Rehearing denied July 14, 2017
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
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
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
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
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
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
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 ...