Second Division
August 14, 2007
No. 1-06-0475
THE PEOPLE OF THE STATE ) Appeal from the
OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 98 CR 15711
)
DARRYL SUTTON, ) Honorable
) Thomas M. Tucker
Defendant-Appellant. ) Judge Presiding.
JUSTICE HALL delivered the opinion of the court:
Following a jury trial, defendant Darryl Sutton was
convicted of seven counts of murder for the rape and shooting
death of Monica Rinaldi. He was sentenced to four 100-year
extended-term prison sentences and three natural life sentences.
On direct appeal we reversed defendant's conviction and remanded
the case for a new trial after we determined, among other things,
that the trial court erred in admitting the hypnotically enhanced
testimony of sole eyewitness David Janik. People v. Sutton, 349
Ill. App. 3d 608, 622, 812 N.E.2d 543 (2004).
The State has now filed this interlocutory appeal pursuant
to Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)), along
with a certificate of substantial impairment, seeking to overturn
two pretrial rulings the trial court made on remand suppressing
Janik's out-of-court statements to police as well as his lineup
identification of defendant and his potential in-court
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identification of defendant at the upcoming retrial.
The State contends on appeal that the trial court erred in
suppressing Janik's lineup identification of defendant and his
potential in-court identification of defendant without first
holding a pretrial evidentiary hearing to determine whether these
post-hypnotic identifications were based upon Janik's independent
pre-hypnotic recall. The State also contends the trial court
erred in finding that Janik's out-of-court statements to
responding police officers at the scene and in the ambulance were
inadmissible under Crawford v. Washington, 541 U.S. 36, 158 L.
Ed. 2d 177, 124 S. Ct. 1354 (2004). For the reasons which
follow, we affirm in part, reverse in part, and remand the cause
for further proceedings.
The facts of this case have already been set forth at length
in our prior opinion and need not be repeated here in their
entirety. To the extent particular facts are important to the
issues before us, they will be discussed.
The relevant facts and procedural history are as follows.
Shortly after midnight on February 14, 1991, police officers
responded to the call of a man ringing doorbells of houses
located on the 4000 block of Forest Avenue in Brookfield,
Illinois. Upon their arrival police found David Janik staggering
and bleeding. Janik told police he had been shot and robbed and
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that his girlfriend had also been shot. Police discovered
Janik's girlfriend, Monica Rinaldi, lying across the backseat of
her car parked in a nearby alley. Rinaldi was unclothed and had
sustained a fatal gunshot wound to the head.
Officer Timothy Moroney rode with Janik in an ambulance to
the hospital. On the way to the hospital, Janik allegedly gave
the officer a brief account of events leading up to the shootings
along with a general description of the assailant. According to
Officer Moroney, Janik described the assailant as a black man of
about 30 to 35 years of age, with a moustache, wearing a dark
coat and hat. At trial, however, Janik had no memory of his
conversation with Officer Moroney.
Doctors discovered that although Janik's gunshot wound to
the head had not penetrated his cranium or caused major vascular
injuries, he had suffered amnesia regarding the offense.
Hospital charts revealed Janik could not remember anything from
the time he left work on February 13, 1991, to the time he awoke
in the hospital, and initially could not remember the day or year
it was.
Janik was released from the hospital after five or six days.
Following his release, Janik viewed a photographic array but was
unable to identify his assailant from the photographs.
Shortly thereafter, from March 1991 to December 1991, Janik
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underwent periodic sessions of hypnosis and other memory-
retrieval therapies such as guided imaging and dream
interpretation in an effort to identify the assailant. Janik
testified that his memory came back "in bit and pieces." Medical
notes reveal that during one therapy session Janik remarked that
the assailant had "Mexican" like features.
At trial, conflicting accounts were given as to the time
period a composite sketch of the assailant was made. Officer
Michael Manescalchi testified that Janik assisted a police sketch
artist in preparing a composite sketch of the assailant on
February 28, 1991. Janik, however, testified that by May 11,
1991, he still could not visualize the assailant's face. He
testified that after one particular therapy session he regained
memory of what the assailant looked like and afterwards enlisted
the services of an artist friend to draw a composite sketch of
the assailant.
In September 1991, approximately six months into his
therapy, Janik allegedly provided Officer Manescalchi with a more
detailed description of the assailant and a somewhat different
version of the offense than he had previously given police.
Rather than merely describing the assailant as a black man of
about 30 to 35 years of age, with a moustache, the offender was
now described as a black male, approximately 5 feet 11 inches in
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height, weighing 175 pounds, with a mustache, medium skin, and
black hair cut very short and neat. Rather than merely
describing the assailant as wearing a dark coat and hat, the
attacker was now described as having worn a caramel-colored
leather driving hat with matching leather jacket.
In addition, Janik's prehypnotic and posthypnotic statements
set forth different accounts of the offense. Janik initially
told Officer Moroney he was shot after he was forced into the
trunk of the car and the car had traveled an unknown period of
time. However, in his posthypnotic statement, Janik stated he
was shot as he put one foot in the trunk of the car.
Janik's prehypnotic and posthypnotic statements also
differed in the amount of detail surrounding the offense. In the
posthypnotic statement, unlike the prehypnotic statement, Janik
recounts the specific route the assailant took after hijacking
the vehicle and also describes the assailant's threatening
comments and behavior.
Janik further states in his posthypnotic statement that
while he was in the car's trunk he heard mumbling and felt
someone moving around in the car. The car was shaking and he
started screaming and kicking the car's backseat whereupon the
assailant yelled at him to be quiet. When the car stopped
shaking, he heard a gunshot and smelled gunpowder. He then heard
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the driver's-side door open and close. The offender yelled at
him through the trunk, "I didn't want to shoot you but if you ID
me, I will [kill] you." Janik eventually exited the vehicle and
began banging on the doors of nearby homes.
On May 21, 1998, approximately seven years after the
shooting incident and his discontinuance of the hypnosis
sessions, Janik viewed a lineup and identified defendant as the
shooter. Defendant had been placed in the lineup based upon DNA
evidence.
On direct appeal, we reversed defendant's conviction and
remanded the case for a new trial after we determined that
pursuant to the holding in People v. Zayas, 131 Ill. 2d 284, 295,
546 N.E.2d 513 (1989), the trial court had erred in admitting
Janik's hypnotically enhanced testimony. Sutton, 349 Ill. App. 3d
at 617. In Zayas, the supreme court held that because the
relevant scientific community had not generally accepted hypnosis
as an accurate or reliable means of restoring a witness's memory,
the hypnotically enhanced testimony of anyone other than a
defendant was per se inadmissible. Zayas, 131 Ill. 2d at 295.
We determined that in comparison to Janik's prehypnotic
statement, his posthypnotic testimony contained much more detail
indicating it was influenced by hypnosis, especially in light of
his testimony explaining that over the course of therapy his
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memory came back "in bits and pieces" and that after he stopped
therapy he did not regain any more memory of the offense. Sutton,
349 Ill. App. 3d at 617. We further concluded that the trial
court's error in admitting Janik's hypnotically influenced
testimony was compounded when the court improperly precluded
defendant from presenting expert testimony concerning the
possible effects of hypnosis and other memory-retrieval processes
on a witness's ability to accurately recall events. Finally, we
determined that defendant's constitutional rights to a fair
trial, confront witnesses, and present a defense were violated
when, as a discovery sanction, the trial court denied defendant's
pretrial discovery request to independently retest the DNA
evidence recovered in this case. Sutton, 349 Ill. App. 3d at 618.
Following remand, defendant filed a motion to suppress
Janik's testimony on the ground that it was hypnotically enhanced
and should be suppressed pursuant to the holding in Zayas.
Defendant argued that since we determined in Sutton I that
Janik's posthypnotic statements were influenced by hypnosis and
were therefore per se inadmissible under Zayas, the law of the
case required his testimony be suppressed. The State countered
that the trial court should not suppress Janik's testimony
without first conducting a pretrial evidentiary hearing to
determine whether the testimony was based upon his independent
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prehypnotic recall.
The trial court granted the defendant's motion suppressing
Janik's testimony, without holding an evidentiary hearing,
concluding that the testimony was rendered inadmissible under
Sutton I. The trial court also granted defendant's motion in
limine excluding Janik's out-of-court statements given to police
at the scene and in the ambulance pursuant to Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354
(2004). After its motion to reconsider the Crawford ruling was
denied, the State filed this interlocutory appeal along with a
certificate of substantial impairment seeking to overturn the two
rulings.
ANALYSIS
The State contends the trial court erred in suppressing
Janik's 1998 lineup identification of defendant and his expected
in-court identification of defendant at the retrial, without
first holding a pretrial evidentiary hearing to determine whether
these posthypnotic identifications were based upon Janik's
independent prehypnotic recall. The State maintains the trial
court erred in this regard because it improperly concluded that
our finding in Sutton I -- that Janik's trial testimony was
hypnotically influenced -- constituted the law of the case
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precluding the trial court on remand from holding such an
evidentiary hearing.
Under the law of the case doctrine, issues presented and
disposed of by a reviewing court in a prior appeal are binding
upon remand to the trial court and on subsequent appeal to the
reviewing court unless the facts presented are so different as to
require a different interpretation or a higher court has changed
the law. Bilut v. Northwestern University, 296 Ill. App. 3d 42,
47, 692 N.E.2d 1327 (1998); Emerson Electric Co. v. Aetna
Casualty & Surety Co., 352 Ill. App. 3d 399, 417, 815 N.E.2d 924
(2004). The law of the case doctrine was developed to ensure
uniformity of decisions, maintain consistency during the course
of a single trial, and bring litigation to an end. Emerson
Electric Co., 352 Ill. App. 3d at 417.
There are two exceptions to this doctrine. The first
exception applies when a higher reviewing court, following the
first appeal, makes a contrary ruling on the precise issue of law
on which the appellate court based its prior decision. Martin v.
Federal Life Insurance Co., 268 Ill. App. 3d 698, 701, 644 N.E.2d
42 (1994). The second exception, which the State contends
applies here, allows a reviewing court to depart from the
doctrine if the court determines that its prior decision was
palpably erroneous. Martin, 268 Ill. App. 3d at 701.
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We disagree with the State's contention that our decision in
Sutton I was palpably erroneous.
However, as a preliminary matter, we reject defendant's
argument that the State waived this issue by failing to challenge
the Sutton I decision in a petition for rehearing or a petition
for leave to appeal. Review of the record shows that on direct
appeal and following remand, the State has consistently
maintained the position that Janik's lineup identification
testimony and in-court identification of defendant were
admissible. Under these circumstances it can hardly be said that
the State sat on its rights thereby waiving this issue.
Moreover, defendant cites no legal authority supporting his
assertion that in order to preserve an issue for interlocutory
appeal under Supreme Court Rule 604(a)(1), the State must first
either file a petition for rehearing or a petition for leave to
appeal. Under Supreme Court Rule 341(e)(7) (188 Ill. 2d R.
341(e)(7)), any argument not supported by citation to legal
authority is deemed waived and need not be addressed on appeal.
People v. Morales, 343 Ill. App. 3d 987, 991, 799 N.E.2d 986
(2003).
In another preliminary argument, defendant contends the
State's claims are not properly before this court pursuant to
Supreme Court Rule 604(a)(1) because the State is not actually
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appealing the trial court's suppression ruling, but is instead
using the interlocutory appeal to challenge our decision in
Sutton I in lieu of filing a petition for rehearing. We
disagree.
As mentioned, following remand defendant filed a motion to
suppress Janik's testimony on the ground that since we had
determined in Sutton I that Janik's posthypnotic statements were
influenced by hypnosis and were therefore per se inadmissible
under Zayas, the law of the case required his testimony be
suppressed. After the trial court granted the motion and denied
the State's motion to reconsider, the State appealed pursuant to
Supreme Court Rule 604(a)(1).
Supreme Curt Rule 604(a)(1) provides in relevant part that
"[i]n criminal cases the State may appeal only from an order or
judgment the substantive effect of which results in ***
suppressing evidence." 188 Ill. 2d R. 604(a)(1). Rule 604(a)(1)
permits the State to appeal a pretrial suppression order if the
substantive effect of the order suppresses evidence and the
suppression substantially impairs the State's ability to
prosecute the case. People v. Young, 82 Ill. 2d 234, 247, 412
N.E.2d 501 (1980); People v. Sargeant, 292 Ill. App. 3d 508, 510,
685 N.E.2d 956 (1997).
In the instant case, the trial court's order suppressing
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Janik's testimony had the substantive effect of preventing
evidence from being admitted at trial and impairing the State's
ability to prosecute the case. Therefore, the State's claims are
properly before this court pursuant to Rule 604(a)(1).
Turning to the merits, a trial court's decision not to
revisit a matter previously litigated in reliance upon the law of
the case doctrine will not be reversed absent an abuse of
discretion. People v. Daniels, 346 Ill. App. 3d 350, 355, 805
N.E.2d 934 (2004). The State maintains that our decision in
Sutton I was palpably erroneous and therefore the trial court
erred in concluding that the decision constituted the law of the
case.
The State contends that our decision in Sutton I was
palpably erroneous under People v. Wilson, 116 Ill. 2d 29, 506
N.E.2d 571 (1987), because we improperly acted as fact finder in
concluding that Janik's posthypnotic identification of defendant
was influenced by hypnosis. The State maintains that pursuant to
Wilson, the matter should be remanded to the trial court for a
pretrial evidentiary hearing to give the State an opportunity to
present evidence establishing that Janik's posthypnotic
identification of defendant was based upon his prehypnotic
recall. The State asks us to reverse the trial court's ruling
and remand the cause for a full pretrial evidentiary hearing. We
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must decline the State's request.
In Wilson, the supreme court found that although the trial
court correctly ruled that a previously hypnotized witness could
testify to his prehypnotic recollection, the court should have
held a pretrial hearing to determine whether the witness's
posthypnotic identification was based upon his prehypnotic recall
where he did not view defendant until after the hypnosis session,
the extent of the witness's recall was in dispute, and the
prehypnotic description was not set forth in the record. Wilson,
116 Ill. 2d at 49.
Wilson does not support the State's position because the
extent of Janik's prehypnotic recall is not in dispute and his
prehypnotic description of the assailant is fully set forth in
the record. Thus, unlike Wilson, there was no need for the
Sutton I court to remand the case to the trial court for a
pretrial hearing to determine the extent of Janik's prehypnotic
recollection.
There also was no need for the Sutton I court to remand the
matter to the trial court for an evidentiary hearing to determine
whether Janik's posthypnotic testimony was anchored in his
prehypnotic recall since the record clearly showed his testimony
was influenced by hypnosis making it per se inadmissible under
Zayas. At the time Sutton I was decided, it did not take an
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expert to conclude that Janik's posthypnotic testimony was not
based upon his prehypnotic recall where the record revealed he
underwent hypnosis after having given the most generic
description of the assailant and emerged from hypnosis giving a
far more detailed description of the attacker and a significantly
different version of events. Moreover, evidence was presented
that after Janik ceased therapy he did not regain any more memory
of the offense.1 At retrial, Janik should be allowed to testify
1
At oral argument it was suggested that the law of the
case doctrine might not govern retrial of defendant concerning
this issue because the doctrine applied to Sutton I only insofar
as we found that Janik's trial testimony was hypnotically
influenced. It was suggested that since the case was remanded
for a new trial and we found Janik had given police prehypnotic
statements that were not influenced by hypnosis, the doctrine did
not preclude the trial court from conducting a pretrial
evidentiary hearing to ascertain if, through the passage of time,
Janik had regained any further memory of the offense that was not
influenced by hypnosis. It was suggested that this issue should
be settled in a pretrial evidentiary hearing at which the trial
judge would hear expert testimony from both sides and Janik would
be subject to cross-examination.
The problem with these suggestions is that our supreme court
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to matters he was able to recall prior to undergoing hypnosis.
The State next contends the trial court erred in concluding
that the admission of Janik's out-of-court statements to police
at the scene and in the ambulance would violate defendant's sixth
amendment right to be confronted with the witnesses against him
in violation of Crawford v. Washington, 541 U.S. 36, 158 L. Ed.
2d 177, 124 S. Ct. 1354 (2004). The trial court's determination
on this issue is subject to de novo review. See, e.g., United
States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (asserted
Crawford constitutional error reviewed under de novo standard).
The sixth amendment states that in all "criminal
prosecutions, the accused shall enjoy the right *** to be
confronted with the witnesses against him." U.S. Const., amend.
in Zayas has determined that a previously hypnotized witness is
virtually immune from effective cross-examination because having
been hypnotized, the witness "gains complete confidence in his
'restored' memory, forgets how it was 'restored,' and is unable
to differentiate between that which he was able to recall before
hypnosis and that which the hypnosis elicited." Zayas, 131 Ill.
2d at 291. Therefore, at retrial, Janik should only be allowed
to testify to matters he was able to recall at the first trial
prior to undergoing hypnosis.
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VI. In Crawford, the United States Supreme Court held that the
sixth amendment's confrontation clause bars the admission of an
out-of-court testimonial statement by a witness who does not
appear at trial, unless the witness is unavailable to testify and
the accused had a prior opportunity to cross-examine the witness.
Crawford, 541 U.S. at 53-54, 158 L. Ed. 2d at 194, 124 S. Ct. at
1365.
Defendant contends the trial court properly ruled that
Janik's out-of-court statements were inadmissible under Crawford
because they were testimonial in nature and Janik was rendered
unavailable for cross-examination due to his having undergone
hypnosis. We disagree.
Although the Crawford Court did not articulate a
comprehensive definition of testimonial statements, it did
provide some examples of a "core class" of statements that would
be considered testimonial, including: (1) ex parte in-court
testimony or its functional equivalent such as affidavits or
custodial examinations; (2) extrajudicial statements in
formalized testimonial materials such as affidavits, depositions,
prior testimony, or confessions; (3) statements made under
circumstances that would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial; and (4) statements taken by police officers in the course
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of interrogations. People v. Kim, 368 Ill. App. 3d 717, 719, 859
N.E.2d 92 (2006), citing Crawford, 541 U.S. at 51-52, 158 L. Ed.
2d at 193, 124 S. Ct. at 1364.
Building on Crawford, the Court in Davis distinguished
between testimonial and nontestimonial statements in the context
of police interrogations. Davis v. Washington, 547 U.S. ____, 165
L. Ed. 2d 224, 236-37, 126 S. Ct. 2266, 2273-74 (2006). The
Davis Court determined that out-of-court statements are
nontestimonial for purposes of the sixth amendment's
confrontation clause "when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency"; the Court found such
statements are testimonial and therefore inadmissible as
violative of the confrontation clause "when the circumstances
objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution." Davis, 547 U.S. at ____, 165 L. Ed. 2d at 237, 126
S. Ct. at 2273-74.
The question of whether a statement obtained through police
interrogation is testimonial is a factual inquiry determined on a
case-by-case basis. People v. West, 355 Ill. App. 3d 28, 36, 823
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N.E.2d 82 (2005). The relevant inquiry is whether the
circumstances of an interrogation objectively indicate the
officer was acting to meet an ongoing emergency or was rather
acting in an investigative capacity to obtain evidence in
anticipation of a potential criminal prosecution. Davis, 547 U.S.
at ____, 165 L. Ed. 2d at 240-41, 126 S. Ct. at 2277.
The facts and circumstances of this case, when viewed
objectively, indicate that when officers first arrived on the
scene, the primary purpose of their interrogation was to elicit
statements to ascertain if they were facing an ongoing emergency
and if so, to obtain information necessary to resolve that
emergency as opposed to seeking evidence to establish the facts
of a past crime. When officers arrived at the scene, they did so
in response to calls of a man ringing house doorbells. Officers
found Janik staggering and bleeding from the head.
Janik told police he had been shot and robbed and that his
girlfriend, Monica Rinaldi, had also been shot. He described the
assailant as a black man of about 30 to 35 years of age, with a
moustache, wearing a dark coat and hat. Officers discovered
Rinaldi, lying across the backseat of her car parked in a nearby
alley. She was unclothed and had sustained a fatal gunshot wound
to the head.
Under these circumstances any reasonable observer would
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deduce that the primary purpose of the initial interrogation was
to ascertain if there was an ongoing emergency and if so, to
obtain information necessary to resolve that emergency. We
consequently find that the on-the-scene statements elicited from
Janik were nontestimonial in nature and therefore not subject to
Crawford and Davis. Moreover, we find that these statements are
admissible under the spontaneous declaration exception to the
hearsay rule.
For a statement to qualify as a spontaneous declaration,
three requirements must be met, (1) there must be an occurrence
sufficiently startling to produce a spontaneous and unreflecting
statement; (2) there must be an absence of time for the declarant
to fabricate the statement; and (3) the statement must relate to
the circumstances of the occurrence. People v. Williams, 193 Ill.
2d 306, 352, 739 N.E.2d 455 (2000). All three requirements were
present in the case at bar. The shooting was sufficiently
startling to produce a spontaneous and unreflecting declaration.
The record indicates there was an absence of time for Janik to
fabricate his statements. And finally, Janik's statements to
police that he had been shot and robbed and that his girlfriend
had also been shot relate to the circumstances of the occurrence.
In regard to the interrogation in the ambulance, the
circumstances objectively indicate that the primary purpose of
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this interrogation was to establish the facts of a past crime
rather than ascertain or resolve an ongoing emergency. Once the
police secured Janik's safety and called the ambulance, their
interrogation evolved and they elicited testimonial responses.
Although some portions of Janik's statements to obtain medical
help may have arguably been nontestimonial, the bulk of his
elicited statements were testimonial in nature where they
consisted of an account of the crime and a general description of
the assailant.
That being said, we still find that the statements elicited
from Janik in the ambulance are admissible and not subject to
Crawford and Davis, since the record and relevant case law
indicate he is available for cross-examination.
We reject defendant's contention that Janik is unavailable
for cross-examination for purposes of the confrontation clause by
virtue of his decision to undergo hypnosis. Even though Janik's
posthypnotic statements are inadmissible under Zayas, this does
not render him legally incompetent to give testimony concerning
matters occurring before he was hypnotized. At retrial, Janik
should only be allowed to testify to matters he was able to
recall at the first trial prior to undergoing hypnosis.
Finally, the State contends that defendant has forfeited his
sixth amendment right to confront Janik by having caused his
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unavailability. Under the doctrine of forfeiture by wrongdoing,
a defendant waives his sixth amendment right to confront his
accuser if he causes the witness's unavailability at trial.
Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878);
Davis, 547 U.S. at ____, 165 L. Ed. 2d at 244, 126 S. Ct. at
2280. We do not reach this final issue in light of our
recommendation that we find Janik available for cross-
examination.
Accordingly, we affirm the circuit court's order granting
defendant's motion suppressing Janik's posthypnotic statements,
we reverse the court's order granting defendant's motion in
limine excluding Janik's out-of-court statements to responding
police officers at the scene and in the ambulance, and we remand
the cause for further proceedings consistent with this order.
Affirmed in part and reversed in part; cause remanded.
HOFFMAN and SOUTH, JJ., concur.
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