author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND MILES, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0132
    Opinion filed August 17, 1983.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant entered a plea of guilty in the circuit court of Vermilion County to the offense of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) January 14, 1982, before Judge Pearman. On March 9, 1982, Judge Pearman imposed a sentence of 30 months’ probation with the special conditions that defendant serve six months in the county jail with no credit for time already served. On March 16, 1982, the special conditions were modified to allow credit for time served, but without specification as to the amount of that time.

On November 4, 1982, a petition to revoke probation was filed and defendant was arraigned on it before Judge Robinson on November 15, 1982. The cause was set for hearing and the docket entry stated: “Deft released on $10,000 recognizance bond in this case and remanded to custody of sheriff for return to Champaign County under bond in that county.”

On November 23, 1982, a hearing was held and probation was ordered terminated by Judge Robinson. The docket entry stated: “Deft surrendered himself on the bond in this case and is remanded to custody of Sheriff under bond in another case.”

On January 14, 1983, a sentencing hearing was held and Judge Robinson imposed a sentence of imprisonment of six years and stated in his order, “Defendant is to be given full-time credit for all time served in custody in this cause since its inception.” A mittimus was ordered to issue.

On appeal defendant raises only one narrow issue: that the Department of Corrections has not allowed him credit for all time served in custody for this offense. He bases this claim on a letter addressed to his appellate counsel from the Department of Corrections and attached as an appendix to his brief. In that letter it is stated in pertinent part: “[T]he following information is in accordance with the Mittimus dated January 14, 1983. ‘Credit for time spent in jail: 11-19-81 to 3-9-82. 11-15-82 to 1-18-83.’ The dates total five months and 24 days (including one day of credit on our calculation sheet) of credit.”

Defendant argues that the six months in jail as a condition of probation, together with his surrender on November 23, 1982, until sentencing on January 14, 1983, indicate that he is entitled to approximately 7V2 months’ credit.

In their brief the People state, “Admittedly, the department’s records seem to be in error. The letter indicates defendant was taken into custody on November 19, 1981. That was when the burglary occurred, *** but according to the presentence report and the discovery materials, he was not arrested until December 1, 1981 ***.”

Inexplicably, the People further state that the defendant “evidently remained in jail without posting bond until the completion of the six-month term assessed as a condition of probation.” Such a bond would be impossible in the absence of an appeal from the imposition of such a sentence. The real problem is that defendant was allowed credit on the six months for time served, but this figure nowhere appears in the record. It cannot therefore be determined how much time he did in fact serve as a combination of the six months’ probation condition and time served theretofore.

It has long been the rule in the State that a mittimus is not part of the common law record; that it is the judgment of the court which is the authority for the detention of the prisoner; that in case of variance between the mittimus and the judgment, the latter will prevail; and that an amended mittimus may be issued at any time. People v. Anderson (1950), 407 Ill. 503, 95 N.E.2d 366.

It is also fundamental that “A sentence should be *** so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning.” People v. Walton (1969), 118 Ill. App. 2d 324, 333, 254 N.E.2d 190, 194-95.

Two additional factors enter the equation: first, the defendant must be given credit for time spent in custody as a result of the offense (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(b)); and second, the Department of Corrections must have a mittimus in order to receive the prisoner. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—5.

There is no difficulty with the sentencing judgment. It is clear that Judge Robinson intended that the defendant should receive all credit due to him for incarceration as a result of this offense. The problem arises from the preparation of the mittimus. The credit indicated in no way meshes with what information appears in the record. It is doubtful if the defendant were in jail on November 19, 1981, and clearly he was in jail on March 16, 1982, one week later than the date shown. The time spent in jail as a condition of probation cannot be calculated from the record, since Judge Pearman first imposed six months with no credit and one week later modified the order to allow credit. It is arguable that even with credit defendant spent at least six months in jail, but the record is silent as to his eventual release date on this aspect of the matter.

The time spent during the period November 15, 1982, through the sentencing hearing in January 1983 is also suspect. The order of November 15 is a release on recognizance as to the instant offense, but remandment to the sheriff of Champaign County, presumably for some other offense. The order of November 23 is likewise obscure. Defendant surrendered but was remanded under bond in another case.

The People argue that the matter should be handled “administratively” through the Department of Corrections, but make no suggestion as to what administrative procedures exist for such a situation. The case is unlike People v. Stuckey (1981), 93 Ill. App. 3d 260, 417 N.E.2d 203, where the trial judge specifically delegated to the Department the task of calculating credit. People v. Johnson (1974), 23 Ill. App. 3d 886, 321 N.E.2d 38, states that perhaps the Department may be able to do the calculation more conveniently, but does not mandate it.

This case demonstrates what obstacles can arise when the preparation of the mittimus and its indication of jail credit is left to nonjudicial personnel. As one possible solution, short of legislation which might be the more desirable one, we suggest analogy to section 4 of the former Habeas Corpus Act (Ill. Rev. Stat. 1981, ch. 65, par. 4), now section 10— 105 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 10 — 105). This provides that the sheriff having custody of a prisoner must give to that prisoner, on his demand or on the demand of anyone on his behalf, a copy of the process by which he is held.

In the case of a mittimus, a copy of it might be served on the defendant before he is transported to the Department of Corrections with leave to make whatever objections he might have to the credit shown. These could be handled by the trial court prior to transportation and prior to the filing of a notice of appeal and thus avoid one more problem.

The sentence is affirmed and the cause is remanded to the circuit court of Vermilion County with directions to recalculate the credit due to the defendant and then to issue an amended mittimus reflecting that credit.

Affirmed and remanded.

MILLS and MILLER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FILIPPO PULEO, et al., d/b/a La Roma Pizza, Plaintiffs-Appellees and Cross-Appellants, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants and Cross-Appellees.
    Fourth District
    No. 4 — 83—0051
    Opinion filed August 16, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellants.
    Wayne R. Golomb, of Springfield, for appellees.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The Department of Revenue (Department) conducted an audit of the plaintiff’s business and as a result thereof issued corrected State and municipal retailers’ occupational tax returns. Two notices of tax liability followed, one for the period April 1, 1976, through December 31, 1976, during which Rosolino and Filippo Puleo were doing business as a copartnership under the name of La Roma Pizza. The second was for the period January 1, 1977, through April 30, 1979, during which Rosolino Puleo conducted the business as a sole proprietorship. Both notices included interest and a fraud penalty. Timely protests were filed and a series of hearings were held by the Department. It was stipulated that the evidence taken would apply to both assessments.

At the conclusion of the hearings the Department issued final assessments which included interest and a fraud penalty. Plaintiffs, Filippo and Rosolino Puleo, filed a complaint for an administrative review in the circuit court of Sangamon County. In due course plaintiffs filed a motion for summary judgment and the Department filed objections thereto. Both parties filed extensive briefs with the trial court, which reversed the assessments. For reasons which are unclear the court also remanded the case. The Department has appealed, and the plaintiffs have cross-appealed. We reverse the order of the circuit court and affirm the assessments.

A tangled procedural problem presents itself at the outset. The Department has filed a motion to strike the major portion of a reply brief filed by the plaintiffs as cross-appellants. We have taken the motion with the case and now allow it.

Plaintiffs’ position as a cross-appellant is somewhat tenuous. They obtained complete relief at the trial level — the assessments were reversed. Their motion for summary judgment on which the trial court’s order was based alleged a single ground: that the Department’s assessment was based upon hearsay evidence. Nonetheless, in briefing the matter before the trial court, plaintiffs raised a variety of other reasons for the purported invalidity of the assessments. The trial court’s order of reversal was specific; it reversed on the ground of hearsay only; and the Department’s brief is confined to this subject and to the fraud penalty. However, plaintiffs’ brief, as appellees, raises and argues the same additional reasons for affirming the trial court as appeared in their trial brief, and the Department in its reply brief has answered them. Plaintiffs then filed a reply brief as cross-appellants, which is the subject of the motion.

We question the authority of plaintiffs to cross-appeal. Their motion for summary judgment was limited as was the order of the circuit court thereon. The only indication of the other issues is the presence of the trial brief, which we assume was considered by the trial court in making its decision. If plaintiffs desired that these matters be properly preserved, it was their burden to make the proper motion in the circuit court under section 3 — 111(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(c)).

However, the Department has not moved to strike the cross-appeal and asks only that the major portion of plaintiffs’ reply brief be stricken. This is the only relief sought and the only relief which may be granted without our proceeding sua sponte, something which we decline to do, since it is our obligation to examine the total proceedings before the Department.- We do suggest a more meticulous attention to procedural detail.

A brief summary of the evidence presented before the Department’s hearing officer follows. A revenue auditor visited plaintiffs’ place of business for the purpose of audit. Books and records of the business were not available, and plaintiff Rosolino Puleo informed him that they were in Chicago, the business being located in Canton, Illinois, and its principal object being the sale at retail of pizza and soft beverages. The auditor then used a reconstruction method to determine sales. He obtained information from six of plaintiff’s suppliers showing plaintiff’s purchases from them for the years 1976, 1977, 1978, and January through April 1979. He also examined plaintiff’s monthly retailers’ occupation tax returns for the same period. By comparing the two he found it apparent that the purchases totaled more than the receipts for the period. He was advised by the Department to apply a factor of 36% as the cost of sales. These projected sales were then offset by sales reported by the plaintiffs and the difference yielded the tax deficiency. He recommended a fraud penalty because the purchasers exceeded what was reported as sales. He also testified that he preferred to work from books and records and if they were available at the time of hearing, even then he would consider them.

At a second hearing a revenue fraud agent testified that he visited the plaintiff Rosolino Puleo together with another agent in February 1979 and learned that there were no books or records; he therefore requested an audit. After it was completed, he and the other agent again visited the plaintiff, who then told him that he did not keep a record of sales; that at the end of the month he would estimate sales and give the figure to the bookkeeper. He admitted to the revenue fraud agents that prior to the audit he had not filed correct tax returns; that he knew he had not been furnishing actual sales and knew that he was understating and underreporting purchases and sales. The agents offered him a statement to sign; he stated that everything in the statement was correct but he would not sign until he had talked with his attorney.

The agent further testified that he had obtained data from other pizza companies concerning their cost of sales; that Heritage House Enterprises, which owns several pizza places throughout the State, stated it to be 35-40%; that he had computed it for Pizza Hut Corporation and found it to be 27.24%. He also identified an exhibit which was the record of plaintiffs plea of guilty to filing fraudulent retailers’ occupation tax returns and for which he received one years’ probation and a fine of $1,000.

Plaintiff testified before the hearing officer that he understood the purpose of the fraud agent’s visit was to determine if his brother were still in business with him. He stated that he had a bookkeeper who never told him what records were required to be kept and that the agent did not seem interested in seeing the records in Chicago. He further stated that the agent on the second visit told him the amount of tax which he owed and that he desired to see his lawyer; he denied that he stated that the- statement offered to him was accurate. He also claimed that he pleaded guilty to the criminal charge because of the expense of contesting the matter, and he believed that his cost of goods sold was higher than the 36%; that it was 45-47% at the time of the hearing and even higher during the audit period. He testified that there were records in Chicago but that they were only purchase records; that he had no sales records because the bookkeeper did not tell him to keep sales receipts and he thought they were wastepaper.

The hearing officer recommended that the final assessments and the fraud penalty not be reduced; he found that during almost all the period in question purchases exceeded receipts and that reported receipts rose dramatically following the fraud agent’s visit; he also found that the factor of 36% had been objected to by the plaintiff, but plaintiff was unable to offer any better method of fixing the cost of sales. He concluded that the Department had prepared the audit according to its best judgment and information as required by section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 443); that the 36% factor met the statutory requirement since the taxpayer had no books and records for audit, any sales records having been destroyed and any purchase records supposedly being in Chicago but never presented.

With regard to the fraud penalty, the statement of the hearing officer is instructive:

“[E]xcept for the short audit year of 1979, the Taxpayer reported sales for each, audit year which were several thousand dollars less than his purchases as found by the Department’s investigation of his suppliers. I note that in the short audit period in the year 1979, his reported sales increased following a visit from the Department’s Fraud Agent, Scheller. The Taxpayer is a man unaccustomed to American business procedures, however, under penalties of perjury he did sign Retailer’s Occupation Tax Returns which understated his tax liability month after month. The Taxpayer did plead guilty to filing fraudulent Retailer’s Occupation Tax Returns for the period of February 1978 through April of 1979. Two Department of Revenue Fraud Agents testified that Mr. Puleo had admitted to them that he had not filed correct Retailer’s Occupation Tax Returns.”

The hearing officer concluded that the Department had established fraud by clear and convincing evidence and that the plaintiff had filed inaccurate returns knowing full well that he had no provable documentation to back up the figures.

As had been indicated, plaintiffs filed for administrative review in the circuit court. That court reversed the final assessments, holding that the final assessments were based upon hearsay evidence and not in accordance with the law under the rationale of Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238.

On appeal the Department raises two issues: (1) whether the circuit court erred in its application of Grand Liquor, and, (2) whether the fraud penalty was properly imposed.

In our opinion both the plaintiff and the trial court took too expansive a view of the holding in Grand Liquor which was limited to a special situation, that of a computer printout as the basis for a corrected return.

Section 4 of the Retailers’ Occupation Tax Act provides in part:

“As soon as practicable after any return is filed, the Department shall examine such return and shall, if necessary, correct such return according to its best judgment and information, which return so corrected by the Department shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown therein. ***
* * *
Proof of such correction by the Department may be made at any hearing before the Department or in any legal proceeding by a reproduced copy of the Department’s record relating thereto in the name of the Department under the certificate of the Director of Revenue. Such reproduced copy shall without further proof, be admitted into evidence before the Department or in any legal proceeding and shall be prima facie proof of the correctness of the amount of tax due, as shown therein.” Ill. Rev. Stat. 1981, ch. 120, par. 443.

The statute does not spell out any precise method of producing the corrected return. However, when the corrected return, which makes the Department’s prima facie case pursuant to the statute, is questioned, the method employed must meet some minimum standard of reasonableness. (Fillichio v. Department of Revenue (1958), 15 Ill. 2d 327, 155 N.E.2d 3.) The court in Grand Liquor noted the usual method:

“Previous to the advent of computer use by the Department in the assessment of tax deficiencies, the corrected returns, deemed to be prima facie correct, were products of the Department auditors’ personal investigations, computations, and verifications of records, invoices, or other data. At a hearing to challenge the additional tax imposed by the correction, an auditor who corrected the returns, or another personally familiar with the case involved, would be present to answer questions as to the nature of the personal computations of the corrected assessment. Anderson v. Department of Finance (1938), 370 Ill. 225; Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154; Du Page Liquor Store, Inc. v. McKibbin (1943), 383 Ill. 276; Novicki v. Department of Finance (1940), 373 Ill. 342.” (Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 198, 367 N.E.2d 1238, 1240.)

It is significant, in our opinion, that exactly this method was employed in the case at bar. Both the fraud agent who instigated the audit and the auditor himself were present, testified, and were cross-examined by the plaintiff.

Grand Liquor presented a wholly different set of circumstances. In that case the corrected return was based upon data generated by a computer and the auditor acknowledged that he did not know what those data were. The court acknowledged that under proper circumstances, i.e., proper foundation, the computer-generated records might be admissible, but it also took note of the problems relating to computers:

“Three potential sources of error underlie a computer record-keeping, data-processing system: ‘the input of information by encoding or translating it [source documents] into machine language, the creation of the program which instructs the computer, and the actual mechanical operation of the machine.’ (Tapper, Evidence from Computers, 8 Ga. L. Rev. 562, 566 (1974).) Moreover, ‘if the information from which the print-out is made has not been accurately compiled the computer’s output will be similarly incorrect.’ (8 Ga. L. Rev. 562, 567.) The latter aspect has been succinctly described in the cybernetics maxim, ‘garbage in, garbage out.’ 8 Ga. L. Rev. 562, 567.” Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 199, 367 N.E.2d 1238, 1240.

We are thus persuaded that Grand Liquor is limited to computer cases. These undoubtedly will present problems for the Department, but those problems are for another case, another day.

It is true that the Grand Liquor court, citing Novicki v. Department of Finance (1940), 373 Ill. 342, 26 N.E.2d 130, reiterated the familiar rule that the fundamental rules of evidence had not been abrogated in revenue proceedings, but we do not believe that there has been any violation in the instant case. In Du Page Liquor Store, Inc. v. McKibbin (1943), 383 Ill. 276, 48 N.E.2d 926, the taxpayer produced no records with which to rebut the Department’s prima facie case based on reconstruction from suppliers’ records. The Du Page Liquor court approved of the method and distinguished Novicki. It pointed out that in Novicki the taxpayer had produced records and that the Department was using hearsay evidence to support its corrected return.

The true rule, then, appears to be that if the taxpayer produces records from which an audit can be made, the Department may not use hearsay evidence in an effort to shore up its case; if the taxpayer produces no records, the Department may use its best judgment and information, including what would otherwise be objectionable as hearsay, in producing its corrected return. Grand Liquor represents no departure from this rule. The colloquy set forth in that opinion shows that the taxpayer’s books and records wére available.

As noted in Du Page Liquor, a general denial by the taxpayer that the Department’s corrected return is inaccurate is not sufficient to rebut the prima facie case. The trial court erred in its application of Grand Liquor to this case.

Although the trial court limited its ruling to Grand Liquor, a number of subsidiary issues have been raised and argued by the parties in this court. Since the entire administrative record is before us, we elect to exercise our discretion and deal with them briefly.

The Department contends that the fraud penalty was properly imposed. We agree. The standard is that of clear and convincing evidence. (Brown Specialty Co. v. Allphin (1979), 75 Ill. App. 3d 845, 394 N.E.2d 659.) It was met in this case. Even a casual inspection of the hearing officer’s remarks, set forth above, demonstrates fraud. In addition, the record is uncontradicted that the plaintiff admitted to the fraud agents that he had not filed correct returns and that he had never produced any records of any kind.

Plaintiff asserts that the Department violated his right to counsel during its investigation. He points to no specific constitutional provision, but cites Bruske v. Arnold (1968), 100 Ill. App. 2d 428, 241 N.E.2d 191. It is inapplicable in that it involved civil litigation after suit was filed. Both the appellate and supreme courts held that it was improper for a lawyer to communicate directly with the adverse party under those circumstances. The difference from the instant case is obvious. Any constitutional right to counsel attaches only in criminal proceedings and does not apply in administrative proceedings. (Ganz v. Bensinger (7th Cir. 1973), 480 F.2d 88.) Plaintiff here was represented during all the hearings before the Department and in the circuit court. We know of no rule which requires counsel during the initial investigatory stages.

Plaintiff next complains that it was improper to introduce his conviction of the misdemeanor charge. He claims that part of his plea agreement was that it would not be used as an admission. The record is not clear as to what the agreement was. In any event, there was adequate evidence of fraud independent of the conviction.

Plaintiff asserts that it was improper for members of the Department to have ex parte communications with each other and with the hearing officer and a violation of section 15 of the Illinois Administrative Procedure Act which provides:

“Except in the disposition of matters which they are authorized by law to entertain or dispose of on an ex parte basis, neither agency members, employees nor hearing examiners shall, after notice of hearing in a contested case or licensing to which the procedures of a contested case apply under this Act, communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any other issue with any party or his representative, except upon notice and opportunity for all parties to participate. However, an agency member may communicate with other members of the agency, and an agency member or hearing examiner may have the aid and advice of one or more personal assistants.” Ill. Rev. Stat. 1981, ch. 127, par. 1015.

The hearing officer was an employee of the Department and also acted as prosecutor for the case. There is no prohibition against this. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 2, 416 N.E.2d 1082.) The nature of any communications is not clear in the record, but the statute is plain that members of the Department may communicate with each other.

Plaintiff complains that the Department ignored his books and records. Since he never produced any, the complaint sounds hollow. It sounds even more hollow when the record shows that by his own admission the plaintiff never kept any sales records.

Plaintiff complains that the Department’s auditor was not a credible witness as a matter of law in that his calculations were based upon reconstructions and projections. The argument is specious since as has been noted many times plaintiff never produced any records from which concrete audit figures could be generated. In any event, it is not the province of a reviewing court in an administrative proceeding to reweigh the evidence nor pass upon the credibility of witnesses.

Plaintiff argues that he was denied due process in that the hearing officer was predisposed to rule in favor of the Department. He offers no specifics on this question, but only a vague feeling that as an employee of the Department, the hearing officer must have been partial to his employer. We note again that the relationship was not improper (Scott) and the divination of his motives is quite beyond our ability.

Plaintiff complains that the hearing officer did not comply with section 14 of the Rlinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1014) which requires that a final decision or order adverse to a party other than the agency in a contested case shall be in writing or stated in the record. We are unable to understand the contention. The written findings on the evidence and conclusions of law by the hearing officer cover seven and one-half pages in the common law record. Section 14 was fully complied with.

Finally, plaintiff argues that the notices of tax liability were barred by the statute of limitations. Section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 443) provides that no notice of tax liability shall be issued on or after each January 1 and July 1 which covers gross receipts received during any month or period of time more than three years prior to such January 1 and July 1. One notice here was issued October 31, 1979, covering the period from April 1, 1976, through December 31, 1976. Plaintiff claims that only the months of November and December 1976 were within the statute.

The answer is that by the terms of section 4 itself the limitations do not apply in the case of fraudulent returns. We have already held that fraud was present in this case. The limitations argument is without merit.

The motion to strike portions of plaintiff’s reply brief is allowed; the order of the circuit court of Sangamon County is reversed; and the final assessments of the Department of Revenue are affirmed.

Reversed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0415
    Opinion filed August 22, 1983.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Sherman Gibson was convicted of the crimes of home invasion, rape, deviate sexual assault, burglary, and felony theft. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11(a)(l), 11-1, 11-3, 19-1, 16-1(a)(1).) He was sentenced to concurrent terms of 45 years for home invasion, rape, and deviate sexual assault and seven years for burglary. On appeal he raises numerous issues, including: (1) The trial court improperly admitted testimony of a witness whose memory was refreshed by hypnosis; (2) his right to the assistance of counsel guaranteed by the sixth and fourteenth amendments was violated; (3) the trial court improperly excluded an expert opinion; (4) the trial court improperly restricted cross-examination of the State’s chief witness; and (5) the trial court erred in overruling his objection to testimony from the State’s expert serologist. We affirm.

Since defendant has not challenged the sufficiency of the evidence to support his conviction, only a brief discussion of the facts is necessary.

In the early morning hours of June 13, 1981, the home of Stephanie and Steven White was broken into by Allen and Glenda Medley and defendant. At home were the Whites and their nine-year-old niece. The three ransacked the house looking for property while Allen Medley and defendant took turns raping and performing acts of deviate sexual conduct on Mrs. White. During this ordeal, Mrs. White was forced to remain in the bedroom, Mr. White in the bathroom, and their niece in the living room. The only light which was on during the crimes was a fluorescent “grow light” in the living room of the small, two-bedroom dwelling. After about an hour, the trio left in the Whites’ automobile, dropped off some property, and went to the home of a friend, Carolyn Madison. Madison testified that she saw the Medleys and defendant in her home the following morning in possession of certain items of property which were taken from the Whites’ home.

The linchpin of the State’s case was Glenda Sue Medley, who related the above events in substantial detail. She also was instrumental in leading the police to the defendant. Four days after the offense, she informed a Detective Murphy, of the Springfield police department, that she was present at the Whites’ home on the morning in question and had aided her cousin Allen and defendant steal the property.

Debra Fesser, the State’s expert serologist testified that she performed tests upon samples of clothing and body fluids taken from the victim and discovered the presence of seminal material which she concluded were consistent with the blood types of defendant and Allen Medley.

Both victims testified at trial, but only Mrs. White was able to make an in-court identification of the defendant. She also related, without objection, her tentative identification of the defendant at a pretrial lineup and her positive identification of defendant which she made from a photograph of the same lineup. The latter occurred following a hypnotic session which was conducted by a Detective Sample to help the witness refresh her recollection. Mrs. White testified that, while she was previously unable to clearly see her assailants, “[ujnder hypnosis I was able to recall walking out of the bedroom, confronting the men. At that point I got a very good image of what he looked like.”

Defendant’s first series of contentions relate to the admission of the testimony of Stephanie White, whq was hypnotized prior to trial in an attempt to refresh her recollection. Defendant argues that: (1) The prior hypnosis of the victim rendered her incompetent to testify to subjects inquired into under hypnosis (see People v. Tail (1980), 99 Mich. App. 19, 297 N.W.2d 853; Commonwealth v. Nazarovitch (1981), 496 Pa. 97, 436 A.2d 170; People v. Shirley (1982), 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243; State ex rel. Collins v. Superior Court (1982), 132 Ariz. 180, 644 P.2d 1266; Collins v. State (1982), 52 Md. App. 186, 447 A.2d 1272); and (2) the -witness’ testimony should have been excluded because the hypnosis did not satisfy the safeguards for the admission of hypnotically enhanced testimony set out in State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86.

In People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, we first addressed the problems associated with the use of hypnosis as an aid in refreshing a witness’ recollection. In that case, a witness to an arson murder was hypnotized by a physician to help her refresh her recollections of the occurrence in an attempt to identify the arsonist. Prior to hypnosis, the witness described the probability of identifying the assailant as fifty-fifty, but after being hypnotized the witness was able to make a positive identification. On appeal, we held, over dissent, that the fact that a witness had been hypnotized prior to trial affected only the weight of the evidence and not its admissibility. We found the admission of the witness’ testimony to be proper since the record as a whole demonstrated (1) that the hypnotist was competent, having used hypnosis in his medical practice for 10 years; (2) that the procedure was not fraught with suggestive influences; (3) that the witness’ identification was corroborated by other substantial evidence unknown to the witness when she made the identification; and (4) the evidence showed that at the time of the occurrence, the witness had an ample opportunity to observe the assailant. Defendant urges us to abandon this position and follow either the approach of those courts which exclude hypnotically refreshed testimony altogether or impose procedural safeguards to minimize the inherent dangers in its use. The defendant relies on a number of out-of-State authorities, listed above, which were decided following our decision in Smrekar. For reasons which follow, we adhere to Smrekar because we believe that it strikes the proper balance between the possible benefit in the use of hypnosis as an aid in refreshing recollection and the disadvantages and problems associated with its use.

A review of the decisions cited by defendant which consider the admissibility of the testimony of a witness who has undergone hypnosis reveals that the courts have reached no unanimity on the question. Some courts hold that the previous hypnotism of a witness is a matter affecting only the credibility of the witness’ testimony and not its admissibility. (See United States v. Adams (9th Cir. 1978), 581 F.2d 193, cert. denied (1978), 439 U.S. 1006, 58 L. Ed. 2d 683, 99 S. Ct. 621; Clark v. State (Fla. App. 1979), 379 So. 2d 372; State v. McQueen (1978), 295 N.C. 96, 244 S.E.2d 414.) A second approach, most notably State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86, allows the introduction of testimony refreshed through hypnosis upon a preliminary showing that the use of hypnotism is likely to restore memory comparable in accuracy to normal recall and that a six-part standard has been followed. Finally, other courts have concluded that a witness who has been hypnotized prior to trial is incompetent to testify to events occurring during hypnosis or the fruits of the hypnotic procedure. An exhaustive opinion indicative of this approach is People v. Shirley (1982), 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243. See also State v. Mack (Minn. 1980), 292 N.W.2d 764; Collins; Nazarovitch.

This latter group of cases, excluding the testimony of a witness who has been hypnotized, frequently employ the rationale that hypnotism presents the same issues of admissibility as are presented when the results of a lie detector test or other scientific test are sought to be admitted. In order for the results of a scientific procedure to be admitted, there must be a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. (Frye v. United States (D.C. Cir. 1923), 293 F. 1013; see People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) Since the concensus of opinion among the experts is that hypnosis is not a reliable method of producing historically accurate recall (State v. Hurd (1981), 86 N.J. 525, 538, 432 A.2d 86, 92, and authorities cited therein), once the Frye rule is adopted as the standard of admission, it becomes a necessary conclusion that testimony enhanced through hypnosis is inadmissible. Courts applying the community acceptance standard and excluding testimony from a witness who has been hypnotized include Mack, Shirley, Nazarovitch, Collins, State v. Mena (1981), 128 Ariz. 226, 624 P.2d 1274, and State v. Palmer (1981), 210 Neb. 206, 313 N.W.2d 648. An example of this reasoning is found in Mena:

“While the medical use of hypnosis for certain therapeutic purposes has been approved by the American Medical Association, 168 J.A.M.A. 186-87 (Sept. 13, 1958), the use of hypnosis to aid in accurate memory recall is not yet generally accepted. ‘It remains controversial whether hypnotic suggestions can improve memory effectively.’ 9 Encyclopedia Britannica, 133, 137 (1979).
The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness’ memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases.” 128 Ariz. 226, 231, 624 P.2d 1274, 1279.

This is the position taken by defendant, who asserts in his brief that “[i]n sum, there is no procedure which can be utilized in hypnosis which can be sáid with surety to yield accurate results.” This was also the position taken by Mr. Justice Craven in his dissenting opinion in Smrekar.

We found this result unpersuasive in Smrekar and again reaffirm our rejection of this position. The general acceptance in the community test is not applicable to the admission of hypnotically enhanced testimony because that standard is concerned with the admission of expert opinion deduced from the results of a scientific technique and not the admissibility of eyewitness testimony. Secondly, application of that standard would single out hypnotically refreshed testimony and impose a requirement that the scientific community agree as to its accuracy in aiding recall, whereas a similar standard is not imposed on ordinary eyewitness testimony not refreshed through hypnosis. (State v. Armstrong (1983), 110 Wis. 2d 555, 329 N.W.2d 386.) Finally, application of this test focuses on the general reliability of the procedures, thereby obscuring the more important question of whether the procedure used in a given situation was reliable and nonsuggestive. Notwithstanding the substantial authority excluding the testimony of a witness who has undergone hypnosis, we believe that requiring the State to choose between the use of hypnosis on a witness to aid in the resolution of a difficult case and the use of that witness at trial exacts too high a price.

We acknowledged in Smrekar that hypnotism can be a valuable tool in the hands of a competent practitioner. We continue to adhere to this view but are not unmindful of the dangers associated with its use. (For a discussion of the nature of hypnosis, its effects, and problems, see Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. L. Rev. 313 (1980) (hereinafter Diamond); and Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio St. L. J. 567 (1977).) A review of the expert testimony presented by the defendant at trial and the several decisions which have addressed the issue of the admissibility of hypnotically refreshed testimony indicates that hypnosis poses special problems which require adequate safeguards for its use.

A subject under hypnosis is extremely receptive to suggestions from the hypnotist, intentionally or unintentionally communicated and experiences a desire to please the hypnotist by reacting to suggestive overtures. (People v. Shirley (1982), 31 Cal. 3d 18, 63, 641 P.2d 775, 802, 181 Cal. Rptr. 243, 271; Diamond, at 333.) This is, in fact, the very premise of hypnosis which is defined as a highly suggestible state into which a willing subject is induced by a skilled therapist. (State v. Mack (Minn. 1980), 292 N.W.2d 764, 765.) Further, the memory developed during hypnosis may be a collection of actual events, irrelevant actual events, pure fantasy, and details supplied to make a logical whole. (Diamond, at 335.) Once the person has been hypnotized, moreover, he will be imbued with a sense of conviction in the validity of his memories which have been refreshed by hypnosis, making it difficult to effectively test a witness’ recollection, recall, and perception during cross-examination. People v. Shirley (1982), 31 Cal. 3d 18, 65, 641 P.2d 775, 803-04,181 Cal. Rptr. 243, 272.

In Hurd, the New Jersey Supreme Court acknowledged these problems, but held that the testimony of a previously hypnotized witness could be admitted if a two-part test was satisfied. The court must first insure that the use of hypnosis in a particular case is reasonably likely to result in recall comparable in accuracy to a normal human memory, and secondly, a six-point procedural test must be followed. These requirements include: (1) A psychiatrist or psychologist experienced in hypnosis must conduct the session; (2) the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecution or defense; (3) any information given to the hypnotist must be recorded; (4) before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them and the hypnotist should carefully avoid influencing the description through leading questions; (5) all contacts between the hypnotist and the subject must be recorded, and (6) only the hypnotist and the subject should be present during the entire hypnotic session which should be recorded by videotape. These requirements must be established by the proponent by clear and convincing evidence.

We do not adopt in toto the procedural standards suggested in Hurd since our four-part test in Smrekar addresses the same dangers in the use of hypnotically refreshed testimony. Further, we see no reason to depart from our holding in Smrekar that the previous hypnotism of a witness goes only to the weight and not the admissibility of the evidence. By allowing the defendant to present expert testimony to the jury to show that hypnotism of a witness may influence that witness’ recollection, the trier of fact can adequately assess the testimony from this perspective. Protection against the possibility of confabulation, distortion, and the “hardening” of a witness’ memory is also insured by requiring the trial court to find that the Smrekar requirements are satisfied. If either the State or defense propose to introduce the testimony of a previously hypnotized witness, specific notice of such fact should be given to the opposite party so that a timely suppression motion can be made and ruled on in light of the four-part test we adopted in Smrekar.

Turning to the facts at bar, we hold that the State failed to satisfy the requirement of Smrekar that the hypnotist be competent to perform the interview. Further, we conclude that Smrekar requires as.a part of the requirement that the hypnotist be competent, a subsidiary showing, in line with Hurd, that he is independent of and not closely associated with either the prosecution or defense. This will further insure against the possibility of suggestion occurring during the hypnotic procedure. We also discourage the practice of allowing police personnel and the assistant State’s Attorney to be present during the interview, as occurred here, since the possibility of suggestive influence is only compounded.

Here there was a clear want of necessary elements of a foundation for the use of the testimony of a witness whose recollection had been refreshed by hypnosis and the trial court erred in admitting the testimony. The training of Detective Sample in the practice of hypnosis was the product of one week at a police school. He had used hypnosis in actual case interviews two or three times prior to this interview. It seems clear that no foundation of competence or qualification for the use of the technique is shown by the record.

Again, as an investigative officer, it is clear that Sample cannot be accepted as disinterested in procuring the success of the identification sought from hypnosis, and he had access to knowledge which might, or might not, be actually available to the witness. We find, however, that the admission of the identification testimony by Mrs. White was harmless error. In short, the evidence of defendant’s guilt is shown to be overwhelming without consideration of the identification which she made. The testimony of defendant’s accomplice, Glenda Medley, and that of Carolyn Madison and Debra Fesser overwhelmingly established defendant’s guilt beyond a reasonable doubt. See State v. La Mountain (1980), 125 Ariz. 547, 611 P.2d 551.

Defendant next argues that his sixth and fourteenth amendment right (U.S. Const., amends. VI, XIV) to the effective assistance of counsel was denied because the pretrial hypnotism of the victim took place without his counsel’s presence. We disagree.

In United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, the Supreme Court held that a pretrial, post-indictment lineup was a critical stage of the trial so potentially fraught with the possibility of prejudice that an accused should be provided with counsel. Distinguishing the pretrial lineup from other pretrial confrontations, such as an analysis of the accused’s blood or hair, the court noted that “ [knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination ***.” (388 U.S. 218, 227-28, 18 L. Ed. 2d 1149, 1158, 87 S. Ct. 1926, 1932.) With respect to pretrial lineups, the court found that a defendant can seldom reconstruct the events occurring at a lineup identification to conduct an effective cross-examination at trial. Defendant argues that hypnosis is also a critical stage of trial because of the inability of defense counsel to effectively cross-examine a previously hypnotized witness due to the lack of knowledge of the subtle, suggestive influences which may be present during the hypnotic interview.

The Wade decision makes clear that the defendant should be provided with counsel’s assistance at those pretrial confrontations that are critical. At a hypnotic session there is no confrontation with the defendant whatsoever. We see no reason to make the hypnotic interview a critical confrontation by requiring counsel’s presence. In United States v. Ash (1973), 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568, the Supreme Court held that a pretrial photo identification was not a critical stage of criminal proceedings because the accused was not confronted by the State. In language applicable here, the majority opinion notes:

“The structure of Wade, viewed in light of the careful limitation of the Court’s language to ‘confrontations,’ makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. ***
*** Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F.2d 888 (1969), recognized that the ‘criticality’ test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel.” (413 U.S. 300, 315-16, 37 L. Ed. 2d 619, 630, 93 S. Ct. 2568, 2576-77.)

We hold that defendant has no right to have counsel present during a pretrial hypnotic interview of a State’s witness. See People v. McDowell (1980), 103 Misc. 2d 831, 427 N.Y.S.2d 181.

Defendant next argues that the absence of his appointed counsel at a pretrial lineup is reversible error. Defendant was arrested on June 17, 1981, and the following day an attorney was appointed on his behalf. On June 26, defendant appeared with counsel at a preliminary hearing at the conclusion of which an order was entered, requiring defendant to appear in a lineup that day or as soon thereafter as practical at the Sangamon County jail. The following day a lineup was conducted at the county jail without defendant’s counsel. On appeal, defendant argues it was error to introduce the victim’s out-of-court identification since defendant’s counsel was not present at the pretrial lineup.

We conclude that the record contains uncontradicted evidence that the defendant knowingly and intelligently waived his right to counsel. At trial, Detective Natale testified that he read defendant a statement of the rights provided by Wade from a card provided to the police for that purpose, and that the defendant orally waived those rights. In People v. Anton (1981), 100 Ill. App. 3d 344, 426 N.E.2d 1070, the court held that a defendant had knowingly and intelligently waived his right to counsel at a lineup where he was orally advised of such rights and stated that he did not wish counsel’s presence. The uncontradicted evidence shows that defendant likewise waived his right to have counsel present at the pretrial lineup.

Defendant also complains that Supreme Court Rule 413(b) (87 Ill. 2d R. 413(b)) was violated since defendant and his counsel were not notified of the time and place of the lineup and the photographing of that lineup. The evidence, however, indicates that defendant and his counsel were present in court the day before the lineup at which time the court entered a written order directing the defendant to appear in a lineup that day or “as soon thereafter as practicable to be held at the Sangamon County Jail.” Although defendant’s counsel testified that he was not renotified the following day, the above notice was sufficient to apprise defendant and his counsel of the necessity of their presence. The lineup and photographing occurred contemporaneously with the previous order, and no subsequent renotification was necessary under these circumstances.

Defendant next claims that the trial court improperly ex-eluded an expert opinion of Dr. Leon Jackson concerning the possible suggestive effects that hypnosis had on the witness’ identification of the defendant. The State argues the trial court properly excluded the opinion since all of the material facts were not included in the defendant's hypothetical question and some of the assumed facts were not in evidence. The trial court sustained the State’s objection to the hypothetical question because a videotape of the hypnotic interview had not been introduced into evidence. Previously the court had ruled that the videotape of the interview was admissible but that defense counsel would be required to play the entire four-hour tape to the jury and could not select isolated portions. Rather than show the jury the entire tape, defense counsel attempted to demonstrate that subtle suggestions had taken place during the interview by means of a hypothetical question directed to his expert witness.

In propounding a hypothetical question to an expert, the elements of the hypothetical must have an evidentiary basis in the record and the hypothetical should contain all material facts to form the basis of the opinion. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 705.1, at 383 (3d ed. 1979).) The State failed to point out at trial what assumed facts lacked evidentiary support, and we note that the jury had already heard the testimony of the hypnotist and the investigating officers relating the hypnotic procedure and the witness’ subsequent identification. The State’s argument on this ground is not supported by the record. The further suggestion that all material facts were not included in the hypothetical suffers from similar weaknesses since the State likewise failed to disclose what those material facts were. In fact, at trial the State’s Attorney complained that the hypothetical was “way too long and confusing.” In Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 312 N.E.2d 593, the supreme court, quoting from McCormick on Evidence, noted that “ ‘[t]he more expedient and more widely prevailing view is that there is no rule requiring that all material facts be included [in the hypothetical question]. The safeguards are that the adversary may on cross-examination supply omitted facts and ask the expert if his opinion would be modified by them, and further that the trial judge if he deems the original question unfair may in his discretion require that the hypothesis be reframed to supply an adequate basis for a helpful answer.’ ” (57 Ill. 2d 475, 480, 312 N.E.2d 593, 595.) We conclude that the trial court erred in excluding the response to the question propounded to defendant’s expert. Any error in excluding Dr. Jackson’s opinion was, nevertheless, harmless. The evidence of defendant’s guilt was substantial, and defendant was able to present evidence to the jury that hypnosis was likely to result in a mistaken identification. Defendant’s expert testified at length on the dangers and problems in using hypnosis and was not confined to the single, hypothetical question and response. It is a well-established rule that the rejection of evidence is not prejudicial in a criminal case where substantially the same evidence has been admitted at the trial. (People v. Driver (1978), 62 Ill. App. 3d 847, 379 N.E.2d 840.) We find no prejudice in excluding the expert’s opinion.

During the testimony of accomplice Glenda Medley, the defendant conducted a probing cross-examination to disclose her bias, prejudice, and interest in the case. Medley agreed that she was originally charged with home invasion and that she received a reduced charge of burglary in exchange for her testimony. She could not recall whether the penalty for home invasion was greater than that for burglary. Defense counsel called defendant’s former attorney who related that he was present during Medley’s arraignment, at which time she was advised of the penalties for home invasion and burglary. He testified that home invasion carries a substantially greater penalty than burglary. Over objection, the trial court instructed counsel not to disclose the range of penalties for home invasion since defendant was charged with this crime. Defendant assigns error to this ruling.

We decided this same issue in People v. Lake (1978), 61 Ill. App. 3d 428, 378 N.E.2d 364, and found no error in the trial court’s restricting the cross-examination of a State’s witness to prevent the disclosure to the jury of the possible sentence that the witness had faced when that witness was charged with the same crime as the defendant. We held that evidence of the specific penalty was immaterial and irrelevant to the jury’s consideration of the facts and that the trial court had placed a reasonable restriction on cross-examination. We continue to follow Lake.

Defendant next argues that the trial court erred in allowing the State to admit into evidence the statement of Glenda Medley which she made to the police on June 17, 1981, and which was consistent with her trial testimony. Although the State argues waiver since the objection was not included in his post-trial motion, we decline to treat that issue as waived since a timely objection was made at trial. People v. Clark (1982), 108 Ill. App. 3d 1071, 440 N.E.2d 387.

Defendant argues that the admission of the prior consistent statement was improper because at the time it was made Medley harbored ill will toward the defendant. The State argues that the statement was made before the witness could have foreseen any potential benefit and before any motive for false testimony arose. See People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363; People v. Buckley (1976), 43 III. App. 3d 53, 356 N.E.2d 1113.

Defendant’s only authority, Waller v. People (1904), 209 Ill. 284, 70 N.E. 681, states the rule that evidence of a prior consistent statement is inadmissible unless its admission is to rebut a charge of recent fabrication, but no issue was raised there concerning whether the motive to fabricate existed at the time of the prior statement. It is clear that for a prior consistent statement of a witness to be admissible the statement must be made before any motive to fabricate comes into existence. {Clark.) During the cross-examination of Medley, defendant sought to disclose two possible motives for her to testify falsely. Counsel questioned her about the reduced charges in exchange for her testimony and also about the fact that a shooting occurred between her brother and cousin, Charles and Allen Medley, and defendant Sherman Gibson. Medley acknowledged that she had been shot at in Springfield and had originally told the police that she was not sure who it was. On the day Medley made the prior statement implicating the defendant, she told them that it was the defendant who had shot at her.

The State’s argument that the prior statement was made before Medley could have foreseen the possibility of her reduced charge is factually correct, but does not account for Medley’s other motives to testify against the defendant. These motives were extant when Medley made the statement and could have exerted a similar pressure on her to testify against him; it was made at a time when the Medleys and defendant were allegedly shooting at one another. For this reason it cannot be said to have been made at a time when no motive to testify against the defendant existed. Its admission was erroneous, but the error is harmless. The evidence so strongly indicates defendant’s guilt that the error cannot be regarded as prejudicial to the extent of requiring reversal. People v. Helm (1968), 40 Ill. 2d 39, 237 N.E.2d 433.

Defendant’s final argument concerns the admissibility of testimony of Debra Fesser, the State’s expert serologist. At trial, Fesser identified substances taken from the victim and stated that seminal material found was consistent with the blood types of defendant and Allen Medley. Over defense objection, she also related the results of her analysis of blood and saliva samples taken from Allen Medley. Defendant made a general objection at trial and alleged in his post-trial motion that Fesser’s testimony relating Medley’s blood type was immaterial and irrelevant. Defendant now argues that the State did not lay a proper foundation for the admission of the evidence. Defendant relies solely on People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413.

Objections to evidence not properly made in the trial court cannot be urged for the first time on review. (People v. Nash (1980), 90 Ill. App. 3d 612, 413 N.E.2d 16.) The only objection arguably preserved for review is that it is immaterial and irrelevant. Clearly, however, the evidence tended to prove a fact at issue at trial: whether the victim had been raped and sexually assaulted by the defendant. The admission of testimony of Medley’s blood type was necessary to explain the fact that two types of seminal fluid were found in the victim, both of which were consistent with Medley’s and defendant’s blood types. Rogers found reversible error in admitting physical evidence without establishing a chain of custody for that evidence. At bar, no chain of custody was necessary since Medley’s blood was not admitted into evidence.

For the foregoing reasons, the judgment of conviction and sentence are affirmed.

Affirmed.

WEBBER, P.J., and GREEN, J., concur.


author: JUSTICE HOPF

text:
    LAKE BLUFF HEATING AND AIR CONDITIONING SUPPLY, INC., Plaintiff, v. HARRIS TRUST AND SAVINGS BANK, Trustee, Defendant and Cross-Plaintiff Appellant—(Glenview Guarantee Savings & Loan Association, Defendant and Cross-Defendant-Appellee; Charles Diemer et al., Defendants).
    Second District,
    No. 82 — 782
    Opinion filed August 19, 1983.

      Gary A. Weintraub and David A. Epstein, both of Jann, Carroll, Sain & Dolin, Ltd., of Chicago, for appellant.
    Eric A. Oesterle, Kirk R. Ruthenberg, and Steven M. Levy, all of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

This action originated as a mechanic’s lien foreclosure proceeding brought by Lake Bluff Heating and Air Conditioning Supply, Inc. (Lake Bluff), to recover for work performed by them in March 1981 on certain residential property located in Libertyville, Illinois. At that time, the subject property was owned by Glenview Guaranty Savings & Loan Association (Glenview), which had acquired the property by foreclosure. In May 1981, Glenview sold the property to Harris Trust and Savings Bank (Harris), as trustee of a trust whose beneficiary was Barry M. Dolin. Both Harris and Glenview were defendants in the lien foreclosure action. Harris filed a cross-claim against Glenview in two counts. Count I alleged that Glenview breached certain express warranties in its contract of sale with Harris, and count II sought indemnification from Glenview for any amounts which Harris might be required to pay Lake Bluff in the lien foreclosure action. Harris moved for summary judgment on its indemnification claim and the motion was granted by the trial court. Subsequently, Glenview paid Lake Bluff the amount due to it, and the lien foreclosure proceeding was dismissed against both Glenview and Harris.

The cause proceeded to trial on count I of Harris' cross-claim, and after hearing the evidence and arguments of counsel the trial court found in favor of Glenview. Harris appeals, contending that: (1) the trial court’s ruling on the indemnification count of the cross-claim established the law of the case and was inconsistent with its subsequent ruling against Harris; (2) the trial court erroneously found that Glen-view did not breach any express warranties; and that (3) Glenview breached an implied warranty of habitability when it refused to complete necessary repairs to the premises.

Albert Dolin, an attorney and the father of Barry Dolin', the trust beneficiary, negotiated on behalf of Harris and Barry Dolin for the purchase of the property in question. Charles Skopp, senior vice-president in charge of lending at Glenview, represented Glenview in the negotiations. In November or December 1980, Dolin first contacted Skopp about purchasing the property for his son. At their initial meeting, Dolin noted the deplorable condition of the house, which had been severely damaged due to freezing of the plumbing and heating systems. Both systems were inoperable, interior piping had burst, and there was extensive water damage throughout. In December 1980, Glenview engaged the services of Brewer’s Plumbing and Heating Company (Brewer) to repair the damage caused by the winter freeze, and Brewer commenced work on the property until sometime in March 1981. The repairs were never completed by Brewer. Meanwhile, negotiations between Harris and Glenview continued, with both Dolin and Skopp periodically inspecting the property from January through April 1981 to observe the progress of the repairs being done by Brewer. Both men were therefore aware of the lack of progress in these repairs in March and April. Nevertheless on April 23, 1981, the parties reached an agreement for the purchase of the property at a price of $195,000, subject to Harris’ being able to obtain a $110,000 mortgage “with interest not to exceed 12% a year.” A rider attached to the contract provided that Glenview “warrants that the damage caused by the freezing of the plumbing and heating facilities in the premises will be properly repaired or replaced prior to closing ***.” The closing date was specified as May 4, 1981.

After signing the contract of sale, Skopp and Dolin visited the building and observed that the work still had not been completed. Dolin then indicated to Skopp the importance of finishing the repairs, and Skopp subsequently contacted another contractor, Werner and Wilke, Inc. (Werner), who estimated it would cost $12,550 to complete the job Brewer did not finish. That estimate was given on May 4, 1981, the original closing date, and was shown to Dolin several days later.

Shortly before the closing, which was finally held on May 16, 1981, the parties agreed that the closing of the sale would be held prior to the completion of the work and repairs referred to in the rider of the contract. In that regard, Dolin drafted a letter to be signed by Glenview, dated May 14,1981, which stated:

“Harris Trust and Savings Bank Trust No. 41133, its beneficiaries, and Barry M. Dolin
Gentlemen:
For and in consideration of the sale and purchase of the residential property on St. Mary’s Road in Green Oaks, Ill., we represent and warrant that we have engaged and fully paid Brewer Plumbing and Heating Co. in Libertyville, Ill. to replace the heating system, including radiators, in the said house and make such system fully operable, and further, to replace all broken water pipes in the house which leak, including replacement of insulation, repairs to walls and floors and removal of all debris.
The aforesaid work was to have been completed prior to our closing but to facilitate an early closing this representation is made.
We do also agree and hereby assign to you all of our rights, privileges and demands which we may now have or subsequently acquire against the said Brewer Plumbing and Heating Company and we assign to you the full right and authority to proceed against Brewer Plumbing and Heating Company in any matter you may deem appropriate in our place and stead.
Very truly yours,
Glenview Guaranty Savings and Loan Association
By:__”
This letter was signed by Skopp at the closing. Beneath Skopp’s signature the following provision was added by Glenview:
“Seller agrees to purchase property in an ‘as is condition’
Accepted
Beneficiary of Harris Trust and Savings Bank, Trust No. 41133.”

This was signed by Barry Dolin, the trust beneficiary. The parties agree that the word “seller” in the added sentence was a mistake and should have been “purchaser.” At the closing, Glenview also tendered and signed several other documents in which Glenview warranted that “all contracts for the furnishing of labor or materials to the subject premises *** have been completed and fully paid,” and that “no labor or material has been furnished for premises within the last four months, that is not fully paid for.” It is undisputed that the plumbing and heating repairs had not yet been completed at the time of closing. Glenview originally gave Harris a mortgage at 12% interest per year; however this interest rate was subsequently lowered to 10% prior to closing. The change from 12% to 10% is reflected on the face of the loan agreement.

Following the May 16 contract, Harris discovered that Brewer had gone out of business. Dolin contacted Glenview and demanded that it complete the repairs on the premises. When Glenview refused, Dolin hired Louis Semke, who had previously been employed by Brewer, to complete the repairs to the premises. According to Semke, the payments previously paid by Glenview to Brewer were not sufficient to fully complete the Brewer contract; an additional $30,000 was required.

At trial Harris contended that its agreement to purchase the property in an “as is” condition did not apply to the plumbing and heating systems. Glenview maintained that the “as is” provision was added to reflect Harris’ agreement to assume responsibility for all repairs to the premises, including the plumbing and heating systems, in exchange for the reduction in the mortgage interest rate. The court ruled that the letter agreement was ambiguous and that parol evidence would be admissible in ascertaining the intent of the parties. No transcript of this ruling appears in the record.

Skopp testified that on or about May 10, 1981, he had a conversation with Dolin wherein they discussed the difficulty Glenview was having in getting Brewer to complete the contract. At that time, Skopp showed Dolin the proposal he had received from Werner and Wilke estimating the cost of completing the Brewer contract. According to Skopp, Dolin stated he would assume responsibility for the Brewer contract and the repairs to be done if Glenview would agree to a 10% mortgage on the property rather than the 12%, and also assign to Harris any rights it had against Brewer. The 2% reduction was approximately equal to the amount estimated in the Werner proposal to complete the Brewer contract. Glenview agreed to this arrangement. The change from 12% to 10% interest was handwritten on the face of the loan agreement.

Dolin admitted to having the conversation with Skopp regarding the difficulties Glenview was having in getting Brewer to complete the job, but he denied discussing the likelihood that Brewer would not complete the repairs. About the Werner proposal to complete repairs, Dolin stated that he “didn’t see where that was of any interest to me at all.” He stated he informed Skopp that he was not interested in this information, although he could not recall when that conversation took place. According to Dolin, the 2% reduction in mortgage interest rate was given by Glenview in consideration of Harris’ agreement to close the deal prior to completion of the plumbing and heating repairs and to waive the right to inspection prior to closing. Dolin stated he did not think it was necessary to state in the letter that Glenview would itself pursue the repairs after closing, but that he believed this interpretation “would logically follow.” Dolin testified that the assignment in the letter was “not an absolute assignment,” but rather “a privilege to represent the bank in dealing with Mr. Brewer.” He testified that at the closing he made it clear to Skopp that he would be willing to accept the property in an “as is” condition, except for the completion of the plumbing and heating systems. According to Dolin, Skopp indicated at that time he would take care of it. Skopp denied making this statement.

After hearing the evidence and arguments of counsel, the trial court found that Glenview did not breach any of the express warranties which it had given to Harris.

Harris first claims that the trial court’s initial ruling on the indemnification count of its cross-claim established the law of the case and was inherently inconsistent with the court’s later ruling that Glenview did not breach any warranty to repair. In its order on the indemnification count, the court found that Harris was entitled to reimbursement from Glenview for any amounts it might be required to pay Lake Bluff. The order specifically stated that “the express warranties contained in the documents is [sic] not negated by the ‘as is’ provision ***.” In its argument, Harris assumes that the express warranties to which the order refers are the same warranties to repair that are the subject of the present appeal. Glenview maintains, however, that the initial ruling of the court addressed only the effect of the “as is” provision on the warranties of title given to Harris at the closing. We agree.

Harris’ cross-motion for summary judgment on the indemnification count alleged that Glenview warranted that all labor and materials furnished to the property had been fully paid for. The motion also alleged that Lake Bluff’s lien claim arose prior to Harris’ purchase of the property and that any failure by Glenview to pay Lake Bluff for this work was in breach of the terms of the real estate agreement which “warranted and represented that title to the property would be free and clear of any liens or encumbrances.” In its memorandum in support of the motion, Harris discussed the effect of the “as is” clause on express warranties of title, and concluded that “pursuant to the express warranty of title, the seller is responsible for and must indemnify Harris for such claim.” Attached to the memorandum were the “Affidavit of Title Covenant and Warranty,” and an “ALTA Extended Coverage Owners and Loan Policy Statement,” which both highlighted the “fully paid” provisions. The order on the indemnification issue referred to certain documents, and the only documents presented to the court in support of Harris’ motion were those containing the express warranties of title. Thus, it is clear that these were the documents to which the order referred. There is no evidence in the record indicating that the court in ruling on the indemnity issue considered the effect of the “as is” clause on the warranties to repair, which is the question now before us. Thus, it is evident that the trial court’s ruling on the indemnification issue did not establish the “law of the case.” The “law of the case” doctrine binds a court to a view of law announced in its prior opinion in a case between the same parties. (Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 402, 442 N.E.2d 338.) However, the doctrine is not applicable where either different parties or issues are involved. (Miscevich, Quern v. Jordan (1979), 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139.) Since the court’s indemnification ruling in the instant case considered a different issue than that considered in the court’s subsequent ruling (i.e., Glenview’s obligation to convey clear title as opposed to its obligation to repair), the “law of the case” doctrine is inapplicable here. Miscevich.

Harris next claims that the following express warranties were given to it and breached by Glenview: (1) that Glenview contracted and fully paid Brewer to replace and repair the heating and plumbing systems in the building (warranty found in the May 14, 1981, letter); (2) that all existing contracts were completed and fully paid (found in the affidavit of title covenant and warranty and ALTA Statement); and (3) that Glenview would complete the repairs itself, either prior to or after closing (in the April 23, 1981, contract). Harris contends initially that it is entitled to recover as a matter of law on the first two warranties alone, and that this court need not reach the question whether the April 23 warranty to repair survived the closing. Alternatively, Harris maintains that the warranty to repair did survive the closing date and that the “as is” provision in the May 14 letter altered merely the time element of the original warranty to repair so that Glenview was no longer required to complete the repairs prior to closing.

Before reaching the merits of Harris’ argument, we turn first to Harris’ suggestion in its brief that parol evidence was improperly used to ascertain the intent of the parties. The record is absent as to any objection by Harris at trial to the use of parol evidence. Accordingly, it must be presumed, in the absence of any contrary indication, that no objection was made. (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 552, 405 N.E.2d 1093.) In addition, this contention was raised by Harris for the first time in its reply brief and is, therefore, waived. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) In any event, it is evident that parol evidence was properly admissible on the question whether Glenview’s April 23 warranty to repair survived the “as is” provision in the May 14 letter, since the language in the letter is “reasonably susceptible to more than one meaning.” In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 108, 438 N.E.2d 957.

On the merits of Harris’ argument, we find no error in the trial court’s finding that Glenview fully paid Brewer to complete the repairs, as warranted in the May 14 letter. At trial, Skopp testified that under Glenview’s contract with Brewer, the total cost of repair was $32,720, which was paid in full. Documents supporting these payments were introduced at trial. According to Skopp, Charles Diemer, owner of Brewer, signed in Skopp’s presence the check stub of the last payment made, and wrote the words “final payment” on it. This check stub was offered into evidence but was refused because it was not produced during discovery. The court nevertheless did allow Skopp’s testimony regarding the circumstances surrounding this alleged final payment. According to Skopp, the stub was in lieu of a final waiver of lien form, which Glenview requested but never received. Although Harris presented the testimony of Louis Semke that the $30,000 figure would not have covered the repairs to be done, Harris was bound to accept, as assignee, the contract as it was originally negotiated between Brewer and Glenview. (Midwest Concrete Products Co. v. La Salle National Bank (1981), 94 Ill. App. 3d 394, 397, 418 N.E.2d 988.) There is no evidence in the record indicating that the actual contract was anything other than what Skopp indicated in his testimony.

It is also evident that Glenview’s warranty that all existing contracts were completed and fully paid, did not apply to the Brewer contract at issue here. The letter of May 14 specifically acknowledged that the Brewer contract had not yet been completed at the time of closing. Thus, the warranty regarding existing contracts was waived by Harris as it applied to Brewer.

We next consider the critical issue in this case: whether the “as is” provision in the May 14 letter had the effect of negating or disclaiming the original warranty to repair which was contained in the April 23 agreement. The trial court found that the original warranty was disclaimed, and that construction should not be disturbed unless contrary to the manifest weight of the evidence. Burgener v. Gain (1981), 101 Ill. App. 3d 699, 428 N.E.2d 722.

The term “as is” is generally understood to mean that the buyer is purchasing goods in its present condition with whatever faults it may possess. (Overland Bond & Investment Corp. v. Howard (1972), 9 Ill. App. 3d 348, 356, 292 N.E.2d 168; Garofalo Co. v. St. Mary’s Packing Co. (1950), 339 Ill. App. 412, 417, 90 N.E.2d 292.) The term is similar to terms such as “with all faults” or “in its present condition,” and implies that the seller is relieved of any further obligation to reimburse for loss or damage because of the condition of the goods. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 807, 443 N.E.2d 36; Overland; First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 236, 205 N.E.2d 780; Garofalo.) Thus, according to the plain meaning of the “as is” clause in the instant case, it is at least some evidence that the previous express warranty to repair was disclaimed. Schoeneweis; see also Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316(3)(a), interpreting this term similarly in a contract for the sale of goods.

The Uniform Commercial Code, while not directly applicable, offers some guidance for an analysis of this issue. Under the Code, a written disclaimer of an express warranty contained elsewhere in the same contract is generally inoperable. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316(1).) This general rule is subject however to parol evidence which would indicate that it is reasonable to construe the disclaimer as negating the express warranty. (Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 316(1), 2 — 202.) The purpose of these provisions is to “protect the buyer from an unexpected disclaimer of warranty” by denying effect to such language when it is inconsistent with the language of the express warranty. (Emphasis added.) (Ill. Ann. Stat., ch. 26, par. 2— 316(1), Illinois Code Comment, subsection (1), at 251-52 (Smith-Hurd 1963); see Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc. (1976), 39 Ill. App. 3d 48, 58, 349 N.E.2d 627.) We believe the same policy is applicable to contracts falling outside the Uniform Commercial Code. Thus, the question here is whether a disclaimer of Glenview’s previous express warranty to repair was unexpected and unbargained for. The record here supports the trial court’s finding that it was not.

It is clear that both parties knew of the condition of the property at the time of closing, and had inspected it on numerous occasions. Skopp testified the disclaimer relieving Glenview of any further obligation to repair was specifically bargained for after the April 23 agreement and before the May 14 letter was signed. He stated that in consideration of the disclaimer, Glenview agreed to reduce the interest rate on the mortgage by 2%, resulting in a savings to Harris of approximately $15,000. According to defendant’s exhibits, this amount approximated the cost of completion of the repairs by another contractor. The loan agreement corroborated Skopp’s testimony in this regard, since on its face the original 12% interest rate had been reduced to 10%. Although Dolin testified the 2% interest rate reduction was given to him in exchange for Harris’ agreement to close early, this was a credibility question for the trial court to resolve. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122, 426 N.E.2d 604.) The record also indicates that Harris was aware of the problems Glenview was having with Brewer. Both Dolin and Skopp had contacted or attempted to contact Brewer regarding completion of the repairs. Skopp testified he fully advised Dolin of the problems, and this testimony was corroborated by Dolin’s own testimony that the problems were discussed. Finally, Dolin, an attorney, drafted the May 14 letter and could have expressly provided that Glenview would itself complete the repairs to the building if Brewer failed to do so. Instead, the letter merely stated that Glenview “represents] and warrants] that we have engaged and fully paid Brewer *** to replace the heating system ***.” A contract is to be strictly construed against its drafter. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 251 N.E.2d 242.) We therefore conclude that Glenview’s only remaining obligation to Harris was that contained in the letter, and that the “as is” provision was a bargained-for disclaimer of the previous warranty to repair which was knowingly accepted by Harris.

Harris relies upon several cases as support for the proposition that an “as is” term cannot negate an express written warranty, although it might exclude certain implied warranties. (See Imperial Stamp & Engraving Co. v. Bailey (1980), 82 Ill. App. 3d 835, 403 N.E.2d 294; First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 205 N.E.2d 780; Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc. (1965), 68 Ill. App. 2d 297, 216 N.E.2d 282.) We have reviewed these cases and find them inapposite to the case at bar. Each of these cases dealt only with an alleged disclaimer of an implied warranty which was not otherwise discussed and bargained for by the parties. This is clearly not the situation here.

Finally, Harris claims Glenview breached an implied warranty of habitability when it refused to complete the necessary repairs to the premises after the closing. This contention was not raised in the trial court, and is therefore waived on appeal. (Wiersema v. Workman Plumbing, Heating & Cooling, Inc. (1980), 87 Ill. App. 3d 535, 536, 409 N.E.2d 159.) However, even were we to considér the issue, it is without merit. The extension of the warranty of habitability to the sale of an older home by a nonbuilder vendor was specifically rejected in Sweetwood v. Mahoney (1981), 93 Ill. App. 3d 788, 791, 417 N.E.2d 874. We adopt the reasoning of that case and find no warranty of habitability in the case at bar.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

VAN DEUSEN and UNVERZAGT, JJ., concur.