*1 Illinois Official Reports
Appellate Court
People v. Starks
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON STARKS, Defendant-Appellant. Caption First District, Third Division District & No.
Docket No. 1-12-1169 Filed June 4, 2014
Held Defendant’s conviction for first degree murder was reversed and the cause was remanded for a new trial on the ground that the admission of ( Note: This syllabus three weapons, including the murder weapon, discovered two months constitutes no part of the opinion of the court but after the murder in an apartment in a building defendant was seen has been prepared by the running from was reversible error under the first prong of the Reporter of Decisions plain-error doctrine, since the evidence was closely balanced, no for the convenience of evidence connected defendant to the weapons or the apartment in the reader. ) which they were found, save the circumstantial evidence that he had
access through an open window, the DNA evidence concerning the murder weapon only showed that defendant could not be excluded from being a contributor to the DNA, and the eyewitness testimony was inconsistent.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-3064; the Hon. James B. Linn, Judge, presiding. Review Reversed and remanded.
Judgment *2 Counsel on Michael J. Pelletier, Alan D. Goldberg, and Pamela Rubeo, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Janet C. Mahoney, and Tasha-Marie Kelly, Assistant State’s Attorneys, of counsel), for the People. JUSTICE MASON delivered the judgment of the court, with opinion.
Panel
Presiding Justice Hyman specially concurred, with opinion, joined by Justice Pucinski.
OPINION 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, 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. BACKGROUND 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. 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. *3 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. 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 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. 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. 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. 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.” 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 *4 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. 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. 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. 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. 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. 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, 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. 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 *5 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. 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. 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 in his head and Wright knew he was dead. Wright called 911 and spoke to the police when they arrived. 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. 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. 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 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. 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 *6 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. 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. 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 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. 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. 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. 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. 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 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 *7 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. 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. 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 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. 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. 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. 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. 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 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. *8 ¶ 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. 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. 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. 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. ANALYSIS A. Sufficiency of the Evidence 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,
*9
[after] viewing the 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.
,
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. 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
,
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
,
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. 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
*10
shooter’s face as he ran past her, watched while he stood over Shine and fired a few more
times, 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
, 409 U.S. at
201 (noting that a lapse of seven months would be a negative factor in most cases), and
People
v. Piatkowski
,
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. 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
,
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 whether the admission of evidence regarding weapons that were not connected to Shine’s murder was, in fact, error. 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 , 145 Ill. 2d 441, 455 (1991). 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. 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 should be
judged under ordinary relevancy principles.
People v. Pikes
,
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).
The State relies on
People v. Williams
,
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. 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 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. 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. 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 *13 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 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. C. Expert Testimony on Eyewitness Identification 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 Starks
ultimately filed may have been influenced by the trial court’s categorical rejection of the
relevance of such testimony), we note that Starks’ 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. R. 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 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
,
expert testimony.
People v. Enis
,
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 *14 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.” 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 jurors
have misconceptions about the abilities of eyewitnesses and the reliability of their testimony.
People v. Tisdel
,
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 usurping the jury’s factfinding function. See
State v. Guilbert
,
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. 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
, 406 U.S.
*15
682, 688 (1972). Starks contends that because the Supreme Court stated in
Rothgery v.
Gillespie County, Texas
, 554 U.S. 191, 198-99 (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.
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
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
,
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
,
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
*16
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
,
¶ 80 Finally, because we are reversing defendant’s conviction and remanding for a new trial, we
need not order that the mittimus be corrected. CONCLUSION 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 , 2011 IL 108690, ¶ 50. Reversed and remanded. PRESIDING JUSTICE HYMAN, specially concurring. How trustworthy are eyewitness identifications? The New Jersey Supreme Court
concluded there was “a troubling lack of reliability in eyewitness identifications.”
State v.
Henderson
, 27 A.3d 872, 877 (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
,
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. *17 Federal and state courts have become increasingly more critical of eyewitness
identification procedures and evidence. See,
e.g.
,
Young v. Conway
,
“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
, 565
U.S. 1, ___,
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
,
“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 ,27 A.3d at 889 .
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. 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. 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. In the words of New Jersey Chief Justice Rabner in Henderson , “At the core of our system of criminal justice is the ‘twofold aim … that guilt shall not escape or innocence suffer.’ ” Henderson , 27 A.3d at 928 (quoting Berger v. United States , 295 U.S. 78, 88 (1935)). Innocence in Illinois has suffered enough. JUSTICE PUCINSKI joins in this special concurrence.