State v. Smith

621 A.2d 493 (1993)


The jailers incarcerated D in a special section at the jail known as the 'blood alert' area. This meant the guards would take extra care if blood was spilled during an altercation. D would often talk to the guards about his HIV infection, telling them that he would do anything to get out of the county jail and go to a State prison, where he felt he would receive better medical treatment. He contacted a reporter from a local newspaper, which had printed an article regarding the treatment of HIV and AIDS prisoners in the Camden County jail. D made a number of serious threats to bite officers. On June 11, 1989, Officers were ordered to escort D to the nearby Hospital Emergency Room. The Officers were alerted that D had HIV. They put on rubber gloves as a precaution. When the Emergency Room doctors told D that nothing was wrong from his slip and fall, and that D could not get his hospital records, D went out of control. D was subdued and dragged out of the emergency room into a nearby waiting room until a patrol car came to take them back to the county jail. Throughout this period, D had leg irons and handcuffs on. D threatened and attempted to bite the officers and they were scared. D continued his extreme resistance and when Officer Waddington got D back to jail he noticed blood coming from the bite wounds on his hand. He immediately went to the nurse on duty who cleaned the wounds and gave him a tetanus shot. The nurse advised Waddington 'to go to the hospital.' D was tried and convicted of attempted murder. The State offered expert medical testimony that HIV cannot be transmitted by casual contact, such as a sneeze, a handshake, a kiss, or food prepared by someone with AIDS. HIV is present in all body fluids such as blood, semen, saliva and tears. The Doctor then addressed transmission through bites but conceded that none of his sources of information qualified as a controlled study. They were 'anecdotal.' Nonetheless, the doctor said that these incidents indicated to him that 'it is possible to transmit [HIV] through bite wounds.' He said, 'within a reasonable degree of medical probability,' that 'it is on rare occasion possible to transmit the virus via a bite injury.' The doctor said that D was capable of transmitting HIV through his saliva. After looking at the photographs of Waddington's bite wounds, the doctor reaffirmed that HIV transmission was 'possible' to Waddington via the bites. D's expert entered evidence that there was a very low probability of being infected following a bite wound of an adult as an isolated incident. The possibility was characterized as 'extremely remote' and 'very slim.' D testified. He said that he was discontented at the jail because the jail could not afford to provide HIV inmates with AZT, which he had been taking before he was incarcerated. Without AZT, his weight decreased from 145 to 110 pounds between April and June 1989. D and some other inmates called the local newspapers to complain of the lack of proper medical attention. In addition, he wrote to the jail warden saying that 'if they didn't move me out of here I was going to start up my shit. And what I meant by starting up my shit was calling reporters again because I wanted to be transferred. I was weighing 110 pounds.' D contends that the erroneously charged the jury that it could find him guilty of attempted murder upon proof that he intended to kill Waddington by biting him, regardless of whether it was medically possible that the bite could have transmitted HIV. Instead of focusing on his subjective belief about the effect of the bite, D contends the judge should have charged an objective test. Defendant claims that he can be guilty only if a 'reasonable person' would have believed that the bite could be fatal.