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People v. Lewis

Court of Appeals of Illinois, First District

June 29, 2017

BARRON LEWIS, Defendant-Appellant.

          Rehearing denied July 14, 2017

         Appeal from the Circuit Court of Cook County, No. 09-CR-13229; the Hon. Kenneth J. Wadas, Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Bradley Jarka, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Lisanne P. Pugliese, Assistant State's Attorneys, of counsel), for the People.

          Justices Howse and Burke concurred in the judgment and opinion.



         ¶ 1 Defendant, Barron Lewis, was found guilty of aggravated criminal sexual assault in 2010 and sentenced to 15 years' imprisonment. In this appeal, defendant challenges the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Defendant maintains that he presented an arguable claim of ineffective assistance of counsel based on counsel's failure to investigate his negative chlamydia test results and to present that evidence to the trial court in support of his contention that the victim's positive chlamydia test results should have been admitted.

         ¶ 2 The record shows that prior to trial, the trial court heard the State's motion in limine regarding various matters. Among other things, the State requested that the defendant be barred from introducing evidence that the victim, C.H., had tested positive for chlamydia. The trial court initially indicated that it would grant the State's motion because the test result "ha[d] no relevance" and because it was "the same as trying to bring in predisposition-sexual predisposition *** which we know the law absolutely blocks." Defense counsel, however, asked to be heard on that issue. Counsel acknowledged the "rape shield law" issue but contended that the victim's test results should be admitted. Counsel stated that "if she had chlamydia and the Defendant had sex with her as she is saying, unprotected sex, the fact that the Defendant never had chlamydia, never got chlamydia, and has been in jail and was tested for it even on his entry into the jail is all *** direct medical evidence that-that they did not have sexual intercourse." Counsel further argued that "the simple fact that she had a highly communicable disease which was not transferred to the Defendant is medically speaking some evidence indicating that sex between the two did not happen. So this takes it out of the rape shield example and puts it into the elemental right of the Defendant to present a defense on one of the critical issues in the case which is whether or not there was sex between these parties."

         ¶ 3 The State responded that the evidence "goes to the victim's past sexual history which is specifically prohibited in rape shield, " and the court ruled, "Evidence of chlamydia is not going in or reference, rape shield law."

         ¶ 4 The remaining trial proceedings were summarized by a different panel of this court as part of defendant's direct appeal, which we will quote at length due to the nature of defendant's claims.

"C.H. testified that on July 5, 2009, she and fellow college student, Amanda Richardson, had recently moved into an apartment building at 833 West Buena Street in Chicago. C.H. had returned to the building after work at approximately 5:30 p.m. C.H. sat on a bench in the patio area outside the building finishing a telephone call, when she was approached by Lewis. Lewis offered C.H. a drink, which she accepted and thanked him for.
C.H. stated that after she finished her telephone call, she again thanked Lewis, who was listening to music on his boombox and smoking a cigar. Lewis invited her to sit with him and the two had a conversation. He spoke about his family and children, and his jazz club; she spoke about school, work, and her boyfriend. Lewis told her he lived two floors directly above her in the building.
When it began to grow dark, C.H. decided to return to her apartment. Lewis stated he was also going inside to get batteries for his boombox. The two made small talk in the elevator. C.H. testified that she was surprised when Lewis exited the elevator with her on the 12th floor. According to C.H., Lewis explained that he was interested in whether their apartments shared the same layout.
C.H. gave Lewis a brief tour of her apartment. Lewis asked whether she had any batteries, then went into her kitchen and poured them each shots of tequila. C.H. testified that she took a sip of the tequila, but poured the rest out because she did not want to get drunk. According to C.H., she had consumed only a glass of sangria and a sip of tequila that evening.
Furthermore, C.H. testified that Lewis then went into her living room and sat down on a futon. C.H. sat down on a futon across from him. Lewis got up, grabbed C.H.'s arm, and told her to sit next to him. Lewis also told C.H. she had a beautiful body. C.H. stated that she had been having a good time, but began to feel awkward and that Lewis, whom she had thought was funny, began to seem 'creepy.'
C.H. tried to get up from the futon, but Lewis pulled her back down next to him. Lewis again said that C.H. had a beautiful body, adding that she needed to show it off more. Lewis had C.H. stand up and then he removed her sweatshirt, under which she wore a t-shirt and scarf. After C.H. sat down again, Lewis tried to get her to kiss him and feel his penis and groin. C.H. repeatedly told Lewis that she had a boyfriend and that this situation was 'not okay.' Lewis told her that no one would love her the way he would. C.H. stated that Lewis continued to kiss her and tried to grab her hands. C.H. clenched her fists and pushed him away.
According to C.H., Lewis became aggravated and went back downstairs to the patio area to finish smoking his cigar. C.H. testified that she followed Lewis out to the patio, explaining that she thought she could get him to remain there or return to his apartment. C.H. stood behind Lewis as he smoked and conversed with other neighbors.
Lewis then told C.H. he needed to return to her apartment to retrieve his boombox. The two went back to her unit. C.H. stated that she thought Lewis would leave quickly, but he returned to the futon and again tried to kiss her and to have her feel his groin. According to C.H., Lewis was 'all over her.'
C.H. testified that she was crying and telling Lewis 'no.' Lewis forcibly removed C.H.'s sweatshirt. At some point while the two struggled, they knocked sangria onto the floor. C.H. tried to clean up the spill as a distraction, but Lewis carried her to her bedroom.
C.H. also testified that she was crying and yelling for him to stop, but Lewis forced her to remove all of her clothes. C.H. further testified that Lewis removed his clothes and tried to put his penis in her mouth, but she kept her mouth shut and turned her head away. According to C.H., Lewis struck her face, on her left cheek under her eye, and grabbed at her breasts, scratching her.
C.H. was then on her stomach and Lewis climbed on top of her. Lewis tried to insert his penis into C.H.'s anus, but he could not do so because C.H. was kicking. Lewis inserted his finger into C.H.'s vagina and he inserted his penis inside of her vagina. C.H. testified that she continued to tell Lewis to stop, but Lewis told her, 'I am going to show you what really fucking is about.' While Lewis was on top of her, he occasionally pulled on her scarf, choking her. C.H. did not know whether Lewis ejaculated, but he eventually got off of her and seemed to fall asleep.
C.H. stated that she quickly dressed and then began hitting Lewis with her fists, demanding that he leave. C.H. testified that she knew that Amanda would be home soon and feared what Lewis might do to her. According to C.H., Lewis awakened and dressed in the living room.
C.H. heard Amanda fumbling with the door locks, although C.H. stated she had locked neither the door lock nor the deadbolt. Once Amanda entered the apartment, C.H. started to cry and told her they needed to leave. Amanda went into the bathroom to remove her contacts. C.H. stated that when Amanda emerged from the bathroom, Lewis was sitting on the futon, finishing dressing. C.H. testified that she repeated that they needed to leave and yelled at Lewis to leave.
The three left the apartment. Lewis got on the elevator with C.H. and Amanda. Lewis introduced himself to Amanda and shook her hand. According to C.H., Lewis told Amanda he had been trying to keep C.H. happy all night and that she needed to stop crying. When the elevator reached the first floor, C.H. ran from the building. Amanda caught up to C.H., who had fallen at the end of the block. C.H. would not let Amanda touch her. C.H. telephoned her mother, but was crying and screaming, so Amanda took the telephone. Amanda then telephoned the police, who arrived as C.H. and Amanda returned to their building.
C.H. testified that after she spoke to the police officers, she was transported to Thorek Hospital, where a sexual assault kit was assembled. C.H. told the doctor that Lewis inserted his finger into her vagina. She also told the doctor she did not know whether Lewis had worn a condom. C.H. then went to the police station, where she identified Lewis in a lineup. At trial, C.H. identified a photograph of herself in which there is a visible bruise under her left eye, which she stated Lewis caused.
In addition, C.H. testified that she sent a series of text messages to Amanda, her boyfriend Tony, and her friend Lamar, throughout the evening, until Lewis took the telephone from her and threw it across the room. C.H. identified enlarged photocopies of text messages sent between 5:40 p.m. and 10:40 p.m. on July 5, 2009. The text messages sent to Amanda, admitted into evidence as People's group exhibit No. 2, included the following ***:
'(5:40 p.m.) When r u coming home?
(5:41 p.m.) Omg something hilarious is happening! [C.H. testified that "OMG" is short for "oh, my God."](time not displayed) I cam home and was sittin on a bench and a guy walks over and hands me a sangria. Then give me a huge cigar. We r just sittin drinkin and smokin.
I think hes gay.
(6:56 p.m.) Omg this guy is hilarious. Hes giving e advice ...

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