2020 IL App (2d) 180151
Ill. App. Ct.2020Background:
- On Nov. 18, 2016, an early-morning home invasion occurred at Voncile Modlinger’s house; police responded after an open 911 call and two men fled.
- Police chased and detained two men near Provena St. Joseph Center; one detainee, Drean McGee, later pleaded guilty to home invasion and burglary and received a 10-year sentence.
- McGee testified at Fane’s trial for the defense and gave exculpatory testimony, claiming he and others planned and committed the break-in but that he ran ahead and later encountered Fane at Provena; he did not implicate Fane in the break‑in.
- Physical evidence included a white T‑shirt with a DNA mixture that did not exclude Fane or McGee; a black hooded sweatshirt with burs was collected from Fane.
- The trial court instructed the jury with a modified accomplice‑witness instruction (IPI Criminal No. 3.17) over Fane’s objection; the jury convicted Fane on multiple counts.
- On appeal the Second District reversed and remanded, holding that giving an accomplice‑witness instruction was improper because McGee’s testimony was wholly exculpatory; the court did not reach a separate Rule 431(b) voir‑dire claim.
Issues:
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Fane) | Held |
|---|---|---|---|
| Whether giving an accomplice‑witness instruction (IPI No. 3.17) regarding McGee was proper | Instruction is permissible even for a defense witness; Rivera allows the instruction where an alleged accomplice has implicated the defendant in other testimony | Instruction is improper as a matter of law when the accomplice’s trial testimony is wholly exculpatory (Dodd/Krush rule) | Reversed: instruction should not be given where accomplice’s testimony at trial fails to implicate defendant; here McGee’s testimony was wholly exculpatory and the error was not harmless |
| Whether the trial court complied with Illinois Supreme Court Rule 431(b) in voir dire | State acknowledged voir dire error occurred but disputed preservation/plain‑error relief | Argued trial court failed to properly question jurors per Rule 431(b) | Not addressed on the merits (court declined to reach because the accomplice‑instruction error warranted reversal and the Rule 431(b) issue was unlikely to recur on retrial) |
Key Cases Cited
- People v. Rivera, 166 Ill. 2d 279 (Ill. 1995) (accomplice‑witness instruction can be applied to defense witnesses where accomplice has previously implicated defendant)
- People v. Dodd, 173 Ill. App. 3d 460 (Ill. App. Ct. 1988) (instruction should not be given where accomplice’s testimony completely fails to implicate defendant)
- People v. Krush, 120 Ill. App. 3d 614 (Ill. App. Ct. 1983) (same rule: total exoneration by an accomplice precludes instruction)
- People v. Szydloski, 283 Ill. App. 3d 274 (Ill. App. Ct. 1996) (distinguishing Rivera where the accomplice had not previously implicated defendant; instruction improper)
- People v. Jackson, 79 Ill. App. 3d 660 (Ill. App. Ct. 1979) (discussing limits on accomplice‑witness instruction)
- People v. Johnson, 146 Ill. 2d 109 (Ill. 1991) (harmless‑error standard for jury‑instruction error)
- People v. Olivera, 164 Ill. 2d 382 (Ill. 1995) (retrial not barred by double jeopardy where conviction reversed and evidence was sufficient)