                                                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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