevent and correct wrongful

convictions.

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¶ 91 When something is wrong, you figure out how to get it right. The flaws inherent in

Illinois's eyewitness identification jurisprudence will continue to haunt Illinois courtrooms until

they are faced and fixed.

¶ 92 The criminal justice system of Illinois can ill afford an antiquated approach in the face of

the empirical research, legal commentaries, and court opinions, not to mention a number of

wrongful convictions based on eyewitness identification. Every wrongful conviction due to

faulty eyewitness identification testimony diminishes the legitimacy of the criminal justice

process and all of us who are a part of the process—law enforcement, prosecutors, defense

attorneys, and judges. By clinging to the current ways, Illinois risks more egregious mistakes;

mistakes that feed cynicism and erode public confidence in our criminal justice system.

¶ 93 In the words of New Jersey Chief Justice Rabner in Henderson, "The core of our system

of criminal justice is the " 'twofold aim…that guilt shall not escape or innocence suffer.' "

Henderson,

(quoting Berger v. United States,

(1935)). Innocence

in Illinois has suffered enough.

¶ 94 JUSTICE PUCINSKI joins in this special concurrence.

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