2017 IL App (1st) 143766
SIXTH DIVISION
June 9, 2017
No. 1-14-3766
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 12 CR 16965
)
FREDRICK JONES, )
) Honorable James M. Obbish,
Defendant-Appellant. ) Judge Presiding.
)
JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.
OPINION
¶1 After a bench trial, defendant Fredrick Jones was convicted of robbery and sentenced to
15 years’ imprisonment. He raises three arguments on appeal. First, he contends that the circuit
court erred by denying his motion to suppress the victim’s identification testimony, which was
based on a showup that defendant maintains was unduly suggestive. Second, he argues his
attorney rendered ineffective assistance of counsel by failing—for purposes of perfecting
impeachment—to have a third party present for a conversation she had with the victim in a
hallway outside the courtroom. Third, he contends that the fines, fees, and costs order must be
corrected to reflect pretrial credit. We affirm and correct the mittimus.
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¶2 BACKGROUND
¶3 Defendant was charged by information with one count of armed robbery (720 ILCS 5/18
2(a)(2) (West 2012)) and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1 (West
2012)). On September 27, 2013, a public defender filed a motion to suppress identification
testimony on defendant’s behalf. That attorney later withdrew from the case and assistant public
defender Kyan Keenan took over the defense.
¶4 On February 6, 2014, Keenan filed an amended motion to suppress. That motion, which
was largely duplicative of the original motion to suppress, stated that at 10:51 a.m. on August 31,
2012, defendant was arrested at 6330 South Elizabeth Street in Chicago by Chicago police
officers. The officers were responding to a 9-1-1 call that was placed at 10:45 a.m., reporting a
“ ‘person with a gun’ ” near 720 West 68th Street. After the police arrested defendant, they
transported him by police car back to the scene of the robbery and presented him to Sean
Coleman, the robbery victim. Coleman identified defendant. The motion argued that Coleman’s
identification testimony should be suppressed because the showup was unduly suggestive, as the
defendant was handcuffed during the showup and Coleman’s identification was not
independently reliable.
¶5 On April 7, 2014, the court held an evidentiary hearing on the motion. At the hearing,
Coleman testified that at 10:45 a.m. on the morning of August 31, 2012, he was robbed by a man
with a gun while he was near 720 West 68th Street in Chicago. After the robbery, Coleman
called 9-1-1. When the police arrived, they asked Coleman if he could identify the robbers.
Coleman stated that he could. Thereafter, Chicago police officer Kevin Connors drove Coleman
to a location a few blocks away. Coleman testified that during the drive, Officer Connors asked
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what the robber had taken, but that he had no recollection regarding whether Officer Connors
stated if, or where, Coleman’s stolen wallet had been found.
¶6 Attorney Keenan then asked Coleman if he “recall[ed] being in court on February 26th of
2013?” 1 Coleman answered that he did, leading to the following colloquy:
Q. Right. Do you remember having a conversation with me
in the hallway?
A. Yeah.
Q. Do you remember that I asked you did the officer’s [sic]
say anything to you in route from the scene to where you made
your identification?
A. Basically they just asked me what was taken from me.
Something along those lines.
Q. Do you remember telling me during that conversation
that the officer told you that your wallet had been found on the
person that you were going to identify?
A. No. I don’t recall telling you that.
Q. Do you remember telling me that the officer’s [sic]—
THE COURT: Was somebody else present?
MS. KEENAN: No, Judge.
THE COURT: You’re making yourself a witness.
1
The report of proceedings of the April 7, 2014, hearing reveals that Keenan asked Coleman if he recalled
being in court on February 26, 2013. As discussed below, it is apparent that the actual date counsel meant to refer to
was February 6, 2014. The reference to February 26, 2013, is either a transcription error or a misstatement by
counsel that went uncorrected.
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MS. KEENAN: Judge, I realize that and if that becomes the
situation, (Inaudible) not to do that. I didn’t expect that the witness
would answer the way he’s answering.
***
Q. Do you recall on February 26, 2014, when you had
conversation with me outside the courtroom telling me that Officer
Connors told you that this person that he was taking you to had
been found inside that vehicle you had identified?
MS. COAKLEY [Assistant State’s Attorney]: Objection.
THE COURT: Sustained.”
¶7 Coleman later testified that when he arrived at the location where defendant was being
detained, he identified the robbers’ getaway vehicle. After that, the police took defendant out of a
police car and displayed him to Coleman. Defendant was handcuffed. At that time, Coleman
identified defendant as the man he saw driving the car. Coleman testified that he had never seen
the man before.
¶8 On cross-examination, Coleman testified that seven to twelve minutes passed between the
time when he called 9-1-1 and the time when he was brought to 6330 South Elizabeth Street for
the showup. Coleman stated that he was 25 feet from defendant when he identified him, the
identification took place in daylight with “perfect lighting conditions,” and he had a clear view of
defendant during the showup. In addition, Coleman clarified that Officer Connors was the only
person in the police car with him when he was driven to Elizabeth Street. Coleman testified that
Officer Connors did not suggest to Coleman who he should identify.
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¶9 After Coleman’s testimony, defendant rested, and the State called Officer Connors.
Officer Connors testified that on the morning of August 31, 2012, he went to 720 West 68th
Street in response to Coleman’s 9-1-1 call. While there, Officer Connors learned that a person
matching a description that Coleman had given to the 9-1-1 dispatcher was being detained
nearby by other police officers. Officer Connors told Coleman that a person had been detained
and that they were going to go to the person’s location. Officer Connors stated that he did not tell
Coleman that money had been recovered from the person. Likewise, Officer Connors testified
that he did not “tell [Coleman] who to pick out” during the drive.
¶ 10 Approximately 10 minutes after responding to Coleman’s 9-1-1 call, Officer Connors and
Coleman arrived at 6330 South Elizabeth Street. There, Officer Connors saw defendant sitting in
the backseat of a police car. Another police officer took defendant out of the car, and Coleman,
still sitting in the police car, identified defendant. Officer Connors stated that he did not “tell
[Coleman] to pick out the defendant before [Coleman] identified [defendant].”
¶ 11 The court denied defendant’s motion to suppress, noting that the show up was “so close
in time” and that it did not “seem like anything was done that was so suggestive by the officer’s
[sic] to create the likelihood of a misidentification * * *.”
¶ 12 On May 13, 2014, assistant public defender Elizabeth Payette appeared on behalf of
defendant and filed a “motion to reopen motion to suppress identification.” In pertinent part, the
motion alleged that, before the February 6, 2014, hearing, Coleman was alone with defense
attorney Keenan and told her that the police officer who transported him to defendant’s location
had told him that the suspect had been found in a car matching the description and license plate
Coleman had provided and that Coleman’s wallet was found in that car. The motion noted that
defense counsel had tried to impeach Coleman during the last hearing with that information but
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could not do so because she could not be both a witness and defendant’s attorney. The court
granted the motion and reopened the proofs on defendant’s motion to suppress.
¶ 13 On June 5, 2014, the court held a hearing on the reopened motion to suppress. Keenan
testified that on February 6, 2014, she appeared in court for a hearing on defendant’s motion to
suppress. Sometime between 10:30 and 11 a.m., Keenan asked Coleman if he was willing to
speak to her. During her testimony, Keenan explained that she “wanted to ask him some
questions about the circumstances of the identification that he made.” Coleman agreed to talk to
Keenan and they had a conversation in the hallway outside the courtroom. No one other than
Keenan and Coleman was present for the conversation. During the conversation, Keenan asked
Coleman to tell her what happened during the identification. Coleman told Keenan about the
circumstances of the robbery and then what happened during the identification. In addition,
according to Keenan, Coleman:
“Told me that a police officer came to pick him up and took
him to another location and that he knew that my client was
involved because the police officer told him that he found Mr.
Coleman’s wallet on Mr. Jones and that he had found him in the
car with the license plate that he called into the police.”
¶ 14 On further examination by the State and the court, Keenan testified that she did not (1)
take notes during the conversation, (2) ask Coleman to sign an affidavit, (3) call an investigator
to re-interview Coleman, (4) record the conversation with a smart phone, or (5) ask a partner or
the assistant state’s attorneys to listen to Coleman’s statement. Keenan explained that she did not
send an investigator to speak to Coleman because her “understanding” was that the attorney who
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preceded her in representing defendant “asked several times for an investigator to speak with Mr.
Coleman with no success.”
¶ 15 The court again denied the motion to suppress. The court noted that, at the first hearing
on the motion to suppress, both Coleman and Officer Connors denied the statement attributed to
Coleman, and that it found both of those witnesses to be credible.
¶ 16 The case then proceeded to a bench trial. At trial, Coleman testified that around 10:45
a.m. on August 31, 2012, he was in 700 block of West 68th Street driving a farm tractor to cut
weeds on an empty lot. At that time, a silver Chevrolet Impala drove up and approached
Coleman. Coleman told the driver that “he might not want to park” near the tractor because the
tractor “tends to throw rocks or something out from underneath it sometimes.” The car then
pulled a few feet closer to Coleman and stopped.
¶ 17 Once the car stopped, a passenger exited the vehicle. The person did not close the car
door, allowing Coleman to see into the car and observe the driver, whom Coleman later
identified as defendant, sitting in the driver’s seat. Coleman testified that the driver was wearing
tan work boots, grey sweatpants, a white t-shirt, and glasses.
¶ 18 The passenger approached Coleman while holding a revolver and demanded Coleman’s
money. Coleman gave the person his wallet, which he testified contained $200, and the
passenger returned to the car which then drove away. Coleman watched the car as it drove away
and memorized its license plate number. He then called 9-1-1 and gave the dispatcher a
description of the driver, the gunman, the car, and its license plate number.
¶ 19 Two to five minutes later, Officer Connors arrived on the scene and spoke to Coleman.
Approximately five to ten minutes later, Officer Connors drove Coleman to 6330 South
Elizabeth Street, where Coleman saw the person who drove the getaway car, accompanied by
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police officers. At that point, Coleman identified defendant as the getaway driver. Coleman also
noticed that the car that defendant had been driving was nearby. Afterwards, the police returned
Coleman’s wallet, which by that time contained only $3.
¶ 20 On cross-examination, Coleman stated that he had between $202 and $204 in his wallet
when he was robbed. He testified that the tractor he was riding sat four-to-five feet above the
ground. He explained that when he was robbed, the car defendant was driving was approximately
30 feet away.
¶ 21 Sergeant Llowyn Clark testified that around 10:45 a.m. on August 31, 2012, she received
a dispatch call reporting an armed robbery and license plate information for a vehicle involved in
the robbery. In response, Sergeant Clark drove to 68th Street and Morgan Street, where she saw
a car with a matching license plate stopped at a stop sign. At that point, the car turned left onto
Morgan Street and began driving south. Sergeant Clark made a U-turn and got behind the car, at
which point she saw an unmarked police car driven by Officers Tamiko Mitchell and Marcus
Williams pull in front of the car and “put a stop on it.”
¶ 22 Once the car stopped, the passenger door opened, and a person exited the car and began
running. Sergeant Clark exited her car, and she and Officer Williams began chasing the
passenger. At this point, the driver was still inside the car and Officer Mitchell was by the car’s
driver’s side. As Sergeant Clark was pursuing the passenger, she heard Officer Mitchell state
over the radio that the car that the police had stopped was attempting to flee. Sergeant Clark
returned to the scene of the traffic stop and saw that the getaway car and Officer Mitchell’s
police car were gone. Sergeant Clark found Coleman’s wallet on the ground in the area where
the passenger door of the getaway car had been.
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¶ 23 Officer Mitchell testified that once the getaway car stopped, he and Officer Williams
approached the car and ordered the occupants to put their hands up. After the passenger exited
the car and fled, Sergeant Clark and Officer Williams gave chase, and Officer Williams
approached the driver’s side door of the getaway car. As he did so, Officer Williams saw a
person whom he identified as defendant sitting in the driver’s seat. At that point, Officer Mitchell
saw defendant look in his rear-view mirror. The car then drove away. Officer Mitchell “jumped
back” to avoid being hit by the car, and then radioed that defendant had fled. Shortly thereafter,
Officer Williams returned from chasing the passenger and got into the police car. The officers
then received a dispatch regarding an incident in the 6300 block of South Elizabeth. There,
Officer Mitchell saw defendant in police custody and defendant’s car parked in an alley nearby.
¶ 24 Officer Jerome Booker testified that he became involved in a vehicular chase in the 6700
block of Morgan Street. According to Officer Booker, the car that the police were pursuing
eventually drove into an alley near Elizabeth Street. Once inside the alley, the driver abandoned
the car and ran onto Elizabeth Street. There, Officer Booker saw the driver, who he identified in
court as defendant, run onto the porch of a building at 6330 South Elizabeth Street. Officer
Booker detained defendant, at which point Officer Mitchell arrived and identified defendant as
the person driving the vehicle that had been stopped earlier. Officer Booker handcuffed
defendant and placed him in the back of a police car. Three to five minutes later, Officer
Connors and Coleman arrived at the scene. Officer Booker removed defendant from the police
car and presented him to Coleman, who made a positive identification. Officer Booker searched
defendant and recovered $197.
¶ 25 The State rested its case and defendant moved for a directed verdict. The court granted
the motion with respect to the aggravated unlawful restraint charge. After defendant rested his
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case, the court found him guilty of robbery and sentenced him to 15 years’ imprisonment and
three years of mandatory supervised release. This appeal followed.
¶ 26 ANALYSIS
¶ 27 Defendant first contends that the circuit court erred by denying his motion to suppress
Coleman’s identification testimony because the showup from which Coleman’s identification
testimony was procured was unduly suggestive. Criminal defendants have a due process right to
be free from identification procedures that are “unnecessarily suggestive and conducive to
irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on
other grounds, Griffith v. Kentucky, 479 U.S. 314 (1987); see U.S. Const., amend. XIV. The
Illinois Supreme Court “has approved prompt showups near the scene of the crime as acceptable
police procedure designed to aid police in determining whether to continue or to end the search
for the culprits.” People v. Lippert, 89 Ill. 2d 171, 188 (1982). Pretrial identifications, such as the
showup conducted in this case, implicate the due process clause only when the identification
procedure was so “unnecessarily suggestive” or “impermissibly suggestive” that there exists “a
very substantial likelihood of irreparable misidentification.” (Internal quotations marks omitted.)
People v. Moore, 266 Ill. App. 3d 791, 796-97 (1994).
¶ 28 Illinois courts use a two-part test to determine whether an identification procedure
comports with due process. First, “the defendant must prove that the confrontation was so
unnecessarily suggestive and conducive to irreparable misidentification that he was denied due
process of law.” Id. at 797. That analysis “involves an inquiry into both the suggestiveness of the
identification and the necessity of the suggestive identification.” People v. Follins, 196 Ill. App.
3d 680, 688 (1990). Second, if the defendant establishes that the confrontation was unduly
suggestive, the burden shifts to the State to demonstrate that, “under the totality of the
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circumstances, the identification *** is nonetheless reliable.” Moore, 266 Ill. App. 3d at 797. To
make that determination, courts consider “ ‘the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation.’ ” People v.
Manion, 67 Ill. 2d 564, 571 (1977) (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972)).
¶ 29 The circuit court’s factual determination that an identification procedure was not unduly
suggestive will not be reversed unless it is against the manifest weight of the evidence. People v.
Moore, 2015 IL App (1st) 141451, ¶ 16. The court’s ultimate decision to grant or deny a motion
to suppress is reviewed de novo. Id.
¶ 30 Defendant maintains that his showup was unduly suggestive because he was “obviously
in custody, as he was handcuffed and hauled from the back of a squad car.” This argument lacks
merit. To begin, defendant has failed to cite a single case in which this court or the Illinois
Supreme Court has held that a showup identification was ipso facto unduly suggestive by sole
virtue of the fact that the defendant was in police custody during the showup. In fact, due to the
nature of showup identifications—which are typically conducted in a police station or in public
after a suspect has been stopped by the police—it is difficult to imagine how the police could
ever conduct a showup identification while masking the fact that the suspect is in custody.
Accordingly, we do not think that the fact that defendant was handcuffed and “obviously” in
police custody is evidence enough, standing alone, for a defendant to carry his burden of
establishing that the identification procedure was unduly suggestive. See People v. Tyler, 28 Ill.
App. 3d 538, 540 (1975) (finding that the defendant’s showup was not unduly suggestive where
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the defendant was arrested at a roadblock, taken from his vehicle at gunpoint, placed in
handcuffs, surrounded by police officers, and then identified by a victim).
¶ 31 We do not believe that People v. Lee, 44 Ill. 2d 161 (1969), or People v. Wright, 126 Ill.
App. 2d 91 (1970), require a different outcome. Both cases are factually distinguishable because
the showups in those cases were conducted while the accused was handcuffed to another suspect.
Lee, 44 Ill. 2d at 168; Wright, 126 Ill. App. 2d at 94. Defendant’s citation to People v. Carroll,
12 Ill. App. 3d 869 (1973) is equally unavailing. True enough, in Carroll, this court found that a
showup conducted while the defendant was handcuffed and standing between two police officers
was unduly suggestive. Carroll, 12 Ill. App. 3d at 874. Nonetheless, we find Carroll
unpersuasive for two reasons.
¶ 32 First, Carroll is distinguishable, insofar as the court explained that the suggestive showup
was “compounded” because the defendant was identified a second time by the same witness
while the defendant was handcuffed and sitting alone on a bench at the police station. Id. No
such aggravating circumstances are present in this case.
¶ 33 Second, subsequent decisions from this court have made clear that the court in Carroll
did not establish a rule that a showup in which the accused is handcuffed when shown to the
witness is per se unduly suggestive. See People v. Howard, 376 Ill. App. 3d 322, 332 (2007)
(explaining that Carroll did not establish a “bright-line rule that the presentation of a suspect to
witnesses while flanked by police automatically calls an identification into question”). On that
point, we find it noteworthy that defendant has not explained why the fact that he was handcuffed
and in the presence of police officers rendered his showup unduly suggestive. Defendant’s
argument carries the unmistakable implication that a showup is unduly suggestive—and
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therefore violates a defendant’s due process rights—whenever the accused is handcuffed and in
police custody.
¶ 34 In this respect, defendant’s argument is doubly flawed. First, the Supreme Court in
Stovall explicitly forbade the type of per se rule that defendant now advocates, stating instead
that “a claimed violation of due process of law in the conduct of a confrontation depends on the
totality of the circumstances surrounding it.” (Emphasis added.) Stovall, 388 U.S. at 302.
Moreover, as we have explained, whether the procedure takes place in public or at the police
station, due to the nature of a showup, the accused will almost always be, or appear to be, in
police custody.
¶ 35 We have reviewed the transcript of the suppression hearings as well as the trial transcript,
and find, based on the totality of the circumstances, that the circuit court’s determination that
defendant’s showup was not unduly suggestive was not against the manifest weight of the
evidence. People v. DeLuna, 334 Ill. App. 3d 1, 11 (2002) (“Because defendant asks that we
review the trial court’s decision on the motion to suppress, we may consider not only the
evidence presented at the suppression hearing, but also that introduced at trial.”).
¶ 36 First, the record shows that Coleman, while in broad daylight, had the opportunity to
observe defendant while he was sitting inside the car. See Manion, 67 Ill. 2d at 570 (finding that
showup was not unduly suggestive even though the witnesses viewed the defendant while he was
alone inside a police car wearing handcuffs because the witnesses had a prior opportunity to
view the defendant and the showup facilitated the police’s search for the suspects). Second, after
the robbery, defendant and his accomplice absconded from the crime scene and then fled from
the police after the police attempted to stop them. Defendant’s accomplice actually escaped, and
defendant himself almost struck a police officer with the car he was driving when he fled. See
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People v. Thorne, 352 Ill. App. 3d 1062, 1077 (2004) (rejecting the defendant’s argument that an
immediate showup near the crime scene was unduly suggestive because “the police were in hot
pursuit of the suspected perpetrators a short time after the robbery”); People v. Johnson, 262 Ill.
App. 3d 781, 792 (1994) (“In the instant case, the evidence established that the police began their
pursuit of the fleeing offenders immediately and returned to the scene with both defendant and
[his accomplice] only minutes after the beating took place. Because the police would have
released them and continued their search if they could not be identified, the identification
procedures were appropriate.”).
¶ 37 We also find that, under the circumstances, the police had ample reason to conduct a
showup, as opposed to waiting to assemble a multi-person lineup or photographic array at the
police station. Put simply, the police in this case had to respond to an armed robbery conducted
in broad daylight during which time Coleman had ample opportunity to observe defendant.
Moreover, defendant and his accomplice fled from the crime scene and the place where they
were stopped by the police. Defendant’s accomplice actually escaped. When defendant fled in
the car, he nearly struck an officer and led the police on a car chase through the streets of
Chicago. Under these circumstances, we are loathe to second-guess the police’s decision to
conduct a showup as opposed to some different identification procedure.
¶ 38 Moreover, even assuming that defendant’s showup was unduly suggestive, he would still
not be entitled to relief because Coleman’s identification was independently reliable. First,
Coleman had ample opportunity to observe defendant. As noted, the robbery took place in broad
daylight, and Coleman was able to view defendant in the car because his accomplice left the
passenger side door open. Second, Coleman displayed a high degree of attention and provided an
accurate, detailed description of the suspects to the police. See People v. Gabriel, 398 Ill. App.
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3d 332, 342 (2010) (finding eyewitness identification of the defendant reliable even though the
defendant was pointing a gun at the witness). Coleman was able to provide a description of (1)
defendant, (2) defendant’s accomplice, (3) the car defendant was driving, and (4) the car’s full
license plate number. Third, Coleman displayed a high degree of certainty when identifying
defendant. Finally, the identification took place within seven to twelve minutes after the crime
took place. For these reasons, we find that the circuit correctly denied defendant’s motion to
suppress.
¶ 39 We next consider defendant’s argument that Keenan rendered ineffective assistance of
counsel by failing to have a third party witness her conversation with Coleman. In defendant’s
view, had a third party witnessed the conversation, that person could have impeached Coleman’s
testimony by testifying consistently with Keenan’s version of the February 6, 2014 conversation.
¶ 40 When evaluating an ineffective assistance of counsel claim, this court applies the two-
part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d
83, 93 (1999). Under Strickland, a defendant claiming ineffective assistance “must show that
counsel’s performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687.
¶ 41 “Strickland’s first prong sets a high bar.” (Internal quotation marks omitted.) Buck v.
Davis, 580 U.S. ___, ___, 137 S. Ct. 759, 786 (2017). To meet it, “the defendant must prove that
counsel made errors so serious, and that counsel's performance was so deficient, that counsel was
not functioning as the ‘counsel’ guaranteed by the sixth amendment.” Evans, 186 Ill. 2d at 93. In
so doing, “the defendant must overcome the strong presumption that the challenged action or
inaction may have been the product of sound trial strategy.” (Internal quotation marks omitted.)
People v. Manning, 241 Ill. 2d 319, 327 (2011). “Because effective assistance refers to competent
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and not perfect representation, mistakes in trial strategy or judgment will not, of themselves, render
the representation incompetent.” People v. Moore, 2012 IL App (1st) 100857, ¶ 43.
¶ 42 To demonstrate prejudice, the defendant must show that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “The fundamental concern underlying this test is
‘whether counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.’ ” People v. Potthast, 219 Ill. App.
3d 714, 720 (1991) (quoting Strickland, 466 U.S. at 686).
¶ 43 During the renewed suppression hearing, Keenan testified that defendant’s previous
attorney tried on multiple occasions to have an investigator speak with Coleman, without
success. In addition, Keenan testified that at the time of the conversation, she had no colleagues
nearby to witness the conversation. In light of the apparent difficulty that the defense was having
in speaking to Coleman, coupled with the fact that no one was actually present to witness the
interview, we are unable to conclude that Keenan’s decision to interview Coleman alone was
objectively unreasonable.
¶ 44 Defendant also suggests that Keenan’s performance was deficient because she did not
send an investigator to obtain a corroborating statement from Coleman after the February 6, 2014
interview. This claim is baseless. This court has explained repeatedly that the failure to perform
an act of futility does not constitute ineffective assistance. See People v. Ivy, 313 Ill. App. 3d
1011, 1018 (2000). In Illinois, it is well established that a witness for the State, such as Coleman,
“need not grant an interview” to the defense unless the witness chooses to do so of his own
volition. People v. Peter, 55 Ill. 2d 443, 451 (1973); see People v. Goff, 137 Ill. App. 3d 108, 112
(1985) (circuit court properly tendered non-Illinois Pattern Jury Instructions, stating “ ‘[a]ny
witness in a criminal case is under no obligation to grant an interview to defendant or to counsel
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for defendant, or discuss with such defendant or defendant's counsel, what the testimony would
be, unless the witness chooses to do so’ ”). We do not believe that Keenan performed deficiently
by failing to send an investigator to request an interview with Coleman, which Coleman had no
obligation to grant. Defendant’s argument to the contrary is entirely speculative, as it rests on the
twin assumptions that, had Keenan sent an investigator, Coleman would have (1) agreed to be
interviewed and (2) provided a statement corroborating Keenan’s version of the facts.
¶ 45 Defendant also alleges that Keenan was ineffective specifically because she did not file
an amended motion to suppress that specifically referenced her conversation with Coleman. This
argument is unpersuasive. To begin, defendant’s motion to reopen the motion to suppress was, in
effect, such an amended motion. The motion to reopen, as noted, described Keenan’s version of
the February 6 conversation. While the circuit court faulted defendant’s counsel for not
addressing the issue earlier, the court did grant the relief defendant sought and did so before his
trial. Accordingly, we cannot find counsel was ineffective for failure to specifically file an
“amended” motion to suppress based on the hallway conversation.
¶ 46 Defendant’s ineffective assistance claims fail for second a reason: he cannot demonstrate
prejudice. When a defendant raises an ineffective assistance claim in the context of a motion to
suppress evidence, the defendant must show that, but for counsel’s errors, the motion to suppress
would have been granted and that there exists a reasonable probability that the ultimate outcome
at trial would have different had the evidence been suppressed. People v. Sterling, 357 Ill. App.
3d 235, 247 (2005). In this case, the record strongly suggests that the circuit court would have
denied defendant’s motion, even if Keenan had performed all the actions defendant criticizes her
for not doing.
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¶ 47 To begin, we have already found that, even if defendant’s showup was unduly suggestive,
Coleman’s identification was nonetheless independently reliable. Moreover, defendant ultimately
did have the opportunity to present evidence that impeached Coleman’s testimony when Keenan
withdrew and testified to the contents of her conversation with Coleman during the renewed
hearing. Despite hearing the testimony of Keenan—a licensed attorney and officer of the court—
the circuit court nonetheless rejected defendant’s motion. In so doing, the court noted not only
that it found Coleman’s testimony credible, but also found credible the testimony of Officer
Connors—who, notably, was not seriously impeached during the first suppression hearing. Based
on these facts, we find it unlikely that the circuit court would have granted defendant’s motion to
suppress even if Keenan had (1) obtained the services of a “prover” to witness the February 6,
2014, conversation with Coleman, (2) sent an investigator to obtain a statement from Coleman
after February 6, and (3) filed a motion to suppress containing allegations regarding the
Coleman’s statement during the February 6 conversation.
¶ 48 Furthermore, it is unlikely that the outcome at trial would have been different had
Coleman’s identification testimony been suppressed. Defendant was convicted of robbery under
an accountability theory. A robbery occurs when a person “knowingly takes property *** from
the person or presence of another by the use of force or by threatening the imminent use of
force.” 720 ILCS 5/18-1(a) (West 2014). A person is legally accountable for the acts of another
person when “either before or during the commission of an offense, and with the intent to
promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid
that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2014).
¶ 49 Excluding Coleman’s identification, the evidence at trial established that Coleman was
robbed by a man who got into a car which drove away. Coleman viewed the car, memorized its
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license plate, and relayed that information to a 9-1-1 dispatcher. Within a few minutes, police
officers stopped a car with matching plates. Once the car stopped, the passenger fled. While
Sergeant Clark and Officer Mitchell gave chase, Officer Williams approached the driver’s side
door and saw a person who he identified as defendant sitting in the driver’s seat. Defendant fled
in the car (almost striking Officer Williams in the process) and when Sergeant Clark returned,
she found Coleman’s wallet, far away from Coleman, on the ground near where the car
defendant was driving was parked. Even without Coleman’s identification testimony, the
evidence summarized above would have been sufficient for a rational trier of fact to find
defendant guilty of robbery under an accountability theory.
¶ 50 Finally, we consider defendant’s argument that the fines, fees, and costs order must be
corrected to reflect credit for time defendant served in pre-trial custody. Defendant spent 805
days in pre-trial custody, resulting in $4025 in pre-trial credit.
¶ 51 Defendant contends that he is entitled to a time-served credit against the following
assessments that were entered against him: a $10 mental health court fine pursuant to section 5
1101(d-5) of the Counties Code (55 ILCS 5/5-1101(d-5) (West 2014)), a $5 youth diversion/peer
court fine pursuant to section 5-1101(e) of the Counties Code (55 ILCS 5/5-1101(e) (West
2014)), a $5 drug court fine pursuant to section 1101(f) of the Counties Code (55 ILCS 5/5
1101(f) (West 2014)), and a $30 children’s advocacy center fine pursuant to section 5/1101(f-5)
of the Counties Code (55 ILCS 5/5-1101(f-5) (West 2014)). The State concedes this point, and
we agree. See People v. Paige, 378 Ill. App. 3d 95, 103 (2007) (holding that the $10 mental
health court fee and $5 youth diversion/peer court fees are actually fines); People v. Rexroad,
2013 IL App (4th) 110981, ¶ 53 ($5 drug court fee is actually a fine unless the defendant actually
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participated in drug court); People v. Butler, 2013 IL App (5th) 110282, ¶ 4 ($30 children’s
advocacy center fee is a fine).
¶ 52 Defendant also contends that he is entitled to use his remaining pre-trial credit to offset
several assessments that he contends are fines, notwithstanding the fact that they are labeled as
fees. Specifically, defendant claims he is entitled to an offset for the following assessments: a
$15 State Police Operations fee pursuant to section 27.3a(1.5) of the Clerks of Courts Act (705
ILCS 105/27.3a(1.5) (West 2014)); a $2 Public Defender Automation Fee pursuant to section 3
4012 of the Counties Code (55 ILCS 5/3-4012 (West 2014)); a $2 State’s Attorney Records
Automation fee pursuant to section 4-2002.1(a) of the Counties Code (55 ILCS 5/4-2002.1(a)
(West 2014)); and a $50 Court Systems fee pursuant to section 5-1101(c) of the Counties Code
(55 ILCS 5/5-1101(c) (West 2014)). The State concedes, and we agree, that the $15 State Police
operations fee and the $50 court system fee are actually fines. See People v. Millsap, 2012 IL
App (4th) 110668, ¶ 31 (“Despite its statutory label, the State Police operations assistance fee is
*** a fine.”); People v. Smith, 2013 IL App (2d) 120691, ¶ 21 (holding that the court systems
“fee” is actually a fine). Accordingly, defendant is entitled to an additional $65 in pretrial credit.
¶ 53 Last, we consider defendant’s claim that he is entitled to an offset against the $2 State’s
Attorney and $2 public defender records automation fees because those “fees” are actually fines.
In a long and, until very recently, unbroken chain of cases, this court has squarely rejected the
argument that the State’s Attorney and public defender records automation fees are actually
fines. See People v. Taylor, 2016 IL App (1st) 141251, ¶ 29; People v. Bowen, 2015 IL App (1st)
132046, ¶ 65; People v. Rogers, 2014 IL App (4th) 121088, ¶ 30; but see People v. Camacho,
2016 IL App (1st) 140604, ¶¶ 47-56 (holding that the State’s Attorney and public defender
records automation fees are actually fines). Although the Camacho court’s analysis of this issue
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has some persuasive value, we nevertheless decline defendant’s invitation to digress from the
weight of established precedent by classifying the records automation fees as fines.
¶ 54 Based on the foregoing, we find that defendant is entitled to $115 in pretrial custody
credit. Defendant was assessed a total of $474 in fines and fees. Pursuant to our power under
Illinois Supreme Court Rule 615(b)(1), we correct the mittimus to reflect $359 in fines, fees, and
costs.
¶ 55 CONCLUSION
¶ 56 We affirm defendant’s conviction and correct the mittimus.
¶ 57 Affirmed; mittimus corrected.
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