People v. Fane

2020 IL App (2d) 180151

175 N.E.3d 154

447 Ill.Dec. 786

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Twiqwon R. FANE, Defendant-Appellant.

No. 2-18-0151

Appellate Court of Illinois, Second District.

Opinion filed September 29, 2020

Rehearing denied November 2, 2020

James E. Chadd, Thomas A. Lilien, and Darren E. Miller, of State Appellate Defender's Office, of Elgin, for appellant.

Carl H. Larson, State's Attorney, of Freeport (Patrick Delfino, Edward R. Psenicka, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUDSON delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the circuit court of Stephenson County, defendant, Twiqwon R. Fane, was convicted of home invasion, burglary, attempted robbery, and aggravated battery. He was sentenced to 30 years' imprisonment for home invasion and several lesser terms for the other offenses, which were to run concurrently. He now appeals, raising two alleged errors. First, he asserts that the trial court should not have given the jury an accomplice-witness instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (approved Oct. 17, 2014) (hereinafter IPI Criminal No. 3.17)) regarding a witness, Drean McGee, who gave exculpatory testimony for the defense. Second, he contends, and the State agrees, that the trial court did not properly question the jury in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). This error was not properly preserved, and the parties disagree as to whether it rises to the level of plain error. However, because we find defendant's first contention of error well taken and his second argument concerns an error that is not likely to recur on retrial, we will not address it here. In light of the following, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 Defendant was convicted of a number of offenses stemming from a home invasion that occurred on November 18, 2016. The victim, Voncile Modlinger, testified that her home had also been broken into six days earlier. McGee pleaded guilty to home invasion and residential burglary in connection with the incident at issue, and he was sentenced to 10 years' imprisonment. The following testimony was presented at defendant's trial.

¶ 4 The State first called Timothy Weichel, a sergeant with the Freeport Police Department. He testified that he was dispatched to a residence on East Pershing Street in Freeport at about 2:23 a.m. on November 18, 2016, regarding an "open 911 call." An "open 911 call" is a call where someone dialed 911 but no one then spoke, though one could still hear "some type of interaction going on on the phone." Dispatch related that a home invasion was in progress. Weichel parked near the residence and approached on foot. He could hear a female screaming inside. He approached the door and looked through a window. Weichel observed a black man with a long goatee. Weichel pointed his firearm at the man, and the man fled, leaving the residence. Weichel later identified the man as McGee. Weichel believed that there was another subject in the house, as the female was still screaming as if she was being attacked. Weichel entered the residence and found the female, Modlinger, who informed him that both subjects had fled.

¶ 5 Weichel testified that he then started to search for the two subjects. He "could hear leaves crumbling as if somebody was walking through them." He could also hear "dogs aggressively barking" in the area, so he searched in that direction. He believed that the subjects were traveling northeast, and he radioed that to incoming units. About five minutes later, Corporal Ben Johnson radioed that he saw two individuals running through a field near the Provena St. Joseph Center (Provena). Weichel proceeded to Provena, where he observed that Johnson had two subjects "proned out" on the ground. He recognized McGee as the man he had observed inside the residence on East Pershing Street. A show-up identification was completed with Modlinger, and the subjects were transported to the police station. Subsequently, Weichel located a white T-shirt near where defendant was taken into custody. The shirt was collected as evidence by Officer James Hodges. McGee did not wear a mask during the home invasion. Weichel identified defendant as the other individual taken into custody at Provena.

¶ 6 On cross-examination, Weichel acknowledged that he moved the white T-shirt before it was photographed. He explained that he did this so he "could continue to look through the debris and other stuff." The shirt was photographed when Hodges collected it.

¶ 7 The State next called Corporal Johnson. At about 2:30 a.m. on November 18, 2016, he received a dispatch about the incident taking place on East Pershing Street. He traveled to a location that he selected based upon what he had heard from Weichel regarding the direction in which the subjects were fleeing. He exited his squad car and heard dogs barking. He then observed two individuals sprinting across a field west of Provena. He radioed this in. They did not see him, and he ran to catch up to them. Johnson entered the parking lot at Provena and saw the two subjects crouching down by a parked truck. Johnson added that it looked as if they were trying to conceal themselves. As he approached, the two subjects saw him and ran. He pursued. The subjects ran into an area that led to an entrance into Provena, but was otherwise a dead end. One subject was standing in the open, and the other was attempting to hide. Johnson drew his Taser. He ordered both subjects to the ground, and they complied. Another officer arrived, and the subjects were handcuffed. Johnson identified body camera footage that showed a white object in defendant's possession. On cross-examination, Johnson agreed that defendant was cooperative.

¶ 8 Officer Hodges was the State's next witness. At approximately 2:22 a.m. on November 18, 2016, Hodges responded to the area of East Pershing Street in Freeport. Weichel had advised that there were subjects running from the area, heading northeast. Hodges observed two individuals running in the area of Provena. After Johnson secured the individuals, Hodges transported defendant to the police department. Defendant told Hodges that he needed Hodges to "call his people," whom he identified as Lizzy and Gabby. He stated that Gabby was his girlfriend. Defendant stated that Gabby's car had been stolen that night. Subsequently, Hodges returned to Provena, where he photographed a white T-shirt and took it into evidence.

¶ 9 On cross-examination, Hodges acknowledged that he did not turn on his squad car's recording device while he was transporting defendant to the police station. He could not remember whether he had activated his body camera.

¶ 10 The next witness for the State was Alan Guilfoyle, a 911 dispatcher for the Freeport Police Department. At about 2:20 a.m. on November 18, 2016, Guilfoyle received a call regarding a home invasion of a residence on East Pershing Street. He identified a recording of that call. The caller seemed frightened and excited.

¶ 11 The victim, Voncile Modlinger, next testified. She stated that she had been living at the residence on East Pershing Street for over 50 years. In November 2016, the residence was broken into twice. The first break-in occurred on November 12, 2016. During the first break-in, the intruder took money and her phone. She bought a new phone and kept it in bed beside her.

¶ 12 On November 18, 2016, in the middle of the night, she heard a noise and called 911. She stated that someone had broken into her house and that she gave the location. This is all she had time to say before one of the intruders arrived at the foot of her bed. His face was covered with something white. He threw a plastic laundry basket at her face. A second man walked in behind the first intruder. She recognized the second individual. The second man said, "This is my cousin," and then "Now don't you hurt her." They ordered Modlinger out of bed. One of the men looked under the mattress. He then grabbed her and pushed her around the bed and into the hall. She saw the other man in her living room, recognizing him, as he had been there before. The first man lifted Modlinger up and down. He threw her, and she was not sure what happened next. Eventually, the police arrived.

¶ 13 On cross-examination, Modlinger agreed that she never heard the two intruders refer to each other as "cuz" or "bro." They did not speak to each other much during the incident.

¶ 14 The State's next witness was Gabrielle Gill. On November 18, 2016, defendant had been her boyfriend, but they were no longer together. On the night of November 17, 2016, she spent the night at defendant's house. When she lay down for the evening, her car was there. Someone had asked if they could use it, and she said yes. When she awoke, her car was gone. She clarified that she had given permission to someone to use the car. When she went to bed between 9:30 and 10 p.m., she was not sure whether defendant was present in the house. She added that she gave defendant's cousin permission to use the car, but not defendant. Further, she agreed that she spoke with Freeport police officer Daniel Moore at about 4 a.m. on November 18, 2016, and told him that defendant had permission to use her car. She explained that this was on the condition that he had someone to drive him. Gill testified that she knew McGee. McGee was defendant's cousin. She identified a set of car keys (State's exhibit 6) as having been hers on November 18, 2016.

¶ 15 On cross-examination, Gill stated that there was a lot of stuff in the car on November 18, 2016. She explained that both she and defendant were moving. This included a bag of clothes.

¶ 16 The State then called Moore. He testified that he was on duty on November 18, 2016, at approximately 2:30 a.m. He was dispatched to a residence on East Pershing Street, where he...