United States District Court, N.D. Illinois, Eastern Division
United States of America ex rel. LEONARD LOGAN, Petitioner,
NEDRA CHANDLER, Warden, Dixon Correctional Center, Respondent
[Copyrighted Material Omitted]
For Leonard Logan, Petitioner: Tara Elizabeth Thompson, Loevy & Loevy, Chicago, IL.
For Nedra Chandler, Warden, Respondent: Matthew Philip Becker, LEAD ATTORNEY, Office Of The Attorney General, State Of Illinois, Chicago, IL.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, United States District Judge.
On November 17, 2000, an Illinois jury convicted Leonard Logan of the first-degree murder of Timothy Jones. The trial judge sentenced Logan to a prison term of forty-five years.
Logan has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues, in nine separate claims, that he received ineffective assistance of trial and appellate counsel; he was denied his right to due process; and insufficient evidence existed to support his conviction. For the following reasons, the Court denies all of Logan's claims except claim 2, one of his claims of ineffective assistance of counsel, and orders an evidentiary hearing on that claim.
A. Trial court proceedings
The Court begins by describing the proceedings at Logan's trial in state court.
1. Opening statements
In opening statement, the prosecutor stated that the evidence would show that on March 18, 1997, in a gas station parking lot on the south side of Chicago, Logan shot Jones in the head, killing him. The prosecutor further stated that the evidence would show that a witness to the shooting followed the shooter's vehicle in his car and was able to get the shooter's license number and call the police. The police then traced the car to Latonya Payton. The prosecutor said that Payton had given several versions of the events. Though he did not know how she would testify in court, the prosecutor said, Payton had ultimately implicated Logan. The prosecutor also said that fingerprints matching Logan's were found in Payton's apartment and in the vehicle used in the shooting and that when arrested, Logan tried to flee.
The opening statement of defense counsel Anthony Thomas focused, at the outset, on the importance of the jury listening to all the evidence and holding the prosecution to its burden of proof. He stated that the description given of the shooter did not match Logan. Thomas also promised that the jury would hear evidence of an alibi. He stated: " The evidence will show that on the date that the murder took place, Leonard Logan was not in Chicago. He was in Milwaukee, Wisconsin." Resp't Ex. 3 at 136. Thomas also stated that a defense witness would testify that he was present at the shooting and was himself shot by the person who shot Jones, and that Logan was not the shooter.
2. The prosecution's case
a. L.C. Robinson and Detective Phil Graziano
L.C. Robinson testified that on March 18, 1997, between approximately 11:00 and 11:30 p.m., he was driving north on Yates Boulevard in Chicago. As he passed through the intersection of Yates Boulevard and 75th Street, he saw his friend, Charles Jenkins, talking on a pay phone at an Amoco station located on the corner of that intersection. He also saw the victim, Timothy Jones, talking on another pay phone. Robinson watched as a " short, about 5'9", 5'7", kind of heavy-set" African-American man got out of a sport utility vehicle (SUV) that was parked approximately twenty feet from the pay phones. Resp't Ex. 3 at 147. Robinson testified that when the man was two or three feet away from the victim, he pulled a gun from his waistband and aimed it at the victim's head. Robinson watched as the man shot the victim. He saw the victim fall to the ground and then saw the shooter fire two or three more shots at other people in the vicinity.
Robinson saw the shooter return to the SUV, get in the front passenger side, and drive away down 75th Street. Robinson made a U-turn and then followed the SUV westbound on 75th Street. He wrote down the vehicle's license plate number, called 911, and gave the 911 operator this information. Robinson followed the SUV until it turned into an alley. He then returned to the Amoco station and told police who had arrived there what he had seen.
Chicago police detective Phil Graziano testified that he traced the license plate number provided by Robinson to a Budget Rent-A-Car rental agency and determined that it was registered to a Nissan Pathfinder that had been had been rented to an L. Payton on North Winthrop in Chicago.
b. Latonya Payton
Latonya Payton was called by the prosecution to testify immediately after detective Graziano. She said that she had been Logan's friend for five or six years. She stated that on March 15, 1997, at Logan's request, she rented a Nissan Pathfinder and paid for it with her credit card. Logan was with her when she rented the vehicle. Logan then dropped her off and left with the vehicle. Payton said that she next saw him a few days later, when she went to his home near 36th and Federal Streets in Chicago. Logan came to her apartment a couple days later, along with another man, to help put together an entertainment center. The police came to her apartment while Logan and the other man were still there. The two men left after the police rang Payton's doorbell and announced that they were there. The police asked her whether she had rented the Pathfinder, telling her it had been involved in a hit and run accident, and she said yes. They asked her to come to the police station to answer questions, and she agreed.
Payton testified that she was " interrogated" at the police station and was asked about a homicide and who had the vehicle and when it was used. She stated that at first, she lied about who she had rented the Pathfinder for, saying this was because she had not put Logan's name on the rental. She falsely told the police that the car hadn't left her home. Payton said that after being interrogated for three hours, she admitted she had rented the vehicle for Logan, who she called " Dash."
The prosecutor then asked Payton about March 18, 1997. She said that she worked until 5:30 p.m. and then went home. She did not see Logan until 1:30 the next morning. She denied that she was with Logan around 11:30 p.m. near 75th and Yates and stated that she did not see Logan that evening. When asked whether she knew someone called " Rodman," Payton said that she was badgered by the police and was told by them that Rodman was the other man who helped put up the entertainment center at her home. Payton also claimed that the police told her what had happened at the crime scene and that Logan was the shooter. She said that she told the police she wasn't there.
According to Payton, the police told her that if she didn't come up with anything other than the name of who she had rented the vehicle for, she would be charged with murder. She stated that she was held for three days without food or sleep.
Payton was confronted by the prosecutor with her grand jury testimony that she had seen Logan shoot a man at the Amoco station. She replied, " That was a coerced statement . . .," Resp't Ex. 3 at 198, and she stated that two police officers had told her than unless she identified Logan as the shooter, she would be charged with murder.
At a sidebar, the prosecutor advised the trial judge that he intended to go through the process the police used to obtain Payton's statement inculpating Logan, " including use of two polygraph examinations and being confronted with the results." Id. at 200. The prosecutor said he would not go into the results of the polygraph tests but wanted to bring out that after being confronted with the test results, Payton changed her story. The defense objected, arguing that the jury would erroneously believe that the test results were accurate. The judge overruled the objection and said that he would give a limiting instruction
" at the time I instruct the jury on the case," i.e. at the end of the trial. Id. at 203.
The prosecutor then elicited testimony from Payton regarding her interaction with the police on March 19. She said the police first asked her about the two men they had seen in the hallway outside her door, and she admitted that she initially falsely denied knowing them. She also said she initially lied to the police in saying that the SUV had not left her home on the night of March 18. The police then took her to the police station and interviewed her again, on the night of March 19. Payton denied telling the police that Rodman had borrowed the SUV on the night of March 18 and brought it back within twenty minutes.
Payton admitted that she was then asked to take a polygraph examination and that after the examination, she was brought back to the police station in the early morning hours of March 20. She testified that after the polygraph results were given to her, she told the police that " Dino" (evidently a nickname for Logan) and another man had been in her apartment when the police came. Payton stated that the police told her that if she didn't identify the person for whom she had rented the car, she would be charged with murder. Payton said that she told the police that she had loaned the car to Rodman on March 19. She said that she was questioned constantly throughout the night and was not able to get any sleep. She ultimately told the police, due to being threatened with a murder charge, that she had rented the vehicle for " Dash," who she said was Logan. At some point, Payton said, the police brought her a photograph of Logan, and she identified him as the person who had the car between 11:00 p.m. on March 18 and 2:00 a.m. the next morning. She said, however, that the police were not satisfied with her story because she had said she wasn't on the scene of the shooting, so they continued to badger her and interrogate her.
Payton admitted that she agreed to take a second polygraph test on the afternoon of March 20. She denied that her story changed after she was confronted with the test results. She denied telling the police that she was with Dino (Logan) and Rodman when they drove the vehicle to 75th and Yates, instead saying that the police told her that was what had happened. Payton also said that the police told her that Logan had made a comment about a " pussy motherfucker," walked up to people at a pay phone at a gas station, and started shooting. Payton further stated that the police had given her other details of the crime.
Payton also claimed that when interviewed by a female detective named Van Witzenburg and an assistant state's attorney, people in the room (she was not sure who) told her what her story should be. Payton identified her signature and initials on a written statement, and she admitted that the statement contained a different story from what she had testified. Payton said that the prosecutor had gone through the statement with her and elicited its contents, including identifying Logan as " Dino." Payton acknowledged that her signed statement reported that on March 18, Logan drove with her and Rodman to 75th and Yates, said, " There goes that pussy motherfucker," got out of the car and shot with a handgun at a man talking on a pay phone. Her statement further reported that they then drove away in the vehicle, Logan noticed someone was following them, and he stopped the vehicle hoping to lose the car that was following. Her statement also reported that Logan then went to a building at the Stateway Gardens housing project and returned to the vehicle without the gun. Payton said,
however, that these statements had come from the detectives and that they were untrue.
Payton admitted that on March 21, after the statement was completed, she was taken before a grand jury to testify under oath. She identified a transcript of her grand jury testimony, and it was read into the record. Before the grand jury, Payton had testified that on March 15, 1997, she rented a Nissan Pathfinder from Budget Rent-A-Car so that she could bring home an entertainment center she had purchased. On March 16, she met with a man named PeeWee at the Stateway Gardens Chicago Housing Authority complex. When there, she also saw Logan, whose nickname was Dino. On March 17, Logan made arrangements with her over the phone to borrow the car she had rented. Logan picked up the car and returned it approximately ninety minutes later. On March 18, 1997, Logan called Payton at work because he wanted to borrow the car again. Payton agreed, and Logan picked her up from work at 5:15 or 5:30 p.m. They ran some errands and then went to Stateway Gardens, where they met with Rodman. A few hours later, Logan drove the three of them down 75th Street. As they approached the intersection of 75th Street and Yates Boulevard, Logan noticed the victim. Logan then pulled the car into the gas station and got out of the car. Payton heard a gunshot approximately three minutes later, and she looked and saw a young man near the pay phones fall to the ground. Payton saw Logan firing the gun. Logan then got back in the car, put the gun on the seat between his legs, and drove away. As they drove away, Logan noticed a car following them, so he pulled into an alley. After five minutes, Logan drove to Stateway Gardens, where he went into a building. He returned approximately ten minutes later without the gun.
The transcript of Payton's grand jury testimony further reflected that she told the grand jury that on March 19, 1997, she saw Logan when he again borrowed the car. She stated that he was supposed to pick her up at work, but instead he called and asked whether Budget Rent-A-Car had called her about the car. Payton told him that the car was not due back until March 20. Later that night, Logan and another man came to Payton's apartment to set up her entertainment center. As they ate pizza, the police arrived, and Logan and his friend left Payton's apartment through the backdoor.
At Logan's trial, Payton testified that her signed statement and grand jury testimony had been fabricated and coerced by police detectives, who threatened to charge her with murder if she did not implicate Logan. On cross examination, she testified that she had been interviewed repeatedly by several detectives, through the night on March 18-19, with no sleep and nothing to eat. She said that she was constantly interrogated over a thirty-six hour period. She said that some of the statements in the signed statement and grand jury testimony were true, but others were untrue. She stated that in fact she was not in the vehicle at 75th and Yates on March 18 and did not know how Jones had been shot. Defense counsel also elicited that Payton was being held in custody on contempt charges and was facing a possible perjury charge but was willing to risk that to tell the truth.
c. Detective Alejandro Almazon; polygraph evidence
After testimony by a forensic pathologist regarding the cause of Timothy Jones' death, Chicago police detective Alejandro Almazon testified that he and detectives William Higgins and Edward O'Boyle went to the apartment of Latonya Payton at approximately 6:30 p.m. on March 19,
1997. The detectives first asked Payton about two African-American men they had seen in the hallway as they had approached her apartment. Payton denied knowing the men. The detectives then asked Payton about the SUV. Payton told them that she had rented it and that it had been parked in front of her building from the evening of March 18 through the time of the interview. When the detectives told Payton that the vehicle was involved in a shooting, she again told them that it had been parked in front of her building and that she had no knowledge of what they were talking about.
The detectives then asked Payton about beer bottles and two large pizzas that they observed in her apartment. At this point, Payton admitted that the two men whom the police had seen walking down the hallway were friends of hers and had been in her apartment. Payton told the detectives that another friend of hers borrowed the vehicle she rented on March 18, but this person was not either of the two men who had just left her apartment. Payton did not identify either of those two men by name. The detectives told Payton that the shooting was a homicide, and she agreed to go to the police station to speak with them about the shooting. The detectives also brought the SUV to the police station for evidence processing.
Almazon testified that at the police station, the detectives asked Payton about the events of March 18. Payton stated that at approximately 11:00 p.m. that night, her friend Rodman came over to her apartment with a man named either Keith or Kevin. Payton said that the men came over to assemble an entertainment center, but they did not put it together because they arrived too late. Payton said that Rodman then asked to borrow the car, and she gave him the keys. Rodman returned the car approximately twenty minutes later.
Because Payton had given the detectives different stories, they asked her to take a polygraph examination, and she agreed. Around 10:00 p.m. on March 19, the detectives took Payton to another location for the exam. After speaking with the polygraph examiner after the exam was completed, they returned with Payton to the police station about 12:30 a.m. Around 1:00 a.m. on March 20, 1997, Almazon testified, the detectives told Payton the results of the examination. Payton then said she wanted to " clear her name." She told the detectives that Rodman had borrowed the car and that the two men who were leaving her apartment when the detectives first arrived were Dino and a friend of his whom she did not know. Police then sought and obtained from Payton a consent to search her apartment and left her in an interview room at the police station.
Almazon testified that the detectives next spoke with Payton around 8:00 a.m. on March 20. Payton told the detectives a different story. Specifically, she said that Rodman had come to her apartment with Dino around 11:00 p.m. on March 18. The two men borrowed the car and returned at approximately 2; 00 a.m. Dino came back the next morning at approximately 7:00 a.m. and borrowed the car again. According to detective Almazon, Payton said that she believed that Dino's first name was either Leonard or Anthony and that his last name was Logan. Payton then identified a picture of Logan as the man she called Dino who had come to her apartment.
Around 2:00 p.m. on March 20, Payton told the detectives still another version of her story, namely that Rodman was at her apartment that night but that he did not borrow the SUV. She said that Dino was the only person who took her vehicle that night. Due to Payton's changing story, around 4:00 p.m., the detectives asked her
if she would be willing to submit to a second polygraph exam. She agreed, and Almazon then turned Payton over to detective Van Witzenburg.
On cross examination, defense counsel made reference to Almazon's testimony about polygraph tests, and the following exchange occurred:
Q: Now, you know that polygraph tests are not admissible in a court of law, correct?
Q: That's because they're proven to be inaccurate?
Resp't Ex. 5 at 357. At this point, the prosecutor objected. The judge sustained the objection and gave the following instruction sua sponte :
These questions, Ladies and Gentlemen, the testimony concerning the polygraph is to be utilized by you only as to how it explains how the police conducted their investigation and why they asked certain questions of the witness. And the results of the polygraph are not relevant and not pertinent, and are not going to be revealed to you. And you are not to speculate or guess what the polygraph results are, and the polygraph results themselves are not relevant in this case. It only explains how the detectives conducted their investigation and their interviews and what they did with that examination and how it was utilized in interviewing Miss Payton.
Id. at 357-58.
d. Detective Sylvia Van Witzenburg; more polygraph evidence
Detective Sylvia Van Witzenburg testified that on March 20 she took Payton to the second polygraph examination, which took about two hours, and then returned her to the police station around 6:30 p.m. that evening. She testified that around 7:00 p.m., with another detective, she read Payton her rights and confronted her with the results of the polygraph test.
Van Witzenburg testified that Payton then gave a statement, which she summarized as follows. Payton said that on March 18, Logan was driving Payton's rented vehicle down 75th Street while she sat in the front seat and Rodman sat in the backseat. They were approaching Yates Boulevard when Logan said, " Look at that pussy motherfucker." Resp't Ex. 5 at 370. Logan pulled into a gas station at 75th and Yates and exited the car. He pulled a gun out of his waistband and started shooting a man who was on a pay phone. Logan then turned, shot down the alley at another person, got back into the vehicle, and sped away. When he noticed another car following them, he pulled into an alley to elude the vehicle. They then drove to 36th and Federal, where the Stateway Gardens Chicago Housing Authority complex is located. Payton stated that Logan went into one of the apartment buildings there and returned after approximately ten minutes. Logan had changed his clothes, and he no longer had the gun with him.
Van Witzenburg testified that she then contacted the State's Attorney's office, and Assistant State's Attorney Kent Stinson came to the police station around 7:00 a.m. He interviewed Payton in Van Witzenburg's presence, and her statements were consistent with her earlier statement to the detective. Payton's statement was reduced to writing, and she signed it. Van Witzenburg then took Payton to the grand jury to testify.
Detectives Almazon and Van Witzenburg both testified that that no one provided Payton any facts or any details surrounding the shooting of the victim. Both also testified that Payton was not coerced or pressured. Almazon testified specifically that Payton was not threatened with a murder charge.
e. The prosecution's remaining witnesses
Assistant State's Attorney Kent Sinson testified that he interviewed Payton on the morning of March 21 after being briefed by detectives on " some basic facts about the case." Resp't Ex. 5 at 402. Sinson testified at trial that he first advised Payton of her rights and then asked if she had information about the murder of Timothy Jones. Sinson stated that the detectives were not in the room for most of the interview. During the interview, and outside the presence of detectives, Sinson asked Payton how she had been treated by the police. She replied that she had been treated well and that the police had provided her with something to eat and drink. Following the interview, Stinson prepared in Payton's presence a written statement memorializing what she had said. Once the statement was written, Sinson read it out loud to Payton. He also asked her to review it for accuracy and to make any changes if necessary. Payton then signed each page of the thirteen-page statement.
Assistant State's Attorney Lawrence O'Reilly testified that he questioned Payton before the grand jury. He said that when speaking with Payton before she testified, he asked whether she had been threatened or coerced, and she said no. She did not complain about being tired or having been mistreated.
Chicago police officer Hasan Al-Amin testified that on June 20, 1997, he responded to a call regarding a man wanted for homicide. When Al-Amin arrived at the scene, he saw a man who fit the given description trying to hide underneath a landing behind boxes. Al-Amin scaled a fence, and the man started running. The man ran to the roof of the building and started to jump off but then stopped. Al-Amin's partner ordered the man to stop and lie down, and the two officers then arrested the man. The man was Logan.
The prosecution also presented evidence that police removed two compact discs and three compact disc cases from the Nissan Pathfinder SUV. A fingerprint on one of the compact discs matched Logan's. Logan's fingerprint was also on one of the beer bottles found in Payton's apartment on March 19th.
3. The defense case
a. Charles Jenkins
Logan's defense counsel called a witness to impeach Robinson regarding his description of the shooter and also called Charles Jenkins to testify. Jenkins testified that he was talking on a pay phone next to the victim at the Amoco station at 75th and Yates on Mach 18, 1997 at approximately 11:30 p.m. While he and the victim were on the phones, a truck pulled into the Amoco station and stopped five or six feet away from them. A young man exited the truck and walked toward them as though he was going to use a pay phone. Jenkins kept turning to look at the man as he approached, and he saw the man pull out a gun. He watched as the man put the gun to the victim's head and shot him. Jenkins then dropped the phone and started to run through an alley, where he was shot in the back by the same man who had shot the other victim.
At trial, Jenkins described the shooter as 5'6" or 5'7" tall and 160 to 170 pounds. He further testified that the shooter's complexion was darker than his own. He stated that he was " positive" that Logan was not the man who shot him. Resp't Ex. 7 at 512. Jenkins also testified, however, that there was only a " slim chance" that he could recognize the shooter if he saw him again because the scene was " pretty chaotic." Id. at 492, 506. On cross-examination, the prosecution elicited that Jenkins was being prosecuted for parole violations, suggesting this gave him a bias against the
prosecution. Jenkins denied that he was upset with the prosecution.
b. Colloquy regarding testimony by Logan and alibi witnesses
After the conclusion of Jenkins' testimony, outside the jury's presence, Logan's lead defense attorney Martin Kelly said the defense had another witness (an impeachment witness) and that Logan would testify after that. Id. at 514. The trial judge stated, " you did mention in the opening statement some sort of alibi to the jury, are you calling those witnesses, yes or no?" Kelly replied, " Judge, we do not anticipate calling the alibi witness [sic]." The judge asked whether Logan understood, and Logan said " I need to speak with the attorney, your Honor." Id. The judge stated that Logan had an opportunity to speak with counsel just earlier; Logan replied that they were " speaking on another issue, your Honor." Id. at 515. The judge asked Kelly if he had talked to Logan about the alibi witnesses. Kelly replied that he had done so that morning and that " [a]t the time he made a decision that we didn't need the alibi witnesses." Asked about this by the trial judge, Logan said that Kelly " discussed that with me, I did not make an accurate decision on that, I told him I would think about it and he was suppose [sic] to get back with me, he never came back to the back." Id. The judge pressed Logan: " Do you want to call those witnesses, yes or no?," and Logan replied, " Yes." Id. at 516.
The jury was then brought back into the courtroom, where it heard testimony from a defense investigator who said he had shown a photograph of Logan to Jenkins. On redirect examination, defense counsel elicited that Jenkins reported that Logan was not the shooter.
Following the investigator's testimony, defense counsel Kelly requested a sidebar. The record reflects that the sidebar was held in the trial judge's chambers. See id. at 529. Kelly stated that the defense intended to rest its case at that point and asked whether the trial judge wanted to admonish Logan--presumably concerning his right to testify, calling witnesses, or both. The trial judge said that Logan had stated earlier that he wanted to testify  and asked if he changed his mind. Logan said, " No, I wanted to talk to the attorneys about that, your Honor, that's why I was asking you if I could speak with the attorneys." Id. at 530. Logan said he had spoken to the attorneys about whether to call witnesses and whether to testify, but " wanted to talk to them some more in detail with the attorneys about that, your Honor." Id. The judge said that " we're getting to a point where I find that this is being dilatory on the defense part, that you're stalling." Id. After putting some of the background on the record, the judge gave Logan " a few moments with your attorney in this room in private next to my chambers" to discuss the matter and decide what to do. Id. at 531. The judge said, " I'll give you a few minutes. The jury is waiting for us in the courtroom." Id.
After Logan and his attorneys had an opportunity to speak, the judge asked defense counsel whether, prior to that day, defense counsel had spoken to Logan about whether he should testify. Id. at 532. Both attorneys said yes. Thomas said, " I personally have spoken to Mr. Logan regarding his testimony, I have advised him double digit times not to testify. . . . I told him at least five times today that it is my opinion that he should not testify." Id. at 532-33. Kelly said, " I've
talked to him not only today but on other occasions saying that, explaining that his past convictions could come in and that if the case is going well enough he probably shouldn't testify, that is my feeling that the case is going well enough." Id. at 533. Both attorneys said, however, that they had told Logan it was ultimately his decision. Id.
The trial judge then turned to the question of calling alibi witnesses and asked whether counsel had discussed that with Logan. Thomas stated:
I have explained to Mr. Logan that in my view as a lawyer and I've practiced law now more than fifteen years that with my experience again I have handled hundreds of cases, I have tried probably nearly one hundred jury trials, it is my opinion that he should not call these alibi witnesses.
Id. at 533. Kelly stated, " Judge, I have explained to him that alibi witnesses are weak and that we rarely win an alibi case because they are inherently weak the first time." Id. at 534.
At this point, the following exchange occurred:
MR. THOMAS: Excuse me, Judge, I have something else that I would like to tell Mr. Logan. Judge, we have just received information that some of his family members have advised us to tell him that he should not call his alibi witnesses. I have just told him that in the Court's presence now on the record.
THE COURT: So what family members?
MR. THOMAS: His mother and his grandmother have advised that he not call his alibi witnesses to testify.
THE COURT: Well, we will -- Do you want to testify in your trial, yes or no? Mr. Logan, do you want to testify in your trial, yes or no?
THE DEFENDANT: Your Honor, during the testimony --
THE COURT: It is your trial.
THE DEFENDANT: I understand. During the testimony, your Honor, they were going to be testifying that I was in other places other than the scene of the crime.
THE COURT: I'm talking about your testimony, do you want to testify in your trial? I am not talking about your alibi witnesses now, you, do you want to take the stand and testify in your trial that is a decision that you have to make. Your attorneys advised you as to what they think but you can reject their advice if you want. What do you want to do.
MR. THOMAS: Once again, Mr. Logan, I advise you not to testify but that's your call.
THE COURT: Twenty seconds have gone by since I've asked that question. I'm going to ask you again, do you want to testify, yes or no?
THE DEFENDANT: (No response.)
THE COURT: All right, we'll call the jury out and then I'll ask the defense who their witnesses are and if you don't have any more witnesses you'll rest. If you have more witnesses we'll hear from the witnesses.
MR, KELLY: Are you testifying or not?
THE COURT: The records should reflect that the defendant won't answer my question. We'll go back out and have the jury back out in the courtroom. Call the jury in.
(The following proceedings were had in the courtroom out of the presence of the jury.)
THE COURT: We're back in court, the jury is out of our presence. Mr. Logan, do you want to testify in your trial, yes or no?
THE DEFENDANT: No, our Honor.
THE COURT: Are you sure now?
THE DEFENDANT: Yes.
THE COURT: Positive?
THE DEFENDANT: Yes.
THE COURT: All right. Does the defense intend to call any other witnesses?
MR, KELLY: Judge, at this point we're resting. I spoken [sic] to Mr. Logan and he indicates to me that he does not wish to call the witnesses. Is that correct, Mr. Logan?
THE DEFENDANT: Yes.
THE COURT: Positive now?
THE DEFENDANT: Yes.
THE COURT: Okay.
Id. at 534-37.
After a further brief exchange about a prosecution rebuttal witness, the Court directed the courtroom officer to bring the jury in. The defense then rested its case. Id. at 538. The Court notes that the record does not reflect that any break was taken between the point at which attorney Thomas stated that counsel had " just received information" that certain members of Logan's family purportedly said to tell him not to call the alibi witnesses and the final exchange where Kelly reported that Logan agreed not to call defense witnesses.
4. The prosecution's rebuttal; closing arguments
In rebuttal, the prosecution called Joseph Adamczyk, a law clerk with the State's Attorney's office. Adamczyk testified that he was present for an interview with Jenkins during which Jenkins stated that he did not see the face of the man who shot him.
During closing arguments, the prosecution, after discussing the evidence and the elements of the crimes, concluded its argument by highlighting the failure of the defense to follow through on defense counsel's promise of alibi evidence. The prosecutor stated:
The Defense in its opening statement told you you would hear evidence that the defendant wasn't even in Chicago, he was in Milwaukee when it happened. You didn't hear any ...