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FOURTH DIVISION

September 28, 2001

JUSTICE THEIS delivered the opinion of the court:

Following a bench trial, defendant Lizell Bryant was convicted ofattempted first-degree murder and aggravated battery and sentenced toan extended term of 60 years' imprisonment. Defendant appeals hisconvictions and sentence, arguing that (1) the State failed to provebeyond a reasonable doubt that defendant did not act in self-defense;(2) his right to due process was violated when the State failed totender evidence favorable to the defense; (3) his extended-termsentence should be reduced under Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (4) a 30-year sentencewould be excessive. For the reasons that follow, we affirmdefendant's conviction, but vacate his sentence and remand forresentencing.

In 1998, defendant was indicted on several charges, includingattempted first-degree murder and aggravated battery. At his firsttrial, the jury returned a verdict of guilty of aggravated battery butwas unable to render a verdict on the attempted murder count. Defendant's motion for a new trial was granted, and his second trialwas a bench trial.

The following facts were adduced at his second trial. Defendant's wife, Evelyn Bryant, first testified for the State. Sheand defendant married in 1991 but separated in 1997. Evelyn moved outof their house and into a studio apartment in Des Plaines at 1409 EastAshland Avenue while defendant purchased a two-flat apartment inJoliet. While separated, Evelyn continued to see defendant, spendingsome weekends and nights with him.

On the evening of October 20, 1998, defendant arrived in DesPlaines around 10 p.m. and Evelyn allowed him into the apartment. Atsome point, defendant hit Evelyn on her head. She fell to the floor,where defendant sat on her back and continued beating her with hisfist. He next hit her over the head several times with a vase and abrass candlestick. During this incident, defendant told her that shewas going to die, that if anyone came to the door he would kill her,and he hoped she had said good-bye to her grandchildren. Evelyn triedto defend herself by covering her head with her hands and asked himwhy he was doing this to her, but defendant continued to hit her andat one point covered her face with pillows.

When defendant stood up and walked toward the kitchen, Evelyn ranfor the door, but defendant stopped her and stabbed her twice in thechest with a kitchen knife. She grabbed the blade and tried to bendit back towards defendant. Evelyn bit defendant and defendant bit herback. She then took control of the knife and ran to the kitchen tocall the police. Defendant reached the phone first, pulled it off thewall, and threw it to the floor. She screamed at defendant to leave,but he stood in front of the door and asked her why she made him dothis to her. He then left and Evelyn went to a neighbor's apartmentfor help. When the police arrived, Evelyn told them that defendanthad done this and gave them his address and a description of his car.

On cross-examination, Evelyn stated that she did not remember ifthe dining-room table had been turned over during the struggle andstated that she did not cut defendant. Evelyn denied knowing about awoman named Laura Williams or that defendant had a girlfriend duringtheir separation. She recalled seeing a card at his apartment fromLaura but believed defendant when he told her the card was for hisson. She denied accusing defendant of having an affair with Williamsand other women but agreed that her daughter had seen him with anotherwoman.

Officers Jeff Rotkovich and Jeff Jacoby of the Des Plaines policedepartment testified that they responded to 1409 East Ashland Avenueand observed a woman lying in a pool of blood. Both saw a knife onthe floor near her left hand. Jacoby searched the apartment andnoticed blood on the walls, a vase and a pillow. The living-roomtable was turned over and the wall telephone was on the floor.

After defendant was arrested a few hours later, Rotkovichobserved cuts and scrapes on defendant's arm and hand and a bite woundon his thumb, but no knife wounds. Rotkovich testified that defendantwas not taken to the hospital for his injuries. On cross-examination,Rotkovich stated that blood was found in defendant's car and on atissue located on the front seat.

The State stipulated that Dr. Rabih Salloum would testifyconsistent with his testimony from defendant's first trial. Dr.Salloum stated that Evelyn suffered lacerations to her head, multiplebruises to her back, cuts on her hand and fingers, and two stab woundsto the chest. In his opinion, any of these injuries could have beenfatal. He stated that her hand injuries were sustained when she triedto push a knife or sharp object away from her.

The parties stipulated that Officer Badertscher of the Jolietpolice department would also testify as he did in the first trial. There, he stated that when he apprehended defendant in Joliet henoticed defendant's hand was bleeding and blood on a napkin andclothing in the front seat of the car. Defendant told Badertscher hedid not do anything.

Robert Wijas next testified that he was visiting his girlfriendat her 1409 East Ashland Avenue apartment on October 20, 1998, when heheard a woman screaming around 10 p.m. After about 20 minutes, heheard the woman ask a man to leave twice. He then heard a door slamand saw a man leave the building and get into a Chevy Blazer. Wijascalled the police and later determined that the screaming came fromEvelyn's apartment. He never heard a man scream.

Michael Roston testified for the defense that he owns RostonCorporation, where defendant worked for 10 years running errands anddelivering mail. In the summer of 1998, defendant came to work withbruises and scratches on his face. Roston believed defendant when hesaid that he sustained the injuries falling off his bicycle. Defendant's mother, Ida Conner, also testified that she visiteddefendant in the hospital once and she believed him when he told herhe had fallen off his bicycle.

Defendant next testified in his own defense. He stated that heand Evelyn both used the Des Plaines apartment during the week andstayed in Joliet on the weekends. In February 1998, defendant spentthe weekend in Joliet while Evelyn stayed in Des Plaines. When hereturned to Des Plaines on Monday, defendant stated that Evelyn wasupset and "jumped on [him]." He started to take his clothes and leavewhen Evelyn ripped the clothes out of his arms, tore his shirt and hithim. He pushed her off and left. Defendant returned to the apartmentwith an officer and picked up his clothes.

On October 19, 1998, he spoke with Evelyn, who was unhappy thatshe had to baby-sit her grandchildren that night. Defendant statedthat Evelyn said she wished for a gun to end everything because shewas tired of him and her grandchildren and she wanted to go away.

On October 20, 1998, he spoke with Evelyn during the day asusual. She was upset that she had to watch her grandchildren thatevening in Des Plaines while defendant stayed in Joliet. Thatevening, Evelyn called him several times asking what he was doing andwhen he was returning. Defendant left Joliet at about 8:45 p.m. andstopped for gas and food. When he arrived in Des Plaines, Evelynasked defendant where he had been. He stated he had been on his way,but she responded that the drive was not that long and accused him ofhaving affairs, which he denied.

Defendant testified that Evelyn then took a knife and said thathe was probably sleeping with "Laurie," someone defendant met while heand Evelyn were separated. She tried to stab him and, when heattempted to grab her arm, he felt the knife cut his hand. Hereleased the knife, left the kitchen and hit the dining-room table asEvelyn cut his arm. Defendant then punched her in the face a fewtimes and told her to release the knife, but she refused. Defendantplaced her in a "half nelson" position while he was standing behindher. Evelyn bit him in the thumb so he bit her on the shoulder. Sheescaped and threw a vase at him, and he threw it back at her. Defendant testified that he pushed Evelyn to the floor while sherepeatedly told defendant she was going to kill him. He picked up acandlestick and hit her on the back and the neck. When she raised herhands to her head, he hit her hands until she surrendered. He askedher why she was doing this and she said that he did not care abouther. Defendant told her he loved her and continued to hold her on theground. He picked up the knife and said he was tired of her falselyaccusing him. Defendant then took the knife and turned to leave whenEvelyn ran up to him, grabbed the blade of the knife and tried to turnit toward him. At that point, defendant backed away and Evelyn toldhim he was going to jail. She went to pick up the phone and hegrabbed it out of her hands and threw it down. Defendant left,stopped at a liquor store and sat in the casino parking lot in Joliet. He was headed toward his mother's house when he was stopped andarrested.

Defendant testified that Evelyn found out about "Laurie" when shediscovered a card from her. Evelyn continued asking him if he wasseeing other women until he admitted to the affair. Evelyn then"snapped" and threw a porcelain salt shaker at his face and hit him. Defendant stated that they continued living together after thisincident and Evelyn wrote him an apology.

On cross-examination, defendant stated that he did not testify athis first trial that he attempted to cripple Evelyn's hands during thestruggle or that she stated she wanted a gun. Defendant deniedstabbing his wife and stated that the wounds must have occurred whilethey were wrestling or fighting. He stated that he did not see anyblood on her when he left the apartment. When defendant spoke withDetective Rotkovich after he was arrested, defendant told him thatwhen he left the apartment his wife was fine. Further, he said he didnot know how Evelyn sustained her injuries. Defendant did not call anambulance after the incident because he did not know Evelyn wasinjured badly and he did not call the police.

Defendant was found guilty of attempted first-degree murder andaggravated battery and sentenced to an extended term of 60 years'imprisonment. Defendant's motion for a new trial and motion toreconsider his sentence were denied. He then filed this timelyappeal.

Defendant first contends that the State failed to disprove beyonda reasonable doubt his claim of self-defense. Self-defense is anaffirmative defense and, once raised, the State has the burden ofproving beyond a reasonable doubt that defendant did not act in self-defense. People v. Jeffries, 164 Ill. 2d 104, 127, 646 N.E.2d 587,597 (1995). The elements of self-defense are that (1) unlawful forcewas threatened against a person, (2) the person threatened was not theaggressor, (3) the danger of harm was imminent, and (4) the use offorce was necessary. People v. Dillard, 319 Ill. App. 3d 102, 106,745 N.E.2d 185, 188 (2001). The standard of review is whether, takingall of the evidence in the light most favorable to the State, anyrational trier of fact could have found beyond a reasonable doubt thatdefendant was not acting in self-defense. Dillard, 319 Ill. App. 3dat 106-07, 745 N.E.2d at 189.

Defendant argues that Evelyn's testimony contained significantomissions and did not explain defendant's injuries or the condition ofthe furniture in the apartment. Her testimony was thus incredible, hecontends, leaving a reasonable doubt about defendant's guilt. However, the trier of fact makes determinations about witnesses'credibility, draws reasonable inferences from their testimony, andresolves conflicts in the evidence. People v. Billups, 318 Ill. App.3d 948, 954, 742 N.E.2d 1261, 1266-67 (2001). We will not substituteour judgment for that of the trier of fact.

Here, the trial court specifically addressed credibility andstated that "[t]his Court clearly believes the testimony of EvelynBryant" and later told defendant "I heard your testimony Mr. Bryant. I didn't believe it." In her testimony, Evelyn stated that defendantinstigated the incident, pushing her to the floor and hitting her onthe back and head with his fists, a vase and a brass candlestick. Hethreatened to kill her, stated he hoped she had said good-bye to hergrandchildren, and tried to suffocate her with pillows. Defendantthen obtained a knife and stabbed her twice in the chest, preventedher from using the telephone or leaving the apartment. Evelyntestified she tried to get the knife from defendant and bent it backtoward him. She told defendant to leave several times before heeventually did so. Her testimony, and the testimony of other Statewitnesses, clearly negates defendant's claim of self-defense. Thus,we find that, viewing the evidence in the light most favorable to theprosecution, a rational trier of fact could have found defendantguilty beyond a reasonable doubt and that the State disproveddefendant's self-defense claim.

Defendant next argues that his right to due process was violatedunder Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194(1963), when the State failed to tender favorable evidence to thedefense. Specifically, he maintains that the State and policepossessed, and failed to return, his briefcase, which was in his carwhen he was arrested. He further maintains that in the briefcase wasa letter from Evelyn apologizing for physically injuring him on aprior occasion which would show her violent tendencies and affect hercredibility. The State responds that neither the State nor the policehad possession of the briefcase and that the letter was not favorableto the defense.

Defendant relies upon Brady, which holds that the suppression bythe State of evidence favorable to the defendant upon request violatesdue process where the evidence is material to guilt or punishment,regardless of the good or bad faith of the prosecution. In re C.J.,166 Ill. 2d 264, 272, 652 N.E.2d 315, 319 (1995), citing Brady, 373U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. However, theIllinois Supreme Court has found Brady ill-suited to cases in whichthe evidence is lost or destroyed and instead has applied the analysisunder Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S.Ct. 333 (1988). In re C.J., 166 Ill. 2d at 272, 652 N.E.2d at 319;People v. Hobley, 159 Ill. 2d 272, 307, 637 N.E.2d 992, 1007 (1994).

Here, a photograph introduced into evidence of defendant's carshows a briefcase in the front seat. The Joliet police arresteddefendant and first had possession of his vehicle. Their inventoryreport shows that they did not check the interior of the car orinventory any objects because they were instructed to send the car tothe Des Plaines police department for evidence processing. The DesPlaines police department inventory sheet reveals that only shoes,pants, a sweat shirt and a wallet containing money, identification anda credit card were recovered from the vehicle. Bank One, thelienholder of the car, repossessed the vehicle from the Des Plainespolice two weeks after defendant's arrest and before defendant filedany discovery requests.

Here, neither police department recovered or inventoried abriefcase or a letter. None of the police officers testified at trialto finding a briefcase. The car has since been repossessed by a lienholder through no fault of the police. The briefcase is no longerin the possession or control of the State and its agents and isconsidered lost or destroyed. Therefore, we will apply the Youngbloodanalysis.

Under Youngblood, when evidence has been lost or destroyed,"'unless a criminal defendant can show bad faith on the part of thepolice, failure to preserve potentially useful evidence does notconstitute a denial of due process of law.'" In re C.J., 166 Ill. 2dat 273, 652 N.E.2d at 319, quoting Youngblood, 488 U.S. at 58, 102 L.Ed. 2d at 289, 109 S. Ct. at 337. Achieving a proper balance betweenpromoting the preservation of evidence and not rewarding a defendantfor its inadvertent loss may be accomplished through a considerationof (1) the degree of negligence or bad faith by the State in losingthe evidence, and (2) the importance of the lost evidence relative tothe evidence presented against defendant at trial. Hobley, 159 Ill.2d at 307, 637 N.E.2d at 1008.

Here, defendant has not met his burden under Youngblood. First,defendant has failed to show any bad faith on the part of the State. The police did not recover or inventory a briefcase. Thereafter, theyturned the car over to a lienholder. The release of the vehicle tothe lienholder was not due to police negligence or bad faith. Further, defendant failed to mention the briefcase in his discoveryrequests and motion for the release of personal property before hisfirst trial. An agreed order entered before the first trial requiredthe Des Plaines police department to release to defendant a wallet,money, credit card and a black briefcase and its contents. Defendantdid not file a motion to compel or otherwise bring this issue to thecourt's attention. Defendant first raised this issue on the day hissecond trial was to begin and the State responded that this was thefirst request for the briefcase.

Second, the importance of the lost evidence, the letter withinthe briefcase, is speculative at best. In re C.J., 166 Ill. 2d at274, 652 N.E.2d at 320. Although defendant asserts that the letterexists and contains an apology from Evelyn for her prior behavior,stating "the only reason I *** say things and do things to hurt you[is] because I love you so much," we have no independent corroborationas to the letter's existence or content. In denying defendant'smotion to dismiss, the court found that there was "no independentbasis for assuming what was in the briefcase, that the briefcasecontained what the defendant claims it does." Further, the Statecontends that Evelyn would deny writing such a letter. Even assumingthe letter does contain that language, it is vague, does not confirmthat Evelyn had previously injured defendant or establish a pattern ofviolent behavior. In fact, the testimony of both State and defensewitnesses at trial revealed that defendant was previously injured byfalling off his bicycle, not from an altercation with Evelyn. Theletter would not have bolstered defendant's self-defense claim as itwould not have determined she was the aggressor here. As discussedabove, the overwhelming weight of the evidence at trial proveddefendant's guilt beyond a reasonable doubt. We therefore rejectdefendant's claim.

Lastly, defendant contends that his extended-term sentence shouldbe reduced under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000). Defendant's aggravated battery countmerged with the attempted murder and thus he was sentenced only forattempted murder, a Class X felony, normally carrying a 6- to 30-yearsentence. During sentencing, the trial court found that the offensecommitted by defendant was exceptionally brutal and heinous andindicative of wanton cruelty, meriting an extended-term sentence of 60years' imprisonment pursuant to sections 5-8-2(a)(2) and 5-5-3.2(b)(2)of the Unified Code of Corrections (the Code) (730 ILCS 5/5-8-2(a)(2),5-5-3.2(b)(2) (West 1998)).

In Apprendi, the United States Supreme Court found that "[o]therthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt." Apprendi,530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. InPeople v. Swift, 322 Ill. App. 3d 127, 128-29, 750 N.E.2d 294, 295-96(2001), the court specifically addressed sections 5-8-2(a) and 5-5-3.2(b)(2), finding that these statutes increased the penalty range forthe crime beyond the maximum permitted by statute upon a finding bythe trial court that defendant's conduct was exceptionally brutal andheinous, without submitting this issue to a jury. Swift then heldsection 5-8-2 unconstitutional under Apprendi. See also People v.Chanthaloth, 318 Ill. App. 3d 806, 816, 743 N.E.2d 1043, 1050-51(2001); People v. Joyner, 317 Ill. App. 3d 93, 110, 739 N.E.2d 594,606-07 (2000); People v. Beachem, 317 Ill. App. 3d 693, 708, 740N.E.2d 389, 399 (2000).

The State responds that, even though the sentencing court and notthe trial court determined the offense to be exceptionally brutal andheinous, any error was harmless because a rational trier of fact wouldhave reached the same conclusion beyond a reasonable doubt based onthe evidence at trial. The State relies upon United States v. Nance,236 F.3d 820 (7th Cir. 2000), United States v. Anderson, 236 F.3d 427(8th Cir. 2001), and United States v. Terry, 240 F.3d 65 (1st Cir.2001). In those cases, defendants were subjected to a sentence beyondthe statutory maximum based on a finding by the trial court atsentencing regarding the amount of drugs involved. The courts foundthat such a finding by the trial courts violated Apprendi but found itwas harmless error as no rational jury could have found less than thatamount of drugs based on the evidence presented at trial.

We reject the State's contention that the error here washarmless. In these cases involving the quantity of drugs, there wasspecific evidence at trial indicating the exact quantity involved, andthis fact was undisputed by the defendants in Anderson and Terry. Afinding that the crime was exceptionally brutal and heinous indicativeof wanton cruelty, however, is a factual question which involvesweighing of the evidence at trial. People v. Peacock, No. 1-98-3552(August 21, 2001). Such language is subject to various definitionsand interpretations, unlike quantity. While one rational jury couldfind that an offense was exceptionally brutal and heinous, anothercould find the opposite based on the same evidence. In this case, wedisagree with the State that any rational trier of fact would havefound defendant's attempted murder of his wife to be exceptionallybrutal and heinous. Therefore, this issue had to be decided by thetrial court under Apprendi and this was not harmless error.

The State further cites People v. Jones, 81 Ill. 2d 1, 405 N.E.2d343 (1979), People v. Leger, 149 Ill. 2d 355, 597 N.E.2d 586 (1992),and People v. Armstrong, 183 Ill. 2d 130, 700 N.E.2d 960 (1998), whereour supreme court found the failure to submit to the jury the intentelement of an offense was harmless. We find all three casesdistinguishable. In Jones, the court noted that the intent to commitmurder was blatantly evident and admitted by defense counsel and theonly real issue was identity. Jones, 81 Ill. 2d at 10, 405 N.E.2d at346. Armstrong is distinguishable where the sentencing jury was notgiven an instruction regarding intent during the death penaltyeligibility hearing, but that same jury had received an intentinstruction during the guilt phase of trial. Armstrong, 183 Ill. 2dat 151-52, 700 N.E.2d at 969. And in Leger, the court analyzed thisissue within the context of an ineffective assistance of counsel claimand found no prejudice to defendant when the jury instructionscontained the incorrect statement of intent because "substantialevidence was presented to show that defendant acted with intent tokill." Leger, 149 Ill. 2d at 404, 597 N.E.2d at 608. In the presentcase, as discussed above, the evidence is not clear that the crime wasexceptionally brutal and heinous and reasonable juries could disagree. We note also that all three cases were decided before Apprendi. Wetherefore reject the State's argument.

Accordingly, we agree with defendant that his sentence of 60years' imprisonment cannot stand. We therefore remand this case tothe trial court for resentencing on defendant's attempted murderconviction. In light of our decision, we need not address defendant'sother argument that a 30-year sentence would be excessive.

For the foregoing reasons, we affirm defendant's convictions,vacate the sentence of 60 years' imprisonment, and remand the cause tothe trial court for resentencing consistent with this order.

Affirmed in part and vacated in part; cause remanded withdirections.

HARTMAN and BARTH, JJ., concur.