Smallwood v. State

BISHOP, Judge. The State filed a twenty-three count indictment in the Circuit Court for Prince George’s County against appellant, Dwight Ralph Smallwood. Appellant pleaded guilty to charges of attempted first degree rape and robbery with a deadly weapon. Based on an agreed statement of facts, the ³ trial court tried appellant on charges of assault with intent to murder, attempted second degree murder, and reckless endangerment.

After convicting appellant on those charges, the trial court imposed concurrent sentences of life imprisonment for attempted first degree rape, twenty years for robbery with a deadly weapon, thirty years for assault with intent to murder, thirty years for attempted second degree murder, and five years for reckless endangerment. Appellant was also charged with and convicted of rape and robbery with a deadly weapon in two other cases, neither of which are the subject of this appeal. Issue Appellant raises the following issue: Whether the evidence and the court’s factual findings sufficiently support appellant’s convictions of assault with intent to murder and attempted second degree murder. Statement of Facts The agreed-upon statement of facts related by the State to the trial court reveals that, in July of 1991, appellant was incarcerated at the Prince George’s County Detention Center, where he voluntarily agreed to be tested for the presence of the Human Immunodeficiency Virus (“HIV”).

On August 29, 1991, appellant was diagnosed as being infected with HIV, the virus that causes Acquired Immune Deficiency Syndrome (“AIDS”). According to the medical records of the Prince George’s County Detention Center, appellant knew that he was infected with HIV as early as September 25, 1991. Appellant told Dr. Ivan W. Laurich, a psychiatrist at the detention center, that he would not have sexual relations without informing his partners of his “HIV positive” status. According to the State, in February of 1992, Marianne Liburdi, a licensed social worker, informed appellant of the necessity to practice “safe sex” in order to avoid transmitting his disease to his sexual partners.

In July of 1993, appellant underwent HIV-related medical treatment at Children’s Hospital, where he stated to medical personnel that he had one ⁴ sexual partner and that he always used condoms during sex. Appellant was retested for HIV in February and March of 1994; in both instances, appellant tested positive for HIV. On September 28, 1993, appellant and an accomplice approached a woman exiting her car, ordered her, at gunpoint, to drive them to an automated teller machine, and forced her to withdraw $300. Although appellant was informed of the necessary precautions to avoid transmitting HIV to his sexual partners, appellant attempted to rape the woman after robbing her.

According to the agreed-upon statement of facts, appellant “inserted his penis into [the woman’s] vagina, causing slight penetration [and] did not use a condom during the act.” Appellant threatened to shoot the woman if she reported the incident. At the conclusion of the State’s statement of facts, appellant declined to present evidence and moved for judgment of acquittal on the charges of assault with intent to murder, attempted second degree murder, and reckless endangerment. The trial court denied appellant’s motion and stated that, before going any further, it was necessary for the court “to make a clear record for all concerned.” Essentially, the trial court adopted the agreed-upon statement of facts as its factual findings and concluded that appellant was guilty of attempted second degree murder, assault with intent to murder, and reckless endangerment. Discussion Appellant seeks reversal of his convictions for assault with intent to murder and attempted second degree murder, arguing that one cannot be convicted of those crimes simply because one knowingly engages in sexual behavior that places his partner at risk of being infected with HIV.

According to appellant, the evidence adduced was insufficient to support the trial court’s verdict. In reviewing the sufficiency of the evidence to support a criminal conviction, the standard to be applied is “whether the record evidence could reasonably support a finding of ⁵ guilt beyond a reasonable doubt.” The appropriate inquiry then is not whether we believe that the evidence at trial established guilt beyond a reasonable doubt; “[i]nstead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Moreover, when evaluating the sufficiency of the evidence in a non-jury trial, the judgment of the trial court will not be set aside on the evidence unless clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. State v. Raines, 326 Md. 582, 588-89 , 606 A.2d 265 (1992) (citations omitted). Within that standard of review, we turn to the issues presented in the case sub judice.

I. Regarding appellant’s conviction for attempted second degree murder, the trial court ruled: I think it is clear from the record that [appellant] knew that he had the HIV virus, that he was counseled by various doctors and medical personnel as to that fact, as to how it is transmitted, and that [appellant] stated on several occasions he would only engage in “safe sex.” [Appellant] knew that, at least all of that, before he raped the victims. And he even admitted to staff at Children’s Hospital as to having sex but was using a condom every time. $ $ ^ It is my belief and finding that, based on [appellant’s] knowledge of his disease, his counseling with regards to that, that I can infer malicious intent, that is an intent to commit murder, and we so find, would so find. I believe his requisite intent to kill can be found from inferring from [appellant’s] knowledge as to his HIV positive status, his knowledge of the transmission of the disease. I believe that he also had sufficient time to consider the consequences of his act. ⁶ Accordingly, Madam Clerk, the Court would find him guilty ...

Count I [attempted second degree murder]. “The crime of attempt consists of a specific intent to commit a particular offense coupled with some overt act in furtherance of the intent that goes beyond mere preparation.” State v. Earp, 319 Md. 156, 162 , 571 A.2d 1227 (1990). “[T]he required specific intent in the crime of attempted murder is a specific intent to murder.” Id. at 163 , 571 A.2d 1227 . The Court of Appeals of Maryland defines “specific intent to murder” as “the specific intent to kill under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter.” Id. at 167 , 571 A.2d 1227 . The trier of fact may infer the existence of the requisite intent to kill from the surrounding circumstances. For example, in State v. Jenkins, 307 Md. 501, 514 , 515 A.2d 465 (1986), the Court of Appeals held that an intent to kill may, under proper circumstances, be inferred from the use of a deadly weapon directed at a vital part of the human body.

Whether an intent to kill may, under proper circumstances, be inferred from attempted first degree rape which is likely to result in the transmission of HIV to the victim, and whether, under the proper circumstances, attempted first degree rape constitutes an overt act necessary to support a conviction for the crime of attempted murder present issues of first impression in Maryland. We, therefore, look to other jurisdictions for guidance. In Weeks v. State, 834 S.W.2d 559 (Tex.Ct.App.1992) the Court of Appeals of Texas held that the evidence was sufficient to support the appellant’s conviction for attempted murder where appellant, who was HIV positive, spit in the face of a prison guard. According to the Court, [t]he State was required to prove that appellant’s intent, when he spit on the officer, was to cause the officer’s death; that appellant was infected with HIV at the time he spit on the officer; and that this act was more than mere preparation which tended, but failed to effect the commission of the offense intended, which was the officer’s death. ⁷ Id. at 561-62 .

Because there was sufficient evidence to demonstrate that appellant believed he could kill the officer by spitting his HIV-infected saliva on him, and because the medical testimony indicated that it was possible to transmit HIV through saliva, the Court held: It is undisputed that appellant spit twice on the officer and that appellant was infected with HIV at the time. The record reflects that appellant believed he could kill the complainant by spitting his HIV infected saliva on him. The issue, then, before this Court is whether sufficient evidence, when viewed in the light most favorable to the verdict, was presented to the jury showing that appellant could have transmitted HIV by spitting on the officer. # ❖ ifc ❖ sfs * The jury as trier of fact, was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The jury chose to believe the witnesses who testified that HIV could be transmitted through saliva.

If a rational trier of fact could have reached that result based upon the evidence in this particular case, it would be improper for this court to set aside the jury’s verdict. While the evidence was highly controverted, there is sufficient evidence in the record, when considered in the light most favorable to the verdict, that appellant could have transmitted HIV by spitting. Id. at 562, 565 . In State v. Smith, 262 N.J.Super. 487 , 621 A.2d 493 (App.Div.1993), the Superior Court of New Jersey, Appellate Division, reviewed the propriety of a defendant-appellant’s conviction for attempted murder, aggravated assault, and terroristic threats.

In Smith , the defendant-appellant, a county jail inmate, knew he had HIV, and, prior to biting and puncturing the skin of a corrections officer’s hand, repeatedly threatened that he would kill the corrections officers by spitting at them or biting them. The Superior Court “applied the elements of [New Jersey’s] attempted murder statute as [it] would in a case involving a more traditional criminal methodology[,]” and ⁸ concluded that “the attempted murder verdict was supported by proof, which the jury reasonably could accept, that the defendant subjectively believed that his conduct could succeed in causing the officer’s death, regardless of whether his belief was objectively valid.” Id. 621 A.2d at 496 . The Court stated that the defendant’s violent threats, before, during, and after biting the corrections officer, “all justified an inference that he bore the requisite criminal state of mind under N.J.S.A. 2C:5-l(a)(2)[,]” and that “there was ample evidence from which the jury could have concluded that defendant did all that he believed was necessary to infect [the corrections officer].” Id. 621 A.2d at 505 . Similarly, in State v. Haines, 545 N.E.2d 834, 839 (Ind.Ct.App.1989), the Court of Appeals of Indiana reviewed whether an HIV-infected appellee could be convicted of attempted murder.

In Haines , after a failed suicide attempt, the appellee scratched, bit, and spit at emergency technicians and police officers who came to his aid, and threatened to give them the AIDS virus. During his scuffle -with one of the police officers, the appellee struck the officer in the face with a blood-soaked wig, causing blood to splatter onto the officer’s eyes, mouth, and skin. The appellee was charged with three counts of attempted murder. At trial, the appellee’s homosexual lover recalled that doctors had informed the appellee that he had the AIDS virus, and that the appellee knew that the AIDS virus was fatal.

Additional testimony revealed that, on one occasion when the appellee was admitted to the hospital, he warned the medical staff not to touch him because he was infected with the AIDS viras. Medical testimony adduced at trial revealed that the officer was definitely exposed to HIV, that exposure of infected blood to the eyes and the mouth is dangerous, and that it is easy for the viras to enter the blood stream through cuts on the skin. The trial court in Haines determined that the State failed to meet its burden of proof and, therefore, granted the appellee’s motion for judgment on the counts of attempted murder. The ⁹ Court of Appeals, however, reversed the trial court’s judgment, and held: [f]rom the evidence in the record before us we can only conclude that [the appellee] had knowledge of his disease and that he unrelentingly and unequivocally sought to kill the persons helping him by infecting them with AIDS, and that he took a substantial step towards killing them by his conduct believing that he could do so, all of which was more than a mere tenuous, theoretical, or speculative “chance” of transmitting the disease.

From all of the evidence before the jury it could have concluded beyond a reasonable doubt that [the appellant] took a substantial step toward the commission of murder. Thus the trial court improperly granted [the appellee’s] motion for judgment on the evidence____ Id. at 841 . In Commonwealth v. Brown, 413 Pa.Super. 421 , 605 A.2d 429 (1992), the Superior Court of Pennsylvania held that there was sufficient evidence to support the fact finder’s conclusion that the appellant intended to inflict serious bodily injury upon a corrections officer. In Brown , the appellant, who was infected with HIV, threw his fecal matter in a corrections officer’s face, because, according to the appellant, the corrections officer had been tampering with his mail.

Because the evidence revealed that the appellant had been counseled by both a physician and a nurse concerning the dangers of AIDS and the transmission of HIV through bodily fluids, the Court determined that there was sufficient evidence to support appellant’s conviction for aggravated assault. Id. 605 A.2d at 431 . In State v. Stark, 66 Wash.App. 423 , 832 P.2d 109 (1992), the appellant challenged the