People v. Jones

2017 IL App (1st) 143766

81 N.E.3d 48

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

v.Fredrick JONES, Defendant-Appellant.

No. 1-14-3766

Appellate Court of Illinois, First District, SIXTH DIVISION.

June 9, 2017

OPINION

JUSTICE DELORT delivered the judgment of the court, with 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.

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 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.

¶ 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 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 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...