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July 17, 1996


Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. No. 92-CF-166. Honorable Jay M. Hanson, Judge, Presiding.

Released for Publication August 29, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Presiding Justice Holdridge delivered the opinion of the court: McCUSKEY and Slater, J.j., concurred.

The opinion of the court was delivered by: Holdridge

PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the court:

The defendant, Christine Buckley, n/k/a Christine Wolfe, was charged by indictment with the offense of involuntary manslaughter (720 ILCS 5/9-3(a) (West 1992)). The indictment alleged that the defendant acted recklessly and in a manner likely to cause death or great bodily harm when she gave a generic form of Dimetapp (a nonprescription decongestant) to her 12 month old daughter, Taylor Buckley, in an amount that caused the infant's death. A Henry County jury found the defendant guilty, and the circuit court sentenced her to a prison term of four years. No post-trial motions were filed.

The defendant raises several issues on appeal. This court, however, will primarily address the issue of prosecutorial misconduct in closing arguments. We reverse the defendant's conviction and remand for a new trial on that basis.

The record on appeal reveals the following facts relevant to our ruling. Taylor Buckley was found dead in her crib early on the morning of March 12, 1992. Emergency medical technician Michael Sizemore testified that he examined the infant at the scene and found no signs of external injuries. He did observe a small amount of dried blood on her upper lip, which he stated is often associated with Sudden Infant Death Syndrome (SIDS). In addition, he found signs that indicated to him that the infant had been dead for some time. He further testified that the defendant appeared to be in a state of total disbelief.

Dr. Louis Garcia performed an autopsy March 12, 1992. He testified by video evidence deposition that he found several factors consistent with SIDS. He noted the absence of medication in the stomach, and further testified that tests on blood, fluids, and tissue samples revealed no abnormalities. Based upon these findings, Dr. Garcia listed SIDS as the cause of death. During the autopsy, several fluid and tissue samples, including blood from the heart, were taken for shipment to Baylor University for analysis in a national study on SIDS victims. These samples were not taken for evidentiary purposes and therefore were not subjected to chain of custody precautions associated with samples to be used as evidence, nor were any precautions taken to prevent contamination or evaporation.

On March 13, 1992, a coroner's report was issued concluding that Taylor had died from SIDS. On March 23, 1992, Taylor's body was exhumed and a second autopsy was performed by Dr. Mary Jumbelic, a forensic pathologist with the Peoria County coroner's office. This second autopsy did not reveal anything unusual. Dr. Jumbelic requested, however, that Baylor University return blood and tissue samples for forensic analysis. She also took several samples for further testing during the second autopsy.

On March 31, 1992, at Dr. Jumbelic's request, Baylor University sent the fluid and tissue samples to Dr. Eric Frow, director of the Peoria Tazewell Pathology Group, for toxicology screening. Dr. Frow testified that his tests revealed the presence in the blood samples of brompheniramine (BPA), an anti-histamine found in Dimetapp. His tests, however, did not reveal the presence of phenylpropanolamine (PPA), a stimulant also found in Dimetapp. Dr. Frow testified that he sent three milliliters of blood to the National Medical Services Laboratory (NMS) in Willowgrove, Pennsylvania, for further analysis. Tissue samples were sent directly from Baylor University to NMS at the request of Dr. Jumbelic.

Dr. Robert Middleberg, a forensic toxicologist and director of NMS, testified that on April 8, 1992, he received from Dr. Frow a clear vial containing approximately two milliliters of blood. Tests performed on April 14, 1992, indicated that the blood sample contained 990 nanograms (parts per billion) per milliliter of BPA and 6300 nanograms of PPA. Dr. Middleberg testified that these concentration levels were determined partially by computer generated results, and partly by mathematical calculations done by himself and a lab technician. Dr. Middleberg also testified that tests on the tissue samples received from Baylor University detected the presence of BPA, however it was not possible for him to determine the level of concentration.

Dr. Middleberg stated that BPA levels he found could have acted as a stimulant in a small child. He opined that although BPA acted as a depressant, in small children it could have a "paradoxical effect" in which it would act as a stimulant. BPA intoxication could, according to Dr. Middleberg, cause nervousness, shaking, cardio effects and seizures. He also stated that, in the levels he found, BPA could be expected to show some type of toxic side effects and could be a potential cause of death, in the absence of a more likely cause.

Dr. Middleberg could not state that BPA intoxication was the cause of Taylor's death, as that conclusion was beyond his area of expertise. He also could not state an opinion as to how much Dimetapp Taylor had been given, nor could he state an opinion as to how much Dimetapp would need to be administered in order to produce a BPA level of 990 in the sample he tested.

Dr. Middleberg also acknowledged that after death, BPA can leach into the heart blood, thereby producing an artificially high concentration, and he acknowledged being aware of one study specifically involving BPA that showed concentrations of that chemical in the heart blood to be more that twice the level found in samples taken from other parts of the body. He did not believe, however, that the results of one study were scientifically significant. It was uncontroverted, however, that the blood sample Dr. Middleberg tested was taken by Dr. Garcia directly from Taylor's heart.

Brian Donnelly, a toxicologist at the FBI laboratory in Washington, D.C., testified that he received fluid and tissue samples from Dr. Jumbelic on June 26, 1992. Donnelly stated that he tested only one tissue sample and found BPA, but no PPA. He also acknowledged that he could not test for the level of concentration of BPA in the sample he tested.

On March 4, 1993, Dr. Jumbelic again sent fluid and tissue samples to Dr. Middleberg at NMS. Dr. Middleberg tested one-half milliliter of blood, this time finding 1300 ng/ml of BPA and 6300 ng/ml of PPA. Dr. Middleberg testified that there is a "built in error" of 10% that could partially explain the increase in BPA levels over the previous tests. In addition, he noted that ...

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