Appeal from the Circuit Court of Cook County No. 98 CR 15711 Honorable Thomas M. Tucker Judge Presiding.
The opinion of the court was delivered by: Justice Hall
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 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 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 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 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 the driver's-side door open and close. The offender yelled at him through the trunk, "I didn't want to shoot you ...