Illinois Official Reports 

Appellate Court

People v. Jones, 2017 IL App (1st) 143766

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

FREDRICK JONES, Defendant-Appellant.

District & No. First District, Sixth Division

Docket No. 1-14-3766

Filed June 9, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 12-CR-16965; 

Hon. James M. Obbish, Judge, presiding.

Judgment Affirmed; mittimus corrected.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Manuel S. Serritos, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Jon Walters, and David J. Welch, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE DELORT delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Rochford concurred in the 

judgment and opinion. 
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 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.

¶ 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 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. 

 

1The 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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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.

 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 7 to 12 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. 

¶ 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 
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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 showup 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 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 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 the 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. 
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¶ 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 5 to 10 minutes later, Officer Connors drove Coleman to 6330 South Elizabeth 

Street, where Coleman saw the person who drove the getaway car, accompanied by police 

officers. At that point, Coleman identified defendant as the getaway driver. Coleman also 

noticed that the car 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 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. 

¶ 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 Mitchell 

approached the driver’s side door of the getaway car. As he did so, Officer Mitchell 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 Street. There, Officer Mitchell saw defendant in police custody and defendant’s car 

parked in an alley nearby. 
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¶ 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 

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 quotation 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 

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 
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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 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. Id. 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 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.
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¶ 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 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. 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 7 to 12 minutes after 

the crime took place. For these reasons, we find that the circuit correctly denied defendant’s 

motion to suppress. 
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¶ 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 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 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 
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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. 

¶ 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 

license plate, and relayed that information to a 9-1-1 dispatcher. Within a few minutes, police 
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officers stopped a car with matching plates. Once the car stopped, the passenger fled. While 

Sergeant Clark and Officer Williams gave chase, Officer Mitchell 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 Mitchell 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 pretrial custody. Defendant spent 805 

days in pretrial custody, resulting in $4025 in pretrial 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 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 pretrial 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 
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of this issue 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.