People v. Fane, 2021 IL 126715

In November 2016 Voncile Modlinger (92) was assaulted during a home invasion; two men fled and police arrested Twiqwon R. Fane and Drean McGee shortly thereafter.
McGee pled guilty to burglary and home invasion related to the incident but testified at Fane’s trial that he and another man (not Fane) committed the crimes; he partially corroborated the State on a resisting/obstructing charge.
The trial court, over Fane’s objection, gave a modified version of IPI Criminal No. 3.17 (accomplice witness instruction) warning the jury to treat McGee’s testimony with caution, adjusting the language because McGee’s testimony did not expressly say he acted with Fane on every charged offense.
The jury convicted Fane of residential burglary, aggravated battery (victim over 60), home invasion, and resisting/obstructing a peace officer; sentence after reconsideration was 30 years’ imprisonment.
The appellate court reversed, holding the accomplice instruction should not have been given where the accomplice’s testimony wholly exculpated the defendant and the defense turned on that witness’s credibility; the Illinois Supreme Court granted leave and reversed the appellate court.

Issue	People (State) Argument	Fane Argument	Held
Whether the trial court abused its discretion by giving a modified IPI Crim. No. 3.17 when an alleged accomplice (McGee) testified exculpatorily for the defense	Rivera allows giving the accomplice instruction when an accomplice testifies, and a modified instruction was appropriate because McGee admitted involvement and corroborated the State on resisting	Instruction was improper because IPI 3.17 warns only of a witness’s motive to lie for leniency from the State; McGee’s wholly exculpatory testimony should not be singled out and the modification unfairly undermined Fane’s defense	No abuse of discretion: trial court properly exercised discretion to give an accurate, impartial non-IPI instruction tailored to McGee’s testimony; reversed appellate court and remanded for consideration of remaining claims.
Whether the general credibility instruction (IPI No. 1.02) made the non‑IPI accomplice caution unnecessary and whether any error was harmless / forfeited	(State did not press harmless-error in petition; argued instruction was correct)	The general credibility instruction sufficed; giving the special caution was prejudicial and not cured by IPI 1.02; any error was not harmless	Majority: did not find abuse and did not resolve harmless‑error; dissent argued the nonpattern instruction misstated the law, IPI 1.02 sufficed, error was not harmless, and the State forfeited harmless‑error review.

People v. Rivera, 166 Ill. 2d 279 (1995) (upheld giving accomplice instruction where accomplice testimony was suspect and discretion to caution jury was appropriate)
People v. Touhy, 361 Ill. 332 (1935) (accomplice testimony may be scrutinized regardless of which party calls the witness)
People v. Jackson, 79 Ill. App. 3d 660 (1979) (suggests modified caution may be appropriate when witness admits participation but exonerates defendant)
People v. Grove, 284 Ill. 429 (1918) (accomplice testimony is to be received with caution, particularly when it shifts blame)
People v. Wilson, 66 Ill. 2d 346 (1977) (recognizes inherent weaknesses of accomplice testimony and wisdom of cautionary treatment)
People v. McCallister, 193 Ill. 2d 63 (2000) (IPI No. 1.02 on witness credibility can mitigate omission of accomplice instruction in some circumstances)
People v. Mohr, 228 Ill. 2d 53 (2008) (trial court must have some evidentiary basis to justify giving an instruction; non‑IPI instructions reviewed for abuse of discretion)