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March 31, 1995


Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

As Modified on Denial of Rehearing May 10, 1995. Released for Publication May 26, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Tully, J., concur.

The opinion of the court was delivered by: Greiman


PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Defendant, 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.

On 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's 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's 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.

For the reasons which follow, we affirm defendant's conviction as to the murder of Andrew Horn and reverse and remand for a new trial as to the murder of Michael Spencer.

At noon on August 21, 1990, defendant, Maurice Fort, Andrew Horn, and Michael Spencer were present at Michael's house on 121st and Prarie Street. Maurice asked the others to help him rob a drug dealer called "Fish" later that night. The four agreed to meet at midnight on the corner of 122nd and Praire, where they would drive to the westside in search of Fish.

At 2 p.m. Maurice told defendant that the Fish robbery was a pretext to get Andrew and Michael to accompany them to the westside. Maurice mentioned that he planned to "set them up" in retaliation for their "stealing from his cousin."

The four met as planned and defendant drove Maurice's car in search of the fictitious Fish. In route, they stopped at defendant's grandmother's 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's trunk.

Once 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." Maurice then shot Michael in the back. He then withdrew a second gun and handed it to defendant. Maurice then shot Michael again.

Defendant 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." Defendant fired four shots, hitting Andrew with three.

After 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's grandmother's house, where they spent the balance of the afternoon.

At 6:30 p.m., defendant and Maurice learned that Andrew's brother suspected their involvement in the killings. Defendant then drove Maurice's car to Milwaukee, where he had a girlfriend and a son.

While in Milwaukee, defendant became ill with food poisoning and aggravation of a preexisting asthma condition and was admitted to St. Joseph's Hospital in Milwaukee, where he remained for five days; registering under an assumed name.

Detective 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 westside.

Defendant 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's mother, who in turn contacted defendant in Milwaukee and instructed him to call Harris at Area 4 Police Headquarters.

On 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.

Harris 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.

Harris and another detective left for Milwaukee at 10 a.m. on August 26, 1990, driving an unmarked police car. Upon arriving at St. Joseph's, Harris waited approximately one hour for defendant to be discharged. Defendant was given a prescription for both the stomach condition and asthma.

On 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.

The 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' 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's plan to kill Michael and Andrew.

Defendant 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' partner, Detective Freed.

At Harris' request, Assistant State's 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 Mirandized him and began questioning. Soon into the interview, Assistant State's Attorney Morask summoned a court reporter to take defendant's statement. Once on record, and ...

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