APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. CAWLEY, Judge, presiding.
MR. PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for involuntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, par. 9-3(a)) and concealment of the homicidal death (Ill. Rev. Stat. 1973, ch. 38, par. 9-3.1(a)) of Tammy White, an alleged transsexual (victim). Defendant was charged with having recklessly injected silicone into the victim, which resulted in her death minutes later, and having thereafter concealed this cause of death from the authorities. Defendant was convicted on both counts in a jury trial and received concurrent sentences of 1 to 3 years. The principal factual issue at trial was whether the silicone injection, rather than one of several other possible causes suggested by defendant, resulted in the victim's death. On appeal, defendant challenges the jury's determination on this issue, claiming that it was just as likely that the victim died from a Darvon overdose, anaphylactic shock or "silicone transferring." For the reasons set forth below, we affirm.
The State presented the following case at trial. Jerry Lawrence, a Chicago Police Department homicide investigator, testified that at 7 p.m. on December 5, 1974, he was assigned to investigate the death of a person in an apartment on North Marine Drive in Chicago. He entered that apartment and saw the victim in a reclining chair. Defendant and one April Vaugine (April) were standing nearby. Defendant explained that he, April, and the victim had gone to supper earlier and returned to defendant's apartment. The victim went into the bathroom where she remained for about 30 minutes. She returned to the den and sat in the reclining chair. Shortly thereafter, the victim said "I think I am on a trip," then went into convulsions. The convulsions stopped and defendant summoned an ambulance. No mention was made of the injection. Upon searching the apartment, Lawrence discovered a large quantity of different medications which defendant explained were prescribed for him for various ailments. Defendant stated that he owned and operated Silico Chemical Co., a wholesaler of industrial chemicals, which bought silicone in bulk and packaged it for sale to industrial clients. Lawrence removed the victim's clothing so that the evidence technician could photograph the corpse. He inspected her body for wounds, bruises, cuts or any other evidence of violence but found none. On cross-examination, Lawrence testified that the victim's purse contained 18 orange pills and 19 red pills, all of which he believed were Darvon. The pills were inventoried but he did not know if they were ever subjected to chemical analysis.
Michael Page testified that on December 5, 1974, he was employed by Dependable Ambulance Service and drove an ambulance to an address on North Marine Drive. When he arrived, he saw the victim sitting in a chair. He examined her and determined that she had been dead "for a little while." The only persons in the apartment when he arrived were defendant, the victim, and two women. He called the police and they arrived shortly thereafter. Prior to the police photographs of the corpse, he noticed a small puncture mark under the victim's left breast.
April Vaugine testified that she was born in Los Angeles, California in 1944 as Paul Edward Vaugine. In 1969, she received a sex change operation in Morocco, after which she changed her name to April. She was introduced to defendant in 1967 for the purpose of arranging silicone injections. Defendant injected silicone into her bust, hips and face for $50 to $75 per injection. She ultimately received between fifty and sixty such silicone injections between 1967 and 1969. She was present on numerous occasions when defendant administered silicone injections to a number of people at the same visit and his procedure was always the same. The person who was to receive the silicone injection would indicate the part of the body where the silicone injection was desired. The person would then disrobe, defendant would clean the skin with alcohol, mark off the area with an eyebrow pencil, and inject an anesthetic with a hypodermic needle. He never would take a medical history, nor ask if any drugs were used nor ask about one's background. He did not use a stethoscope. After the anesthetic injection, he filled the same syringe with liquid silicone. He always used the same syringe, without cleaning it, for both the anesthetic and the silicone. He then would administer the silicone injection into the area where the anesthetic had been injected. Defendant would then use the same syringe on succeeding patients.
On December 5, 1974, at about 5:30 p.m., April and the victim went to see defendant for the purpose of receiving silicone injections. The three of them first went out to supper, then returned to defendant's apartment. The victim undressed and defendant looked at her breasts and commented that whoever had administered the prior silicone injections had done a poor job. Defendant did not ask the victim anything about her health or prior medical history. Defendant then cleaned the victim's breasts with alcohol and made five pencil marks under each, then cleaned and marked the victim's hips. As usual, defendant only had one syringe. Defendant filled the syringe with anesthetic from a small vial. The liquid anesthetic in the vial was crystal clear, like water, but the same liquid after being drawn into the syringe was "cloudy" and looked "like dishwater." Defendant then injected this cloudy substance into five different places under each of the victim's breasts and then into her hips.
The victim immediately complained that she felt nauseous and went into the bathroom. Shortly afterwards, the victim returned still complaining of nausea and laid down on the couch. Within a minute, the victim began perspiring, her arms and upper body began shaking and she had difficulty breathing. She mumbled "I am on a trip," then completely stopped moving. Defendant said something was wrong and began massaging her chest. He phoned an ambulance, then told April that they had to dress the victim before the ambulance arrived. He removed the pencil marks from the victim's breasts, then he and April dressed her. He instructed April that if questioned, she should say only that they came up to the apartment for some drinks. When the police arrived, that is the story she related. She went home and the next day defendant called and said that "everything was okay" because the coroner had ruled that the cause of death was Darvon poisoning. Defendant called her again in February of 1976 and asked her to "stick to" the original story. In May of 1976, the state's attorney's office contacted her and she ultimately promised to give a statement if granted prosecutorial immunity, which she was given.
Patricia Gill testified that she was employed as an administrative assistant by Dalcorn, Inc., a silicone manufacturer. Dalcorn had sold various quantities of silicone to defendant from 1970 to 1973. Defendant, like all its silicone purchasers, was required to submit an affidavit that the silicone would not be used for injections into humans.
Norton Ross testified that he had been defendant's partner in the ownership of Silico Chemical Co. since 1957. Because the future success of the business became questionable, he withdrew as a partner in 1972. Rudy Cistaro, a registered embalmer and funeral director, testified that he embalmed the body of the victim on December 10, 1974. During the embalming procedure, he noticed puncture marks under both of the victim's breasts.
A stipulation was agreed upon indicating that subsequent to burial, the state's attorney's office began an investigation into the circumstances surrounding the death and, on February 5, 1976, an order was obtained requiring the remains to be disinterred. On February 10, 1976, the remains were delivered to the Cook County morgue.
Dr. Joseph Claparols, a pathologist with the Cook County Coroner's office, testified that on December 5, 1974, he performed the original autopsy on the victim. He took tissue samples from various organs in the event that a microscopic tissue examination became necessary after the initial autopsy. His autopsy concluded that the cause of death was a Darvon overdose. He noticed abnormalities in the victim's lungs; however, he "* * * took a chance and signed the protocol without taking into account the lung pathology * * *."
Dr. Everette T. Solomons, chief toxicologist with the Georgia State Crime Laboratory in Atlanta, testified that in March of 1976, the tissue samples taken by Dr. Claparols were subjected to an atomic absorption spectrophotometry and an infrared spectrum test to determine the level of silicone in the various tissues. There was an extremely large concentration of silicone oil in the breast tissue. This would indicate that the breast area was the injection site for the silicone. Silicone particles were also found in the spleen, kidney, liver and lungs with the largest concentration, other than in the breast tissue, in the lungs.
Dr. Victor Levine, a physician specializing in pathology and formerly the chief pathologist for the Cook County Coroner's office, testified that on February 10, 1976, he performed a second autopsy after the remains of the victim were disinterred. He obtained tissue samples from various organs. He also secured those previously taken by Dr. Claparols. After identifying photographs which he had taken of the Claparols' tissues, Levine testified that the microscopic photographs of the lung tissue showed a number of abnormalities called vacuoles. A vacuole is an entirely abnormal, rounded empty space in the lung tissue. The numerous vacuoles found were caused by silicone particles. When foreign matter, such as silicone, enters the body, the body produces defensive cells to combat the matter. Small defensive cells begin to form from 15 seconds to several hours after the matter enters the body; however, giant cells do not begin to develop until foreign matter has been in the body for at least three weeks. The tissue samples of the victim's lungs indicated that some of the vacuoles were being "attacked" by giant cells and some by normal cells. In some instances no cells had yet formed. Since only a small number of the vacuoles were attacked by giant cells, he concluded that most of the other vacuoles had entered the lungs just 15 seconds to several hours before death.
Dr. Levine had reviewed Dr. Solomons' toxicology report concerning the amount of silicone in the lung tissue. Based on this report, Levine's examination of the remains, and the analysis of the Claparols' tissue samples, it was Levine's opinion that the victim "died as a result of pulmonary insufficiency, and the pulmonary insufficiency was caused by the presence of silicone vacuoles which blocked the capillaries of the lungs so completely that * * * [she] was no longer able to breathe properly and that caused * * * [her] death." The symptoms exhibited by the victim, including shaking, nausea, dizziness, and inability to breathe, which occurred after the injection and prior to death, would be consistent with the finding that pulmonary insufficiency due to silicone vacuoles caused the death. If there was silicone oil suspended in the anesthetic in the syringe, it would be consistent with the above opinion. Sometimes a person experiences an allergic reaction to a local anesthetic which might vary from hives to respiratory difficulty to an "extreme reaction" known as anaphylactic shock. If the victim had suffered from anaphylactic shock, she could not have been revived by medical treatment due to the lung conditions previously described.
On cross-examination, Dr. Levine testified that he was familiar with an article published by the American Academy of Forensic Sciences authored by Drs. Solomons and Jones concerning a Georgia case study involving death from silicone injections. Dr. Levine did not base any part of his diagnosis or opinion on this Georgia case, although he compared the two. In an attempt to establish his "silicone transfer" theory, defense counsel elicted from Dr. Levine testimony that it is possible for something to be "carried from elsewhere [in the body] into the lung and it can be any number of things and * * * different sizes of things and there are blood clots that are so big that a single blood clot itself gets caught in the * * * pulmonary artery * * * and this is death from a pulmonary embolism." Death from such a cause can occur sometimes in three to four or eight to 10 minutes. Pulmonary embolism can be caused by silicone or other matter ...