Smallwood v. State

¹⁰⁰ MURPHY, Chief Judge. In this case, we examine the use of circumstantial evidence to infer that a defendant possessed the intent to kill needed for a conviction of attempted murder or assault with intent to murder. We conclude that such an inference is not supportable under the facts of this case. I A On August 29, 1991, Dwight Ralph Smallwood was diagnosed as being infected with the Human Immunodeficiency Virus (HIV).

According to medical records from the Prince George’s County Detention Center, he had been informed of his HIV-positive status by September 25, 1991. In February 1992, a social worker made Smallwood aware of the necessity of practicing “safe sex” in order to avoid transmitting the virus to his sexual partners, and in July 1993, Smallwood told health care providers at Children’s Hospital that he had only one sexual partner and that they always used condoms. Smallwood again tested positive for HIV in February and March of 1994. On September 26, 1993, Smallwood and an accomplice robbed a woman at gunpoint, and forced her into a grove of trees where each man alternately placed a gun to her head while the other one raped her.

On September 28, 1993, Smallwood and an accomplice robbed a second woman at gunpoint and took her to a secluded location, where Small-wood inserted his penis into her with “slight penetration.” On September 30, 1993, Smallwood and an accomplice robbed yet a third woman, also at gunpoint, and took her to a local school where she was forced to perform oral sex on Smallwood and was raped by him. In each of these episodes, Smallwood threatened to kill his victims if they did not cooperate or to return and shoot them if they reported his crimes. Smallwood did not wear a condom during any of these criminal episodes. ¹⁰¹ Based upon his attack on September 28, 1993, Smallwood was charged with, among other crimes, attempted first-degree rape, robbery with a deadly weapon, assault with intent to murder, and reckless endangerment. In separate indictments, Smallwood was also charged with the attempted second-degree murder of each of his three victims.

On October 11, 1994, Smallwood pled guilty in the Circuit Court for Prince George’s County to attempted first-degree rape and robbery with a deadly weapon. 1 The circuit court (Nichols, J.) also convicted Smallwood of assault with intent to murder and reckless endangerment based upon his September 28, 1993 attack, and convicted Smallwood of all three counts of attempted second-degree murder. Following his conviction, Smallwood was sentenced to concurrent sentences of life imprisonment for attempted rape, twenty years imprisonment for robbery with a deadly weapon, thirty years imprisonment for assault with intent to murder, and five years imprisonment for reckless endangerment. The circuit court also imposed a concurrent thirty-year sentence for each of the three counts of attempted second-degree murder. The circuit court’s judgments were affirmed in part and reversed in part by the Court of Special Appeals.

In Smallwood v. State, 106 Md.App. 1 , 661 A.2d 747 (1995), the intermediate appellate court found that the evidence was sufficient for the trial court to conclude that Smallwood intended to kill his victims and upheld all of his convictions. 2 Upon Smallwood’s petition, we granted certiorari to consider ¹⁰² whether the trial court could properly conclude that Small-wood possessed the requisite intent to support his convictions of attempted second-degree murder and assault with intent to murder. B Smallwood asserts that the trial court lacked sufficient evidence to support its conclusion that Smallwood intended to kill his three victims. Smallwood argues that the fact that he engaged in unprotected sexual intercourse, even though he knew that he carried HTV, is insufficient to infer an intent to kill. The most that can reasonably be inferred, Smallwood contends, is that he is guilty of recklessly endangering his victims by exposing them to the risk that they would become infected themselves.

The State disagrees, arguing that the facts of this case are sufficient to infer an intent to kill. The State likens Smallwood’s HIV-positive status to a deadly weapon and argues that engaging in unprotected sex when one is knowingly infected with HIV is equivalent to firing a loaded firearm at that person. 3 II A In Faya v. Almaraz, 329 Md. 435, 438-440 , 620 A.2d 327 (1993), we discussed HIV and the Acquired Immune Deficiency Syndrome (AIDS) in detail. There, we described HIV as a retrovirus that attacks the human immune system, weakening ¹⁰³ it, and ultimately destroying the body’s capacity to ward off disease. We also noted that [t]he virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally.

HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or birth. Id. at 439 , 620 A.2d 327 . In Faya , we also described AIDS and its relationship to HIV: AIDS, in turn, is the condition that eventually results from an immune system gravely impaired by HIV. Medical studies have indicated that most people who carry the virus will progress to AIDS.

AIDS patients by definition are profoundly immunocompromised; that is, they are prone to any number of diseases and opportunistic infections that a person with a healthy immune system might otherwise resist. AIDS is thus the acute clinical phase of immune dysfunction .... AIDS is invariably fatal. Id. at 439-40 , 620 A.2d 327 .

In this case, we must determine what legal inferences may be drawn when an individual infected with the HIV virus knowingly exposes another to the risk of HIV-infection, and the resulting risk of death by AIDS. B As we have previously stated, “[t]he required intent in the crimes of assault with intent to murder and attempted murder is the specific intent to murder, i.e., the specific intent to kill under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter.” State v. Earp, 319 Md. 156, 167 , 571 A.2d 1227 (1990). See also State v. Jenkins, 307 Md. 501, 515 , 515 A.2d 465 (1986) (“[T]he intent element of assault with intent to murder requires proof of a specific intent to kill under circumstances such that if the victim had died, the offense would be murder.”); Franklin v. ¹⁰⁴ State, 319 Md. 116, 126 , 571 A.2d 1208 (1990). Smallwood has not argued that his actions were performed under mitigating circumstances or that he was legally justified in attacking the three women.

He was properly found guilty of attempted murder and assault with intent to murder only if there was sufficient evidence from which the trier of fact could reasonably have concluded that Smallwood possessed a specific intent to kill at the time he assaulted each of the three women. To evaluate the sufficiency of the evidence in a non-jury trial, we must review the ease on both the law and the evidence. Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990); West v. State, 312 Md. 197, 207 , 539 A.2d 231 (1988). In making this inquiry, we will not set aside the trial court’s findings of fact unless they are clearly erroneous.

Wilson, supra, 319 Md. at 535, 573 A.2d 831 ; Maryland Rule 8-131(c). We must determine “whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the offense charged.” Wilson, supra, 319 Md. at 535-36, 573 A.2d 831 . An intent to kill may be proved by circumstantial evidence. “[S]ince intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.” Earp, supra, 319 Md. at 167, 571 A.2d 1227 (quoting Davis v. State, 204 Md. 44, 51 , 102 A.2d 816 (1954)). Therefore, the trier of fact may infer the existence of the required intent from surrounding circumstances such as “the accused’s acts, conduct and words.” State v. Raines, 326 Md. 582, 591 , 606 A.2d 265 (1992); Earp, supra, 319 Md. at 167, 571 A.2d 1227 .

As we have repeatedly stated, “under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body.” Raines, supra, 326 Md. at 591 , 606 A.2d 265 ; Jenkins, supra, 307 Md. at 513 , 515 A.2d 465 (“Numerous cases make it clear that evidence showing a design to commit grievous bodily injury, such as using a ¹⁰⁵ deadly weapon directed at a vital part of the body, is sufficient because it gives rise to an evidentiary inference of an intent to murder.”) (emphasis in original). In Raines, supra, we upheld the use of such an inference. In that case, Raines and a friend were traveling on a highway when the defendant fired a pistol into the driver’s side window of a tractor trailer in an adjacent lane. Raines, supra, 326 Md. at 586-87 , 606 A.2d 265 .

The shot killed the driver of the tractor trailer, and Raines was convicted of first degree murder. Id. The evidence in the case showed that Raines shot at the driver’s window of the truck, knowing that the truck driver was immediately behind the window. Id. at 592 , 606 A.2d 265 .

We concluded that “Raines’s actions in directing the gun at the window, and therefore at the driver’s head on the other side of the window, permitted an inference that Raines shot the gun with the intent to kill.” Id. at 592-93 , 606 A.2d 265 . The State argues that our analysis in Raines rested upon two elements: (1) Raines knew that his weapon was deadly, and (2) Raines knew that he was firing it at someone’s head. The State argues that Smallwood similarly knew that HIV infection ultimately leads to death, and that he knew that he would be exposing his victims to the risk of HIV transmission by engaging in unprotected sex with them. Therefore, the State argues, a permissible inference can be drawn that Smallwood intended to kill each of his three victims.

The State’s analysis, however, ignores several factors. C First, we must consider the magnitude of the risk to which the victim is knowingly exposed. The inference drawn in Raines, supra, rests upon the