*1 Hamburg of Donald robbery for the armed conviction for that of term prison imposed and vacate 15-year of the circuit court all affirm the judgment fense. We to en of this court is directed other The clerk respects. 15, the date 1993, March ter an order setting Monday, death, entered in the circuit on the sentence of which out. The defend court of is to be carried County, Cook lethal in the manner injection ant shall executed by 119—5 of the of Criminal Pro section Code provided by 38, 1991, 5). of 1963 Rev. Stat. ch. (Ill. par. cedure 119— of this court shall send a certified copy The clerk Corrections, in this case to the Director of mandate Center, and to the the warden Stateville Correctional warden the institution where the defendant is now confined. part
Convictions affirmed and reversed part; death sentence affirmed. (No. 73352. WAKEFORD,
RICHARD v. RODEHOUSE Appellee, MISSOURI, INC., RESTAURANTS OF Appellant. Rehearing Opinion December filed 29, 1993. denied March *2 HEIPLE, J., dissenting. for the Fifth Dis- from the Court Appellate
Appeal from the Circuit trict; in that court on appeal heard G. Byron, the Hon. Nicholas Madison County, Court of Judge, presiding. Reed, K. of Morrissey, and Martin
James E. Gorman Thomson, Mudge, & Gilbert Gorman, Coffey, Armstrong, Edwardsville, for P.C., appellant. Mormino, Jr., A. and Samuel
Richard Shaikewitz Hesi, & McGivern, Wahl, Flavin Shaikewitz, Wiseman, P.C., Alton, appellee. of Chicago, Kevin J. Conway,
Bruce Pfaff and Robert Association. for amicus curiae Illinois Trial Lawyers of the court: the opinion CLARK delivered JUSTICE Wakeford, 1984, Richard plaintiff, On November Inn res- the Ramada wife, Dawn, had dinner at and his midnight, At Alton, approximately Illinois. taurant car, their approached the restaurant left couple At this exit. near the restaurant’s parked which was plain- a gun approached man with time, an unidentified man side door. The the passenger tiff as he unlocked ear, in the times, striking plaintiff temple, shot three and has The assailant then fled chest left hand. never identified. been circuit court of Madison filed suit
Plaintiff defendant, Restaurants Rodehouse against County Inn. The com- Missouri, Inc., the of the Ramada owner security guards alleged by failing provide plaint lot, defendant failed in the lighting parking and adequate The alleged its patrons. complaint reasonably protect as willful that this failure constituted well negligence misconduct. and wanton trial, statement at defense counsel
During opening he two Alton officers calling police stated that would be at the about the need for Ra security guards testify that no mada Inn. Plaintiff on objected grounds po un lice officers had been disclosed as witnesses der Ill. 2d R. (134 220). Court Supreme court this objection. overruled *3 trial, the defendant took evidence
During deposi- tion of Lahlien a witness. Alton officer Robert as police investigated Officer Lahlien was one of the officers who He testified that he had lived in Alton all shooting. August his life and been a officer there since police 1972. As of his duties with Alton part police depart- ment, Lahlien is to review crime on a required reports Lahlien also the police depart- basis. reviewed daily file categorized ment’s index card wherein crimes are by Lahlien area. Over geographical plaintiff’s objections, that, in Inn not lo- testified the Ramada was opinion, in he a cated a area and that did believe high-crime at the hotel. guard necessary security The a in favor of defendant. On returned verdict jury for a and remanded court reversed appeal, appellate Ill. 3d The court held (223 31.) appellate new trial. App. it Lahlien’s testimony that was error Officer permit
because he should have been disclosed as an wit expert (223 ness under Rule 220. Ill. 3d at App. appel late court also it was error for defendant to cross- held regarding examine the insurance benefits he granted received under his wife’s We defendant’s policy. for 134 Ill. R. 315. petition leave 2d appeal. Court Rule defines an wit
Supreme 220(aXl) expert “who, education, ness as someone or training because of a knowledge nature experience, possesses specialized that of the on a factual matter average beyond person material to a claim or defense in and pending litigation ex who to render within his may expected at trial.” Ill. 2d R. Defendant con pertise (134 220(a)(l).) as experience training cedes that based on Lahlien’s officer he was an witness under police expert Supreme Court Rule 220(a).
At issue in this case is whether Lahlien was subject of Rules requirements to the disclosure and discovery Rule 220(b) (c). 220(b)(l) provides part: preparation “In insure fair and equitable order trial of an who is re by parties all party on of a tained to render an at trial behalf days later than 60 by must be disclosed be [no disclosure, expert’s opinion may fore ***. Upon trial] (c) discovery provided paragraph subject be the by this Failure to make the disclosure hereof. herein discovery contemplated comply rule or to with n willresult of the as a witness.” disqualification added.) (134 220(b)(1).) Ill. 2d R. (Emphasis served with inter upon being 220(c) provides or “retaining employing” rogatories matter of the subject witness must disclose the matter, on the expert’s opinion testimony, expected *4 qualifications. for that and the opinion the bases also a 220(c) requires Ill. 2d R. (134 220(c)(1).) interrogato the answers “seasonably supplement” R. 220(c)(3). 134 Ill. 2d that rule. ries under to the not subject Lahlien is contends Defendant he was because 220(bXl) of Rule requirements disclosure on this Defendant relies an expert. not “retained” Authority v. Transit Chicago Tzystuck opinion court’s In for this assertion. 226, as support 124 Ill. 2d (1988), a treating Tzystuck though held that even this court 220(a), under Rule witness is an physician to trial. not disclosed prior need be as an identity reasoned: This court the iden litigants to disclose 220(bXl) requires]
“[Rule are en who only of those witnesses opinions tity at expert opinion an giving of purpose for the gaged medi that the connection between may It be said trial. trial’ opinion at ‘retained to render who is cal rather litigation-related, may to the suit and the on the other Treating physicians, than treatment-related. to render an at hand, are not ‘retained typically consulted, litigation is pend whether or trial’ are but men physical or contemplated, patient’s to treat ing or give treating may opinions physicians tal While problem. in the course of trial, developed are opinions those any from completely apart patient and are treating the anticipation not formed litigation. Such observa physician’s of a trial, product simply but is coincidentally may which treating patient, tions while opin respect, at trial. In this as evidence have value occur to those of are similar treating physicians ions Ill. 2d at 234. Tzystuck, 124 rence witnesses ***.” Tzystuck, 220 was de that Rule In this court noted and the evaluation trial preparation to “facilitate signed disclosure the late or eliminating surprise of claims by (Tzystuck, In this Ill. 2d at at trial.” experts the examin it significant light, could and that the doctor was disclosed ing physician (Tzy- Court Rule 204. Supreme have under deposed been *5 548
stuck,
As additional for the Tzystuck, support holding this court noted that cannot exert the same con- trol over a nonretained expert that can be exerted over a retained This expert. significant was because of the discovery requirements 220(c) on the imposes retaining witness. While the lack of control expert Tzystuck, we be- bolsters rationale of the holding lieve the primary basis of decision rests in the need to eliminate surprise expert testimony. Tzystuck decided,
Since our appellate was court has been called to upon determine whether various experts instance, were “retained” under Rule 220. In each court has examined the appellate expert’s relationship determine the case to whether the testi expert’s opinion Nolan e.g., See, would mony surprise opposing party. v. Elliott 179 Ill. (1989), (former 3d 1077 ambu App. lance who to accident involving driver was eyewitness was Rule 220 for ambulance expert purposes testify followed ing regarding procedures be ambu proper by Smith v. Central Illi lance on run); driver emergency nois Public Service Co. (1988), 176 Ill. 3d 482 App. (engineer manager defendant as is employed by plant not Rule and con involving design case expert v. Redmon struction of injured); at which facility Austin 188 Ill. 3d 220 (1989), (fireman present App. scene accident was Rule 220 for after auto Voyles v. of reconstruction purposes testimony); Sanford truck in 183 Ill. 3d 833 driver of (1989), App. (assistant in accident not Rule 220 for purposes volved braking on giving opinion proper procedures truck). court that the question our agree appellate
We with un- disclosed as an must be of whether a witness to the relationship on depends der Rule 220 in the under- involved If is intimately case. the expert he would rea- litigation rise facts giving lying that in- through to form an opinion sonably expected In such a is not volvement, required. then disclosure surprised by to be unlikely opposing party hand, the expert’s the other where On testimony. ren- case is or where the slight, contact with the *6 in the is to the involvement dered unrelated case, then disclosure required.
In find that Lahlien’s we because present he investigation, of his scope was testimony beyond Rule 220. Lahlien’s role was a “retained under expert” limited to identifying as the officer was investigating Due to his shot plaintiff. man who apprehending witness, could status as a Lahlien post-occurrence testify with investigation the facts uncovered regarding by (See out under 220. need disclosure Redmon, However, 188 Ill. 3d at Lahlien App. could not his matters unrelated to give opinion regarding without investigation disclosure.
Lahlien that in his the Ramada Inn opinion testified there not in a area and that was high-crime was located opinions no need at the hotel. These guard for a security crime underlying are to his investigation unrelated would not in this But for the Lahlien litigation case. render an about the have been called upon is not so related need for a security guard. to the could rea- investigation the crime a party on the mat- testify that Lahlien would sonably anticipate in- Thus, ter. the crime though investigated even Lahlien was under lawsuit and dependently plaintiff’s control, he under Rule defendant’s a retained expert was defendant’s reject argument We also error in any of Lahlien’s the admission was harmless. testimony that Lahlien’s Defendant contends was cumu- testimony lative of the defendant’s other How- testimony expert. ever, officer, Lahlien’s given status we investigating cannot that his had no on the presume testimony impact Therefore, decision. we find the error was not jury’s harmless.
Because we affirm the court’s decision on appellate issue, need not consider defendant’s other argu- this we ments on appeal. reasons, affirm the appellate
For the we foregoing court’s judgment.
Affirmed. HEIPLE, dissenting: JUSTICE in a lot. Plain- shooting parking This case involves tiff sued defendant for failure to claiming negligence trial, on the At a sin- guards provide security premises. guards issue resolution: whether gle security there litigation; were This was not necessary. complex not much that the had to antici- plaintiff’s attorney more, ex- attorney If reasonable would pate. nothing any that it would try two from defendant trial: pect things were security guards necessary, refute the claim that *7 the it disclosed pursuant and that it would call witnesses to it that claim. Defendant did so to Rule 201 refute help case, in this and little more. The returned a verdict jury of favor defendant. verdict, the giving Yet the reverses majority today to This sur- allegation surprise. credence plaintiff’s the officer who in- stems from defendant’s prise calling that the to its defense vestigated shooting help support mind that his Never guards necessary. were security rule than disclosed, albeit under different was liked; mind that the officer would have never discovery; trial for to prior to both sides available was have his salt would worth any attorney mind that never in- the officer who call defendant would that anticipated the claim dispute and would shooting vestigated In an that aban- necessary. opinion were security guards a second the plaintiff to give reason order dons all defendant, ma- a corporate apple against bite at the I verdict. dissent. sound jury a perfectly overturns jority The first majority be bifurcated. can opinion Today’s an ade- 220, and does of Rule the requirements analyzes of the its However, so. doing application quate job the mark. off shockingly to of this case rule the facts with the abstract majority’s I have no Although quarrel majority I dissent because discussion of Rule to the facts. the law misapplies egregiously 220. As the majority of Rule scope At issue is this rule in Tzy notes, scope this court addressed 124 Ill. 2d Authority (1988), stuck v. Transit Chicago to was called treating upon 226. In that physician dis that he had not been an fact give opinion despite for the After a verdict jury closed as an witness. expert inter alia claiming the defendants plaintiff, appealed, that disclosure was required. claim. the defendants’ While rejected
This court witness in court the definition of agreed it ruled treating physician, would include a 220(a)(1) (b) (c) that the mandate for disclosure sections indicate that not the rule is more limited. These sections all are disclosed as experts. experts from com- were excluded
To determine which experts disclosure, weight gave great pelled of ren- retained for the purpose whether the “retained” was at trial. word dering dis- 220(b) (c); (b) requires taken from Rules straight of an who is retained closure of “the identity “the trial,” and (c) requires render an opinion *8 552 or
retaining
employing
expert witness” to comply
with
rules
discovery
concerning experts. This court ruled
that a retained expert referred to those witnesses en
for the
gaged
purpose
giving litigation-related testi
rather
than
testimony. Tzy
mony,
transaction-related
stuck,
Applying principle court concluded disclosure of treating physicians 220, was not experts required by Rule since these physi cians would be transaction-related In giving testimony. conclusion, this support of noted the history of Federal Rule of Procedure after 26(bX4), Civil which Rule 220 was modeled. The committee notes to that rule cautioned that “the rule to ‘the does apply whose information was not acquired preparation trial but rather because he was an actor or viewer with to transactions or occurrences that are respect part of the Such an wit subject matter lawsuit. ” Tzy an ordinary ness should be treated as witness.’ stuck, P. 26(b)(4), Ill. 2d at Fed. R. Civ. quoting (1970 Committee Notes Advisory amendment). Tzystuck the rationale used in to the instant Applying case, the here reiterates the same three themes majority First, as in it states that the of sur Tzystuck. possibility in Tzystuck Since “the defendants prise important. *** could not disclosure under reasonably surprised be Ill. 2d at There (154 Rule 220 was unnecessary.” should fore, reasonably a witness that an opposing party not fall within dis to be called will expect probably closure Rule compelled by re- control over
Second, greater cites the majority This was an experts. nonretained tained versus experts the conclusion Tzystuck; factor important disclosed were not treating physicians was: obligations which discovery light
“logical (c) obligates Subsection upon parties. 220(c) imposes *9 re- witness to expert ‘retaining employing’ or party subject matter of regarding the interrogatories spond to conclusions, opinions expert’s the expert’s testimony, the thereof, qualifications. the expert’s the and [Ci- and bases also continu- must party retaining tation.] to his regard "in touch with the witness ously keep changes in the any of opposing parties advise opinion and interrog- answers to supplementing opinion by seasonably An the rule. atories under propounded [Citation.] obligations of satisfy discovery who refuses or fails is as a witness. 220(c) disqualified Rule [Citation.] litigant a presumes that 220(c) unreasonably not Rule that witness has control of witness who retains answering cooperation and will have the (Tzy opposing parties.” of interrogatories supplementing stuck, 124 Ill. 2d at witness, no over a if a has little or control
Thus, party will be identity probably disclosure of the witness’ fulfilling due to the difficulty under Rule required wit- concerning expert the rule’s other requirements nesses. a witness’ ultimately rules that majority
Finally, con- the determinative factor the case is intimacy with the more closely the disclosure requirement; cerning he is likely the less witness is tied to the de- higher This is disclosed as an because expert. be to the warning opposing fair give will gree intimacy called, will of the likelihood that witness party 220. without disclosure under Rule even Contrary are salient. points I these three agree me to the lead however, these points to the majority, to disclose Offi- not have conclusion that defendant did not have First, should Lahlien an expert. plaintiff cer Tzystuck, as in his testimony; been surprised by witness pursuant as an occurrence name disclosed Tzystuck the rationale in to Rule 201. Similar to should be sur is no reason defendant why “[t]here a treating physician the medical testimony prised by not ex are although] treating physicians at trial [since 220, their of Rule meaning within perts (Tzy Rule 201(b)(1)” under Court Supreme discoverable stuck, of Lahlien’s name 238), 124 Ill. 2d at disclosure notified have adequately under Rule 201 should testimony. his possible not retained the defendant. Second, by Lahlien was Rather, investigated shooting. the officer that he was Tzystuck generally that since a party This court ruled disclosure treating physicians, does not have control over A has even inarguably is not required by has officer, who a testifying police less control over has no profes- by never compensated been *10 whatsoever. relationship sional with Tzystuck compels in Further, the rationale used in Lahlien lack of control over defendant’s result 220 disclo- Lahlien from Rule case exempted the instant successfully defendant difficult to imagine sure. It is in Lahlien’s changes of any plaintiff apprised keeping lit- Further, there was the rule. as required by opinions, answer the to adequately tle incentive to Lahlien compel to could have put interrogatories multiple upon the price imposed him. Disqualification falls within occurrence witness who when an unpaid the term “expert” expansion unfortunate majority’s a paid expert. a case the same attention fails to give to oppo- reward huge high price pay, That is a simply by such witnesses can easily disqualify nents who take had to Since defendant them as treating experts. him, therefore it found officer as investigating Tzystuck, so important control that was lacked the under deemed an the officer should Lahlien intimately case, involved Finally, as he was the officer of the crime. His investigating opinion regarding guards need for at security scene crime fell involvement, of the within that and he was not required disregard the he knowledge derived from his as a experience policeman, including the rela- tive of the crime scene he safety (which learned from an index card system police station). majority concludes that is the intimacy factor for de- dispositive whether termining Rule 220 compels disclosure. Due to Lahlien’s close very with the relationship instant I suggest as inevitable the conclusion that disclosure of his was not required.
For the reasons, above I dissent from the majority’s conclusion that Rule 220 defendant disclose Officer Lahlien as an expert witness. I would reverse the appellate court and reinstate the finding jury favor of defendant.