{ "id": 251225, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALLEN, Defendant-Appellant", "name_abbreviation": "People v. Allen", "decision_date": "1995-03-31", "docket_number": "No. 1\u201493\u20141471", "first_page": "394", "last_page": "404", "citations": [ { "type": "official", "cite": "272 Ill. App. 3d 394" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "607 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5149831 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0830-01" ] }, { "cite": "439 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3012280 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0846-01" ] }, { "cite": "483 N.E.2d 1241", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130148 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0349-01" ] }, { "cite": "525 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1124" } ], "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3619138 ], "pin_cites": [ { "page": "995" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0993-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "562 N.E.2d 1113", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "205 Ill. App. 3d 371", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2565999 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0371-01" ] }, { "cite": "553 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256584 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0252-01" ] }, { "cite": "637 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "year": 1990, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "556 N.E.2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 766", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2473185 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0766-01" ] }, { "cite": "368 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809407 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0158-01" ] }, { "cite": "461 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "101 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160452 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/101/0044-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "599 N.E.2d 941", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "149 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599731 ], "year": 1979, "pin_cites": [ { "page": "436-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0423-01" ] }, { "cite": "597 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 546", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499083 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0546-01" ] }, { "cite": "442 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097208 ], "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0545-01" ] }, { "cite": "495 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535572 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0626-01" ] }, { "cite": "478 N.E.2d 1176", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529076 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0458-01" ] }, { "cite": "581 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274450 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0812-01" ] }, { "cite": "403 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226239 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0922-01" ] } ], "analysis": { "cardinality": 1037, "char_count": 22830, "ocr_confidence": 0.773, "pagerank": { "raw": 6.904728203399789e-08, "percentile": 0.41964029563113525 }, "sha256": "bb8a17312c9f0b76d8e2c1b6497f1289497c4e34f575ade2542fcabf8a5c77e4", "simhash": "1:9f233010f1ce6cf6", "word_count": 3766 }, "last_updated": "2023-07-14T18:46:33.224419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALLEN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant, Robert Allen, was convicted of the first degree murders of Andrew Horn and Michael Spencer, the latter under the theory of accountability, and was sentenced to a term of life imprisonment.\nOn appeal, defendant raises issues as to whether: (1) the State committed a discovery violation by not revealing to the defense either the contents of defendant\u2019s oral confession or a list of witnesses to the alleged confession; (2) the trial court erred in concluding that defendant was not illegally detained without probable cause; (3) the trial court erred in denying defendant\u2019s motion to suppress certain statements by defendant; and (4) defendant was denied a fair trial where the State misstated the law of accountability during its closing argument.\nFor the reasons which follow, we affirm defendant\u2019s conviction as to the murder of Andrew Horn and reverse and remand for a new trial as to the murder of Michael Spencer.\nAt noon on August 21, 1990, defendant, Maurice Fort, Andrew Horn, and Michael Spencer were present at Michael\u2019s house on 121st and Prairie Street. Maurice asked the others to help him rob a drug dealer called \"Fish\u201d later that night. The four agreed to meet at midnight on the corner of 122nd and Prairie, where they would drive to the west side in search of Fish.\nAt 2 p.m. Maurice told defendant that the Fish robbery was a pretext to get Andrew and Michael to accompany them to the west side. Maurice mentioned that he planned to \"set them up\u201d in retaliation for their \"stealing from his cousin.\u201d\nThe four met as planned and defendant drove Maurice\u2019s car in search of the fictitious Fish. In route, they stopped at defendant\u2019s grandmother\u2019s house at 1140 N. Hamlin, ostensibly to prepare for the robbery, parking in the alley behind the house. Preparation included removing their guns from the car\u2019s trunk.\nOnce there, all four exited the car. Maurice then drew a .38 automatic and told Andrew and Michael to lie face down on the ground. They complied. Maurice then said \"first thing you all should learn is never to try to get someone to go against their own cousin.\u201d Maurice then shot Michael in the back. He then withdrew a second gun and handed it to defendant. Maurice then shot Michael again.\nDefendant stated that he did not immediately shoot Andrew, but was encouraged to do so by Maurice, who gestured with the gun, \"like come on; go ahead so we can get out of here.\u201d Defendant fired four shots, hitting Andrew with three.\nAfter the shooting, defendant and Maurice drove to 120th and Wentworth, where they left the car, going their separate ways. Defendant remained in a hotel room until the next morning. At 11 a.m., defendant was visited by Maurice and the two went to defendant\u2019s grandmother\u2019s house, where they spent the balance of the afternoon.\nAt 6:30 p.m., defendant and Maurice learned that Andrew\u2019s brother suspected their involvement in the killings. Defendant then drove Maurice\u2019s car to Milwaukee, where he had a girlfriend and a son.\nWhile in Milwaukee, defendant became ill with food poisoning and aggravation of a preexisting asthma condition and was admitted to St. Joseph\u2019s Hospital in Milwaukee, where he remained for five days, registering under an assumed name.\nDetective Gene Harris of the Chicago police department was assigned to investigate the deaths of Michael and Andrew and learned that both Andrew and Michael had left the neighborhood the previous night with defendant and Maurice to rob a dope dealer on the west side.\nDefendant and Maurice were known to Detective Harris, and, in fact, Harris was already looking for them as witnesses to an unrelated homicide. Harris contacted defendant\u2019s mother, who in turn contacted defendant in Milwaukee and instructed him to call Harris at Area 4 police headquarters.\nOn August 25, 1990, defendant called Harris to tell him he was hospitalized in Milwaukee. During that conversation, defendant told Harris that he would contact him upon his release from the hospital. The following morning, Harris received another call from defendant. Defendant told Harris that he would probably be released from the hospital later that day.\nHarris testified that defendant accepted his offer to pick him up from the hospital and drive him back to Chicago. Harris claims this arrangement was due to the fact defendant did not have another way back to Chicago.\nHarris and another detective left for Milwaukee at 10 a.m. on August 26, 1990, driving an unmarked police car. Upon arriving at St. Joseph\u2019s, Harris waited approximately one hour for defendant to be discharged. Defendant was given a prescription for both the stomach condition and asthma.\nOn leaving the hospital, defendant was not handcuffed and was given no indication of formal arrest. On the drive to Chicago, defendant and Harris spoke only generally about the two cases in which they were involved.\nThe detectives stopped at an A&W restaurant where defendant used the bathroom while Harris ordered food. Upon arriving at Area 4 around 4 p.m., Harris placed defendant in an interview room and read and received waiver of his Miranda rights. Harris questioned defendant for approximately one hour. According to Harris\u2019 trial testimony, which was the subject of multiple motions for mistrial based upon a violation of the discovery rules, defendant admitted to having prior knowledge of Maurice\u2019s plan to kill Michael and Andrew.\nDefendant further admitted the killings were on behalf of Tyrone Morris, in retaliation for Michael and Andrew interfering in his drug business. Harris did not memorialize these admissions, nor were they explicitly reflected in the official police report, which was prepared by Harris\u2019 partner, Detective Freed.\nAt Harris\u2019 request, Assistant State\u2019s Attorney Laura Morask arrived at Area 4 around 9:30 p.m., and after witnessing defendant take his medication, which had been obtained by Harris, she \"Miran-dized\u201d him and began questioning. Soon into the interview, Assistant State\u2019s Attorney Morask summoned a court reporter to take defendant\u2019s statement. Once on record, and after Morask again read defendant his constitutional rights, the following colloquy occurred:\n\"Q. Understanding these rights, do you wish to talk to us now?\nA. No.\nQ. You don\u2019t want to talk?\nA. Yes, I will talk.\nQ. Do you want to talk to us after I read you those rights?\nA. Yes, I want to talk to you now.\u201d\nThe statement continued and defendant admitted the following: (1) at 2 p.m. on the day of the murders, Maurice was \"kind of like mentioning\u201d that something would be done to Michael and Andrew; and (2) that Maurice told him Michael and Andrew \"kept on stealing from his cousin; and he was taking them out west supposedly to stick up some dude named Fish, but it would be the other way around. Have somebody set them up, Michael and Andrew.\u201d\nDefendant was convicted of the first degree murders of Andrew and Michael, the latter under the law of accountability. 720 ILCS 5/5 \u2014 2(c) (West 1992).\nDefendant first contends the State\u2019s failure to disclose the substance of defendant\u2019s oral confession prior to trial was a discovery violation so prejudicial so as to require reversal of defendant\u2019s conviction for the murder of Michael Spencer.\nSupreme Court Rule 412(a)(ii) provides in part that the State must reveal to the defense prior to trial:\n\"any written or recorded statement and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements.\u201d 134 Ill. 2d R. 412(a)(ii).\nSection 114 \u2014 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114 \u2014 10 (West 1992)) provides:\n\"(a) On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer of this State *** and a list of the witnesses to its making and acknowledgement. If the defendant has made an oral confession a list of witnesses to its making shall be furnished.\n(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of this Section unless the court is satisfied that the prosecutor was unaware of the existence of such a confession prior to trial and that [the prosecutor] could not have become aware of such in the exercise of due diligence.\u201d\nIllinois courts have consistently held that the State must tender to the defense, upon request, the substance of any oral statements made by the accused. (People v. Miles (1980), 82 Ill. App. 3d 922, 403 N.E.2d 587.) The State is not required to make a transcript or memorandum of the defendant\u2019s oral statement, but must disclose the substance of that oral statement. (People v. Wielgos (1991), 220 Ill. App. 3d 812, 581 N.E.2d 298.) The rule is mandatory, and compliance is excused only when the State, by the exercise of due diligence, could not have learned of the defendant\u2019s statement before trial. People v. Chriswell (1985), 133 Ill. App. 3d 458, 478 N.E.2d 1176.\nIn the present case, the defense made the appropriate written demand for any oral statements made by defendant. The State answered that \"all memoranda reporting or summarizing oral statements made by witnesses are contained in the police report tendered to the defense in open court.\u201d As noted earlier, the police report does not reflect statements Detective Harris attributed to the defendant in his testimony.\nThe trial court found that the court-reported statement submitted by the State essentially conveyed the substance of defendant\u2019s oral confession to Detective Harris, effectively eliminating unfair surprise and prejudice to defendant.\nHowever, the record clearly demonstrates that the court-reported statement does not substantially convey the substance of the unrecorded oral statement. The court-reported statement reveals the following:\n\"Q. Now, at that time did Maurice say anything about sticking-up Michael and Andrew?\nA. No, he didn\u2019t.\nQ. Did you have any idea that may happen?\nA. Well, later in the day he was kind of like mentioning it.\nQ. What did he mention later in the day?\nA. They kept on steal[ing] from his cousin; and he was taking them out west and supposedly to stick-up some dude named Fish, but it would be the other way around. Have somebody set them up, Michael and Andrew.\u201d\nDetective Harris testified that, in the prior unrecorded statement, defendant admitted that he and Maurice planned the murders because Michael and Andrew had robbed Tyrone Morris\u2019 drug houses and that they were later paid by Tyrone Morris for the murders.\nThe court-reported confession indicates that defendant had prior knowledge that the victims were being set up, yet that statement refers to their being set up for robbery. Also, the court-reported statement makes no mention of defendant\u2019s drug involvement. Conversely, the oral confession places defendant directly in the plan to murder Michael and Andrew for drug-related reasons.\nThe two statements are not reconcilable, and the State\u2019s failure to disclose the substance of the oral statement until the third day of trial is a clear discovery violation. The State\u2019s claim that it became aware of defendant\u2019s oral confession on the third day of trial is somewhat incredible, suggesting that in the exercise of due diligence it was unable to discover the oral confession to Detective Harris that defendant conspired to commit a for-profit drug murder.\nThe fact the court-reported statement does not reflect the far more damaging admissions contained in the prior oral confession is inexplicable. Even excusing this conundrum, there can be no corollary excuse for the State\u2019s decided lack of diligence in failing to disclose the substance of the oral confession prior to trial.\nThe State argues that even if a discovery violation occurred, defendant failed to show he was prejudiced by the violation. When undisclosed testimony is at issue, a trial court has discretion to allow its introduction where there is no showing of surprise or prejudice. People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.\nIn determining prejudice, the following factors are relevant: (1) the strength of the undisclosed evidence, (2) the likelihood that prior notice could have helped the defense discredit the evidence, (3) the feasibility of a continuance rather than a more drastic sanction, and (4) the wilfulness of the State in failing to disclose. People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255, 261.\nDetective Harris\u2019 testimony to defendant\u2019s oral confession significantly strengthens the State\u2019s theory of accountability as to Michael, as well as introducing the highly prejudicial element of drug involvement. The sole viable defense available to defendant under the law of accountability was a showing that he was unaware of Maurice\u2019s plan to kill Michael and Andrew. The undisclosed evidence that defendant not only knew but planned the murders is fatal to this defense. It is difficult to imagine a more prejudicial result.\nWhere the strength of the undisclosed evidence is powerful, a conviction will be reversed where the State failed to disclose either the contents of, or witness list to, a confession made to a police officer which did not appear in any police report. People v. Agyei (1992), 232 Ill. App. 3d 546, 597 N.E.2d 696.\nThe State further argues that any prejudice to defendant was remedied by the trial court\u2019s limiting the testimony of Detective Harris to exclude reference to the fact defendant was involved in the plan to kill the victims. Yet, Harris went on to testify to defendant\u2019s joining Maurice in a plan \"to do\u201d Michael and Andrew. Clearly, the trial court\u2019s limiting instruction was ignored, and the harm to defendant was therefore not remedied.\nThe State\u2019s failure to reveal the substance of the oral confession and the prejudice which this caused to the defendant require us to reverse the conviction of defendant as to the murder of Michael Spencer and remand for a new trial.\nDefendant next asserts that the trial court erred in denying his motion to quash arrest and suppress evidence because he was illegally detained without probable cause. Defendant argues that he was placed under arrest without probable cause when Detectives Harris and Thomas drove him from the Milwaukee hospital to Area 4 in Chicago and, therefore, the statements given after the illegal detention should not have been admitted.\nA person has been arrested when his freedom of movement has been restrained by means of physical force or show of authority. (People v. Melock (1992), 149 Ill. 2d 423, 436-37, 599 N.E.2d 941, citing United States v. Mendenhall (1979), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) The relevant inquiry in determining whether a suspect has been arrested is whether, under the circumstances, a reasonable person would conclude that he was free to leave. (People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) Among the factors considered are the intent of the officer and the understanding of the suspect. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.\nHarris testified that defendant voluntarily accepted his offer of a ride back to Chicago because defendant apparently had no alternate means of transportation. Defendant testified that he did not ask Harris for the ride and that he had a car in his possession and a girlfriend present in the hospital.\nA trial court\u2019s ruling on a motion to quash arrest will not be disturbed on review unless it is clearly erroneous. (People v. Holmes (1989), 198 Ill. App. 3d 766, 556 N.E.2d 539.) The trial court, upon denying defendant\u2019s motion, explicitly noted that it was basing its ruling on the fact it found Harris\u2019 testimony more credible than that of defendant.\nIt is the proper function of the trial court at the suppression hearing to determine the credibility of the witnesses and to resolve conflicts in their testimony. (People v. Hobley (1994), 159 Ill. 2d 272, 279, 637 N.E.2d 992; People v. Redd (1990), 135 Ill. 2d 252, 289, 553 N.E.2d 316.) The evidence in support of defendant\u2019s claim depends almost exclusively on his own testimony, which the trial court chose not to believe. The record supports this finding, where defendant twice phoned Detective Harris while in Milwaukee, was not handcuffed or otherwise restrained when met by Detective Harris, and accompanied Detective Harris into the A&W where he was left alone while Harris ordered food for defendant and both detectives.\nAdditionally, upon arrival at Area 4, defendant was immediately placed in an unlocked interview room, allowed to see his mother, and questioned for a relatively short period of time. These factors are not indicative of arrest (see People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113), and we do not find the trial court\u2019s ruling manifestly erroneous.\nDefendant also contends his Miranda rights were not scrupulously honored, and were therefore violated, when Assistant State\u2019s Attorney Morask asked a clarifying question after defendant answered \"no\u201d to the question \"Understanding these rights, do you wish to talk to us now?\u201d\nUnder Miranda and its progeny, once a suspect unambiguously states that he or she does not wish to be interrogated by law enforcement officials, that request must be \"scrupulously honored\u201d and all questioning must immediately cease. Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.\nDefendant relies on two factually similar cases which support the proposition that a suspect\u2019s responsive \"no\u201d precludes even the most innocuous clarifying question from the State. In People v. Brown, the following colloquy occurred between an assistant State\u2019s Attorney and a 16-year-old suspect:\n\"Q. *** Understanding these rights do you wish to talk to us now?\nA. No.\nQ. Pardon me?\nA. I didn\u2019t understand.\nQ. Understanding these rights, do you wish to talk to us now?\nA. Well, I already told you what happened.\nQ. All right. After you told me before about what happened I informed you that I was going to call a court reporter and we were going to take it down in writing, is that correct?\nA. Yes, sir.\nQ. Now I\u2019ve advised you of your rights. Understanding these rights do you wish to talk to us about the incident involved on the 30th of June 1983 involving the shooting death of Renaldo [szc] Reyes?\nA. Yes.\u201d (Emphasis omitted.) People v. Brown (1988), 171 Ill. App. 3d 993, 995, 525 N.E.2d 1119, 1124.\nA crucial difference between the above colloquy and that involved in the instant appeal is the Brown suspect\u2019s response, \"[w]ell, I already told you what happened\u201d to the repeated question \"Understanding these rights, do you wish to talk to us now?\u201d This indicates a degree of hesitancy absent in the present action, where defendant\u2019s response to the identical question was, \"Yes, I will talk.\u201d In Brown, the questioner prodded the defendant into an affirmative answer.\nThe defendant relies further on People v. R.C., a case cited in Brown, where the supreme court reversed the conviction of a 15-year-old defendant on similar grounds. (People v. R.C. (1985), 108 Ill. 2d 349, 483 N.E.2d 1241.) People v. R.C. involved a 15-year-old defendant with an IQ under 80. Also, the colloquy between the defendant and the interviewing police officer was far more suggestive of a fifth amendment violation than that here at issue. In R.C., the defendant responded, explicitly, that he did not wish to speak to the police. The officer then told the defendant that a witness had already identified him as the perpetrator, clearly in an effort to encourage the defendant to confess. Again, the questioner prodded defendant into an affirmative response.\nWe are here presented with a 23-year-old defendant who, after initially responding \"no\u201d to the waiver question, immediately evidenced his intention to continue the questioning. Because of the distinctions between the precedent offered by defendant and the facts of this case, we find that defendant\u2019s Miranda rights have not been violated, and the confession was properly admitted by the trial court.\nIt is crucial that we recognize the bright line over which no police officer or State\u2019s Attorney may tread. However, in both Brown and R.C. there is the hint of argumentative advocacy that is missing in the colloquy between the assistant State\u2019s Attorney and the defendant in the case at bar. In the popular vernacular, we might ask, \"What is there about 'No\u2019 that you don\u2019t understand?\u201d However, the assistant State\u2019s Attorney merely followed the \"No\u201d with \"You don\u2019t want to talk\u201d to ensure that defendant understood the question. Defendant immediately and unequivocally made it clear that he wished to continue talking.\nLastly, defendant argues he was denied a fair trial because the State misstated the law of accountability in its closing argument. As a preliminary matter, the State argues that defendant failed to preserve this argument and it is waived on appeal. The defendant did, in fact, preserve this argument at trial in a motion for a new trial. Consequently, defendant has not waived this argument on appeal.\nThough properly before this court, we are unpersuaded by defendant\u2019s argument. Both sides failed in their closing arguments to accurately state the law of accountability, and the trial court admonished the jury that arguments of the attorneys were not the law to be followed. Additionally, defense counsel read the proper accountability instruction to the jury, and the trial court gave the proper instruction to the jury prior to their deliberations.\nEven where a prosecutor has misstated the law of accountability in closing argument, the error is not grounds for reversal where the jury was properly instructed. (People v. Underwood (1982), 108 Ill. App. 3d 846, 439 N.E.2d 118; People v. Blalock (1993), 239 Ill. App. 3d 830, 607 N.E.2d 645.) Further, any error in this regard is harmless.\nFor the foregoing reasons, we affirm in part and reverse in part and remand for a new trial on the charge of first degree murder in the death of Michael Spenser. As a consequence, we vacate the sentence of natural life, as to both convictions, and remand for resentencing.\nAffirmed in part; reversed in part and remanded.\nRIZZI and TULLY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Nancy Nolan Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALLEN, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 93\u20141471\nOpinion filed March 31, 1995.\n\u2014 Modified on denial of rehearing May 10, 1995.\nRita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Nancy Nolan Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0394-01", "first_page_order": 412, "last_page_order": 422 }