{ "id": 5186625, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARRION ANDERSON, Defendant-Appellant", "name_abbreviation": "People v. Anderson", "decision_date": "1992-08-31", "docket_number": "No. 1\u201488\u20141901", "first_page": "899", "last_page": "912", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 899" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "567 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548089 ], "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0515-01" ] }, { "cite": "544 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "129 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567042 ], "year": 1990, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0303-01" ] }, { "cite": "465 N.E.2d 682", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "687" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3603628 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0943-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "435 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2549553 ], "weight": 3, "pin_cites": [ { "page": "531" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0525-01" ] } ], "analysis": { "cardinality": 1246, "char_count": 27244, "ocr_confidence": 0.8, "pagerank": { "raw": 5.914495688418947e-08, "percentile": 0.36964664735279934 }, "sha256": "67bbb3b0765adac2137964e0c9c1c36ddc4ad0940c8def66b4e0aacd0c074f69", "simhash": "1:9b36fde2dcc1c641", "word_count": 4390 }, "last_updated": "2023-07-14T17:59:47.941433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARRION ANDERSON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE BUCKLEY\ndelivered the opinion of the court:\nA jury convicted defendant Marrion Anderson of the murder of decedent Maurice Leveston, possession of a stolen motor vehicle and robbery. The circuit court sentenced defendant to 60 years\u2019 imprisonment. Defendant appeals his conviction and sentence arguing that (1) he was not proven guilty beyond a reasonable doubt; (2) the voluntary manslaughter instruction violated his due process rights by erroneously stating the burden of proof on the findings of unreasonable belief of self-defense and sudden intense passion; (3) his fourteenth amendment rights were violated when the circuit court barred decedent\u2019s former roommate\u2019s testimony; (4) the circuit court improperly admitted photographs of decedent and his organs; (5) the State argued facts not in evidence, improperly shifting the burden of proof and usurping the jury\u2019s function by referring to decedent as \u201cvictim\u201d after the circuit court\u2019s admonishment not to do so; (6) the circuit court abused its discretion in sentencing him to an extended term of 60 years; (7) the State violated his due process rights by failing to inform him of lost evidence; and (8) he was denied effective assistance of counsel because defense counsel failed to request an instruction regarding the inference of the State losing evidence.\nPrior to trial, the State moved to preclude the testimony of the decedent\u2019s former roommate. Defendant indicated that the former roommate would testify that decedent had, on previous occasions, invited young males to his apartment, taken them into his bedroom and shut the door. The circuit court granted the State\u2019s motion in limine to bar this testimony.\nDavid Carroll testified on behalf of the State that he was a coworker of decedent. Carroll testified that decedent was scheduled to work on March 26 and 27, 1986. Decedent did not come to work on either of those days. After several unsuccessful attempts to reach decedent, Carroll contacted decedent\u2019s brother, Bobby Leveston. Carroll also explained that he had been at decedent\u2019s apartment the previous Saturday and it had been neat, clean and organized. Carroll further testified that he had never seen anyone but decedent drive decedent\u2019s Cadillac. Carroll acknowledged that he was aware of decedent\u2019s homosexuality.\nNext, Bobby Leveston testified that on March 25, 1986, at approximately 6 p.m., he telephoned decedent and invited him over to dinner. Decedent had declined, stating that he was going to stay at home and relax. Later that same evening, Leveston tried unsuccessfully to contact decedent by telephoning his home 15 to 20 times. On the morning of March 27, 1986, Carroll informed Leveston that decedent had not reported to work. Leveston went to decedent\u2019s apartment, but no one answered the door. Leveston told his aunt, Airlane Jedkins, who raised decedent, about the situation.\nRobert Haynes, an engineer at Granville Beach Condominiums, testified that on March 26, 1987, at about 11 a.m., he received a telephone call from Jedkins. Jedkins stated that she had not heard from her son, decedent. Haynes testified that he and Bert Castillo, the building janitor, went to decedent\u2019s apartment. Haynes did not notice anything unusual in the hallway or around decedent\u2019s apartment door. When Haynes entered decedent\u2019s apartment, he observed the apartment was in disarray and some clothing covering someone in the middle of the living room. Haynes crossed the living room and shut a window. Then, Haynes said, \u201cHey, buddy, don\u2019t you think you ought to get up.\u201d After receiving no response, Haynes noticed a pillow over the person\u2019s head and a brown robe around the waist area. The body was naked. Haynes testified that decedent\u2019s hands were tied behind his back and full of excrement, as was the robe. Also, there was a wire tied to one leg. Haynes lifted the pillow off decedent\u2019s head and saw a belt around decedent\u2019s mouth and a bruise on his forehead. Since Haynes did not detect any signs of life, he replaced the pillow, locked the apartment and telephoned the police. Castillo\u2019s testimony corroborates this testimony.\nDetective David Ryan arrived at the scene and found it as described above. Ryan notified decedent\u2019s brother, Fred Brown, who informed him that decedent parked his Cadillac at 6030 North Sheridan Road. Ryan went to the garage, and the manager told him that decedent\u2019s car was gone. All police in the city and the suburbs were given a description of the car along with the registration information.\nOfficer Susan Sherran testified that while on duty on March 29, 1986, she was on 30th Street and Kedzie Avenue and observed a four-door silver Cadillac approaching. Sherran recalled the description of decedent\u2019s car so she followed the Cadillac. The Cadillac pulled into a gas station. The Cadillac\u2019s license plate matched that of decedent\u2019s car. Sherran identified defendant as the driver of the Cadillac. The four occupants of the car were arrested.\nDetective Thomas Sappanos testified that on March 29, 1986, he read defendant his Miranda warnings in an Area 6 interview room and that defendant indicated that he understood them. Defendant told Sappano that his girl friend, Linda Stevenson, who lived at 6141 North Sheridan Road, gave him the car as a reward for having sex. There was no building at 6141 North Sheridan Road nor was Linda Stevenson listed as a tenant at any building near the \u201cfake\u201d address. Sappanos then drove to 6171 North Sheridan Road, and using the keys which were taken from defendant at the time of his arrest, opened the door of decedent\u2019s apartment.\nHerman Kluth, a fingerprint identification expert for the Chicago police department testified that on April 17, 1986, he compared the latent evidence from decedent\u2019s car to defendant\u2019s inked fingerprint impressions. Defendant\u2019s fingerprints were found on the car door, and his right palm print was found on the car. On April 24, 1986, Kurth identified defendant\u2019s fingerprints on the General Electric clock and a white plastic container found in decedent\u2019s apartment.\nDr. Barry Lifschultz performed the post-mortem examination on decedent on March 28, 1986. Lifschultz testified that there was bruising on the insides of decedent\u2019s lips, which was consistent with the pressure from the belt being tied around the face, but Lifschultz could not rule out the possibility that the bruising was caused by a punch. Decedent, however, was alive when he sustained the lip injury. There was also an abrasion on decedent\u2019s right forehead and on the left chin. Decedent\u2019s hands were tied behind his back with an electrical cord, which resulted in minimal hemorrhaging. Lifschultz could not rule out the possibility that the reason there was minimal hemorrhaging around the wrists and ankle was because they were bound after decedent was dead. There was hemorrhaging in the lining of the voice box and into the muscles covering the voice box. There was a bite mark on the tongue, which is often caused by strangulation, and hemorrhaging under the surface of the tongue. Further, Lifschultz determined that the cause of decedent\u2019s death was strangulation. To cause death in this manner, pressure would have had to be applied against the veins in the neck for approximately three to five minutes. Lifschultz also testified that there was no evidence that decedent had been sexually assaulted.\nAssistant State\u2019s Attorney Patrick McNerney testified that on March 30, 1986, he had a conversation with defendant after his Miranda rights had been given to him. McNerney testified that defendant told him that he first met decedent on Friday, March 21, 1986, in the vicinity of Clark and Lake Streets when decedent honked his horn and called defendant over to the car. Defendant got into decedent\u2019s Cadillac, they went and purchased alcohol and then went to decedent\u2019s apartment. At the apartment, decedent and defendant drank the alcohol and talked, after which decedent drove defendant back to the corner of Clark and Lake Streets. Defendant gave his telephone number to decedent, and decedent gave him $10.\nMcNerney also testified that defendant told him that on March 25, 1986, decedent telephoned defendant and they made arrangements for decedent to pick him up at the corner of Clark Street and Lake Street. After picking defendant up, decedent bought beer, then took defendant to his apartment. Defendant claimed that he and decedent drank the beer, smoked marijuana and discussed sex. Decedent asked defendant if he would have sex with him. Defendant consented to decedent performing oral sex on him three different times. Then, decedent went into the bathroom and returned wearing no pants and his hands full of petroleum jelly. Decedent requested defendant engage in anal sex with him; defendant agreed. Decedent put jelly on defendant\u2019s penis and on his own anus. Defendant said that he put his penis half way into decedent\u2019s anus and they began having sex. Defendant stated to McNerney that he withdrew his penis because he did not think it was healthy to place his penis into decedent\u2019s anus. Defendant told McNerney that decedent became upset and angry when defendant removed his penis. Decedent turned so that he was face to face with defendant. Then, decedent put his hands around defendant\u2019s waist in a hugging-type manner. Defendant explained that he began to choke decedent. Defendant managed to get behind decedent and choke him from behind. Defendant stated that he choked decedent until decedent collapsed.\nAfter decedent fell to the ground, defendant searched the entire apartment for the keys to the Cadillac. Defendant told McNerney that when he saw decedent move, he grabbed an electrical cord and tied decedent\u2019s hands behind his back. Then, defendant took a telephone cord and bound decedent\u2019s feet. Next, defendant strapped a belt around decedent\u2019s mouth. When McNerney questioned defendant regarding the fecal matter on decedent\u2019s hands, defendant stated that at one point he noticed fecal matter on his penis and hands so he wiped himself off with a towel.\nFirst, defendant argues that he was not proven guilty of murder beyond a reasonable doubt because the State failed to disprove self-defense beyond a reasonable doubt. Self-defense is an affirmative defense which defendant may raise only if he presents some evidence of each element of the defense or if the State\u2019s evidence raises it. (People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500, 505.) Such a defense is raised when (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable. (Guzman, 208 Ill. App. 3d at 531, 567 N.E.2d at 505.) The use of deadly force is limited to those situations in which the threatened force will cause death or great bodily harm or the force threatened is a forcible felony. People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.\nThe State argues that defendant did not set forth some evidence of each element of self-defense. We agree. Testimony pertaining to defendant\u2019s statement to a police officer indicates that an unarmed, 5-foot SVa-inch naked man weighing 140 pounds, who had three times previously performed fellatio on defendant the night of the killing and requested and engaged in anal sex with defendant, got angry and upset with defendant when defendant discontinued having anal sex. According to defendant\u2019s statement, decedent turned, faced defendant and put his arms around defendant\u2019s waist in a hugging-type manner. Defendant explained that then, he began to choke decedent and got behind decedent while he was still choking him. Even if we agree with defendant that the \u201chug\u201d is some evidence of force, there is no evidence that the danger of harm was imminent. Moreover, defendant\u2019s alleged beliefs that a danger existed and that deadly force was necessary because the alleged threatened force might cause defendant death or great bodily harm were not \u201creasonable\u201d beliefs. Defendant was 5 feet 9 inches tall and weighed 173 pounds at the time of the murder. Decedent was a man of substantially smaller stature than defendant, he was unarmed and naked. There is no evidence that it was reasonable for defendant to believe that choking decedent to death was necessary. Decedent putting his arms around defendant in a \u201chugging-type\u201d manner is not evidence that defendant could have reasonably believed that decedent was threatening to do great bodily harm or cause defendant to die. As a matter of law, therefore, self-defense was not raised because defendant failed to present some evidence of each of the elements of the affirmative defense. Guzman, 208 Ill. App. 3d 525, 567 N.E.2d 500.\nNotwithstanding the above, defendant\u2019s argument also fails because the jury need not accept as true the evidence in favor of self-defense. (People v. Johnson (1988), 172 Ill. App. 3d 371, 377, 526 N.E.2d 611, 614-15.) There was medical testimony that decedent had not been sexually assaulted. This evidence tends to discredit the account which defendant gave to the police. A reviewing court should not disturb the jury\u2019s decision regarding self-defense unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (Johnson, 172 Ill. App. 3d at 377, 526 N.E.2d at 614.) We do not make such a finding. In fact, after reviewing the evidence in a light most favorable to the State, we find that any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt. See People v. West (1990), 137 Ill. 2d 558, 584, 560 N.E.2d 594.\nSecond, defendant argues that the jury was improperly instructed in light of People v. Redidick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The Illinois Supreme Court held that when the voluntary manslaughter instructions (Illinois Pattern Jury Instructions, Criminal, Nos. 7.04, 7.06 (2d ed. 1987) (herein after IPI Criminal 2d)) and the murder instruction (IPI Criminal 2d No. 7.01) are given together, they misstate the State\u2019s burden of proof regarding the mental state necessary to reduce a murder charge to voluntary manslaughter. (Reddick, 123 Ill. 2d at 194, 526 N.E.2d at 146.) Reddick applies retroactively, but does not mandate an automatic reversal of convictions arising from trials in which the above instructions were given. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) In determining the effect of the above-given instructions on the validity of defendant\u2019s conviction, the instructions must be considered in light of the whole record, including the evidence and arguments presented. (Shields, 143 Ill. 2d at 445-46, 575 N.E.2d at 543.) Further, constitutional errors may be deemed harmless beyond a reasonable doubt. Shields, 143 Ill. 2d at 446, 575 N.E.2d at 543; Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.\nAs previously discussed, there was no evidence that defendant believed he was in imminent danger of sustaining great bodily harm or death and defendant\u2019s statement to the police is discredited in large measure by the physical evidence. Although the Reddick error did occur, the evidence in support of the murder conviction is so clear and convincing that the jury\u2019s verdict would not have been different had the correct instructions been given. (People v. Austin (1989), 133 Ill. 2d 118, 124, 549 N.E.2d 331, 332-33; see Shields, 143 Ill. 2d at 450, 575 N.E.2d at 545.) We, therefore, hold that the Reddick error was harmless beyond a reasonable doubt.\nThird, defendant argues that the circuit court erred in barring the testimony of decedent\u2019s former roommate regarding the frequency of decedent inviting young males to his apartment, taking these males into his bedroom and shutting the door. After hearing argument, the circuit court granted the State\u2019s motion in limine to bar the above testimony. The State argued that the former roommate\u2019s testimony was irrelevant because he had no knowledge of the incident involving defendant and the roommate\u2019s testimony would not resolve any issue in dispute. Defendant argued that the testimony was relevant to prove he was invited to decedent\u2019s apartment.\nContrary to defendant\u2019s argument, whether or not defendant was invited to the apartment is irrelevant. The test for relevancy is whether the evidence offered tends to prove or disprove a disputed issue. (People v. Molsby (1978), 66 Ill. App. 3d 647, 657-58, 383 N.E.2d 1336, 1344.) .There was no dispute regarding how defendant gained entry into decedent\u2019s apartment.\nRelying on People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001, defendant also argues on appeal that decedent\u2019s former roommate\u2019s testimony should have been allowed to show decedent\u2019s aggressive and violent character because the issue of self-defense was disputed. Defendant, however, made no offer of proof that decedent\u2019s former roommate would testify that decedent displayed an aggressive and/or violent demeanor toward the males he invited to his apartment. Moreover, the State did not challenge defendant\u2019s theory that decedent had invited him over for sex. Since the testimony of decedent\u2019s former roommate did not tend to prove or disprove any issue in dispute, it was irrelevant, and the circuit court did not err in barring it.\nFourth, defendant argues that the circuit court improperly allowed the jury to view photographs of decedent\u2019s internal organs. Defendant has waived this issue by failing to preserve it for appellate review. It is well-settled law in Illinois that in order to preserve an issue for review, both a contemporaneous trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131.) Defendant failed to include this issue in his written post-trial motion; therefore, he has waived review of it.\nFifth, defendant argues that the State\u2019s closing argument was not based on the evidence and was beyond reasonable inference, thereby depriving him of a fair trial. Defendant did not object during trial to the State\u2019s argument nor did defendant include this issue in the written post-trial motion; consequently, defendant also waived this issue. See Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1132.\nSixth, relying on People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503, defendant contends that the State shifted the burden of proof, thus violating his constitutional rights when the State argued: \u201cthat is the best defendant can give you a year and-a-half [sic] later.\u201d Giangrande is distinguishable from the case at bar. In Giangrande, the State argued, \u201cNow where\u2019s the evidence that the defendant didn\u2019t do it?\u201d (Emphasis omitted.) (Giangrande, 101 Ill. App. 3d at 402, 428 N.E.2d at 507.) This comment clearly addressed the central premise of our legal system, that one is innocent until proven guilty. The comment shifted the burden of proof because in essence it conveyed that defendant is guilty by virtue of being charged with the crime, and that during trial he must prove that he did not commit the crime.\nIn the present case, the comment was directed at the credibility and strength of defendant\u2019s evidence of self-defense. Defendant objected to this comment, and the circuit court, determining it was improper argument, promptly sustained the objection. Any prejudice which may have occurred because of the State\u2019s argument was cured by the circuit court immediately sustaining defendant\u2019s objection.\nSeventh, defendant argues that the State usurped the jury\u2019s function as trier of fact by referring to decedent as the \u201cvictim.\u201d Defendant objected twice to the State\u2019s use of the word \u201cvictim\u201d when referring to decedent. The circuit court sustained those objections. Defendant argues that the State was attempting to use the word \u201cvictim\u201d to play on the sympathies and prejudices of the jury. A close reading of the record shows that this was not the case. It is evident that the State and McNerney were using the term \u201cvictim\u201d because it was easier than reciting decedent\u2019s name, just as they used the term \u201cdefendant.\u201d After the circuit court admonished the State and McNerney to use decedent\u2019s name, they did so. This admonishment and later usage of decedent\u2019s name cured any prejudice which may have been caused by the alleged improper term. See People v. Trask (1988), 167 Ill. App. 3d 694, 713, 521 N.E.2d 1222, 1235.\nEighth, defendant contends that the circuit court abused its discretion when it sentenced him to 60 years\u2019 imprisonment. Defendant argues that he did not qualify for an extended term because the State failed to demonstrate that the crimes were accompanied by brutal and heinous behavior.\nThe circuit court\u2019s sentencing decision is entitled to great deference and weight. (.People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The circuit court has a better opportunity to consider such factors as defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits and age along with the nature and circumstances of the crime. (People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125.) Therefore, absent an abuse of discretion by the circuit court, a sentence will not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A reviewing court may not substitute its judgment for that of the circuit court merely because it would have balanced the appropriate factors differently had the task of sentencing been its responsibility. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.\nIn the present case, at the sentencing hearing, regarding aggravating factors, the circuit court judge cited defendant\u2019s previous record of armed robbery, and the facts that defendant tightly bound decedent\u2019s mouth with a belt, bound decedent\u2019s hands and feet and the manner of strangulation as evidence that defendant was \u201can exceptionally brutal person, a person that does not have regard for others, a person whose total behavior could easily be and has been one that will inflict wanton cruelty upon other people.\u201d The judge also took into account mitigating factors such as defendant had sought education and had a loyal family. The judge, however, believed that defendant was not \u201ccognizant of his family and did not take advantage of their loyalty.\u201d Thereafter, the judge determined that defendant qualified for an extended sentence. Defendant\u2019s 60-year term is within the permissible range pursuant to section 5 \u2014 8\u20142(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005\u20148\u20142(1)). There is no evidence that the circuit court abused it discretion; thus, we affirm defendant\u2019s extended sentence.\nNinth, defendant contends that his due process rights were violated when the State failed to disclose that evidence was lost. Prior to trial, in answering discovery, the State claimed to have produced all of the medical examiner\u2019s reports and laboratory reports. The documents produced did not contain any information that Lifschultz had taken swabs of decedent\u2019s anus and mouth. Lifschultz testified that he took the swabs because cases of strangulation are frequently associated with sex crimes. Lifschultz, however, testified that there were no signs of sexual assault. Further, the State was not aware of the existence of any swabs until defense counsel discovered that they had been taken.\nIn order to establish a discovery violation which would warrant a new trial, defendant must show (1) that the evidence was favorable to him; (2) that the State failed to disclose the evidence after a specific request; and (3) the evidence was material. (People v. Flax (1986), 147 Ill. App. 3d 943, 498 N.E.2d 667.) Since defendant did not establish that the State knew about the swabs, it would have been impossible for the State to disclose that the swabs were lost. In addition, defendant did not show that this evidence was favorable to him. Defendant\u2019s due process rights were not violated.\nLastly, defendant argues that he was denied effective assistance of counsel because defense counsel failed to request an instruction regarding the loss of evidence. To sustain a claim of ineffective assistance of counsel, defendant must show actual incompetency on the part of the attorney that resulted in substantial prejudice, such that the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) If there is a lack of sufficient prejudice to defendant, we do not need to determine whether counsel\u2019s performance was deficient. (People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246, 1256.) Defendant has the burden of showing actual prejudice. (People v. Puente (1984), 125 Ill. App. 3d 152, 158, 465 N.E.2d 682, 687.) To establish prejudice, defendant must demonstrate \u201cnot simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.\u201d (People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276, 282.) When determining whether a reasonable probability exists that but for counsel\u2019s error, the result of defendant\u2019s trial would have been different, an appellate court must review the totality of the evidence presented to the jury. People v. Moore (1990), 208 Ill. App. 3d 515, 522, 567 N.E.2d 466, 471.\nDefendant contends that if the swabs would have indicated the presence of semen or petroleum jelly, it would have corroborated defendant\u2019s account of the killing. Sex, consensual or nonconsensual, is irrelevant to defendant\u2019s murder conviction. Actually, the State never disputed defendant\u2019s theory that he had sex with decedent. Furthermore, defendant still admitted to choking decedent until he was unconscious and binding decedent in the manner in which decedent was found. The evidence clearly and convincingly shows that defendant killed decedent. As for defendant\u2019s self-defense theory, the evidence of semen or petroleum jelly would not tend to prove that decedent was or was not aggressive or that deadly force was necessary. Defendant failed to establish that he was prejudiced by the lack of defense counsel\u2019s argument or an instruction concerning the swabs. Consequently, defendant has not established a claim for ineffectiveness of counsel.\nFor the foregoing reasons, the conviction and sentence of the circuit court of Cook County are affirmed.\nAffirmed.\nCAMPBELL and MANNING, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BUCKLEY" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Lisa S. Ottenfeld and Bruce Landrum, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARRION ANDERSON, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201488\u20141901\nOpinion filed August 31, 1992.\nRandolph N. Stone, Public Defender, of Chicago (Lisa S. Ottenfeld and Bruce Landrum, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0899-01", "first_page_order": 919, "last_page_order": 932 }