People v. Sutton

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People v. Sutton

State: Illinois

Docket No: 105314 & 105316 cons. Rel

Case Date: 04/16/2009

Preview:Docket Nos. 105314, 105316 cons.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and CrossAppellant, v. DARRYL SUTTON, Appellant and Cross-Appellee. Opinion filed April 16, 2009.

JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Fitzgerald and Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion. Justice Kilbride specially concurred, with opinion.

OPINION Following a jury trial in the circuit court of Cook County, defendant Darryl Sutton was convicted of seven counts of murder for the sexual assault and fatal shooting of Monica Rinaldi. Defendant was sentenced to four 100-year extended-term prison sentences and three natural life sentences. On appeal, the appellate court reversed defendant's conviction and remanded for a new trial based on, inter alia, its finding that the trial court had erred in admitting the hypnotically enhanced testimony of David Janik, the sole eyewitness to defendant's crime. People v. Sutton, 349 Ill. App. 3d 608 (2004) (Sutton I). On remand, the trial court granted defendant's motion to suppress Janik's testimony and also granted defendant's motion in

limine to suppress Janik's out-of-court statements to police officers pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The State then filed an interlocutory appeal, along with a certificate of substantial impairment. 210 Ill. 2d R. 604(a)(1). The State argued that the trial court erred in suppressing Janik's identification of defendant without holding a pretrial evidentiary hearing to determine whether Janik's posthypnotic identifications of defendant were based on his independent prehypnotic recall. The State also appealed the trial court's rulings suppressing Janik's out-of-court statements to police officers. The appellate court affirmed in part and reversed in part. 375 Ill. App. 3d 889 (Sutton II). The Sutton II court held that there was no need for an evidentiary hearing to determine whether Janik's posthypnotic lineup identification and potential in-court identifications of defendant were based on Janik's independent prehypnotic recall, because the record clearly showed that Janik's testimony was influenced by hypnosis, making it per se inadmissible. 375 Ill. App. 3d at 896. The Sutton II court held that, on retrial, Janik could testify only to matters that he could recall prior to hypnosis. 375 Ill. App. 3d at 896. With regard to Janik's out-of-court statements, the Sutton II court held that Janik's statements to police officers at the scene were admissible because they were not testimonial under Crawford. See 375 Ill. App. 3d at 899. However, Janik's statements to police in the ambulance were testimonial. 375 Ill. App. 3d at 899. Nonetheless, the Sutton II court held that Janik's statements to police in the ambulance were admissible because Janik was available for cross-examination. 375 Ill. App. 3d at 899. The Sutton II court rejected defendant's claim that Janik was unavailable for cross-examination by virtue of his decision to undergo hypnosis. 375 Ill. App. 3d at 899. Both the State and defendant filed petitions for leave to appeal the Sutton II court's decision. 210 Ill. 2d R. 315(a). This court allowed both petitions and consolidated the cases. BACKGROUND Shortly after midnight on February 14, 1991, police responded to calls of a man banging on doors and ringing the doorbells of homes on -2-

Forest Avenue in Brookfield, Illinois. When the officers arrived on the scene several minutes later, they saw a man with blood on his face and on his clothing, staggering down the front porch stairs of a home. The man, David Janik, walked up to the officers and told them that he had been shot and robbed and that his girlfriend also had been shot. When the officers asked Janik who shot him, he told them that the offender was a black male, 30 to 35 years old, with a moustache, wearing a dark coat and dark hat. When the officers asked where the offender had gone, Janik pointed to an alley. Janik also told the officers that his girlfriend was in her car, parked in an alley two houses north. The officers discovered Janik's girlfriend, Monica Rinaldi, lying across the backseat of her car, naked except for a pair of socks on her feet. Rinaldi had sustained a fatal gunshot wound to the head. Officer Timothy Moroney rode with Janik in the ambulance to the hospital. In the ambulance, Janik told Moroney that he and Rinaldi were parked in a parking lot and were kissing when a man got into the car on the driver's side. The man forced Janik and Rinaldi over to the passenger's side. Janik described the man as a black man, about 30 to 35 years old, with a moustache, wearing a dark coat and hat. Janik told Moroney that the man drove off, and eventually stopped near a pet store called Archer Puppies, where he forced Janik to get inside the trunk of the car. Janik told Moroney that after driving for a length of time, the car stopped again and he heard gunshots from inside the car. The man then opened the car's trunk and shot Janik in the head. Janik eventually was able to open the hatchback from the trunk and exit the car through the driver's side door. At the hospital, doctors determined that the bullet had traveled through Janik's left temporal region and had lodged in his upper right shoulder. The bullet did not penetrate the cranium or cause any major vascular injuries. Although Janik was neurologically intact, he suffered amnesia concerning the offense and could not remember anything from the time he left work on February 13, 1991, until he awoke in the hospital. Janik was in the hospital for five or six days. During that time, he had no independent recollection of the offense, but learned some of the details from his family and friends. After he was released, Janik viewed police mug books, but was unable to identify his assailant.

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Thereafter, in an effort to regain his memory of the crime, Janik began seeing Dr. Steven Ries in March 1991. Janik continued seeing Dr. Ries through December 1991. During therapy, Janik underwent guided imagery and dream interpretation, as well as hypnosis. Janik could not recall the exact number of times he had been hypnotized, but he believed it was more than once. Janik testified that he did not believe that he could visualize or remember the offender's face on April 19, 1991. Janik could not recall whether he still had difficulty visualizing the offender's face on May 11, 1991. Janik said that his memory came back in bits and pieces, and he eventually regained his memory of the entire evening. He did not think he regained any more memories of the incident after he stopped seeing Dr. Ries. A composite sketch of Janik's assailant was prepared, although there was conflicting testimony concerning when the sketch was made. Detective Michael Manescalchi testified at trial that he drew the composite sketch of the offender on February 28, 1991, based on information provided by Janik, although Manescalchi had testified at a pretrial hearing that he was uncertain whether someone helped him prepare the sketch. Janik, however, testified that his memory of the assailant came back to him while he was seeing Dr. Ries. Janik stated that after he remembered what the assailant looked like following a session with Dr. Ries, he asked an artist friend to help him draw the sketch. Janik gave the completed sketch to Detective Manescalchi. Janik testified that he never sat down and drew a sketch with Detective Manescalchi. In September 1991, during the course of his therapy with Dr. Ries, Janik provided Detective Manescalchi with a more detailed description of his assailant. Janik now described the assailant as a black male, approximately 5 feet, 11 inches tall, weighing 175 pounds, with a moustache, medium skin, and black hair cut very short and neat. Janik said that the assailant wore a caramel-colored leather driving hat with a matching leather jacket. Janik also provided Manescalchi with a more detailed and slightly different version of the offense. Janik said that on the night of the offense, he and Monica left a bar called Sock Hops and walked to her car. Monica was in the driver's seat and he was in the passenger seat when the offender opened the driver's side door all the way, pointed a gun and told Monica to move over. Janik told Manescalchi that the -4-

offender turned on the windshield wipers, turned the lights on, and kept checking the mirrors. The offender asked for Janik's wallet and put it in his lap when Janik gave it to him. Janik described the route taken by the offender and said that the offender told him, "If you I.D. me, I will kill you." After driving for awhile, the offender stopped the car in an alley, told Janik to get out, opened the trunk of the car and told Janik to get in. Janik now said that he was shot as he put one foot in the trunk of the car. The next thing Janik heard was mumbling, then he heard someone moving around in the car. The car was shaking, and Janik started screaming and kicking the backseat. The offender yelled to Janik to be quiet. The car stopped shaking and Janik heard a shot and smelled gunpowder. Janik then heard the car door open and close. The offender yelled at Janik through the trunk, "I didn't want to shoot you but if you I.D. me, I will shoot [sic] you." Janik remembered coughing up blood and looking for a way out of the trunk. Janik found a lever and pushed the backseat forward and climbed over it. Monica was in the backseat. Janik crawled to the front of the car and went out the driver's side door and began banging on the doors of houses. Several years after the offense in this case, the Illinois State Police Bureau of Forensic Sciences established a DNA data bank. On April 10, 1997, vaginal and rectal swabs from Monica Rinaldi and stained fabric from the backseat of her car were sent to the crime lab for DNA analysis. On December 4, 1997, a report was prepared concluding that semen found on the three samples was consistent with having originated with defendant. Thereafter, on May 21, 1998, Janik viewed a lineup and identified defendant as the person who shot him and killed Monica Rinaldi. Prior to trial, defendant filed a motion to preclude admission of Janik's hypnotically enhanced testimony on the ground that the testimony was the product of hypnosis and other unreliable memory retrieval techniques. The trial court denied defendant's motion, finding that it was not clear whether Janik's memory was restored through hypnosis or by mere passage of time and that the reliability of Janik's hypnotically enhanced testimony was a matter for the jury to decide. Defendant then filed a renewed motion to preclude the admission of Janik's hypnotically enhanced memory, arguing that the State should be required to produce Dr. Ries to lay a foundation for Janik's -5-

testimony and to provide expert testimony regarding the possible effects of hypnosis on a witness. The trial court denied this motion as well, finding that expert testimony on the matter would invade the province of the jury and that the State's failure to lay a foundation for Janik's testimony was a matter for cross-examination. The appellate court in Sutton I reversed, based upon this court's decision in People v. Zayas, 131 Ill. 2d 284 (1989). Sutton I, 349 Ill. App. 3d 608. The Sutton I court noted that in Zayas, this court held that the hypnotically enhanced testimony of anyone other than a criminal defendant is per se inadmissible, although a witness may testify to his prehypnotic recall. Sutton I, 349 Ill. App. 3d at 615-16. The Sutton I court found that Janik's posthypnotic statement clearly was influenced by hypnosis. Sutton I, 349 Ill. App. 3d at 617. The Sutton I court further held that the error in this case was compounded when the trial court precluded defendant from presenting expert testimony regarding the possible effects of hypnosis and other memory retrieval techniques on a witness's ability to accurately recall events. Sutton I, 349 Ill. App. 3d at 617. The Sutton I court held that the error was not harmless in light of its findings on defendant's issues concerning DNA evidence. Sutton I, 349 Ill. App. 3d at 618.1 On remand to the trial court, defendant filed a motion to suppress Janik's entire testimony on the ground that it was hypnotically enhanced and should be suppressed pursuant to Zayas. Defendant argued that the appellate court in Sutton I determined that Janik's posthypnotic statements were influenced by hypnosis and were per se inadmissible, so that the law of the case required suppression of Janik's testimony. The State filed a motion for an evidentiary hearing on the admissibility of Janik's testimony and identification of defendant. The trial court granted defendant's motion without conducting an evidentiary hearing, finding that Janik's testimony and identification was rendered inadmissible under Sutton I. The trial court also granted defendant's motion in limine to exclude Janik's out-ofcourt statements to police at the scene and in the ambulance pursuant
In Sutton I, the appellate court also agreed with defendant that the trial court had erred in denying defendant's pretrial discovery request to independently retest the DNA evidence recovered in the case. On remand, however, defendant chose not to conduct additional tests on the evidence.
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to Crawford. The trial court then denied the State's motion to reconsider the Crawford ruling. The State filed an interlocutory appeal of the trial court's pretrial rulings. On appeal, the State argued that the trial court erred in suppressing Janik's 1998 lineup identification of defendant, and Janik's expected in-court identification of defendant, without first holding an evidentiary hearing to determine whether the identifications were based on Janik's independent prehypnotic recall. The State maintained that the trial court improperly concluded that the court's finding in Sutton I constituted the law of the case. The State also argued that the Sutton II court should apply the palpably erroneous exception to the law of the case doctrine, which allows a reviewing court to depart from the doctrine if the court determines that its prior decision was palpably erroneous. The State also argued that the trial court erred in holding that Janik's out-of-court statements to police at the scene and in the ambulance must be excluded pursuant to Crawford. The appellate court in Sutton II affirmed in part and reversed in part. 375 Ill. App. 3d 889. With regard to Janik's testimony, the Sutton II court held that its decision in Sutton I was not palpably erroneous, although the Sutton II court also found that the State had not waived the issue. The Sutton II court held there was no need for the Sutton I court to remand to the trial court for an evidentiary hearing to determine whether Janik's posthypnotic testimony was anchored in his prehypnotic recall, because the record clearly showed that Janik's testimony was influenced by hypnosis and was not based upon his prehypnotic recall. 375 Ill. App. 3d at 896. Therefore, Janik's posthypnotic testimony was per se inadmissible under this court's decision in Zayas. 375 Ill. App. 3d at 896. At retrial, Janik would be allowed to testify only to matters he was able to recall prior to undergoing hypnosis. 375 Ill. App. 3d at 896. The Sutton II court next held that Janik's statements to police at the scene were nontestimonial and therefore were not subject to Crawford. 375 Ill. App. 3d at 899. Further, those statements were admissible under the spontaneous declaration exception to the hearsay rule. 375 Ill. App. 3d at 899. However, Janik's statements to police in the ambulance were testimonial. 375 Ill. App. 3d at 899. Nonetheless, the Sutton II court held that Janik's statements in the ambulance were -7-

not subject to Crawford because Janik is available for crossexamination. 375 Ill. App. 3d at 899. The State has appealed the Sutton II court's finding that there was no need for a pretrial evidentiary hearing to determine whether Janik's posthypnotic identification of defendant was based upon his prehypnotic recall, as well as the court's finding that Janik's statements to officers in the ambulance were testimonial. Defendant has appealed the Sutton II court's finding that Janik's statements to officers at the scene were not testimonial, and its finding that Janik is available for cross-examination. ANALYSIS Suppression of Janik's Lineup Identification and In-Court Identification We first address the State's claim concerning Janik's posthypnotic identification of defendant. The State argues that, pursuant to People v. Wilson, 116 Ill. 2d 29 (1987), this cause must be remanded to the trial court for an evidentiary hearing to determine whether Janik's posthypnotic identification of defendant was based upon his independent prehypnotic recall. The State contends that the appellate court has twice improperly acted as trier of fact in finding that Janik's lineup identification and potential in-court identification of defendant were tainted by the hypnosis treatment he received. Before we address the merits of the State's argument, we must first address defendant's claim that the State cannot raise this issue because the argument is subject to the law of the case, the State has forfeited the issue, and the issue cannot be raised in an interlocutory appeal. The law of the case doctrine generally bars relitigation of an issue previously decided in the same case. People v. Tenner, 206 Ill. 2d 381, 395 (2002). Thus, the determination of a question of law by an appellate court in the first appeal may be binding on the court in a second appeal. Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). However, even if the law of the case bars relitigation of the issue in the appellate court, the law of the case doctrine is inapplicable to this court in reviewing a decision of the appellate court. People v. Triplett, 108 Ill. 2d 463, 488 (1985). Because this is the first time the case has -8-

been before this court, we may review all matters which were properly raised and passed on in the course of the litigation. Triplett, 108 Ill. 2d at 488. Accordingly we will consider whether the Sutton II court should have remanded this cause to the trial court for an evidentiary hearing. We also reject defendant's claim that the State has forfeited the issue concerning an evidentiary hearing. Defendant claims that the State has forfeited this argument because the State never requested an evidentiary hearing during the first trial and did not raise the issue of an evidentiary hearing in defendant's first appeal. Further, the State did not file a petition for rehearing or for leave to appeal following the decision in Sutton I. We first note that there was no need for the State to request an evidentiary hearing during the first trial because the trial court denied defendant's motion to suppress Janik's testimony and allowed Janik to testify. Further, as the appellate court found when defendant raised the same argument in Sutton II, the record established that on direct appeal and following remand, the State consistently argued that Janik's lineup identification and in-court identification of defendant were admissible. 375 Ill. App. 3d at 894. The State also did not forfeit the issue by failing to file a petition for rehearing or a petition for leave to appeal following the decision in Sutton I. Defendant cites no authority supporting his claim that to preserve an issue for interlocutory appeal under Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)), the State must first file a petition for rehearing or a petition for leave to appeal. See People v. Ward, 215 Ill. 2d 317, 332 (2005) (point raised in brief but not supported by citation to relevant authority fails to satisfy requirements of Supreme Court Rule 341(3)(7) (188 Ill. 2d R. 341(3)(7)) and is forfeited). In any event, to the extent defendant is suggesting the State should have filed a petition for rehearing or petition for leave to appeal the Sutton I decision anticipating that, on remand, the trial court would deny its motion for an evidentiary hearing, we disagree. The Sutton I court's finding, that the trial court had erred in precluding defendant from presenting expert testimony, at least suggested that the State could seek an evidentiary hearing on remand to present expert testimony concerning the effects of hypnosis. See 349 Ill. App. 3d at 617-18. In fact, although the trial court on remand ultimately concluded that -9-

Sutton I was the law of the case and precluded an evidentiary hearing, the trial court initially did set the matter for evidentiary hearing on the admissibility of Janik's testimony. We also reject defendant's claim that this issue is not appropriate for interlocutory appeal because the State is not challenging a suppression order, but rather is challenging the trial court's conduct in implementing the mandate of the appellate court in Sutton I. As the court in Sutton II found, the trial court's order on remand suppressing Janik's entire testimony had the substantive effect of preventing evidence from being admitted at trial and impaired the State's ability to prosecute the case, so that the State's claims were properly before the court pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)).2 Having found that the issue is properly before the court, we next address the merits of the issue. In reviewing a trial court's ruling on a motion to suppress evidence, this court reviews de novo the trial court's ultimate legal ruling as to whether suppression is warranted. People v. Cosby, 231 Ill. 2d 262, 271 (2008), quoting People v. Luedema, 222 Ill. 2d 530, 543 (2006). In People v. Wilson, 116 Ill. 2d 29, this court addressed whether a previously hypnotized witness could testify regarding his prehypnotic recollection. This court held that "the confrontation clause does not necessarily prohibit the use of testimony based on a witness' prehypnotic recollection," as a "total bar on testimony derived from prehypnotic recollection would *** exact an unnecessary toll." Wilson, 116 Ill. 2d at 48. Accordingly, the proponent of such testimony should establish the nature and extent of the witness's prehypnotic recall, and the parties should be permitted to present expert testimony to explain the potential effects of hypnosis. Wilson, 116 Ill. 2d at 48-49. Because the parties in Wilson could not agree on

Defendant also claims that the State's argument is barred by collateral estoppel and res judicata. Defendant, however, fails to argue the merits of these claims, making only passing reference to collateral estoppel in his brief and raising res judicata only in the heading to his argument. Accordingly, we find that defendant has waived these arguments on appeal. People v. Colon, 225 Ill. 2d 125, 157-58 (2007).

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the extent of the witness's prehypnotic recollection, this court held that the State "must demonstrate to the court that the post-hypnotic identification of the defendant was anchored in the witness' prehypnotic recollection." Wilson, 116 Ill. 2d at 49. Subsequently, in People v. Zayas, 131 Ill. 2d 284, this court addressed whether hypnotically enhanced testimony is admissible. This court held that "a witness' hypnotically induced testimony, other than that of the defendant, is not admissible in Illinois courts." Zayas, 131 Ill. 2d at 295. We stated that our holding was not inconsistent with Wilson, which allowed a witness to testify to her prehypnotic recall. We explained that "[t]he proponent of prehypnotic recall evidence, however, will bear the burden of establishing that the testimony of the previously hypnotized witness is based solely upon that witness' independent, prehypnotic recall." Zayas, 131 Ill. 2d at 297. The appellate court in Sutton II held that, in contrast to Wilson, there was no need for the Sutton I court to remand to the trial court for a pretrial hearing to determine the extent of Janik's prehypnotic recollection, "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." 375 Ill. App. 3d at 896. Likewise, there was no need for the court in Sutton I to remand 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 that his testimony was influenced by hypnosis, making it per se inadmissible under Zayas. 375 Ill. App. 3d at 896. The Sutton II court stated that, at the time Sutton I was decided, "it did not take an 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." 375 Ill. App. 3d at 896. The Sutton II court also noted that there was evidence that Janik did not regain any more memory of the offense after ceasing therapy. 375 Ill. App. 3d at 896. Before this court, the State claims that the appellate court in both Sutton I and Sutton II improperly acted as trier of fact in holding that Janik's identification of defendant was hypnotically influenced, rather than remanding to the trial court for an evidentiary hearing. The State -11-

argues that the appellate court erred in simply comparing Janik's February 14, 1991, prehypnotic statements with his September 16, 1991, posthypnotic statements. The State asserts that the appellate court operated under the erroneous assumption that Janik, after experiencing amnesia, did not remember his assailant until he participated in hypnosis. In fact, the record establishes that Janik regained his memory of the assailant prior to beginning therapy on March 15, 1991. The State bases its argument on a February 28, 1991, sexmotivated analysis report that was sent to the Illinois State Police on March 2, 1991, as well as the composite sketch of the offender. The State notes that Detective Manescalchi testified at a pretrial hearing concerning the sex-motivated analysis report. The State contends that the sex-motivated analysis report indicates that Janik provided a more detailed description of his assailant than the description he gave on February 14, 1991. The sex-motivated analysis report indicated that Janik described a black offender, 5 feet 11 inches tall, weighing approximately 175 pounds, wearing a tan leather jacket and tan cap or hat, holding a gun in his left hand. The State also points to Detective Manescalchi's testimony, both at the pretrial hearing and at trial, that he prepared a composite sketch of the assailant on February 28, 1991, based upon information provided by Janik. The State argues that this sketch was included with the sex-motivated analysis report sent to the Illinois State Police on March 2, 1991, establishing that it was prepared on February 28, 1991. The State, however, has failed to include either the sex-motivated analysis report or the sketch in the record on appeal. Because the State has failed to include these documents in the record on appeal, we decline to consider whether those documents establish that Janik had prehypnotic recall of his assailant. See People v. Urdiales, 225 Ill. 2d 354, 419 (2007) (appellant has burden of presenting court with adequate record regarding a claimed error, and any doubts arising from an inadequate record will be resolved against him). Based on the record before us, then, we agree with the Sutton II court that Janik's prehypnotic recall is not in dispute, and that his prehypnotic description of the assailant is fully set forth in the record. Janik's prehypnotic recall of the assailant is fully detailed in his statements to the officers at the scene and in the ambulance. The -12-

record is devoid of any evidence that, subsequent to Janik's statements on the night of the offense, but prior to beginning therapy with Dr. Ries, Janik regained any memories of the offense or his assailant. Accordingly, there was no need to remand the cause to the trial court for a pretrial evidentiary hearing to determine the nature and extent of Janik's prehypnotic recall. The State next argues that the appellate court erred in concluding that expert testimony was unnecessary to resolve the admissibility of Janik's identification of defendant. The State asserts that expert testimony could determine whether the seven-year lapse of time between Janik's hypnosis treatments and his lineup identification of defendant militates against hypnotic influence on that identification. The Sutton II court rejected this argument, holding that "the record clearly showed [Janik's] testimony was influenced by hypnosis making it per se inadmissible under Zayas." 375 Ill. App. 3d at 896. We agree with the Sutton II court. Janik testified that his memory of the offense and offender came back in bits and pieces during his therapy with Dr. Ries, until he regained his memory of the entire evening. Janik also testified that he did not regain any more memories of the offense after he stopped seeing Dr. Ries. In Zayas, this court recognized the problem with admitting hypnotically refreshed recollections, stating that, "having been hypnotized, the subject 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. Given that Janik's memory of the offense and the offender was restored solely through hypnosis, it follows that Janik's lineup identification of defendant was tied to his hypnosis therapy with Dr. Ries, even if that identification took place seven years after Janik discontinued therapy. Therefore, the Sutton II court properly found that Janik's identification of defendant was influenced by hypnosis, making it per se inadmissible under Zayas. We affirm the Sutton II court's holding that, on remand, Janik should be allowed to testify only to matters he was able to recall prior to undergoing hypnosis.

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Janik's Statements to Police Officers at the Scene and in the Ambulance With regard to Janik's statements to police officers, the State argues in its appeal that the appellate court erred in finding that Janik's statements to police officers in the ambulance were testimonial under Crawford. Defendant, in his appeal, argues that the appellate court erred in finding that Janik's statements to police officers at the scene were not testimonial under Crawford. Defendant also argues that even if this court finds that these statements were not testimonial, the statements are hearsay and are not admissible under the excited utterance or spontaneous declaration exception to the hearsay rule. Because this court generally avoids deciding constitutional questions when other, nonconstitutional grounds exist for resolving the case (see Stechly, 225 Ill. 2d 246, 263 (2007)), we will first address defendant's claims that Janik's statements at the scene and in the ambulance did not qualify as excited utterances or spontaneous declarations. For a hearsay statement to be admissible under the spontaneous declaration exception, there must be an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there must be an absence of time for the declarant to fabricate the statement, and the statement must relate to the circumstances of the occurrence. People v. Williams, 193 Ill. 2d 306, 352 (2000). Courts employ a totality of the circumstances analysis in determining whether a hearsay statement is admissible under the spontaneous declaration exception. Williams, 193 Ill. 2d at 352. The totality of the circumstances analysis involves consideration of several factors, including time, the mental and physical condition of the declarant, the nature of the event, and the presence or absence of self-interest. Williams, 193 Ill. 2d at 352, quoting People v. House, 141 Ill. 2d 323, 382 (1991). The period of time that may pass without affecting the admissibility of a statement varies greatly. Williams, 193 Ill. 2d at 353. The critical inquiry with regard to time is " `whether the statement was made while the excitement of the event predominated.' " People v. Smith, 152 Ill. 2d 229, 260 (1992), quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence

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