2022 IL App (1st) 190587-U FIRST DISTRICT, FIRST DIVISION April 25, 2022
No. 1-19-0587
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 10 CR 03064 ) BRANDON STARKS, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Walker concurred in the judgment.
ORDER
¶1 Held: Other-crimes evidence regarding an unrelated murder, bank robbery, and narcotics sale operation was not admissible for any proper purpose and its admission was prejudicial error requiring reversal.
¶2 In 2012, defendant Brandon Starks was convicted of first-degree murder in the November
3, 2009 shooting death of Robert Shine. At defendant’s first trial, the State violated the trial
court’s ruling on other-crimes evidence by introducing testimony and photos of firearms and
ammunition unrelated to Shine’s murder. On appeal, we held that the State had failed to show No. 1-19-0587
that two other firearms and ammunition recovered in the apartment where the murder weapon
was recovered were connected to Shine’s murder or to the defendant. We also held that the State
had failed to show any connection between defendant and the apartment. People v. Starks, 2014
IL App (1st) 121169, ¶¶ 63-65. Defendant’s conviction for first-degree murder was reversed and
the cause was remanded for a new trial.
¶3 On remand, the State introduced evidence that defendant had used the other firearms
recovered in the apartment in an unrelated shooting and bank robbery—conducting what
amounted to mini-trials on unrelated offenses. Defendant was again convicted of Shine’s murder.
In this appeal, defendant alleges that the trial court erred in allowing (1) other-crimes evidence
unrelated to Shine’s murder and (2) inculpatory statements made in violation of his sixth
amendment right to counsel. For the reasons that follow, we reverse and remand for a new trial.
¶4 BACKGROUND
¶5 At approximately 10 a.m. on November 3, 2009, Robert Shine was shot and killed near
79th and St. Lawrence Streets in Chicago. Because we fully set forth the facts from defendant’s
first trial in Starks, 2014 IL App (1st) 121169, ¶¶ 3-37, we recite only those facts necessary to
the issues raised in this appeal.
¶6 Three eyewitnesses identified defendant as the shooter. Bailey Wright was walking
toward 79th and St. Lawrence when he heard several gunshots. He saw defendant chasing after
Shine while firing a gun. Shine was hit and fell to the ground; defendant stood over him and shot
him five more times. Geraldine Howard also saw defendant chasing Shine while firing at him,
and firing additional shots at him after he fell to the ground. Ronald Draper had just exited his
car when he heard gunshots. He ducked down behind his car and heard several more shots. When
-2- No. 1-19-0587
he stood up, he saw defendant putting a semiautomatic gun in his pocket as he walked away from
the scene.
¶7 A few days after the shooting, Shine’s mother, Andrea Reed, notified police that she had
received an anonymous voice mail message that someone named “Turd” shot her son. Police
connected the name “Turd” to the defendant and assembled a photo array that included his
picture. Wright and Howard each identified defendant in the photo array as the shooter. Draper
thought he recognized defendant but told the police he wanted to see an in-person lineup. The
police issued an investigative alert for defendant.
¶8 The evidence introduced at defendant’s first trial also established that on January 6, 2010,
Detectives Lorne Gushinere and Brian McKendry were looking for Dushawn Powell, a suspect
in an unrelated case. While conducting surveillance of an apartment building in the vicinity of
80th Street and Ellis Avenue, they observed Powell with another individual. McKendry pursued
them into the building. Gushinere drove to the alley behind the building and saw two men (later
identified as defendant and Derrick Boyd) exit the rear of the building and run through the alley.
Though it was January, defendant was wearing a T-shirt and no shoes. After a brief chase, both
men were detained.
¶9 Inside the building, McKendry heard footsteps and the sound of doors slamming above
him. He went upstairs and saw that the window on the landing leading to the third floor was open
and the door to apartment 3 North was ajar. Although no one was inside the apartment, he
observed a .45 Glock and two other firearms on the kitchen counter. Ballistics testing later
confirmed the .45 Glock was the gun used to murder Shine. DNA testing on the .45 Glock
revealed a mix of at least three DNA profiles (and possibly more).
-3- No. 1-19-0587
¶ 10 Katrina Gomez testified as a DNA expert. 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.” Starks, 2014 IL App (1st) 121169, ¶ 30. She determined that
defendant could not be excluded as the contributor. With regard to “how rare the profile from the
handgun would be in the general population,” Gomez testified that approximately 1 in 15
quadrillion unrelated black individuals could not be excluded from having contributed to the
profile. Id.
¶ 11 Following defendant’s arrest, Howard and Draper viewed an in-person lineup and
identified defendant as the shooter. Although Wright did not initially identify anyone, it “dawned
on [him]” within minutes that the first lineup participant, i.e., defendant, was the shooter.
¶ 12 Defendant was convicted of first-degree murder. On direct appeal, we held that the
introduction of evidence regarding the other firearms found in the apartment was plain error.
Starks, 2014 IL App (1st) 121169. We found that “the State did not offer any proof that the
weapons were connected to [defendant] in any other way, or that the weapons were used in
Shine’s murder. *** [T]he evidence simply had no relevance to this case.” Id. ¶ 65. The evidence
properly admitted at trial consisted “primarily” of eyewitness accounts and DNA connecting
defendant, and at least two others, to the murder weapon discovered two months after Shine’s
murder. Id. ¶ 66. Considering the first prong of the plain-error doctrine, we concluded that the
evidence was closely balanced and remanded for a new trial. Id. ¶ 66.
¶ 13 On remand, the State moved to introduce additional evidence in order to correct “the
appellate court’s faulty premise *** that the defendant had not been connected to the apartment,”
arguing that defendant used the second gun recovered in the apartment, a .40 Glock, in the
shootings of Cody Miller and Raymond Marlow on January 3, 2010, and the third gun recovered,
-4- No. 1-19-0587
a 9-millimeter Cobray M-11, to commit a bank robbery at Midwest Bank in Country Club Hills
on December 22, 2009. The State also argued that evidence of defendant’s DNA on cocaine
recovered in the apartment linked him to the apartment and was relevant to establish identity
(because defendant was presumably in possession of all three guns and the cocaine within a
relatively short time after Shine’s murder), absence of mistake, and modus operandi (since the
Shine shooting was similar to the Miller/Marlow shooting).
¶ 14 Over defendant’s objection, the trial court held that the additional evidence could be
introduced, stating, in part:
“I do think, when identification is the issue and we can show multiple items that he’s got
relationship to in one place with the murder items in this case, that it does become more
probative than prejudicial. I don’t think that we’re assaulting the appellate court’s opinion
that they rendered because the situation has changed dramatically since the appellate
court ruled on this case.”
¶ 15 At the second trial, Detective McKendry testified that he entered apartment 3N and
observed three guns on the kitchen countertop—a .45 semiautomatic handgun, a .40 caliber gun,
and a 9-millimeter semiautomatic gun, all with extended magazines. He also recovered four
boxes of ammunition and 86 baggies containing suspect narcotics. Chemical testing of one bag
revealed the presence of cocaine. DNA testing of the bags revealed a mix of human DNA
originating from at least two people. A major male profile was identified from which defendant
could not be excluded. One in 20 quadrillion unrelated blacks, 1 in 2.5 quadrillion unrelated
whites, and 1 in 9.1 quadrillion unrelated Hispanics could not be excluded as donors.
-5- No. 1-19-0587
¶ 16 Investigator Stephen Strezepek testified that he recovered two bags near Shine’s body at
the crime scene. Chemical testing revealed that one bag contained marijuana and the other held
17 smaller knotted bags containing cocaine.
¶ 17 Marlow testified that at 2:12 p.m. on January 3, 2010, he and his friend Miller were
sitting in a car at 77th and Champlain. An individual approached the car with “a big old gun”
with an extended magazine and opened fire. As Marlow started to drive away, the car got stuck
on ice. The gunman fired multiple shots through the rear windshield before Marlow got the car
moving again. After driving a few blocks, Marlow stopped the car and saw that Miller had been
shot in the head. Both men sustained multiple gunshot wounds, and Miller died early the next
morning.
¶ 18 Marlow identified defendant as the shooter in a January 9 photo lineup and a February 1
physical lineup. At trial, he testified that he “wasn’t paying attention” to the shooter’s appearance
because he was focusing on the gun. Ballistics expert Marc Pomerance testified that the 17 fired
cartridge cases and 2 bullets recovered at the scene of the Miller/Marlow shooting were all fired
from the .40 Glock (one of the two other guns recovered from apartment 3N).
¶ 19 FBI Special Agent Brian Wentz testified that he was assigned to investigate a bank
robbery that occurred at First Midwest Bank in Country Club Hills on December 22, 2009.
During his investigation, he learned that the van used in the robbery was owned by Andre
Philpotts, who told Wentz that he had recently sold the van to a man named “Turd.” Wentz
learned defendant’s nickname was “Turd” and interviewed him on January 27, 2010. After being
advised of his rights, defendant admitted robbing the bank along with “his recent arrestee”
(whom Wentz assumed was Derrick Boyd) and another man named Kid. Wentz showed
defendant a wanted poster for the bank robbery that included photos from the surveillance video,
-6- No. 1-19-0587
and defendant identified himself in the photos. Defendant told Wentz that the gun he was holding
in one of the photos was “recently seized by the Chicago Police Department.” Wentz testified
that the gun “appears to be the same weapon” as one of the guns photographed in apartment 3N,
though he did not know the gun’s make and model or how common it was.
¶ 20 Defendant did not testify in his own defense but called three witnesses. Dr. Aaron
Benjamin, an expert in the field of identification and memory, explained the phases of memory
and how witnesses can miss details and incorrectly remember events. Benjamin testified that
stress, “weapon focus,” and brevity of observation time can decrease a witness’s quality of
encoding an experience. An original memory can change based on post-event information, and
failure to employ double-blind lineup procedures may contribute to faulty and false memories.
¶ 21 Dr. Karl Reich, an expert in forensic DNA analysis, was retained to review the DNA
analysis performed in this case. He identified at least four contributors to the DNA sample
recovered from the Shine murder weapon, explaining that determining a major contributor is
subjective and can vary from analyst to analyst. According to Reich, it is “very difficult,
sometimes impossible” to “tease apart” DNA mixtures to identify separate DNA profiles due to
“allele stacking,” which occurs when a mixture of DNA is “superimposed on top of each other.”
Reich also testified that the DNA testing conducted on the drug baggies was based on an
extremely small amount of genetic material (less than half a nanogram of DNA, about 60 to 65
cells) which he characterized as “the bottom of what’s reliable.” Such a small amount makes
analysis more difficult because it is more challenging to parse out inherent noise and artifacts.
Reich agreed that there was a major male profile on both the .45 Glock and the 70 drug baggies
from which Starks could not be excluded as a contributor.
-7- No. 1-19-0587
¶ 22 Retired Chicago police detective Sylvia Van Witzenburg testified that she was assigned
to investigate an aggravated battery with a firearm that occurred on December 29, 2009 in the
area of 7508 South Saint Lawrence Avenue. She spoke to the victim, Eddie Kitchen, in the
hospital, and subsequently issued an investigative alert for DuShawn Powell. When the .40
Glock was recovered on January 6, 2010, Witzenburg requested a ballistics comparison with
spent cartridges and cartridge casings recovered from the scene of the Kitchen shooting. (The
record does not reflect the results of that comparison.) Powell was eventually convicted of the
Kitchen shooting.
¶ 23 The jury found defendant guilty of the first-degree murder of Shine and of personally
discharging the firearm that caused Shine’s death. The trial court sentenced defendant to 50
years’ imprisonment, including a 25-year firearm enhancement.
¶ 24 ANALYSIS
¶ 25 Defendant argues that his conviction must be reversed because the trial court improperly
allowed the introduction of (1) other-crimes evidence regarding the December 22, 2009 bank
robbery, the January 3, 2010 shootings, and the firearms, narcotics, and narcotics packaging
found in apartment 3N and (2) inculpatory statements defendant made to FBI Special Agent
Wentz outside the presence of his counsel.
¶ 26 Other-Crimes Evidence
¶ 27 Admission of other-crimes evidence is within the trial court’s discretion and will not be
disturbed absent an abuse of that discretion. People v. Richee, 355 Ill. App. 3d 43, 51 (2005).
Generally, other-crimes evidence is inadmissible to show defendant’s propensity to commit
crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); Richee, 355 Ill. App. 3d at 50-51. “Such evidence
overpersuades the jury, which might convict the defendant only because it feels he or she is a bad
-8- No. 1-19-0587
person deserving punishment.” People v. Lindgren, 79 Ill. 2d 129, 137 (1980). Other-crimes
evidence may be offered for any other purpose to which it is relevant, such as establishing
defendant’s modus operandi, intent, motive, identity, or absence of mistake. People v. Pikes,
2013 IL 115171, ¶ 11. “However, even where relevant, the evidence should not be admitted if its
probative value is substantially outweighed by its prejudicial effect.” Id.
¶ 28 Our supreme court has cautioned that other-crimes evidence should not result in an
improper “mini-trial” on the other offenses. People v. McKibbins, 96 Ill. 2d 176, 186-87 (1983).
Here, nine of the State’s 20 witnesses testified about the other-crimes evidence in whole or in
part. Detective McKendry testified in detail about recovering the other two firearms, the boxes of
ammunition, suspect narcotics, and narcotics packaging from the apartment. Several forensic
scientists were called to discuss latent print analysis, chemical analysis, and DNA sample
analysis of those items. Marlow testified about the January 3 shooting. A forensic investigator
testified as to his processing of the Miller/Marlow crime scene. A firearms identification expert
analyzed ballistics evidence from that scene, and the parties stipulated to the results of Miller’s
autopsy report. Special Agent Wentz thoroughly described his investigation of the bank robbery,
including obtaining defendant’s confession.
¶ 29 Circumstances of Arrest
¶ 30 Citing McKibbins, 96 Ill. 2d at 183, the State argues that other-crimes evidence was
admissible to explain the circumstances of defendant’s arrest, showing how police recovered the
murder weapon and how defendant was connected to it. In McKibbins, defendant was charged
with armed robbery and murder of a parking lot attendant. A rare coin had been taken from the
victim’s person, and the victim’s body was found handcuffed with handcuffs that had the word
“STOP” printed on them. Id. at 180. Two days after the murder, defendant was arrested while
-9- No. 1-19-0587
robbing a jewelry store. The arresting officer searched defendant and found a rare coin that
matched the description of the coin taken from the victim. Id. at 181. The officer also found two
pairs of handcuffs with the word “STOP” on the ground. Under these circumstances, it was
proper for the State to introduce evidence regarding the jewelry store robbery, because “[i]t
would be difficult to explain or describe circumstances surrounding the defendant’s arrest
without introducing a substantial amount of the evidence concerning the jewelry robbery.” Id. at
183. This evidence was also relevant to explain how the police recovered the coin and handcuffs
which linked defendant to the murder. Id. at 184-85.
¶ 31 In contrast, “other-crimes” evidence regarding the bank robbery on December 22, 2009
and the shooting on January 3, 2010 did not explain or describe the circumstances of defendant’s
arrest on January 6, 2010 or connect him to Shine’s murder. Similarly, the other firearms,
ammunition, and cocaine recovered from apartment 3N did not link defendant to Shine’s murder.
The State argues that it would have been infeasible to entirely exclude the other firearms
evidence, since police photographs of the scene showed that all three weapons were “piled
together” on the kitchen counter when they were recovered. Introducing detailed testimony about
the other weapons and ammunition and calling multiple experts to testify about the recovered
narcotics far exceeded what was necessary to show how the murder weapon was recovered.
¶ 32 Identity
¶ 33 The State asserts that other-crimes evidence was relevant to establish identity because it
showed defendant’s connection to the apartment where the Shine murder weapon was recovered.
Since defendant’s connection to the murder weapon was overwhelmingly established by DNA
evidence, the probative value of other-crimes evidence admitted in this case was substantially
outweighed by its prejudicial effect. See Pikes, 2013 IL 115171, ¶ 11.
-10- No. 1-19-0587
¶ 34 Motive
¶ 35 The State argues that “defendant’s participation in a drug packaging operation was
relevant to defendant’s motive for killing *** Shine,” since narcotics packaged for sale were
recovered near Shine’s body. There is no evidence that Shine’s murder was drug-related.
Accordingly, we decline the State’s invitation to speculate that Shine may have been involved in
a drug-dealing operation that may have motivated defendant to kill him. “Other-crimes evidence
cannot be admitted if the grounds for establishing its relevance are speculative.” Lindgren, 79 Ill.
2d at 140.
¶ 36 Absence of Mistake
¶ 37 The evidence clearly established that the offender pursued and shot Shine and continued
shooting him once he fell to the ground. Defendant’s sole defense was that he was misidentified
as the shooter. Since absence of mistake was not an issue in this case, other-crimes evidence was
not admissible to show absence of mistake.
¶ 38 Modus Operandi
¶ 39 Finally, the State argues that evidence relating to the Miller/Marlow shooting established
defendant’s modus operandi based on the factual similarities between the two offenses. For
evidence of another crime to be admissible as modus operandi, there must be a “high degree of
identity between the facts of the crime charged and the other offense.” (Internal quotation marks
omitted.) People v. Cruz, 162 Ill. 2d 314, 348-49 (1994). “ ‘Much more is demanded than the
mere repeated commission of crimes of the same class, such as repeated murders, robberies or
rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be
like a signature.’ ” (Emphasis in original.) People v. Biggers, 273 Ill. App. 3d 116, 122 (1995)
(quoting 1 J. Strong, McCormick on Evidence § 190, at 801-03 (4th ed. 1992)). The inference
-11- No. 1-19-0587
that the two crimes were committed by the same individual “does not arise where the features
linking the two crimes are common to many crimes, including those not committed by the
defendant.” Id.
¶ 40 The Miller/Marlow shooting was not sufficiently similar to the Shine shooting to
establish modus operandi. Both crimes were committed during the day by an offender who
approached his victim or victims on foot and shot them using a gun with an extended magazine.
These facts do not establish a unique pattern of criminal behavior. Significantly, Shine was alone
and on foot in a commercial district when he was shot, while Miller and Marlow were together in
a car in a residential district. In addition, different guns were used in each shooting. The facts of
these crimes are not distinctive enough to justify the conclusion that they are the probable
handiwork of the same criminal. See Cruz, 162 Ill. 2d at 349.
¶ 41 We find that the trial court erred in admitting extensive other-crimes evidence relating to
the Miller/Marlow shooting, the bank robbery, and the firearms and narcotics found in apartment
3N. “The erroneous admission of evidence of other crimes carries a high risk of prejudice and
ordinarily calls for reversal.” Lindgren, 79 Ill. 2d at 140. The excessive amount of other-crimes
evidence introduced at trial may have influenced the jury to convict defendant out of a belief that
he was “a bad person deserving punishment.” Id. at 137.
¶ 42 The State nevertheless argues that any error was harmless because the evidence was
overwhelming. In our view, the properly admitted evidence was not “so overwhelming that no
fair-minded jury could have voted for acquittal.” Id. at 141. Although defendant’s connection to
the murder weapon was undeniable, he was only one of at least three and possibly more
contributors of DNA found on the murder weapon two months after the murder. Here, the State
has not met its burden of proving beyond a reasonable doubt that the verdict would have been the
-12- No. 1-19-0587
same without the error. See People v. Quintero, 394 Ill. App. 3d 716, 728 (2009) (reversing
conviction where “[t]he evidence of the defendant’s guilt was not overwhelming, and the
improper admission of other-offenses evidence may have led the jury to find the defendant
guilty”).
¶ 43 Defendant additionally argues that the trial court erred in admitting inculpatory
statements he made to Special Agent Wentz outside the presence of counsel after his arrest.
Specifically, he identified a photo of himself holding a gun during the bank robbery, told Wentz
that the gun had been recovered by the Chicago Police Department, and stated that “his recent
arrestee” (Boyd, with whom he was arrested on January 6, 2010) also participated in the robbery.
Because we have determined that the bank robbery evidence was improperly admitted (see Ill. R.
Evid. 404(b) (eff. Jan. 1, 2011)), we need not address this issue.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we reverse defendant’s conviction for the first-degree murder
of Robert Shine and remand for a new trial.
¶ 46 Reversed and remanded.
-13-