FIFTH DIVISION

										 June 28, 2002

1-97-4354

THE PEOPLE OF THE STATE OF ILLINOIS,	      ) Appeal from the

								) Circuit Court of

								) Cook County.

		Plaintiff-Appellee,			)	

								)

								)

			v.					)

								)

								)

SHEILA DANIELS,				      	)

								) Honorable

								) Joseph J. Urso,

		Defendant-Appellant.		      ) Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following a jury trial in 1990 before Judge Michael P. Toomin,

defendant Sheila Daniels was convicted of the first degree murder

of her paraplegic boyfriend, David McCoy, and was sentenced to an

80-year prison term.1  On appeal, with one justice dissenting, this court ruled, inter alia, that the trial court did not err in denying defendant's motion to suppress statements, but reversed

defendant's conviction, finding the admission of polygraph results at her trial improper.  People v. Daniels, 272 Ill. App. 3d 325 (1994) (Daniels I).  Following a second jury trial before Judge Joseph J. Urso, defendant was again convicted of first degree

murder and was sentenced to 80 years' imprisonment.  On appeal,

defendant contends: (1) that the trial court erred in refusing to

hold an evidentiary hearing on her motions to suppress statements;

(2) that the trial court erred in quashing her subpoenas to the

City of Chicago (City); (3) that the trial court erred in refusing

to send her medical reports to the jury during its deliberations;

and (4) that her 80-year sentence is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  For the reasons set forth below, we affirm

defendant's conviction, vacate her sentence and remand for

resentencing.  Issues (1) and (2) will be considered in published

portions of this opinion and issues (3) and (4) will be determined

in unpublished portions of this opinion.

BACKGROUND

	Defendant's conviction arose from the November 12, 1988,

shooting death of McCoy in the garage of the home that he,

defendant and her daughter shared at 1654 East 92nd Street in

Chicago.  Working through a trace of the gun used in the murder,

police returned to defendant's house on November 17, 1988, to

question her again about McCoy's death and some telephone logs the police had acquired.  Defendant was asked to go to the police

station to assist in reviewing the telephone logs.  Defendant

agreed, and while accompanied by three officers, arrived at the

police station around 5:30 p.m. that day.  The facts surrounding

her stay at the police station and the content of various

statements she made to police, including a statement taken by a

court reporter wherein defendant admitted to shooting McCoy but

claimed it was in self-defense, were laid out at length in Daniels I.  Therefore, only those facts necessary for proper consideration of the instant appeal will be repeated here. 

	At the police station, defendant was questioned regarding

McCoy's death and admitted to having purchased the gun used in the

shooting, but stated it had been stolen by her brother Anthony

Daniels.  After defendant told police where Anthony lived, he was

picked up and taken to the police station.  Anthony was questioned

and released.  

	At 11:40 p.m., defendant was advised of her Miranda rights and agreed to take a polygraph exam, which lasted about 21⁄2 hours. 

After learning she had failed the exam, she implicated her brother

Tyrone in McCoy's murder.  At 3 a.m. she was placed under arrest

for McCoy's death and advised of her Miranda rights.  About 30 minutes later, she accompanied police to Tyrone's home, where he

was arrested and taken to the police station.    

	Prior to her first trial, defendant filed a motion to suppress

written and oral statements.  In her motion, defendant asserted

that she had been illegally arrested in her home without a warrant

in the absence of probable cause, which was a violation of her

fourth amendment rights as guaranteed by the United States

Constitution.  She also asserted that incriminating statements she

had given investigators were made in the absence of Miranda warnings and resulted from prolonged questioning and refusals by

police to allow her to contact her attorney and family, which was

a violation of her fifth and sixth amendment rights.  

	After an evidentiary hearing, Judge Toomin denied defendant's

motion to suppress.  With respect to her fourth amendment claim, he

found that defendant had voluntarily accompanied police to the

station.  As for the voluntariness of her confession, Judge Toomin,

citing People v. Dodds, 190 Ill. App. 3d 1083 (1989), and People v. Nicholls, 42 Ill. 2d 91 (1969), ruled that defendant's confession was voluntary.  

	In Daniels I, defendant argued, inter alia, that Judge Toomin had erred in denying her motion to suppress statements.  In

particular, she contested his determinations that she had

voluntarily accompanied police to the station from her home on

November 17, 1988, that she had not been tricked by police into

accompanying them and that her statement to the polygraph operator was sufficient to establish probable cause for her arrest.  This

court rejected all of these arguments, finding that "the circuit

court properly denied her motion to suppress."  Daniels I, 272 Ill. App. 3d at 336.

	After this court reversed her conviction and remanded the

case, defendant filed another motion to quash arrest and suppress

statements, which was twice amended and once reoffered.  In the

original motion filed after remand, defendant stated that some time

after 11:30 p.m. on November 17, 1988, officers showed defendant

her brother Anthony, who at the time was handcuffed to a wall in

the police station.  Anthony was bruised and bloody, apparently as

a result of having been beaten.  She alleged that during her

interrogation, officers engaged in conduct calculated to

psychologically and physically coerce her into making admissions as

to her involvement in McCoy's murder, including exhibiting her

brother Tyrone to her.  At the time, he was also in the police

station and was bleeding after having been beaten by police.  She

alleged that police informed her that they would continue beating

Tyrone and might even subject her to physical cruelty unless she

made admissions relating to her involvement in McCoy's murder. 

Defendant sought a hearing on her motion to suppress. 

	In her second amended motion to quash arrest and suppress

statements filed on May 21, 1996, defendant again alleged she had made admissions due to the physical abuse Tyrone had endured at the

hands of the police.  She further alleged that prior to seeing her

brother Anthony in a beaten condition, police had threatened to

charge her and/or Anthony with McCoy's murder for which they could

receive the death penalty.  She also stated that Anthony had been

beaten by the police "in an attempt by the officers to frighten,

intimidate and otherwise coerce [her] into making admissions to the

crime charged."  Defendant again sought a hearing on her motion to

suppress. 

	During argument on defendant's motion, defense counsel argued

that new evidence, that being testimony from defendant's brothers,

was now available.  Defense counsel explained that Tyrone, who

would have asserted his fifth amendment privilege against self-

incrimination at defendant's first trial, would testify at a

subsequent hearing.  Counsel further explained that Anthony's

testimony, which Judge Toomin had precluded at the previous

hearing, would also be presented.  Defense counsel argued that the

"necessity and/or sufficiency" of Miranda warnings had not been previously raised.  It was further argued that whether defendant's

status at the police station became custodial before she was

informed she was under arrest at 3 a.m. had not been previously

raised.  Counsel also asserted that cases had been decided by the

United States Supreme Court since this court had issued Daniels I that had the effect of changing the law regarding the admissibility

of defendant's statements.  The State argued that the doctrine of

law of the case barred a subsequent hearing on defendant's motion. 

	In denying defendant's request for a hearing on her motion to

quash arrest and suppress evidence, Judge Urso stated that the

issues raised in the motion "were properly litigated at the trial

level and ruled upon by the appellate court."  Judge Urso found

that there was no new evidence nor were there exceptional

circumstances warranting a hearing on the motion.  After denial of

her motion, defendant filed written offers of proof, which stated

that, if called to testify at a hearing, Tyrone and Anthony would

substantiate the allegations of abuse contained in her second

amended motion to suppress.  She later filed her reoffered motion

to suppress, which was also denied. 

	Following a second jury trial, where defendant's statements to

police were again admitted, defendant was found guilty of first

degree murder.  Finding that the circumstances surrounding the

commission of the murder were brutal and heinous, Judge Urso

sentenced defendant to an extended term of 80 years in prison. 

Defendant now appeals.   

ANALYSIS  

	Defendant first contends that Judge Urso erred in denying her

a hearing on her motions to suppress filed after this court's decision in Daniels I.  She asserts that Judge Urso should have allowed her to reopen for proofs because neither Judge Toomin nor

this court ruled on the claims she now advances for suppression of

her statements, those being her questioning without the benefit of Miranda warnings while in custody on November 17-18, 1988, and that her statements were coerced and made involuntarily.  Defendant

acknowledges that in Daniels I this court ruled that defendant had voluntarily accompanied officers to the police station, but she

argues that is a separate and distinct issue from whether she was

advised of her Miranda rights.

	In general, under the law of the case doctrine, a rule

established as controlling in a particular case will continue to be

the law of the case, provided the facts remain the same.  People v. Patterson, 154 Ill. 2d 414, 468 (1992).  "The doctrine, however, merely expresses the practice of courts generally to refuse to

reopen what has been decided; it is not a limit on their power."  Patterson, 154 Ill. 2d at 468-69.  The 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. Enis, 163 Ill. 2d 367, 387 (1994).     

	Defendant argues that the reopening of her case is not barred

by the doctrine of law of the case because in Daniels I we ruled, with respect to her motion to suppress, that she had voluntarily accompanied police to the station and that investigators did not

employ a ruse in order to induce her to leave her home.  She claims

the propriety of the police conduct once she arrived at Area 2,

which implicates a fifth amendment violation, has never been ruled

upon.

	In People v. Hattery, 183 Ill. App. 3d 785, 805-06 (1989), this court stated:

		"With regard to pretrial motions to suppress

evidence, the rule is that once a motion to

suppress has been ruled upon by one judge,

that motion cannot be relitigated later before

another judge, absent a showing of exceptional

circumstances or of additional evidence that

has become available since the first hearing

to suppress.  [People v. Henderson, 36 Ill. App. 3d 355, 370 (1976).]  However, '[i]n a

criminal case, where one party is successful

in contesting a pretrial order on appeal,

reversal and remandment does not preclude the

trial court from considering other issues

originally raised in the pretrial proceedings

but not finally determined by the appellate

court on the merits.'  [People v. Feagans, 134 Ill. App. 3d 252, 257 (1985).]"

	Defendant eloquently states her position in her reply brief,

where she explains that in her view: 

		"[T]he [law of the case] doctrine applies not to 'motions' as such, but, rather, to legal issues determined almost invariably after a hearing.  If a court of review has decided a

legal issue then the successor judge may rely upon that ruling as settled law, and, in the

absence of a change in the law by a still

higher court, or new factual basis, apply it

to the case before him or her.  But if the

legal issue has never been presented to a trial court and a hearing conducted thereon,

and/or if the court has never issued a ruling

on the precise legal issue then the doctrine of the 'law of the case' simply cannot be

applied because, in reality, there is no law

of the case to apply.  Thus, it is the

position of *** defendant that the only 'law of the case' in this case is the law

pronounced by this court in its opinion in

[Daniels I].  If this court did not previously consider a legal issue, and rule upon it,

there can be no 'law of the case' which

successor Judge Urso should have heeded." 

(Emphasis in original.)

	We disagree with defendant's position that Judge Toomin did

not rule on the fifth amendment aspects of her first motion to

suppress.  This position is completely belied by the record.  In his lengthy findings of facts, Judge Toomin first reiterated the

theories raised in defendant's motion to suppress.  After

discussing the fourth amendment issue, Judge Toomin continued: 

		"The other ground that the court notes from

the motion is centered in both the 5th and 6th

Amendments alleging a denial of her right to

have an opportunity to consult with counsel,

coupled with repeated questioning of her over

a long period of time during which she was

allegedly held incommunicad[o] *** and also

that her will was overborne and she was

impliedly coerced by the detective involved

here."

	After a very lengthy recitation of defendant's testimony at

the evidentiary hearing, Judge Toomin specifically said that

defendant "testified she was questioned repeatedly, though she asked to call Edward Verdolyak [sic] who she considered to be her attorney."  

	After a recitation of more testimony at the hearing, the court

denied defendant's motion to suppress based on the fourth

amendment, finding that she was not in custody until after she gave

an incriminating statement to the polygraph operator.  The court

continued:

			"As to the right to counsel, it is, of course, the State's burden to establish the voluntariness

and this essentially refines itself to issues of

credibility in this case.  

			The court finds on the basis of the

credible evidence that *** there was no

invoking of the right to counsel.  

			Further, there is no credible evidence in

this record that the defendant's will was

overborne ***." 

	Judge Toomin then cited several cases supporting his holding

and found that defendant's testimony was incredible.  The court

then denied defendant's motion to suppress her oral and written

statements.  

	This court affirmed Justice Toomin's denial of defendant's

motion to suppress and therefore addressed defendant's fourth and fifth amendment rights.  In Daniels I, this court noted, "Prior to trial, defendant moved to quash her arrest and suppress statements

on grounds that she was illegally arrested in her home without a

warrant and that she was denied access to her attorney."   Daniels I, 272 Ill. App. 3d at 331.  There followed a lengthy recitation of the testimony at the evidentiary hearing on the motion to suppress. 

In pertinent part, this included the following:

	"On November 14, 1988, Edward Vrdolyak, an attorney and

longtime friend, came to [defendant's] home and offered to help. 

Based on that statement, she considered him to be her attorney."  Daniels I, 272 Ill. App. 3d at 332.  Further, after being at the station for two hours, "She was not allowed to use the phone

despite her numerous requests to call both Vrdolyak and her

sister."  Daniels I, 272 Ill. App. 3d at 333.  She asked to call Vrdolyak during the polygraph exam.  Daniels I, 272 Ill. App. 3d at 333.  After reciting the testimony at the hearing, we concluded as

follows:

			"Defendant's motion to suppress was

denied.  The circuit court expressly found

that she was not arrested or seized in her

home, but instead voluntarily accompanied the

officers to the police station.  The court

also found that probable cause existed after defendant spoke with the polygraph operator

and admitted knowledge of the murder. 

Finally, the court found 'incredible'

defendant's testimony that the assistant

State's Attorney purported to be her attorney,

and stated that no credible evidence existed

that her will was overborne or that she had

invoked her right to counsel."  Daniels I, 272 Ill. App. 3d at 334. 

	After a discussion of the evidence and the applicable case

law, which consisted almost entirely of defendant's arguments based

on the fourth amendment, we held, "Accordingly, we find that the

circuit court properly denied her motion to suppress."  Daniels I, 272 Ill. App. 3d at 336.  While this court in Daniels I did not provide an analysis of our holding affirming the trial court's

denial of defendant's motion to suppress based on fifth and sixth

amendment grounds, we certainly addressed the "legal issue" raised

by defendant and we rejected it.  Judge Toomin cited several cases

which supported his holding and made extremely detailed findings of

fact.  The fact that this court affirmed that holding in the manner

that we did shows that we considered the same issues and came to

the same conclusion.  The fact that the trial court did a more

thorough job of analyzing the issues than did this court speaks well of Judge Toomin's abilities.  Clearly, the "law of the case"

doctrine applies to defendant's motion to suppress her statements. 

	Defendant also argues that the trial court erred in failing to

allow her to reopen her case in light of the testimony Tyrone and

Anthony would present at a hearing on her motion to suppress.  She

asserts their testimony constitutes new evidence, which bars

application of the law of the case doctrine.  See People v. Williams, 138 Ill. 2d 377, 392 (1990).

	As for defendant's claim that there was new evidence upon

which to reopen the motion to suppress statements, again, we

disagree.  As we pointed out in Daniels I, defendant never asserted in her motion to suppress ruled upon by Judge Toomin that she

confessed because she saw her brothers in a beaten condition.  In

fact, the motion to suppress at issue in Daniels I makes no mention of Tyrone's or Anthony's condition as a basis for defendant's

statements.  After remand, defendant filed a second motion to

suppress statements in which she asserted that she gave her

confession because she was influenced by seeing Tyrone after he had

suffered injures at the hands of the police.

	The sequence of events relating to the arrests of Anthony and

Tyrone as recited in Daniels I, 272 Ill. App. 3d at 333-34, is helpful to an analysis of this issue.  Shortly after arriving at the police station, the detectives confronted defendant with the

fact that she owned the gun.  Defendant admitted this but said that

her brother Anthony had stolen it from her and she gave the

detectives his address.  The police picked Anthony up based on

defendant's utterly false story.  While defendant did testify at

her motion to suppress that she saw Anthony injured in the police

station before she gave a statement to the polygraph operator, she

never asserted that this fact influenced her decision to confess. 

In her statement to the polygraph operator, defendant said Tyrone

had the gun and he shot McCoy.  She then showed the police where

Tyrone lived.  Defendant testified that she later saw Tyrone at the

police station and that he apparently had also been beaten.  She

testified that she told him to "sign the papers" so they could go

home but Tyrone refused.  She testified that she gave a court-

reported confession to a woman attorney, not realizing that she was

an assistant State's Attorney.  She agreed to "go along" with the

police because she was no longer able to resist and she wanted to

go home.  She signed the court-reported statement without reading

it because she did not have her eyeglasses.  	Tyrone did not testify

at defendant's motion to suppress.  In this appeal, defendant

asserts that Tyrone is now available to testify that the police

beat him, corroborating defendant's testimony that she saw him in

an injured state.  The reason the evidence is "new" is that Tyrone would have invoked his fifth amendment right against self-

incrimination had he been called to testify at defendant's motion

to suppress.  

	We reject defendant's argument that this is new evidence. 

Defendant was clearly aware that she had seen Tyrone and he had

been injured.  However, she did not attempt to call Tyrone at the

hearing on her motion.  Tyrone did testify in this case at his own

motion to suppress, which was completed before defendant's own

motion was completed.  The record reflects that he testified that

he had been struck, but he also testified that he did not make his

statement because of this mistreatment, he made it because

defendant told him to cooperate.  Indeed, Tyrone raised this issue

in his appeal.  Daniels, 230 Ill. App. 3d at 532.

	Defendant did not ask the trial court to consider Tyrone's

testimony at his motion to suppress in ruling on her motion to

suppress.  The fact that defendant did not ask for this to be done

indicates that defendant's theory in her first motion to suppress

had nothing to do with Tyrone's condition.  

	As for Anthony, the police picked him up after defendant

falsely implicated him as being involved in the homicide.  In her

motion to suppress filed before her first trial and in the first

motion to suppress filed with Judge Urso, defendant said nothing

about Anthony's beaten condition as being a reason for her inculpatory statements.  Defendant testified at her suppression

hearing before Judge Toomin that she had seen Anthony while at the

police station and he appeared to have been beaten.  Despite the

presence of this fact, which was known to defendant at her first

trial, she did not assert it as a reason for suppression before

Judge Toomin.  Consequently, Judge Toomin did not allow Anthony to

testify during the hearing on that motion.  Defendant did not

assert this as a ground for suppressing her statement until her

first amended motion before Judge Urso.  Defendant appears to be

redrafting motions to suppress, after having the benefit of Judge

Toomin's ruling and our affirmance of that ruling, in an attempt to put a new spin on an old motion.  New theories supporting

suppression do not constitute "additional evidence that has become

available since the first hearing to suppress."  Hattery, 183 Ill. App. 3d at 805-06. 

	This court recently addressed this issue.  In People v. Lawson, 327 Ill. App. 3d 60 (2001), the first trial court granted the

defendant's motion to quash arrest and suppress evidence on the

ground that the defendant had been arrested without probable cause. 

The State appealed the suppression order, but only challenged the

standard that the trial court applied.  The order was affirmed on

appeal.  Upon remand, the State filed a petition for a hearing on

attenuation.  The second trial court denied this petition but did hold an independent basis hearing for the suppressed in-court

identification.  The court then found such an independent basis

existed and defendant was again convicted upon retrial.

	This court reversed, holding "[s]ince the State did not raise

the attenuation and independent basis issues at the hearing on the

motion to suppress, the State cannot raise them after the order to

suppress is final and has been affirmed on appeal."  Lawson, 327 Ill. App. 3d at 65.  This court also rejected the State's argument

that because the first trial judge did not address the issues of

attenuation or independent basis, the second trial judge was not

precluded from considering these issues.  In rejecting the State's

argument, this court relied on the holding of our supreme court in People v. Williams, 138 Ill. 2d 377 (1990), which in turn relied upon the holding in People v. Taylor, 50 Ill. 2d 136 (1971).  

	The court in Taylor held that once a suppression order is entered, it may be reconsidered or appealed, but a second hearing

on the merits may not be held.  The Williams court stated: 

		"[N]one of our Taylor line of cases limited the Taylor rule only to those subsidiary issues that may actually have been considered

by a judge whose appealable order a judge of

coordinate authority later undertakes to

modify.  In the present cause, the order was to quash an arrest and suppress evidence,

period.  Each of the Taylor line of cases speaks of an order itself, not merely of

issues upon which the order may or may not

have turned."  Williams, 138 Ill. 2d at 390- 91.

Applying this logic to the case before us, we reject appellate

counsel's assertion that where neither a trial court nor a court of

review has considered a legal "issue," the "law of the case"

doctrine is inapplicable to that issue. 

	In a motion to cite additional authority filed after oral

arguments were heard in this case, defendant cited the recent

holding in People v. Jones, 315 Ill. App. 3d 500, 504 (2000), where this court stated:

		"[P]rinciples of collateral estoppel do not

bar relitigation of a pretrial ruling after

remand, where special circumstances are

present.  People v. Enis, 163 Ill. 2d 367, 386, 645 N.E.2d 856, 864 (1994).  A trial

court retains jurisdiction to reconsider an

order it has entered, even after remand, as

long as the cause is pending before the trial

court.  Enis, 163 Ill. 2d at 387, 645 N.E.2d at 865.  Viewing the matter in terms of the

doctrine of law of the case, there is no bar

to the trial court conducting a new hearing.  Enis, 163 Ill. 2d at 387, 645 N.E.2d at 865; see also People v. Huff, 308 Ill. App. 3d 1046, 1049, 721 N.E.2d 1219, 1221 (1999),

[judgment vacated by People v. Huff, 195 Ill. 2d 87 (2001)]."

	The "special circumstances" present in Jones was the fact that the appellate court had previously reversed the defendant's

conviction and held that the trial court's denial of a motion to

suppress as to one of three statements was erroneous.  On remand,

the trial court allowed the State to use the other two statements

that the appellate court had not addressed.  The appellate court

held that the trial court had a duty to reconsider its ruling after

the appellate court found the ruling as to one statement was

erroneous.  The Jones court subsequently found this error did not require reversal.

	The Jones court relied heavily on the holding in People v. Enis, 163 Ill. 2d 367 (1994).  There, our supreme court reversed the defendant's murder conviction based on the prosecutor's

improper cross-examination.  People v. Enis, 139 Ill. 2d 264, 300 (1990).  In his first appeal, the defendant did not challenge the trial court's pretrial denial of his motions to quash arrest and

suppress evidence.  On remand to the trial court, the defendant

renewed these motions and the trial court denied the defendant's

request to reconsider.  The supreme court affirmed this denial,

stating, "The defendant could have raised these arguments in his

first appeal, and his failure to do so justified the trial court's

refusal to reconsider its rulings, under principles of collateral

estoppel."  Enis, 163 Ill. 2d at 386.  The supreme court cited two facts which have been found to be "special circumstances"

supporting a trial court's decision to hold new de novo hearings on motions to suppress after remand.  One such circumstance was where

the defendant's conviction was reversed and remanded for a new

trial where the State failed to call a material witness at the

hearing on the defendant's motion to suppress statements.  People v. Feagans, 134 Ill. App. 3d 252 (1985).  Another was where the defendant had been acquitted of some charges, thereby precluding

him from seeking appellate review of the trial court's rulings. 

People v. Mordican, 64 Ill. 2d 257 (1976).  As no such special circumstances were presented in Enis, "there was no abuse of discretion in the trial court's refusal to revisit its rulings on

these matters in preparation for [the] defendant's second trial." 

Enis, 163 Ill. 2d at 387.  The instant case is similar to Enis and dissimilar to Jones. 

	Defendant argues next that recent case law and significant

changes regarding the voluntariness of a defendant's confessions

requires a hearing on her motion to suppress.  She asserts that had

this court and Judge Toomin had the benefit of the United States

Supreme Court's ruling in Thompson v. Keohane, 516 U.S. 99, 133 L. Ed. 2d 383, 116 S. Ct. 457 (1995), his original motion to suppress

would have been granted.  

	In Thompson, the Supreme Court held that a state court's determination as to whether a suspect was "in custody" while being

interrogated for purposes of Miranda was not entitled to a statutory presumption of correctness during federal habeas corpus review, but was a mixed question of law and fact warranting

independent review by a federal habeas court.  Thompson, 516 U.S. at 116, 133 L. Ed 2d at 396, 116 S. Ct. at 467.  In so ruling, the

Court stated that the ultimate determination for whether a

defendant is "in custody" for Miranda purposes involved "[t]wo discrete inquiries ***: first, what were the circumstances

surrounding the interrogation; and second, given those

circumstances, would a reasonable person have felt he or she was

not at liberty to terminate the interrogation and leave." 

Thompson, 516 U.S. at 112, 133 L. Ed. 2d at 394, 116 S. Ct. at 465.  In reliance upon this two-part inquiry, defendant argues that no

longer does a defendant's voluntary and consensual trip to the police station to answer questions end the inquiry as to whether

the defendant is in custody and entitled to Miranda warnings, as was ruled by Judge Toomin and this court in Daniels I.  

	We do not dispute that a change in the law is an exception to

application of the law of the case doctrine.  See Relph v. Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436, 443 (1981); Proesel v. Myers Publishing Co., 48 Ill. App. 2d 402, 404 (1964).  However, we are unpersuaded by defendant's reliance

upon Thompson.  Initially, defendant's case is not before us on a federal habeas review, and we therefore find application of the Court's holding in Thompson limited.  Secondly, the two-step analysis the Court set out in Thompson was the law in Illinois at the time Judge Toomin ruled upon defendant's motion to suppress. 

See People v. Lucas, 132 Ill. 2d 399, 417-18 (1989).  A review of Judge Toomin's statements in open court establishes that he applied

this test when ruling on defendant's motion to suppress.

	[The following is unpublished under Supreme Court Rule 23.]

	the person being interrogated is a suspect is irrelevant to

the assessment whether the person is in custody."  Stansbury, 511 U.S. at 319, 128 L. Ed. 2d at 296, 114 S. Ct. at 1527.  

	Defendant directs us to the testimony at her second trial

where Lt. Phillip Cline of the Chicago police department was asked on redirect why on November 12 and 17 of 1988, he did

not advise defendant of her Miranda warnings.  Cline responded, "She was not under arrest.  She was not in custody."  According to

defendant, upon hearing this testimony, which established that she

had not been advised of her Miranda rights because of the officer's conclusions, Judge Urso should have reconsidered his previous

rulings, and granted a hearing.

	This argument is without merit.  The fact that Lt. Cline was

of the opinion that defendant was "not under arrest" and "not in

custody" does not alter the fact that Judge Toomin applied the proper test and concluded that her admissions to police were admissible.  Also,

at no time did Judge Toomin state that he was denying the motion to

suppress based upon the opinions of police officers who questioned

defendant as to their belief regarding whether defendant was "in

custody."    

	Defendant's final argument with respect to Judge Urso's denial

of her motion for hearing is that his refusal to hold a hearing

deprived defendant of her right to appeal.  Defendant has cited no

authority in support of this claim and it is therefore waived.  See 188

Ill. 2d R. 341(e)(7);  People v. Madej, 177 Ill. 2d 116, 162 (1997).  Nonpublidhsnlrishable material removed here.

	[The preceding is unpublished under Supreme Court Rule 23.]

	Therefore, based upon the facts before us, we find that Judge

Urso did not err in refusing to grant defendant a second hearing on

her motion to suppress based upon new evidence. 

II.  Quashing of Subpoenas

	Defendant contends next that the trial court erred in quashing

her subpoenas and asserts she should have been granted an

evidentiary hearing on her motion to suppress based on the material

sought in those subpoenas. 

	After the trial court denied defendant's amended motion to

quash arrest and suppress statements, she was granted leave to file

an amended motion to suppress statements.  On January 23, 1997,

defendant filed her "Reoffered Second Amended Motion to Quash

Arrest and Suppress Statements," which was identical to her second

amended motion to suppress.  The proffered testimony of Tyrone and

Anthony was included with the motion, substantiating the

allegations of abuse contained in defendant's motion.

	In connection with the motion to suppress, defendant filed two

subpoenas duces tecum upon the City, requesting, inter alia, the production of all documents relating to disciplinary complaints

against any of the officers at Area 2 who were expected to be

called as witnesses at her trial.  The subpoenas also sought

official police photographs of all officers on duty at Area 2

during the time she was interrogated in connection with McCoy's

murder.  	In response, the City moved to quash the subpoenas on the grounds that the materials requested were irrelevant and

confidential and that the subpoenas were the result of "speculative fishing expeditions."  Alternatively, the City requested an in camera inspection of the documents and the issuance of a protective order in the event the subpoenas were not quashed.

	After hearing argument on the City's motion, the trial court

quashed defendant's subpoena seeking photographs of the officers

assigned to Area 2 at the time she was questioned there.  The court

ordered an in camera inspection of records naming officers in relevant police reports, who had complaints of physical abuse or

civil lawsuits for abuse filed against them.  Upon the City's

motion for reconsideration, the trial court, finding that defendant

was undertaking a "fishing expedition," granted the City's motion

to quash the subpoenas.

	A subpoena is a compulsory process for obtaining witnesses or

documentary evidence in all criminal prosecutions and is guaranteed

by the sixth amendment.  People v. Shukovsky, 128 Ill. 2d 210, 222 (1988); People v. Mitchell, 297 Ill. App. 3d 206, 209 (1998).  To warrant the use of a pretrial subpoena, a defendant must show: (1)

that the documents requested are evidentiary and relevant; (2) that

the documents are not otherwise procurable reasonably in advance of

trial by exercise of due diligence; (3) that he or she cannot

properly prepare for trial without production and inspection in

advance of trial and that failure to obtain an inspection may tend

to unreasonably delay trial; and (4) that the application is made in good faith and is not intended as a general "fishing

expedition."  Shukovsky, 128 Ill. 2d at 225.  The trial court's ruling with respect to a motion to quash a subpoena will not be

reversed unless the trial court's finding of fact was manifestly

erroneous.  See People v. Chengary, 301 Ill. App. 3d 895, 897 (1998).   

	In support of her claim of error, defendant relies upon a

series of cases mentioning a report (Goldston Report) of the Office

of Professional Standards (OPS) summarizing allegations gleaned

from other reports concerning allegations of the systematic abuse

of prisoners at Area 2 between the years of 1978 and 1986.  In

People v. Cannon, 293 Ill. App. 3d 634 (1997), the defendant was arrested in 1983 and taken to Area 2 where, after being

interrogated, he admitted to his involvement in the murder under

investigation.  Prior to his trial, the defendant filed a motion to

suppress claiming statements he had given police were the result of

police torture.  Following a hearing on the motion, the trial court

denied the motion.  On direct appeal, this court affirmed the trial

court's denial of the motion to suppress, but remanded the case for

a hearing on the prosecutor's use of peremptory challenges.  People v. Cannon, 150 Ill. App. 3d 1009, 1024-25 (1986).  After a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the defendant was granted a new trial, where he again moved to suppress statements, arguing now that he could prove

other suspects had also been tortured at Area 2.  The trial court

denied the defendant's request for a new suppression hearing.  The

defendant was convicted following a second trial and he appealed

arguing that the OPS report regarding abuse of arrestees at Area 2

was "new evidence" that was not available to the defendant prior to

his first trial.  We agreed, reversed the defendant's conviction

and ordered a hearing on his motion to suppress.  Cannon, 293 Ill. App. 3d at 642-43.

	In People v. Patterson, 192 Ill. 2d 93 (2000), the defendant was convicted of two counts of murder committed during a forcible

felony and was sentenced to death.  Prior to his trial, the

defendant had moved to suppress statements, arguing they were the

result of police misconduct.  The motion was denied and our supreme

court affirmed that ruling.  People v. Patterson, 154 Ill. 2d 414, 489 (1992).  In an amended postconviction petition, the defendant

argued the existence of new evidence, that being the OPS report,

warranted a hearing on his petition.  The trial court disagreed and

dismissed the petition.  The supreme court reversed that

determination and granted the defendant a hearing on his petition. 

Patterson, 192 Ill. 2d at 138-45.  Under similar facts, the same result was reached in People v. King, 192 Ill. 2d 189, 198-99 (2000).

	In reliance upon Cannon, Patterson and King, defendant argues the OPS report constitutes new evidence, entitling her to a hearing

on her reoffered amended motion to suppress.  

	In People v. Maxwell, 173 Ill. 2d 102 (1996), the defendant similarly alleged that he was entitled to an evidentiary hearing on

his postconviction petition because of newly discovered evidence

regarding Area 2 which disclosed a pattern of brutality directed at

suspects in custody.  Our supreme court found that without some evidence that the defendant was injured, evidence of the treatment

of other suspects could not, by itself, be the basis for an

evidentiary hearing.  Maxwell, 173 Ill. 2d at 120-21.

	In People v. Hinton, 302 Ill. App. 3d 614 (1998), this court addressed the defendant's contention on appeal that he was entitled

to an evidentiary hearing on his postconviction petition because he

had new evidence which showed "systematic torture" at Area 2.  In

support, he attached to his petition an affidavit from an Illinois

attorney, reports from OPS detailing the abuse at Area 2, findings

from the Chicago police board regarding Area 2 and his own

affidavit in which he asserted that he was beaten, pistol-whipped,

shocked and suffocated.  This court first looked to the holdings in

People v. Hobley, 159 Ill. 2d 272 (1994) (Hobley I), and People v. Hobley, 182 Ill. 2d 404 (1998) (Hobley II).  

	In Hobley I, the supreme court found that it was not error for the trial court to bar the testimony at trial of three people who

claimed they had also been abused by the same officer who abused

Hobley.  The court found that there was no evidence that the

defendant had sustained injuries consistent with his claim of

police brutality.  Without evidence of injury, it was not error to

exclude the prior allegations of abuse.  Hobley I, 159 Ill. 2d at 312.

	Hobley subsequently filed a postconviction petition alleging

that he had newly discovered evidence of police brutality at Area

2.  This new evidence consisted of a report from OPS and

transcripts of testimony from other alleged victims of abuse.  Our

supreme court held that the new evidence did not alter its

determination on direct appeal that the defendant did not suffer

injuries consistent with his claims of abuse.  Hobley II, 182 Ill. 2d at 448-49.

	Applying the analysis used in Hobley I and Hobley II to the facts before it, this court in Hinton held that the new evidence presented in the defendant's postconviction petition did not

entitle the defendant to an evidentiary hearing because he, like

Hobley, did not present sufficient evidence of an injury.  Hinton, 302 Ill. App. 3d at 622.

	Similarly, in Hinton, this court rejected the defendant's argument that the postconviction court erred in quashing his subpoenas requesting any complaints involving excessive force

against the officers identified in the defendant's case.  The trial

court found that the defendant waived the issue of his allegedly

coerced confession by failing to raise it on direct appeal.  On

appeal, this court rejected the defendant's argument which we

characterized as being based on a claim of new evidence.  We stated

that, "Pursuant to Hobley II, defendant's argument fails.  This 'new evidence' would not cure defendant's inability to establish

that he sustained an injury."  Hinton, 302 Ill. App. 3d at 625.

	The facts in the instant case do not begin to arise to the

level of the evidence presented by the defendant in Hinton.  There, the defendant had asserted in his motion to suppress that he had

been beaten by the police.  Here, defendant has never said she was

beaten.  As to the scope of the subpoenas, the defendant in Hinton sought only the complaints of excessive force made against the

detectives who were identified in the defendant's case.  In the

instant case, defendant's discovery requests are much broader than

those in Hinton.       

	We hold that the OPS reports are only relevant if defendant

had asserted in her first motion to suppress before Judge Toomin

that she confessed to the police because defendant herself was

physically abused or because of the apparent mistreatment of

Anthony and Tyrone.  As pointed out earlier, this is an entirely new theory raised by defendant after the denial of her first motion

to suppress and affirmance on appeal of that denial.  Although the

OPS report citing police misconduct at Area 2 has been brought to

light since the time defendant and her brothers were questioned

there, that does not alter the fact that defendant did not raise

the issue of police brutality as a basis for suppression until

years later.  Thus, we cannot say that the trial court's granting

of the City's motion to quash the subpoenas was in error.      

	[The following is unpublished under Supreme Court Rule 23.]

	This court has consistently held that in cases where the

defendants received an extended term of imprisonment pursuant to

section 5-5-3.2(b)(2), the sentence must be vacated and the case

remanded for resentencing.  See e.g., People v. Lee, 319 Ill. App. 3d 289, 307 (2001); People v. Chanthaloth, 318 Ill. App. 3d 806, 816 (2001).  We follow those decisions and therefore, we vacate defendant's sentence and

remand for imposition of a new sentence.  In resentencing defendant

upon remand, we would point out to the trial court that this

defendant had no convictions prior to committing this offense.  We further note that there was credible evidence in the record that the deceased was an abusive

domestic partner, indicating the existence of mitigating factors

under sections 5-5-3.1(a)(4) and (a)(8) of the Unified Code of

Corrections.  730 ILCS 5/5-5-3.1(a)(4), (a)(8) (West 1996).

	Nonpublishable material omiremovered here.

	[The preceding is unpublished under Supreme Court Rule 23.] 

	Accordingly, the judgment of the circuit court of Cook County

is affirmed in part, vacated in part and this case is remanded for

resentencing.

	Affirmed in part and vacated in part; cause remanded.

	CAMPBELL, P.J., and GREIMAN, J., concur.