                              Illinois Official Reports

                                        Appellate Court



                          People v. Starks, 2014 IL App (1st) 121169




Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  BRANDON STARKS, Defendant-Appellant.




District & No.           First District, Third Division
                         Docket No. 1-12-1169



Filed                    June 4, 2014



Held                       Defendant’s conviction for first degree murder was reversed and the
(Note: This syllabus cause was remanded for a new trial on the ground that the admission of
constitutes no part of the three weapons, including the murder weapon, discovered two months
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
Review                   Hon. James B. Linn, Judge, presiding.



Judgment                 Reversed and remanded.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Pamela Rubeo, all of State
     Appeal                   Appellate Defender’s Office, of Chicago, for appellant.

                              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.




     Panel                    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, 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.



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¶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 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.”
¶ 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

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       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.
¶ 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, 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

                                                   -4-
       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 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 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

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       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 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
       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


                                                  -6-
       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 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 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.

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¶ 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.
¶ 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,


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       [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., 2012 IL 111194, ¶ 107. 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. Id. 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, 202 Ill. 2d 189, 217 (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, 133 Ill. App. 2d 348, 351 (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, 165 Ill. 2d 305, 356 (1995). In assessing
       identification testimony, Illinois courts rely on the factors set out by the Supreme Court in Neil
       v. Biggers, 409 U.S. 188, 199-200 (1972). Lewis, 165 Ill. 2d at 356. 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. Id.
¶ 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

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       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, 225 Ill. 2d 551, 570 (2007) (stating that a delay of six months did not favor the
       State), with People v. Simpson, 172 Ill. 2d 117, 141 (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.
¶ 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, 238 Ill. 2d 598, 611-12 (2010) (citing
       People v. Enoch, 122 Ill. 2d 176, 186 (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. Id. at 613 (citing Piatkowski, 225 Ill. 2d at 565). In plain-error
       review, we must first determine whether an error in fact occurred (People v. Walker, 232 Ill. 2d
       113, 124-25 (2009)), and the burden of persuasion rests with the defendant (People v.
       McLaurin, 235 Ill. 2d 478, 495 (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.


                                                    - 10 -
¶ 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.
¶ 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, 145 Ill.
       2d 441, 455 (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 should be
       judged under ordinary relevancy principles. People v. Pikes, 2013 IL 115171, ¶ 20. 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.” Id. Similarly, we reject the State’s contention that the
       recovery of the weapons concerned acts that were intrinsic to or inextricably 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, 262 Ill. App. 3d 808 (1994), and People v. Braxton,
       81 Ill. App. 3d 808 (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, 262 Ill. App. 3d at 821. In order for the evidence to be admissible, there must be

                                                    - 11 -
       proof to connect the weapon both to the defendant and to the crime charged. Id. (citing People
       v. Free, 94 Ill. 2d 378, 415 (1983)). Evidence that the weapon is suitable for the commission of
       the crime is sufficient to satisfy the second required element. Id.
¶ 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 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

                                                   - 12 -
       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.

¶ 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 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, 103 Ill. 2d 192, 208 (1984)).
¶ 69        It is well settled that a trial court has broad discretion in determining the admissibility of
       expert testimony. People v. Enis, 139 Ill. 2d 264, 290 (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. Id.
¶ 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

                                                    - 13 -
       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 jurors
       have misconceptions about the abilities of eyewitnesses and the reliability of their testimony.
       People v. Tisdel, 338 Ill. App. 3d 465, 467 (2003). In People v. Allen, 376 Ill. App. 3d 511, 526
       (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, 2012 IL App (1st) 093404, ¶ 53.
¶ 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 usurping the jury’s factfinding function. See State v. Guilbert, 49 A.3d 705, 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, 406 U.S.

                                                    - 14 -
       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.
¶ 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
       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,
       395 Ill. App. 3d 797, 822 (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, 554 U.S. at 207)).
¶ 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, 371 U.S. 471, 481-82 (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, 2012 IL App (1st) 110966,
       ¶ 51 (“Allowing the practice of investigative alerts to continue to side-step judicial review
       gives arrest 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

                                                    - 15 -
       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, 2013 IL 112938, ¶ 32. 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.

¶ 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, 2011
       IL 108690, ¶ 50.

¶ 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, 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, 556 U.S. 1, ___, 132 S. Ct. 716,
       738 (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, 291 P.3d 673, 688 (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, 906 N.E.2d 299, 311 (Mass. 2009) (quoting Commonwealth v. Jones, 666
       N.E.2d 994, 1000 (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, 376 Ill. App. 3d 511, 525 (2007).
¶ 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.



                                                   - 16 -
¶ 87        Federal and state courts have become increasingly more critical of eyewitness
       identification procedures and evidence. See, e.g., Young v. Conway, 715 F.3d 79, 81 (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, 704 F.3d 298, 305 (4th Cir. 2013) (addressing
       impermissibly suggestive procedure used to obtain an in-court identification); see also State v.
       Avery, 2013 WI 13, ¶ 114, 345 Wis. 2d 407, 826 N.W.2d 60 (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, 354 S.W.3d 425, 441 (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, 223 P.3d 1103, 1108 (Utah
       2009) (“Empirical research has convincingly established that expert testimony is necessary in
       many cases to explain the possibility of mistaken eyewitness identification.” (Capitalization
       removed.)); Brodes v. State, 614 S.E.2d 766, 771 (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, 565
       U.S. 1, ___, 132 S. Ct. 716, 730-31 (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. Id. at ___, 132 S. Ct. at 739 (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, 27 A.3d 872 (N.J. 2011).
       The Supreme Court of Oregon in State v. Lawson, 291 P.3d 673 (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
       system dedicated to the dual principles of accountability and fairness.” Id. at 685. 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


                                                   - 17 -
       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, 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.
¶ 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, “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.

¶ 94      JUSTICE PUCINSKI joins in this special concurrence.




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