author: JUSTICE McCULLOUGH JUSTICE COOK,

text:
    JOHN F. LAWLESS, Plaintiff-Appellant, v. CENTRAL PRODUCTION CREDIT ASSOCIATION, Defendant-Appellee.
    Fourth District
    No. 4—91—0540
    Opinion filed May 20, 1992.
    Rehearing denied June 17, 1992.

      COOK, J., concurring in part and dissenting in part.
    M. Corine Corley, of Arens & Alexander, of Fayetteville, Arkansas, for appellant.
    Jeffrey D. Richardson, of Decatur, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff John F. Lawless appeals from a summary judgment entered in the circuit court of Champaign County in favor of defendant Central Production Credit Association. Plaintiff’s action sought to recover damages for the alleged tortious interference by defendant in plaintiff’s contract of employment with the Farmers Home Administration (FmHA) and for economic duress. The issues raised on appeal by plaintiff are whether the granting of summary judgment ex parte and without a hearing requires reversal and whether there remain such genuine issues of material fact that the motion for summary judgment should have been denied.

Count I of plaintiff’s complaint (interference with a contractual relationship) alleged he is a resident of Terre Haute, Indiana, and was from 1961 until 1988 an employee of the FmHA. From 1963 until April 1986, he was the county supervisor assigned to the Lawrenceville, Illinois, office. From 1967 until 1987, he also conducted an ongoing farm operation in Crawford and Lawrence Counties, Illinois. As county supervisor, plaintiff was responsible for primary loan servicing for farmers, consumers, and municipal organizations seeking low-interest government financing. He also conducted business for the United States government in concert with other creditors, including defendant, by making loans and participating in the subordination of loans and guarantees on loans to assist FmHA borrowers in obtaining a sound financial position.

As a farmer, plaintiff borrowed money from defendant. From 1980 to 1985, plaintiff experienced financial difficulties. As a result, plaintiff filed a petition for bankruptcy. It is alleged that at that time, plaintiff had a good relationship with FmHA and creditors with whom he worked, including defendant. Plaintiff owed defendant over $500,000. The bankruptcy court determined this debt to be partially unsecured and, as a consequence, defendant had to write off some or all of the $500,000 debt. Plaintiff alleged defendant retaliated, an allegation which defendant’s answer denied. According to plaintiff’s complaint, Donald W. Cochran, president of the Southeastern Illinois Farm Credit System and an officer of defendant, met with FmHA officers, and based on the demands of defendant, FmHA decided to remove plaintiff from the Lawrence County office and temporarily assign him to the office in Champaign. Plaintiff further alleges that by letter dated April 27, 1986, he was informed he was removed from the Lawrence County office and permanently relieved of his duties as county supervisor. On that date he was transferred to the State office in Champaign, Hlinois. In September 1987, plaintiff was informed that involuntary termination proceedings were commencing against him, and in November 1987, plaintiff was offered the opportunity to take early retirement instead of being involuntarily terminated. Plaintiff alleged his removal as county supervisor and the requirement that he take early retirement or face involuntary termination was without justification and that defendant intended to cause and did cause these actions by FmHA. The damages which plaintiff alleged were directly and proximately caused by defendant are physical ailments, loss of job and salary, loss of full retirement benefits, loss of full health and life insurance coverage and other benefits, loss of his personal reputation, loss of other advancement or additional pension benefits, and other economic losses.

Count II of plaintiff’s complaint (economic duress) additionally alleged that defendant intended to retaliate and force plaintiff from his job and that defendant’s acts were performed in bad faith with the intention of punishing plaintiff for exercising his statutory right to file for protection under the bankruptcy laws. Plaintiff alleged that defendant’s demands for his removal included the threat of uncooperative lending decisions involving joint lending practices between defendant and FmHA, and that FmHA decided to remove plaintiff as an employee rather than develop problems with defendant. According to plaintiff’s complaint, that is the result intended by defendant.

Defendant’s answer denied all allegations of tortious conduct and alleged five affirmative defenses. Defendant’s motion for summary judgment was based on answers to interrogatories and discovery depositions which defendant stated established that FmHA’s temporary reassignment of plaintiff was made solely at the request of the Federal investigators from the Office of Inspector General (OIG), which was investigating allegations of official misconduct by plaintiff; and as a further result of this investigation, several instances of alleged misconduct were discovered such that FmHA proposed to fire plaintiff on August 27, 1987, and none of these instances involved defendant.

The motion for summary judgment was filed by defendant on November 21, 1990. Also filed on that date by defendant were a brief in support of the motion for summary judgment, a motion for sanctions, a brief in support of the motion for sanctions, and a proof of service of sending copies of discovery depositions to plaintiff’s attorneys. The proofs of service for each document indicated these documents were mailed to plaintiff’s attorneys of record on November 20, 1990. The docket entry of January 3, 1991, indicated that the defendant’s motion for summary judgment was granted on that date.

On February 1, 1991, plaintiff filed a motion to vacate the summary judgment and a brief in support thereof. Attached as exhibits were (1) a portion of the deposition of Robert Chambers, FmHA’s director for the State of Illinois; (2) a copy of a memorandum from Terry G. Dodd, a farmer program specialist, to Chambers; and (3) an affidavit from plaintiff. On February 13, 1991, defendant filed a brief in opposition to the motion to vacate. On that date, the motion to vacate the summary judgment was denied.

In his discovery deposition, Terry Dodd, a farmer program specialist for FmHA, stated he had no direct authority over plaintiff as a county supervisor although he could make recommendations. When Dodd became a farmer program specialist, this was considered a higher pay and grade level than county supervisor. On March 19, 1986, Dodd wrote a memorandum to Chambers regarding plaintiff. The memorandum stated:

“On March 13, 1986, Roger Witt, Norbert Soltwedel, Clyde Fife and I met with Donald Cochran, President of the Southeastern Illinois Farm Credit System. Following this meeting Cochran asked to talk to Roger Witt and me.
Cochran said he was very concerned with the situation in Lawrenceville. There have been no lines of communication with our Lawrenceville office since John Lawless filed Chapter-7. He said they had taken a hit for $500,000. He has not met John or attempted to meet with him. Cochran said he realizes they (PCA [Production Credit Association]) have not been blameless in the lack of communication; however, he didn’t feel the main problem was theirs.
Cochran said they have very good relations with FmHA throughout his district. He did mention Marion County troubles, but felt those may be more their problem than FmHA.
I asked Cochran what could be done, if anything, to resolve the differences at Lawrenceville. I asked if a meeting could be arranged. He did not feel a meeting would resolve anything. His only suggestion was for Lawless to be moved.
Cochran also expressed displeasure about two OIG investigations which were conducted at Lawrenceville. PCA felt that within 24 hours of meeting with the investigator, the information they had given got back to John. Roger Witt and I were concerned on this. Witt said OIG is usually very careful. Cochran said they became aware through two sources that John knew what was said.
Cochran said as a result of the bankruptcy PCA had Don Hoagland, the trustee, sell their security. At the sale they bought some land and apartments which they had liens on. Apparently John has since been seen attempting to break into the apartments. Cochran says if it happens again, they will not hesitate to take court action.
It did not appear PCA was willing to overlook their loss and attempt to resolve their differences with John. I suggested they may attempt to work through District Director Fife or Assistant County Supervisor Mike Smith. Cochran was not aware we had an assistant in Lawrenceville. He did not appear optimistic that a solution could be found.”

Dodd explained that Witt was from the national office and they were touring offices. Witt’s visit had nothing to do with plaintiff. Soltwedel was the county supervisor in Effingham, and Fife was the district director. Fife’s district included the Lawrenceville office. The subject of the scheduled meeting was unrelated to plaintiff. Dodd explained his understanding of the problem referred to in the memorandum to be that defendant was not getting government-backed loans out of the Lawrenceville office. As far as plaintiff’s filing for bankruptcy, Dodd believed it could create a public relations problem with respect to how the agency was perceived, but he does not recall any specific conversation with FmHA employees concerning the subject of plaintiff’s bankruptcy. Dodd wrote the memorandum at Chamber’s request when Dodd attempted to tell him the concerns expressed by Cochran. Dodd’s recollection was that Cochran wanted plaintiff moved. Had Cochran asked that plaintiff be fired, Dodd would have written it in the memorandum. Dodd has no personal knowledge of the OIG investigation. Following this, Dodd never again discussed plaintiff with Chambers. After plaintiff was transferred, plaintiff worked in the Champaign office. This is the office Dodd worked in also. Plaintiff primarily worked on debt settlement cases. Dodd understood the investigators wanted plaintiff out of the Lawrenceville office pending the investigation. He did not have any knowledge of the transfer being related to Cochran’s complaint. Dodd was involved in one problem at Lawrenceville concerning a number of financing statements that had expired. Most had expired while plaintiff was county supervisor, although there were two which expired thereafter. When Dodd arrived at the office, someone had gone out and picked up the financing continuations and the problem had been eliminated. Dodd characterized plaintiff as being more difficult than most county supervisors to get along with. Again, Dodd indicated Cochran suggested plaintiff be moved to another location, not “removed.” Cochran made no threats and Dodd understood Cochran had no authority to order it be done. Dodd, Witt, and Cochran were exploring possible ways to resolve the problem and one solution suggested by Cochran was to move plaintiff. Dodd did not view his memorandum as a recommendation to discharge plaintiff. Chambers did not indicate he wanted the memorandum to have a basis for firing plaintiff. Chambers did not indicate to Dodd that plaintiff would be moved to the State office in Champaign, nor did Chambers ever discuss with Dodd why plaintiff was moved. The only time he ever discussed these problems with Cochran was on March 13, 1986, and neither Cochran nor anyone else from defendant ever followed up with a communication to Dodd. Nor does Dodd recall any specific conversations with plaintiff concerning his removal from Lawrenceville. Throughout the deposition, plaintiff’s attorney continually tried to get Dodd to say Cochran was outwardly angry about the $500,000 loss on plaintiff’s loan. Except for saying that it would be understandable that a person would be upset or concerned, Dodd characterized the conversation as a civilized business discussion.

Robert W. Chambers testified in his discovery deposition that he is the director of the State of Illinois for the FmHA and he had been the State director for nine years. Plaintiff was a county supervisor when Chambers became State director. Chambers identified the letter from him to plaintiff dated April 23,1986. This letter read as follows:

“This is official notice that you are being detailed to the State Office as an Acting Farmer Program Specialist effective April 29, 1986. The detail will last until OIG has completed an investigation in the Lawrenceville County Office. You will not communicate with any of your County Office employees concerning business matters while the investigation is being conducted.
You may not go to the County Office until the investigation has been completed. Consequently, I am requiring that you turn over your office keys to Judy Bachman.
Any annual leave previously approved is hereby cancelled and any leave request during your detail to the State Office must be approved by me.
You are expected to report for duty to the State Office by 10:00 AM on Tuesday, April 29,1986.”

Chambers explained that two or three days prior to the date of the letter, he had a visit in his office from three men from OIG, including the deputy regional director of the OIG. Chambers was informed they had reason to conduct a full-scale investigation of the Lawrenceville office and asked that plaintiff and Pauline Johnson be removed from the office so that the investigation could be conducted without interference. The letter was a result of that request. Plaintiff was not terminated from his position as county supervisor, but was assigned to the Champaign office pending the investigation. Plaintiff’s grade level was not reduced by this reassignment. Chambers identified a series of letters in which he notified plaintiff of the extensions of the detailing of plaintiff to Champaign. Those extensions were due to the fact that the investigation had not been completed. Johnson was also detailed out of the Lawrenceville office. Chambers did not believe she was returned to the Lawrenceville office prior to the completion of the investigation.

Chambers next identified a document as a letter from him to plaintiff dated April 27, 1987. In this letter, plaintiff was notified of the proposal to remove plaintiff from his position with FmHA and the reasons therefor. Chambers stated there is nothing in this letter indicating defendant caused plaintiff to be removed from his position and he had no knowledge of defendant causing plaintiff to be removed. The letter was not prepared by Chambers, but went out over his signature. It was put together by the OIG and the personnel relations department in the FmHA national office. Deposition exhibit No. 4 was identified as the memorandum from the regional inspector general to Chambers setting forth the results of the investigation. Chambers did not recall whether Johnson received a letter proposing to remove her. He stated it seemed to him she retired prior to that being done, but a letter probably would have been sent had she not retired. Deposition exhibit No. 5 was the memorandum from Dodd. Chambers did not remember receiving any written direct communication from defendant about plaintiff. Chambers was aware there were not very good communications between plaintiff and other lenders in his region. He had complaints from other lenders to that effect. FmHA was in the middle of “a very strong campaign to increase the type of loans from direct to guaranteed, and it took a strong approach from our supervisors to open up a line of communications with these private lenders, whether they be the banks, [defendant] or whatever. And it appears that they did not have that rapport out of that office.” Chambers did not remember what action, if any, he took based on Dodd’s memorandum, but plaintiff was not detailed to Champaign as a result of this memorandum. Had the investigation not turned out the way it did, plaintiff probably would not have been removed, although he may not have been returned to Lawrenceville. Chambers could have assigned him to another county office.

Among the additional documents filed in support of the motion for summary judgment was a request for admission which stated that “Exhibit B” was a true and exact copy of the May 28, 1987, grievance denial with respect to plaintiff, omitting page one. This request to admit was not denied by plaintiff. The grievance concerned plaintiff’s being detailed to the State office as an acting farmer program specialist. The grievance examiner concluded the detailing was proper and necessary and that insufficient evidence was presented by plaintiff to establish it was an act of reprisal. It further indicated that plaintiff retained his GS-11 grade while being detailed. There were also plaintiff’s answers to interrogatories which do not disclose any facts contrary to those in the depositions. As already noted, attached to plaintiff’s motion to vacate the summary judgment was a part of Chambers’ deposition and a copy of Dodd’s memorandum, both of which have already been discussed. There was also an affidavit of plaintiff.

In determining the propriety of granting summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Although inferences may be drawn from undisputed facts, an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts. Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.

Count I of plaintiff’s complaint alleges a cause of action for tortious interference with a contractual relationship. The elements of this tort are (1) the existence of a valid contract; (2) defendant’s knowledge of the contract; (3) intentional and malicious inducement of the breach; (4) a subsequent breach by a third person due to defendant’s wrongful conduct; and (5) damages resulting from the breach. (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 258, 458 N.E.2d 115, 120; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 897, 275 N.E.2d 429, 433.) The argument of the parties focuses on whether the plaintiff’s termination was a breach due to defendant’s wrongful conduct.

Defendant cites Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 466 N.E.2d 1137, for the proposition that a transfer is not actionable under this cause of action. In Heying, a nurse was transferred to a different unit of the same hospital and the court held such a transfer was not “constructive termination.” In this case, plaintiff was transferred from Lawrenceville to Champaign. Plaintiff did not allege the different location caused him to quit or retire because of extended travel time or some such other inconvenience. No constructive termination occurred as a result of the transfer. The transfer is just a fact probative of whether the subsequent termination was due to defendant’s conduct.

There is no question defendant complained to an FmHA representative about plaintiff and requested he be transferred. However, Chambers indicated this was not the basis for plaintiff’s transfer. Instead, there was an ongoing OIG investigation in relation to which plaintiff’s transfer was requested. There is nothing in the record which suggests the OIG investigation was prompted by complaints from defendant or that the OIG investigation was a subterfuge or calculated to cover the fact that the real reason for plaintiff’s transfer and firing was defendant’s complaints. The letter advising plaintiff of his removal as county supervisor was prepared by OIG to be sent over Chambers’ signature.

Incorporated into this issue is the additional question of whether the trial court improperly considered the results of the OIG investigation, or whether this was hearsay which should not have been considered. Plaintiff argues that summary judgment should be based on facts which would be admissible in evidence. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 8, 475 N.E.2d 549, 555.) Hearsay may not be considered in deciding a motion for summary judgment. (Zonta v. Village of Bensenville (1988), 167 Ill. App. 3d 354, 357, 521 N.E.2d 274, 277 (and cases cited therein).) Hearsay is an out-of-court statement offered for the purpose of proving the matters asserted therein. While the OIG report would not have been admitted for the purpose of proving the truth of the findings reported therein, it was admissible to demonstrate the circumstances surrounding plaintiff’s termination. (See Rickman Chemical Co. v. Lowenthal (1958), 16 Ill. App. 2d 568, 575, 149 N.E.2d 351, 355.) The granting of the motion for summary judgment as to count I was proper.

Count II alleges a cause of action for economic duress. Defendant argues on appeal that Illinois does not recognize a cause of action for economic duress. If there is no such cause of action in Illinois, the granting of the summary judgment was correct.

In Dahl v. Federal Land Bank Association (1991), 213 Ill. App. 3d 867, 872, 572 N.E.2d 311, 314, the court refused to recognize a new cause of action for duress, stating:

“As for the third count of the first amended complaint, plaintiffs urge this court to establish a cause of action for duress. As plaintiffs correctly point out, no Illinois court has to date recognized duress as an independent cause of action giving a right to affirmative relief as opposed to defensive relief. Duress has been available to avoid obligations, but not as an independent cause of action for damages. In the ‘Introductory Note on Duress and Undue Influence’ to sections 174 through 177 of the Restatement (Second) of Contracts, the author of that commentary states:
‘Since duress and undue influence, unlike deceit, are not generally of themselves actionable torts, the victim of duress or undue influence is usually limited to avoidance and does not have an affirmative action for damages.’ (Restatement (Second) of Contracts, ‘Introductory Note on Duress & Undue Influence,’ at 474 (1981).)
We decline to create a new cause of action urged upon us by plaintiffs.”

Courts in other States have agreed with this conclusion. (See, e.g., Bank Leumi Trust Co. v. D’Evori International, Inc. (1990), 163 A.D.2d 26, 30-31, 558 N.Y.S.2d 909, 914.) More recently, however, in Butitta v. First Mortgage Corp. (1991), 218 Ill. App. 3d 12, 578 N.E.2d 116, the dismissal of a complaint involving a count for damages due to economic duress was discussed. Butitta did not conclude that Illinois does not recognize a cause of action for economic duress; instead, the court found the complaint failed to demonstrate duress and thus failed to state a cause of action for economic duress. Butitta, 218 Ill. App. 3d at 17-18, 578 N.E.2d at 120-21.

Generally, economic duress is not treated as a tort. It may be a defense to the enforcement of a contract or the basis for restitution or rescission of a contract. (See First National Bank v. Sanchez (1991), 112 N.M. 317, 320, 815 P.2d 613, 616.) The First National Bank court stated:

“There are circumstances in which a claim of economic duress has been analyzed as a tort, see Terrel, 86 N.M. at 422, 524 P.2d at 1040, although, in its traditional sense, duress is not in and of itself a recognized tort. See D. Dobbs, Handbook on the Law of Remedies §10.2, at 657 (1973). Under tort analysis the victim of duress may recover ‘all damages suffered which were proximately caused by the economic compulsion.’ Terrel, 86 N.M. at 423, 524 P.2d at 1039. It should be remembered, however, that the doctrine of duress is in essence a remedy that is restitutionary in nature. See D. Dobbs, Handbook on the Law of Remedies §10.2 (1973); see also Dawson, Economic Duress — an Essay in Perspective, 45 Mich. L. Rev. 253, 282 (1947) (‘The historical connection between duress and the law of crime and tort has obscured the main function of duress doctrines, the prevention of unjust enrichment[ ]’).” First National Bank, 112 N.M. at 320-21, 815 P.2d at 616-17.

Economic duress may even be used to “defend” against the other party’s defenses, such as release, accord and satisfaction, or that an action for breach of a contract is waived. (See generally Rose v. Vulcan Materials Co. (1973), 282 N.C. 643, 664-66, 194 S.E.2d 521, 535-37; Fallston Finishing, Inc. v. First Union National Bank (1985), 76 N.C. App. 347, 361-63, 333 S.E.2d 321, 329-30.) The concept of economic or business compulsion has evolved from common law duress. (See generally Centric Corp. v. Morrison-Knudsen Co. (Okla. 1986), 731 P.2d 411, 415; see also Starks v. Field (1939), 198 Wash. 593, 598, 89 P.2d 513, 515 (which involved a complaint to avoid a contract based on a theory of business compulsion).) The rationale behind economic duress is to discourage persons in a stronger position, usually economic, from abusing that power by presenting unrealistic sets of alternatives to persons in a weaker, more vulnerable position, in a bargain situation. (First National Bank, 112 N.M. at 320, 815 P.2d at 616, quoting Terrel v. Duke City Lumber Co. (N.M. Ct. App. 1974), 86 N.M. 405, 422, 524 P.2d 1021, 1038, affd in part, rev’d in part (1975), 88 N.M. 299, 540 P.2d 229.) As a result, the court in Housing Authority v. Hubbell (Tex. Ct. App. 1959), 325 S.W.2d 880, 902-05, stated duress is a tort, even though it may arise in combination with a breach of contract, and has further stated that economic coercion is a form of duress. See also State National Bank v. Farah Manufacturing Co. (Tex. Ct. App. 1984), 678 S.W.2d 661, 683; King Construction Co. v. W.M. Smith Electric Co. (Tex. Ct. App. 1961), 350 S.W.2d 940, 944-45.

The elements of economic duress have been stated a number of different ways. In Troutman v. Facetglas, Inc. (S.C. Ct. App. 1984), 281 S.C. 598, 602-03, 316 S.E.2d 424, 427, citing 13 S. Williston, Contracts §1617 (W. Jaeger 3d ed. 1970), the elements were described as follows: (1) the coerced party must be the victim of wrongful or unlawful acts or threats; (2) the acts or threats must deprive the victim of unfettered will; (3) as a direct result, the victim must be compelled to enter into a disproportionate exchange, or to give up something for nothing; (4) the payment or exchange must be made solely for the purpose of protecting the victim’s business or property; and (5) there must be no other adequate remedy at law for the coerced party. In Troutman, the lack of an adequate remedy for breach of contract was neither pleaded nor proved, so the court declined to extend the law of intentional torts to embrace economic duress. The Texas cases state the elements as requiring the following: (1) a threat to do something which the threatening party has no legal right to do; (2) some illegal extraction, fraud or deception; and (3) the restraint is imminent such that free agency is destroyed without a present means of protection from the restraint. (Herndon v. First National Bank (Tex. Ct. App. 1991), 802 S.W.2d 396, 399, citing Simpson v. MBank Dallas, N.A. (Tex. App. 1987), 724 S.W.2d 102, 109.) Of course, any damages sought to be recovered must have been proximately caused by the economic compulsion. First National Bank, 112 N.M. at 321, 815 P.2d at 617.

Under the facts of this case, summary judgment on count II is affirmed. Even if a cause of action for economic duress were recognized in Illinois, the facts simply do not fit the elements of the cause of action.

This case does not involve a business relationship between the parties such that defendant is unfairly trying to take advantage of plaintiff through a superior position by making unreasonable demands on plaintiff. The direct business relationship between plaintiff and defendant ceased when plaintiff’s debt to defendant was discharged in bankruptcy. Furthermore, any damages which plaintiff suffered could not have been proximately caused by defendant’s actions since plaintiff was transferred and his employment eventually terminated as a result of the OIG investigation.

Next we consider whether the granting of summary judgment ex parte and without a hearing requires reversal. Section 2 — 1005(c) of the Code of Civil Procedure (Code) provides that when a motion for summary judgment is filed, the opposing party may file counteraffidavits “prior to or at the time of the hearing on the motion.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) Section 2 — 1005(c) is essentially a reenactment of former section 57 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57). Following the 1955 revision of section 57 of the Civil Practice Law (see Ill. Rev. Stat. 1955, ch. 110, par. 57), summary judgment practice in Illinois was substantially the same as Federal practice under Federal Rule 56 (Fed. R. Civ. P. 56). Ill. Ann. Stat., ch. 110, par. 2 — 1005, Joint Committee Comments [1955] at 209, and Historical and Practice Notes, at 211 (Smith-Hurd 1983).

The key question here is whether the use of the word “hearing” requires the court to allow attorneys for the parties to argue the merits of the motion orally. There is no definition of the word “hearing” in the Code. Illinois Supreme Court Rule 184 (134 Ill. 2d R. 184) states:

“No provision in these rules or in the Civil Practice Law prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period.”

Black’s Law Dictionary defines the word “hearing” as it relates to formal, evidentiary hearings such as those conducted by the legislature or administrative agencies, with no attempt made to define “hearing” as it relates to the consideration of pretrial motions in civil cases. Black’s Law Dictionary 649 (5th ed. 1979).

Defendant relies on Federal Rule of Civil Procedure 56 and the cases interpreting the rule to argue that the procedure employed in this case was proper. According to defendant, the trial judge issued the following letter to counsel for the parties:

“In civil cases motions to strike, to dismiss, and for summary judgment will be taken on briefs without oral arguments unless the court indicates oral argument is desired. Attorneys are requested to furnish courtesy copies of their briefs to the assigned judge.
The motions to strike and to dismiss are to be scheduled as follows: 10 days after the filing of the motion to file brief in support of the motion, 10 days thereafter to file brief in opposition thereto, 7 days thereafter to file any rebuttal material.
The motion for summary judgment is scheduled as follows: the brief in support should be filed with the motion, 14 days after the filing of the motion for the filing of the brief in opposition to the motion.
We ask that you contact the other attorneys of record after you have filed your brief.”

Plaintiff does not deny knowledge of this procedure or receipt of the letter.

Subject to the rules of the supreme court, circuit courts may make rules regulating their dockets, calendars, and business. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 104(b).) A majority of circuit judges may adopt rules governing civil and criminal cases as long as they are consistent with supreme court rules and Illinois statutes and, as far as practicable, uniform throughout the State. (134 Ill. 2d R. 21(a).) The Uniform Rules of Practice for the Sixth Judicial Circuit of Illinois adopted effective June 1, 1983, provide by Rule 2.1(b) that, except for emergency matters, “no motion shall be heard unless previously allotted for hearing on the court’s calendar.” (6th Jud. Cir. R. 2.1(b), at 5 (eff. June 1, 1983).) Rule 2.1(f) provides “[a] motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11.” (6th Jud. Cir. R. 2.1(f), at 5 (eff. June 1, 1983).) And Rule 2.1(j) provides: “The burden of obtaining an allotment for hearing in a civil case is on the party making the motion. If an allotment for hearing is not obtained by the moving party within ninety (90) days from the date it is filed, the court may deem the motion withdrawn and deny the relief requested with, or without, prejudice.” (6th Jud. Cir. R. 2.1(j), at 5 (eff. June 1, 1983).) These uniform rules do not prohibit a trial judge from setting specific rules of procedure for specific cases. Although the trial judge here may have used the same procedure in all cases coming before him, his letter to counsel was specific as to this case.

No specific allotment of a hearing date was made with regard to defendant’s motion for summary judgment. In this case, a motion to dismiss had been previously considered, and the parties were aware of the procedure. Plaintiff’s attorney’s letter to defendant’s counsel, dated January 8, 1990, makes clear plaintiff knew the procedure the trial judge would follow with respect to motions to dismiss and motions for summary judgment.

Plaintiff does not complain that the judge may not direct how the case proceeds. Instead, the plaintiff argues that the motion for summary judgment should not have been considered in the absence of an allotment for hearing. The letter from the trial judge gave notice that the hearing would automatically be set 14 days after the filing of the motion. We agree with defendant that the word “hearing” is not necessarily restricted to an oral presentation by the parties and may instead refer to the court’s consideration of a written presentation by the parties. Here, plaintiff received a copy of the motion for summary judgment on November 26, 1990. It had been filed November 21, 1990. Proof of service indicates it was mailed on November 20, 1990, in conformity with Supreme Court Rule 11. (134 Ill. 2d R. 11.) The trial court granted summary judgment January 3, 1991, some 44 days later. Plaintiff filed his motion to vacate on February 1, 1991, some 72 days later. The plaintiff had ample opportunity to respond to defendant’s motion for summary judgment. In addition, plaintiff filed a motion to vacate which incorporated his objections and counteraffidavits. There is nothing in the record which indicates the trial judge did not fully consider defendant’s position before denying the motion to vacate the summary judgment. Furthermore, as we have already concluded, there was nothing in the documents supporting plaintiff’s motion to vacate the summary judgment which would have precluded the trial court’s entry of summary judgment.

For the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

LUND, J., concurs.

JUSTICE COOK,

concurring in part and dissenting in part:

I concur in the majority’s disposition of count II.

The supreme court has the power to enact rules governing proceedings in the trial court. (134 Ill. 2d R. 1; see also Ill. Rev. Stat. 1989, ch. 110, par. 1 — 104(a).) A majority of the circuit judges in each circuit may also adopt rules, but those rules must be consistent with the rules of the supreme court and with State statutes. (134 Ill. 2d R. 21(a); see also Ill. Rev. Stat. 1989, ch. 110, par. 1 — 104(b).) Individual trial judges have inherent power to deal with the cases before them (Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 329, 412 N.E.2d 464, 467; Terrill v. St. Louis Southwestern Ry. Co. (1987), 154 Ill. App. 3d 983, 986, 507 N.E.2d 1282, 1284), but they do not have the power to make rules of court. If each judge had the power to make his or her own rules, Supreme Court Rule 21(a), which directs that so far as practicable rules be uniform throughout the State, would be violated. (134 Ill. 2d R. 21(a).) An individual trial judge may establish procedures in a particular case which seem very much like rules, but those procedures take the form of orders, with notice to the parties. A trial judge may not simply assume those practicing in his or her courtroom know his “rules.” Of course, the parties did have some knowledge of the procedures employed by the trial court in this case.

The trial judge’s letter outlining his procedures leaves some unanswered questions. The procedures address the filing of briefs, but not the filing of affidavits. Will extensions of time be granted routinely, or only upon good cause shown? If the trial judge chooses not to allow oral argument will he so notify the parties, and will the nonmovant then have some additional time to file affidavits? If the trial judge chooses to have oral argument, the nonmovant should have until the time of the hearing to file counteraffidavits, by virtue of section 2— 1005(c) of the Code, notwithstanding the trial judge’s 14-day requirement for briefs. It is no answer that those regularly practicing before the trial judge know how these cases are handled.

Court rules must be reasonable, and less formal procedures in individual cases must be reasonable as well. (See People v. Adams (1983), 116 Ill. App. 3d 315, 320, 451 N.E.2d 1351, 1355.) Summary judgments should be granted only where there has been a fair and full opportunity to respond. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 972, 447 N.E.2d 1358, 1364.) The 14 days allowed in this case for plaintiff to file a brief, and apparently counter-affidavits, was not a sufficient length of time. The time set for responding should approximate the reasonable time necessary for responding, and should not be justified by the possibility that the time may be extended. A procedure which makes it likely that parties will not respond is not a good procedure. (Compare Cannon v. Dini (1992), 226 Ill. App. 3d 82, 89 (reversing a Rule 103(b) (134 Ill. 2d R. 103(b)) dismissal), and dissenting opinion of Justice DiVito.) On their face the trial court’s procedures here favor movants, who have no deadline for the preparation of their briefs and affidavits.

Plaintiff should have sought an extension of time to file a brief and counteraffidavits in this case, preferably within the 14 days, but in any case as soon as possible. Still, the shortness of the time period chosen by the trial court greatly increased the potential for attorney error, especially in this case where the mail time to plaintiff’s attorney’s office was apparently six days. Attorneys cannot be expected to act immediately on every piece of mail which comes into their offices.

I am not convinced any problem with the 14-day period was cured by the fact that the trial court did not rule on the motion for summary judgment until 44 days after it was filed. After the 14 days had passed, plaintiff may have reasoned it was too late to request an extension of time (but see 134 Ill. 2d R. 183), and that the appropriate remedy was a motion to vacate. When the motion for summary judgment was not immediately ruled upon, plaintiff could have reasoned the court had decided to set it for hearing. Nor am I convinced that any problems with this procedure were resolved by the fact that plaintiff filed a motion to vacate, together with a brief and supporting affidavits. The trial court’s order simply says, “Plaintiff’s Motion to Vacate Summary Judgment is hereby denied.” There is no indication the trial court reconsidered its ruling upon the motion for summary judgment in light of the brief and affidavits.

While summary judgment is a useful procedure, “it is a drastic means of disposing of litigation.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Summary judgments should not be granted by default, but only where justified by the papers before the court. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c) (“The judgment sought shall be rendered without delay if the [papers] *** show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”); see Hibernia National Bank v. Administration Central Sociedad Anonima (5th Cir. 1985), 776 F.2d 1277, 1279 (summary judgment improper even if local rule violated by failure to respond).

Counsel have not cited any prior Illinois case which approves the granting of a motion for summary judgment without allowing the parties some opportunity for oral argument. The Code contemplates at least a hearing on a motion for summary judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c) (“The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits” (emphasis added)).) The rules of the sixth circuit also contemplate a hearing. (6th Jud. Cir. R. 2.1(f), at 5 (eff. June 1, 1983) (a “motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11” (emphasis added)).) We should be careful about approving a procedure so at odds with general practice. Supreme Court Rule 352(a) allows appellate courts to dispose of any case without oral argument as provided therein. (134 Ill. 2d R. 352(a).) No similar rule allows a trial court to dispense with oral argument as a matter of routine. In the Federal courts, oral argument is not required on a motion for summary judgment, but there must be an adequate opportunity to respond to the movant’s arguments. See Lujan v. National Wildlife Federation (1990), 497 U.S. 871, 910, 111 L. Ed. 2d 695, 730, 110 S. Ct. 3177, 3200 (Blackmun, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).

Affidavits filed in the present case indicate that defendant Central Production Credit Association, and plaintiff’s employer, FmHA, work together in many areas; that plaintiff discharged a debt to defendant in bankruptcy; that Donald Cochran, defendant’s president for the area in question, told an FmHA official that because of plaintiff “they had taken a hit for $500,000”; that defendant had not had communication with FmHA’s Lawrenceville office since that time; that nothing could be done to resolve those differences; and Cochran’s “only suggestion was for [plaintiff] to be moved.” Robert Chambers, FmHA’s director for the State of Illinois, testified that defendant’s complaints about plaintiff were not the reason for plaintiff’s transfer or termination; the reason was an ongoing OIG investigation. The details disclosed by the OIG investigation (which as hearsay should not be considered in deciding this motion) might furnish strong support for defendant’s position that its comments were not the cause of plaintiff’s transfer, but a court cannot weigh evidence in deciding a motion for summary judgment; if an issue of material fact exists the motion must be denied. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 292-94, 560 N.E.2d 586, 589-90.) There is an exception where what is contained in the papers on file would constitute all of the evidence before the court at trial; in that event, if the evidence would be insufficient to go to the jury, the court should treat the motion as it would one for directed verdict. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500; Pyne, 129 Ill. 2d at 358, 543 N.E.2d at 1308.) The ex parte proceedings in this case do not justify an assumption that the exception applies here.

I would reverse the summary judgment on count I, and remand for the trial court to conduct a hearing on the motion at which oral argument would be allowed.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR KING, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—3467
    Opinion filed April 20, 1992.
    Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Arthur King, along with Dwayne Cheers, was charged with armed robbery. The cases were severed. Dwayne Cheers pled guilty after agreeing with the State to a plea bargain. After a jury trial, defendant was found guilty of armed robbery and sentenced to 12 years’ imprisonment.

At defendant’s trial, Gwendolyn Harris testified that on the evening of September 20, 1987, she was wearing eight silver chains, seven silver rings and one gold ring. As Harris approached the building at 511 East Browning, she saw a short male dressed in blue and a taller male with braided hair, dressed in a white jacket and white hat. Harris entered the building, went to the second floor and purchased some marijuana. When Harris came down the stairs, she was confronted by the short male, who asked whether there was marijuana for sale on the second floor. Harris responded that there was. The tall male, whom Harris identified in a lineup and in court as defendant, was blocking the exit. Harris testified that defendant pointed a gun at her and said, “Bitch, don’t say a word before I shoot you.” Defendant began to remove Harris’ jewelry, while the short male, whom Harris identified as Cheers, rummaged through her purse. Defendant removed two chains from Harris’ neck, and Harris removed the remaining six. Harris also removed her rings and handed them to defendant. Defendant ordered Cheers to search Harris. Cheers searched Harris’ pockets and bra. Cheers removed $50 and two bags of marijuana. Defendant then ordered Cheers to “go get the car.”

After collecting her belongings, Harris went to the back of the hallway, where she overheard one of the men say, “I told you that was the bitch to get.” Harris testified that the hallway where she was robbed was lit and she saw the faces of the two men. Harris went to the Lake Meadow Shopping Center and told a security guard what had happened. After the police arrived, Harris gave them a description of the men and drove around the area with them in an attempt to find them.

On October 1, 1987, Harris contacted Detective Edward Kevin. Harris informed Kevin that her friend, a woman named Mary Porter, who lived at 511 East Browning, apartment 404, was wearing her stolen jewelry. Harris also told Kevin that Porter had a boyfriend called “Coon.” On October 3, Kevin along with Detectives Haviat, Grady and O’Connell went to the apartment. Kevin identified himself as a police officer, and a man opened the door. The man told Kevin his name was Coon. Kevin identified defendant in court as the man who opened the door and claimed to be Coon. Defendant allowed the officers into the apartment. The officers placed defendant under arrest. Kevin informed Porter that it was reported that she was seen wearing the stolen jewelry. Porter gave Kevin a plastic container in which there were various pieces of jewelry. The jewelry matched the description of the stolen jewelry.

On October 3 and 4, Harris went to the police station and viewed two separate lineups. Harris identified defendant during the October 4 lineup and Cheers at the October 3 lineup. Harris also identified various pieces of jewelry as being her property.

Kevin was also called to testify on behalf of defendant to discrepancies in Harris’ testimony. Kevin testified that Harris had told him that it was Cheers that blocked the exit, not defendant. Additionally, Harris originally told Kevin that she removed the first two chains herself and that defendant removed the rest of the chains.

Next, Porter testified that the police searched for the stolen jewelry while they were in her apartment. Porter testified that she purchased the jewelry for $10 from Cheers the previous day. Porter denied telling Kevin that on September 20, 1987, defendant and Cheers came to her apartment with the silver chains and rings, which they examined on the kitchen table. Porter further denied telling Kevin that some of the jewelry was still in the apartment. Porter testified that she visited defendant numerous times in jail, while he was awaiting trial, and that she did not want anything to happen to him.

Defendant attempted to call Cheers as a witness on his behalf. Before trial, Cheers pled guilty to armed robbery in exchange for an eight-year sentence to the Illinois State penitentiary. At the time that Cheers entered his plea, the State read certain facts into the record. A pertinent part of the facts read into the record was that Harris “would testify that the defendant Cheers blocked her path and began to talk to her, which time a codefendant, Arthur King, approached from the rear, placed the revolver against her right temple which time Dwayne Cheers began to physically search Miss Harris’ person.” Cheers’ attorney stipulated to the above facts. After the stipulation, the State commented that defendant’s case had yet to be resolved, and that “[i]n regard to Mr. Cheers, albeit that there’s been no amendment to the defendant’s answer regarding defendant Cheers being called on behalf of him — .” The trial judge entered judgment on the conviction, but withheld sentencing at the request of the State. The judge explained to Cheers that withholding sentencing was “just a tactical move.” Cheers responded to the court, “Yes, sir, but that would make me, me and Arthur King, we ain’t connected with nothing.” The court responded, “Well, I understand that, but I just want to, so that the State doesn’t have that fear.”

During defendant’s trial, but prior to Cheers’ sentencing, defendant attempted to call Cheers as a witness on his behalf. Before Cheers could testify, Mr. Helis, Cheers’ attorney, represented to the court that he had advised his client not to talk with the prosecution or defendant’s attorney and not to testify at defendant’s trial. The record contains the following:

“MR. HELIS [Cheers’ attorney]: Judge, I advised Mr. Cheers that he does have a Fifth Amendment right against self-incrimination. I have advised him that he does not have to testify in this matter, if he does not wish to. I have also advised him that he does have the right to testify, if he wishes to.
I further advised him, Judge, that if he does choose to testify, there are possibly elements in his testimony which maybe [sic] used by the State or by the Court in considering what the appropriate sentence would be. And that that sentence, based on his testimony in this matter maybe [sic] something other than the 8 [sic] years offered in the pretrial conference.
THE COURT: All right. *** Do you understand that.
MR. CHEERS: Yes.
THE COURT: When you [Cheers] entered a plea of guilty, the state [sic] read certain facts into the record. And your attorney agreed, at that time, that those facts would be the facts that would be the facts that would take place at any trial.
And among those facts, as I remember and my notes indicate, is that when you committed this offense for which you entered a plea of guilty, you committed it with Mr. Cheers — Mr. King.
MR. CHEERS: No.
THE COURT: Okay. Wait a second. I’m just telling you what my memory of the plea was.
Under those circumstances, that was the understanding that I had at the time that the plea was given. And at the time that I offered you 8 [sic] years.
Now, I’m not telling you what to do and I’m not advising you what to do. I just wanted you to know that if you do testify and you testify in a manner that I believe is perjurious, which would be not the truth, I would, on my own motion, vacate the plea of guilty. You’d then be as if the plea had never taken place. And we’d probably have to have a trial in connection with that matter.
However, if you testified in this matter and testify in what I believe is a truthful manner, I would not vacate that plea and I would allow you then to be sentenced to the 8 [sic] years that we previously agreed upon.
Now, I’m just — I want to know that when you pled guilty, the facts that were referred to in front of me, and which you listened to and after which you heard those facts, you agreed to pled [sic] guilty, those facts included the fact that you committed the crime with Mr. King.
* * *
MR. CHEERS: To my knowledge, that I was pleading guilty to the crime, true enough. I understand that. But I had stipulated that it was — King have nothing to do with me.
THE COURT: I didn’t hear any such stipulation. If there was such a stipulation, I didn’t hear it. But I just wanted to let you know just what the facts are as far as I can see it. Whether or not in your mind you had a different thought, I don’t know, because I can’t read your mind. I'm just telling you what I know and what the facts [are] as far as I can remember.
***
Mr. Kloak is going to call you as a witness on behalf of the — of the defendant. You have a right to testify if you wish to. You also have a right, because you still are in jeopardy, so to speak, some things can happen to you which could effect [sic] your freedom, et.cetera [sic], because you have not been convicted. You have a right to exercise your Fifty [sic] Amendment right and not testify for fear that what ever you might testify to could be used against you. ***
* * *
THE COURT: I’m going to ask you now, Mr. Cheers, are you going to testify in this matter?
MR. CHEERS: No. I plead the Fifth.”

Following defendant’s conviction, his attorney obtained an affidavit from Cheers. Cheers swore he committed the armed robbery of Harris with Thomas Matthis. Cheers stated that Matthis was approximately 29 years old at the time of the robbery. Matthis was of slim build, 6 feet tall with a moustache and chin whiskers. During the robbery, Matthis wore a white baseball cap, a long trench coat and blue jeans, and there were no lights on in the stairwell where they robbed Harris. Cheers stated that when he pled guilty, he did not say that defendant had committed the robbery with him. Further, Cheers swore that he would have testified at defendant’s trial, but he was afraid that if he did testify, the trial court would not sentence him to the eight years’ imprisonment for which he had plea bargained.

First, defendant argues that the trial court significantly influenced Cheers’ decision to invoke his fifth amendment right and refuse to testify on behalf of defendant, thereby depriving defendant of his due process rights (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2), and his right to present evidence in his own defense (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8). The trial court informed Cheers that it would interpret exculpatory testimony for defendant as perjury. The trial court also stated that if it believed Cheers’ testimony to be perjurious, the court would sua sponte vacate his plea of guilty and revoke the promise of an eight-year sentence. After hearing the above comments and conferring with his attorney, Cheers took the stand and invoked his fifth amendment right not to testify. As Cheers later explained in his affidavit, he decided not to testify on behalf of defendant because he feared the trial court would retaliate by revoking his plea bargain.

Even though defendant raised the issue in his written post-trial motion for a new trial, the State argues that the above issue was waived because defendant failed to make a contemporaneous objection to the trial court’s admonishment. Generally, failure to make an objection during trial results in a waiver of the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131-32.) Plain errors or defects affecting substantial rights, however, may be reviewed although they were not brought to the attention of the trial court. (107 Ill. 2d R. 615(a).) If the complained-of error was of such magnitude or so fundamental that the defendant was denied a fair trial, a reviewing court may address the error. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 561 N.E.2d 1, 7-8.) Review of such plain error preserves the integrity and reputation of the judicial process. (Herrett, 137 Ill. 2d at 210, 215, 561 N.E.2d at 8, 10-11.) Where there is alleged misconduct by the trial judge, a less rigid application of the waiver rule must prevail. (People v. Sprinkle (1963), 27 Ill. 2d 398, 399-401, 189 N.E.2d 295, 297; People v. Kelley (1983), 113 Ill. App. 3d 761, 766, 447 N.E.2d 973.) We, therefore, review the issue of the trial court’s admonishment of Cheers under the plain error doctrine.

We agree that defendant’s due process rights (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2), and his right to present evidence in his own defense (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) were violated. In Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351, the United States Supreme Court held that singling out a defendant’s only witness and admonishing that person of the dangers of perjury, along with implying that the witness’ testimony would be perjurious and that penal consequences would ensue, deprived the defendant of due process by scaring the witness from testifying. Webb, 409 U.S. at 97, 34 L. Ed. 2d at 333, 93 S. Ct. at 353.

Webb is similar to the case at bar. In the case at bar, the trial court singled out Cheers, admonished him of the. dangers and consequences of penury and implied that Cheers would lie if he testified on behalf of defendant. The circumstances in the case at bar are even worse than those in Webb. Here, the trial court had reserved Cheers’ sentencing for a later date and stated that it would revoke the plea bargain if it “believed” Cheers had perjured himself. In Webb, the trial court threatened to “prosecute” the witness if the court believed the witness’ testimony to be perjurious. Such a prosecution would require the State to prove perjury beyond a reasonable doubt. The potential for retaliation was much more direct and immediate in the case at bar than in Webb.

Further, there is evidence in the record that Cheers did not agree with all the facts to which his attorney stipulated. During Cheers’ plea hearing, Cheers responded to the trial court, “Yes, sir, but that would make me, me and Arthur King, we ain’t connected with nothing.” Then when Cheers was called by defendant’s attorney to testify on defendant’s behalf, Cheers stated that he did not agree at his plea hearing that defendant was his partner in the crime. In fact, Cheers informed the trial court of his understanding of his plea by saying, “To my knowledge, that I was pleading guilty to the crime, true enough. I understand that. But I had stipulated that it was — King have [sic] nothing to do with me.” The trial court’s admonition of Cheers resulted in Cheers’ fear of giving favorable testimony on behalf of defendant and, ultimately, Cheers’ decision to invoke his fifth amendment right, thereby depriving defendant of due process and his right to present his defense. Defendant, therefore, is entitled to a new trial.

Second, defendant argues that Cheers’ affidavit constitutes newly discovered evidence which entitles defendant to a new trial. Since we have decided to remand this case for a new trial, this issue is moot.

For the foregoing reasons, the conviction and sentence of the circuit court of Cook County is reversed and this case remanded for a new trial.

Reversed and remanded.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH CARTER, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—1015
    Opinion filed March 31, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Kenneth Carter, charged with aggravated battery and armed robbery, was convicted by a jury of aggravated battery and robbery and was sentenced to concurrent terms of 5 and 20 years, respectively. In this appeal, defendant contends that (1) the verdict for aggravated battery, premised upon use of a deadly weapon, was inconsistent with the jury’s implicit rejection of the use of a dangerous weapon in the commission of the robbery, as evidenced by the verdict on the armed robbery charge; (2) the statute that permits the sentencing court to impose a more severe sentence upon a defendant who commits an offense in a place of worship violates the establishment clause of the first amendment to the United States Constitution; (3) the State failed to prove beyond a reasonable doubt that defendant was subject to Class X sentencing; and (4) the court erred in permitting the State to present certain rebuttal evidence. We affirm.

At defendant’s jury trial, the State presented the following evidence. Just after 7 a.m. on March 15, 1988, Donald Valentini was walking west on Schiller at Leland, saying his rosary while en route to early morning mass at Immaculate Conception Church in the 1400 block of North Northpark on Chicago’s North Side. At that time, defendant passed Valentini on the left. Valentini turned north on Leland, heading for the church, and defendant continued west on Schiller. Just as Valentini reached the mouth of an alley, defendant jumped out, holding a beer bottle over his head. Valentini looked at him while the two men had a short conversation, and he then started walking toward the church. Defendant walked with him on the left. The two men talked as they continued walking toward the church, and defendant lowered the bottle.

When Valentini opened the rear door to the church and entered the vestibule, defendant broke the bottle over his head. Valentini cried out for help, knowing that a priest would be in the church six steps below. Defendant continued to hit him about the head, but he paused when the priest appeared at the bottom of the stairs nearby. Valentini fell to the floor; defendant continued hitting him and yelled, “I’m going to kill you, you motherfucker.” Although the priest could see what was occurring, he did not get a good look at Valentini’s assailant, who then took Valentini’s wallet from his pants pocket and ran off. The priest helped Valentini to his feet and walked him to the rectory, where the police were called. Valentini was taken by police to Lutheran General Hospital; he was treated and released. Approximately one month later, Valentini went to the police station to view mug books, from which he identified defendant as the man who had accosted him. Two months later, Valentini attended a lineup, at which he identified defendant.

At the close of the State’s case, defendant moved for a directed verdict, which the court denied. Defendant presented as his only witness Dorothy Jackson, the mother of his girl friend. According to Ms. Jackson, defendant lived with her and her family at 6844 South Oakley, on Chicago’s South Side, from December 1987 until “the present time when he left.” On the morning of the attack, she testified, defendant was with her in the living room, drinking coffee and watching video tapes.

Over defense objection and after much dispute about proper impeachment and rebuttal, the circuit court permitted the State to present, in its rebuttal case, testimony that when defendant was arrested in June 1988 for this incident, he gave as his address 1408 North Northpark, which is in the block where the offenses occurred. In addition, although defendant had supplied the Northpark address in May 1987 when arrested for a misdemeanor, he had given 6001 South Oakley as his address when arrested on an unrelated charge in March 1988, a few days after the instant offenses. Defendant had been in jail continuously from the day of his March 1988 arrest to and after his June 1988 arrest.

The circuit court gave jury instructions and verdict forms for robbery and battery as well as for the charged offenses of armed robbery and aggravated battery. As previously indicated, the jury returned guilty verdicts for robbery and aggravated battery.

At defendant’s sentencing hearing, his counsel agreed with the prosecutor that defendant was “Class X eligible,” and the State recounted defendant’s prior convictions. The court then commented separately on the applicability of each of the mitigation and aggravation factors listed in sections 5 — 5—3.1 and 5 — 5—3.2, respectively, of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, pars. 1005— 5 — 3.1, 1005 — 5—3.2). After doing so, the court expressly rejected an extended-term sentence because, it acknowledged, defendant had to be sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3(c)(8)). The court then sentenced defendant to 20 years for the robbery and 5 years for the aggravated battery, to run concurrently with each other and with another sentence of IMz years imposed for an unrelated October 1988 conviction for residential burglary.

I

Defendant first contends that the aggravated battery verdict, i.e., guilty of battery with a deadly weapon, must be set aside because it is legally inconsistent with the jury’s implicit verdict on the armed robbery charge, i.e., not guilty of robbery with a dangerous weapon. Both crimes have as an essential element the existence of a weapon, he argues, and a weapon logically cannot have been both there and not there. To cure the inconsistency, he urges this court to exercise its discretion by reducing the aggravated battery verdict to a conviction for simple battery, pursuant to Illinois Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), and then to remand for resentencing on the battery.

The State counters that defendant waived consideration of this issue by not objecting to the verdict at trial or in his post-trial motion. Even if this court disagrees as to waiver, the State contends, the inconsistency is not plain error, so revising the verdict is inappropriate. In addition, the State argues that although the bottle/weapon existed during the battery, it no longer existed when defendant took Valentini’s wallet, having shattered on impact. Even if the verdicts were inconsistent, the State offers alternatively, such inconsistency is permissible. Defendant replies that because the issue is one of insufficient proof of guilt of aggravated battery, he was under no obligation to raise it at the trial level in order to retain the right to appeal the issue. Even if he should have raised it below, he adds, the court may consider it now trader the plain error doctrine.

As a preliminary matter, we must reject the State’s assertion that defendant’s failure to raise this issue at trial or in his post-trial motion necessarily results in loss of the right to appeal the issue. To be sure, this is the general rule, but an exception exists for a defendant’s challenge to the sufficiency of evidence. People v. Kennard (1990), 204 Ill. App. 3d 641, 657, 561 N.E.2d 1188, 1197.

Legal inconsistency occurs “when a verdict of guilty is premised on the existence of an element of the offense and a verdict of not guilty [for a simultaneous act] is premised on the nonexistence of that same element.” (People v. Scherzer (1989), 179 Ill. App. 3d 624, 648, 534 N.E.2d 1043, 1060.) Although certain inconsistencies between verdicts are permissible (People v. Solis (1991), 216 Ill. App. 3d 11, 20, 576 N.E.2d 120, 125), legal inconsistency will render a criminal verdict invalid, warranting reversal. People v. Frias (1983), 99 Ill. 2d 193, 197-204, 457 N.E.2d 1233, 1235-38.

The crimes at issue here are robbery, armed robbery, battery, and aggravated battery. The latter, as alleged in this case, is defined as intentionally or knowingly causing bodily harm, without legal justification, while using a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1).) Armed robbery, similarly, is the taking of another’s property from his person or presence while carrying or otherwise armed with a dangerous weapon; without the weapon, the crime is robbery, (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 2, 18 — 1.) Defendant’s apparent belief that the jury had no choice but to consider the two charged crimes here as a single event is the keystone of his theory: if the weapon was found not to exist during the robbery, it could not exist during the battery.

Defendant’s premise is faulty, so his logic fails. Although the jury could have viewed this related series of acts to be an armed robbery despite the timing of the shattering of the bottle (People v. Blake (1991), 144 Ill. 2d 314, 322, 579 N.E.2d 861, 865), it was not obliged to do so. On the contrary, the jury could have decided that the State had not demonstrated the “necessary concurrence of events” to justify an armed robbery conviction (Blake, 144 Ill. 2d at 322, 579 N.E.2d at 865); it could have decided, for example, that defendant’s decision to relieve Valentini of his wallet was merely an afterthought. Alternatively, the disparity in the verdicts could reflect jury leniency. (People v. Hyman (1972), 8 Ill. App. 3d 382, 385, 290 N.E.2d 627, 629.) Under either scenario, the verdicts would not be inconsistent because they would not be premised on both the existence and the nonexistence of the bottle. Accordingly, we need not alter the jury’s decision here.

II

Defendant next contends that subsection 5 — 5—3.2(a)(10) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3.2(3)(10)), relied upon by the circuit court in imposing sentence, violates the establishment clause of the first amendment to the United States Constitution. He claims that the statute has no arguable secular purpose, has as its primary effect the advancement of religion, and creates excessive government entanglements. Because the existence of even one of these defects will render a statute unconstitutional, he argues, his sentence is invalid.

The State presents a dual challenge to defendant’s standing to contest the statute’s constitutionality. It posits first that defendant was sentenced under the Class X statute, not this one, and the court did not ultimately impose a more severe sentence than the 30-year maximum for Class X offenders. Moreover, having waited to raise this issue until appeal, defendant should be deemed to have waived it. Even if we reach the merits, the State asserts, the statute has none of the defects defendant ascribes to it. Defendant replies that the record unambiguously reveals that the judge employed the statute while sentencing him, giving him standing to challenge the statute’s constitutionality. Furthermore, a criminal defendant need not attack a statute’s unconstitutionality at trial in order to preserve the issue for review, the State’s citation to a contrary appellate court decision notwithstanding.

Section 5 — 5—3.2(a) of the Unified Code of Corrections states:

“The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence [for a felony]:
* * *
(10) the offense took place in a place of worship or on the grounds of a place of worship, immediately prior to, during or immediately following worship services. For purposes of this subparagraph, ‘place of worship’ shall mean any church, synagogue or other building, structure or place used primarily for religious worship.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(a)(10).

As a preliminary matter, we reject the State’s standing argument; at the sentencing hearing, the court stated outright that “I certainly think [the aggravating factor at issue] applies.” (People v. P.H. (1991), 145 Ill. 2d 209, 220, 582 N.E.2d 700, 704 (one may question a statute’s constitutionality after sustaining some direct injury due to enforcement thereof).) Also, despite the admittedly muddled history of the relationship between waiver and constitutional challenges in Illinois (People v. Ward (1990), 194 Ill. App. 3d 229, 232 n.1, 550 N.E.2d 1208, 1210 n.1; O’Neill, Waiver of Constitutional Issues in Criminal Cases: Confusion in the Illinois Supreme Court, 11 N. Ill. U. L. Rev. 55 (1990)), at the present time there is no doubt that the waiver rule is inapplicable when the issue raised on appeal is that of a statute’s unconstitutionality. (People v. Bryant (1989), 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224.) We further note that, although it is our duty to strike down unconstitutional statutes, we must presume that a statute is valid and must construe it as such if reasonable to do so, resolving doubts in favor of constitutionality. (P.H., 145 Ill. 2d at 220-21, 582 N.E.2d at 705; People v. Williams (1991), 143 Ill. 2d 477, 481, 577 N.E.2d 762, 763.) In particular, sentencing statutes are presumed constitutional. People v. Clark (1981), 102 Ill. App. 3d 414, 423, 429 N.E.2d 1255, 1261.

The establishment clause of the first amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion ***.” (U.S. Const., amend. I.) Under the incorporation doctrine of the fourteenth amendment, the establishment clause applies to the States as well as to the Federal government. (Cantwell v. Connecticut (1940), 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900.) In Lemon v. Kurtzman (1971), 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105, the Supreme Court held that the establishment clause was intended to protect against “three main evils[:] *** ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ” (403 U.S. at 612, 29 L. Ed. 2d at 755, 91 S. Ct. at 2111, quoting Walz v. Tax Comm’n (1970), 397 U.S. 664, 668, 25 L. Ed. 2d 697, 701, 90 S. Ct. 1409, 1411.) Under Lemon, to pass constitutional muster, a statute’s legislative purpose must be secular; its principal or primary effect cannot advance or inhibit religion; and it may not “foster ‘an excessive government entanglement with religion.’ ” (403 U.S. at 612-13, 29 L. Ed. 2d at 755, 91 S. Ct. at 2111, quoting Walz, 397 U.S. at 674, 25 L. Ed. 2d at 704, 90 S. Ct. at 1414.) Despite the Supreme Court’s professed “unwillingness to be confined to any single test or criterion in this sensitive area” (Lynch v. Donnelly (1984), 465 U.S. 668, 679, 79 L. Ed. 2d 604, 613, 104 S. Ct. 1355, 1362), it nevertheless applies Lemon with regularity. (County of Allegheny v. ACLU (1989), 492 U.S. 573, 592 n.44, 106 L. Ed. 2d 472, 493 n.44, 109 S. Ct. 3086, 3100 n.44.) We do so here as well.

Defendant contends that the statute’s unacceptable nonsecular purpose is to “singl[e] out for harsher penalty those crimes committed in sectarian locations,” thereby conveying the impermissible message that those who attend religious services are “more deserving of government protection.” Defendant offers no citation to legislative history or other factual support for his position, however; instead, he merely speculates as to the General Assembly’s intent. The State counters that the statute’s purpose is to protect worshipers from criminals who would interfere with their constitutional right to free exercise of religious belief. The only legislative history cited by the State is an introduction by Representative Howard B. Brookins, the sponsor of the bill. Speaking of an earlier version of the bill, which would have elevated a simple battery to an aggravated battery if committed on the property of a house of worship, Representative Brookins stated, “[T]his bill [will] give the clergy and parishioners the same protection which our police officers, teachers and nurses have.” 83d Ill. Gen. Assem., House Proceedings, March 24, 1983, at 44 (statements of Representative Brookins).

To warrant a finding that a statute is unconstitutional for lack of secular purpose, a challenger must demonstrate conclusively that the statute “was motivated wholly by religious considerations.” (Emphasis added.) (Lynch, 465 U.S. at 680, 79 L. Ed. 2d at 614, 104 S. Ct. at 1362.) Moreover, “[e]ven if some legislators were motivated by a conviction that [clergy and worshipers] in particular w[ere] valuable and worthy of protection, that alone would not invalidate [a statute] because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators.” (Emphasis in original.) (Board, of Education of the Westside Community Schools v. Mergens (1990), 496 U.S. 226, 249, 110 L. Ed. 2d 191, 215, 110 S. Ct. 2356, 2371 (opinion of O’Connor, J., joined by Rehnquist, C.J., and White and Blackmun, JJ.).) Defendant has presented no evidence whatsoever from which we can glean an impermissible purpose.

In addition, we observe that courts usually will defer to a legislature’s articulated secular purpose. (Edwards v. Aguillard (1987), 482 U.S. 578, 586, 96 L. Ed. 2d 510, 521, 107 S. Ct. 2573, 2579.) Here, the sole purpose articulated (to protect places of worship, and those who use them, to the same extent as certain other classes of victims) provides the requisite secular basis, particularly when coupled with the implicit purpose of every aggravation factor, which is to permit more severe punishment for those who commit crimes that the sovereign finds more offensive. Places of worship reach out and extend an invitation to the public; doors are unlocked; security is relaxed. The provision here merely reflects the legislature’s determination that crimes committed in such places, like crimes committed against the aged, are more repugnant to the community than, for example, crimes committed against convenience stores and those who use them. As such, it acknowledges our country’s long tradition of respect for the exercise of religion, as evidenced by the first amendment’s free exercise clause. Indeed, were we to extend defendant’s reasoning to its logical conclusion, we would have to hold that the free exercise clause itself, if enacted by the General Assembly, would violate the establishment clause. We decline to follow this path.

Defendant next claims, again without evidentiary support, that the statute’s primary effect is to advance religion because it confers the benefit of special government protection exclusively, not just incidentally, on clergy and worshipers. The State counters, also without support, that the statute’s effect is to deter and reduce crime in general. Neither addresses the issue squarely.

The primary effect of this sentencing provision, like any other, falls on criminals rather than on their victims. We agree with defendant that if the statute may be said to confer a benefit on anyone, the benefit falls primarily on those who own houses of worship and those who attend religious services therein, but this benefit is too indirect to violate the establishment clause. (Walz, 397 U.S. at 675-76, 25 L. Ed. 2d at 705, 90 S. Ct. at 1415.) Moreover, to “advance” religion is to “endorse,” “favor,” or “promote” it, that is, “at the very least, *** [to] appear[] to take a position on questions of religious belief or [to] ‘mak[e] adherence to a religion relevant in any way to a person’s standing in the political community.’ ” (County of Allegheny v. ACLU (1989), 492 U.S. 573, 593-94, 106 L. Ed. 2d 472, 494-95, 109 S. Ct. 3086, 3101, quoting Lynch, 465 U.S. at 687, 79 L. Ed. 2d at 619, 104 S. Ct. at 1367 (O’Connor, J., concurring).) We view the sentencing statute at issue as similar to a New Mexico statute that made criminal the defacing of a church. When this statute was challenged on first amendment grounds, the court of appeals of New Mexico held that the statute did not “advance” religion but merely provided a penalty for damaging property. (State v. Vogenthaler (App. 1976), 89 N.M. 150, 152, 548 P.2d 112, 114.) We cannot say that the primary effect of the statute at issue is not similarly benign.

Lastly, defendant asserts that the court’s use of this statute to impose a heavier sentence constitutes “excessive entanglement” with religion by the State. He is mistaken. The analysis for excessive entanglement includes examination of “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority” (Lemon, 403 U.S. at 615, 29 L. Ed. 2d at 757, 91 S. Ct. at 2112), an analysis that defendant’s bald assertion of entanglement omits. Defendant has not demonstrated how the statute at issue here either “benefits” religious institutions other than indirectly, as previously indicated, or how it provides government “aid” within the meaning of Lemon, or how it establishes the continuing relationship between religious institutions and the government, such as a government’s “day-to-day surveillance or administration of religious activities,” that is the hallmark of “excessive entanglement.” (Board of Education v. Mergens (1990), 496 U.S. 226, 253, 110 L. Ed. 2d 191, 217, 110 S. Ct. 2356, 2373 (opinion of O’Connor, J., joined by Rehnquist, C.J., and White and Blackmun, JJ.).) Accordingly, defendant has failed to prove any entanglement, and therefore, we hold that he has not met the standard of the third prong of the Lemon test.

Ill

Next, defendant asks this court to vacate his sentence and remand for resentencing because the State did not meet the statutory criteria for sentencing him as a Class X offender. Defendant’s specific argument is that the State failed to offer proof beyond a reasonable doubt of the dates of his prior crimes and convictions. Moreover, he asserts, having failed to proffer such evidence at his original sentencing hearing, the State is barred by the double jeopardy clause of the fifth amendment to the United States Constitution from resentencing him as a Class X offender.

The State responds that the case law on the quantum of proof required for sentencing under this statute is unsettled, urging us to await the Illinois Supreme Court’s pronouncement on the question in People v. Williams (1992), 149 Ill. 2d 467. Even if its burden were proof beyond a reasonable doubt, the State argues, circumstantial evidence may be used to prove prior convictions (People v. Harris (1987), 157 Ill. App. 3d 70, 74, 510 N.E.2d 107, 111, appeal denied (1987), 116 Ill. 2d 567, 515 N.E.2d 118), and here defendant’s arrest records and presentence investigation report suffice. Furthermore, the State contends, defendant waived this issue because his counsel replied, “That’s correct, Judge” when the assistant State’s Attorney commented at the outset of the sentencing hearing that “defendant is now Class X eligible,” and his counsel did not object when the circuit court later stated that “all parties would agree [the Class X sentencing statute] is applicable.” As for defendant’s double jeopardy argument, of the appellate courts that have considered the issue, only the second district supports defendant. People v. Shelton (4th Dist. 1991), 208 Ill. App. 3d 1094, 567 N.E.2d 680 (double jeopardy no bar); People v. Brooks (1st Dist. 1990), 202 Ill. App. 3d 164, 559 N.E.2d 859 (same); People v. Chandler (1st Dist. 1991), 218 Ill. App. 3d 97, 578 N.E.2d 155 (same); contra People v. Hamilton (2d Dist. 1990), 198 Ill. App. 3d 108, 555 N.E.2d 785, appeal allowed (1990), 133 Ill. 2d 564, 561 N.E.2d 699 (consolidated with Williams).

Defendant replies that his counsel conceded only that he was eligible for Class X sentencing, not that he waived the State’s obligation to prove beyond a reasonable doubt that the statute applied here. He further notes that, because the sentencing error is so grave, it amounts to plain error, allowing this court to review it even though his counsel failed to object. Lastly, he argues that what the State calls circumstantial evidence of his prior crimes is nothing but assumptions, an improper basis for sentencing.

Section 5 — 5—3(cX8) of the Unified Code of Corrections states:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Hlinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after [February 1, 1978]; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).

As noted above in Part I, the waiver rule is inapplicable when a defendant challenges the sufficiency of the evidence. (People v. Kennard (1990), 204 Ill. App. 3d 641, 657, 561 N.E.2d 1188, 1197.) We assume, for this analysis, that the State must prove beyond a reasonable doubt the chronological order of offense and conviction dates for Class X sentencing (Kennard, 204 Ill. App. 3d at 660, 561 N.E.2d at 1199; People v. Harris (1987), 157 Ill. App. 3d 70, 74, 510 N.E.2d 107, 111, appeal denied (1987), 116 Ill. 2d 567, 515 N.E.2d 118), a burden that the State may satisfy with circumstantial evidence (People v. Stewart (1989), 186 Ill. App. 3d 833, 838, 542 N.E.2d 915, 919, appeal denied (1989), 128 Ill. 2d 670, 548 N.E.2d 1076). We conclude that the State met its burden here.

At the sentencing hearing, the court and both counsel could see from the defendant’s presentence investigation report that he had three prior convictions as an adult, two of which met the statutory timing criteria. According to the report and defendant’s arrest record, he was arrested in June 1983 and subsequently pleaded guilty to robbery and aggravated battery in January 1984. Defendant’s next applicable offense and conviction occurred in 1985. The crime at issue here was committed in March 1988, with conviction in March 1989. Therefore, the only fact needed to satisfy the statute, but not directly presented in the report or the arrest record, was the date on which defendant committed the crimes for which he was arrested in 1983.

As the State suggests, it needed to prove beyond a reasonable doubt only that these crimes occurred after February 1, 1978, the effective date of the statute. Because the limitations period for the 1983 crimes was three years (Ill. Rev. Stat. 1983, ch. 38, par. 3 — 5), the 1983 arrest date indicates that he committed the crimes no earlier than 1980. Consequently, the court could infer from the 1983 arrest date that the crimes occurred after the 1978 effective date of the statute. (Kennard, 204 Ill. App. 3d at 660-61, 561 N.E.2d at 1200 (court may infer dates despite lack of direct evidence); see also People v. Kinzer (1991), 214 Ill. App. 3d 790, 574 N.E.2d 155; but see Shelton, 208 Ill. App. 3d 1094, 567 N.E.2d 680; Brooks, 202 Ill. App. 3d 164, 559 N.E.2d 859; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 545 N.E.2d 942, appeal denied (1990), 129 Ill. 2d 570, 550 N.E.2d 563; People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130 (State did not meet burden when it failed to present evidence of dates offenses were committed).) The lack of direct evidence on this point does not lead inexorably to a reasonable doubt that defendant did not qualify for Class X sentencing. Accordingly, we hold that Class X sentencing was proper. In light of our ruling, we need not address defendant’s double jeopardy claim.

IV

Defendant’s final contention on appeal is that the circuit court erred in allowing the State to present, in its rebuttal case, Detective Jon Cole’s testimony that at defendant’s arrest three months after the incident, defendant gave as his address a street number on the same block as the church. He argues that this evidence was neither proper impeachment of a defense witness nor rebuttal on a material issue. Admission of this evidence constitutes reversible error, he contends, warranting a new trial. The State counters that the testimony was admissible for two reasons: it contradicted defense evidence on a material matter (Ms. Jackson’s testimony, which gave the impression that defendant had no connection to the crime scene), and its materiality is such that it could have been used in the State’s case in chief.

Courts define rebuttal evidence as “that which [the State presents] to explain, repel, contradict, or disprove evidence presented by the accused.” (People v. Rios (1986), 145 Ill. App. 3d 571, 584, 495 N.E.2d 1103, 1113.) Such evidence is generally inadmissible if it contradicts previously admitted evidence on a merely collateral matter, however, unless a defendant has raised the collateral issue in his own case. (People v. Dale (1989), 189 Ill. App. 3d 704, 726, 545 N.E.2d 521, 535-36, appeal denied (1990), 129 Ill. 2d 567, 550 N.E.2d 560.) The circuit court’s decision to admit such evidence is reversible only upon a showing of abuse of discretion. Dale, 189 Ill. App. 3d at 726, 545 N.E.2d at 536.

We conclude that the testimony at issue had a tendency to “explain, repel, contradict, or disprove” Ms. Jackson’s testimony, so the court did not err in admitting it. In fact, the evidence at issue is, as the trial court described it, “very serious, damaging evidence against the defendant” in that the arresting officer’s testimony was the only direct evidence linking defendant to the neighborhood of the crime in this “single-finger I.D.” case. In a close credibility contest like this one, such evidence cannot be deemed merely collateral. Accordingly, we hold that the testimony was proper rebuttal and thus its admission constituted no abuse of discretion.

Judgment affirmed.

SCARIANO and McCORMICK, JJ., concur.

      Public Act 86 — 1418 amended the statute, adding another factor and renumbering the paragraph at issue as 5 — 3—3.2(a)(11), effective January 1, 1991.

      We are aware that, as Justice Easterbrook cautions, Lemon may have lost its tang. (Harris v. City of Zion (7th Cir. 1991), 927 F.2d 1401, 1424 (Easterbrook, J., dissenting), cert. denied (1992),_U.S._, 120 L. Ed. 2d 920, 112 S. Ct. 3054.) Indeed, in Lee v. Weisman (1991), 505 U.S._, 120 L. Ed. 2d 467, 112 S. Ct. 2649, the United States Supreme Court has been asked to reconsider Lemon and to replace the relatively strict, separationist Lemon test with a more lenient one that turns on coercion of belief. (505 U.S._, 120 L. Ed. 2d 467, 112 S. Ct. 2649.) On November 6, 1991, the Court heard oral argument in Lee, in which the question is whether saying prayers at a graduation ceremony for a public junior high school violates the establishment clause. Because Lee concerns school children, a specially protected group in first amendment jurisprudence, and because the new standard, if adopted, would be less favorable to defendant than Lemon, we see no reason to await the Court’s decision before ruling on the challenge here.

      We note that the State’s suggested statutory purpose (prohibiting interference with the free exercise of religion) was mentioned during the legislative discussions as well. We do not find this argument persuasive, however, because it fails to recognize that the first amendment prohibits such interference only by the sovereign, not by criminals.

      The last of these was ineligible for consideration because the subsequent arrest and conviction occurred after the commission of the crime here but before the conviction at issue.