                                     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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