On appeal from the Superior Court of New Jersey, Law Division, Camden County.
King, Landau and Thomas. The opinion of the court was delivered by King, P.J.A.D.
Defendant was a county jail inmate at the time of this criminal episode on June 11, 1989. He had, and knew he had, the human immunodeficiency virus (HIV). On several occasions before June 11 he had threatened to kill corrections officers by biting or spitting at them. On that day he bit an officer's hand causing puncture wounds of the skin during a struggle which he had precipitated. The jury found him guilty of attempted murder, aggravated assault and terroristic threats. The Judge imposed an aggregate 25-year term with a 12 1/2-year period of parole ineligibility.
On this appeal each of defendant's claims of error arises from his premises that (1) without dispute a bite cannot transmit HIV, and (2) defendant knew this when he bit the officers. From these premises defendant urges that he was wrongfully convicted of attempted murder because he knew that his bite could not kill the officer. He insists that he was convicted of such a serious charge because of society's discrimination against persons infected with this deadly virus. He claims that at worst he was guilty only of assaultive conduct and should have been sentenced, as a third-degree offender, to a relatively short custodial term.
From our review of this record, we conclude that neither of defendant's two premises has been established. First, if HIV cannot possibly be spread by a bite, the evidence at trial did not establish that proposition. Indeed, we doubt that the proposition is presently provable scientifically, given the current state of medical knowledge. The apparent medical consensus is that there has never been a controlled study of a sufficiently large number of cases to establish to any scientific certainty if transmission of HIV is possible by a bite, and if so, the percentage of likely infection. The proposition was surely disputed at this trial. Second, whether defendant actually believed that his bite could result in death was a question of his credibility, a question the jury obviously resolved against him.
We cannot and need not decide if a bite can transmit HIV. We have applied the elements of the attempted murder statute as we would in a case involving a more traditional criminal methodology. We conclude 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. For this reason, we affirm the conviction.
On April 14, 1989 defendant was committed to the Camden County jail for trial on robbery charges. In September 1988 defendant had been tested and found positive for HIV. His jailers incarcerated defendant in a special section at the Camden County jail known as the "blood alert" area. This meant the guards would take extra care if blood was spilled during an altercation. Defendant 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.
On May 5 defendant began kicking his cell door and yelling to get out. When he refused to stop, corrections officers entered his cell, handcuffed him, and shackled him to his bed. While the officers were subduing him, he threatened to bite and spit on them if they came any closer. During the struggle defendant "started showing his teeth" at the officers.
On May 17 defendant put his foot in the door of his cell as an officer was trying to close it. This required other officers to come and force defendant back into the cell where they restrained him. During that struggle defendant jumped up on his bed and told the officers that "he was going to take one of
us the fuck out." He told one officer "that he would have me taken care of by getting his brothers to blow up my car, he was going to have me killed." He also threatened to bite one of the officers.
Later in the evening of May 17 another officer was putting defendant back into restraints after a trip to the bathroom when defendant "spit at me several times telling me that he'd take me out." As the officer tried to subdue him, defendant was "trying to get out of the restraints, very aggressive, thrashing around, spitting constantly," and threatening to spit in the officer's mouth, which he tried to do.
The incident giving rise to this prosecution occurred on June 11, 1989. Correction Officers Snow and Waddington were ordered to escort defendant to the nearby Cooper Hospital Emergency Room. Defendant claimed that he had fallen in his cell and injured his head and back. As a precaution against further injury, the ambulance squad placed defendant on a backboard with a neck brace, and, according to standard procedure, the corrections officers handcuffed and shackled him.
Before the five-minute trip to the hospital, Snow and Waddington's supervisor told them that defendant had HIV. The officers put on rubber gloves as a precaution. Officer Waddington was armed with a .38 revolver. At the Cooper Hospital emergency room, defendant told the nurse that "he felt woozy and fell down and hit his back and his head in the jail." Dr. Nathan then examined him and decided that no X-rays were necessary and that "there was nothing essentially wrong with Mr. Smith." According to the nurse, defendant's reaction was to demand to see another doctor and to call Dr. Nathan a "white bitch." When another physician, Dr. Weems, came and confirmed Dr. Nathan's opinion, defendant, according to the nurse, "yelled out to Dr. Weems to go fuck himself and he was screaming out all these things that because he was black we were -- we weren't taking care of him, we were all white staff
and because he had AIDS we weren't giving him proper care and he was very disruptive to the emergency room."
Defendant then demanded his medical records but Officers Waddington and Snow were unable to get them. The hospital's policy was not to release records to patients. At that point defendant "was out of control," screaming, grabbing a monitor and threatening to break it. Waddington and Snow attempted to subdue defendant. As they approached him, he grabbed a "metal cylinder" and tried to throw it at Snow. The officers rushed defendant and grabbed him. Defendant "went limp" and began screaming "they're beating me, they're beating me." Because he refused to leave on his own power, Snow and Waddington grabbed him under the shoulders and dragged him 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, defendant had leg irons and handcuffs on; departing from normal procedure, he was handcuffed in the front, a concession to his claimed back injury.
As the officers dragged defendant from the emergency room, he began "snapping his teeth" at Snow and threatening him:
Yes, he threatened me personally, he said that he was going to bite me, he was going to give me AIDS, I know what he has, I'm going -- you're going to give me -- I'm going to give you AIDS, I'm going to bite you, I'm threatening you, he started threatening my family, I'm going to find you, I'm going to get your family, you know I'm out of here in April and he's going on and on . . . .
Through this tirade, Snow was holding defendant down in order to avoid his mouth. Snow described his own reaction as follows:
All I was thinking of, and I was really scared at this point, I mean I was -- I just kept his face as far away from me as I could because he had been snapping at me and he had said like, you know, he was going to try to kill me by biting me and I was really scared. I just wanted to keep his mouth away from me and I just felt like I just want to get out of there. I don't want to be here, but this is my job and I'm doing it the best I can. And all this was going on about the, you know, while we're waiting for the squad car to come over. I guess it was 15 or 20 minutes we had to wait and put up with this verbal abuse. And he's trying to bite me and I was just holding on for basically dear life.
Officer Waddington described the scene this way:
From the time we started escorting him down the hall when he was in the fetal position he was threatening that he was going to bite us, that he had
AIDS and we're going to get AIDS and we're going to die too. The first chance he gets he said I'm going to kill you mother fuckers. We just kind of put it out of our way and just kept on doing what we had to do.
Q. As you were walking down the hall and he was making those threats did he make any movements or any gestures towards either one of you?
A. He was thrashing his head back and forth towards Officer Snow and myself and we kept him away from us and tried dragging him out. That's what made it difficult.
Waddington also testified that:
Gregory just kept on saying if I get my -- if I get my mouth on you I'm going to bite you, I'm going to give you AIDS, Waddington, he says if I see you out on the street I'm going to come get you, I'm going to kill you, I'm going to go after your family, just basically threatening us that he's going to give us this virus or HIV positive blood that he has he's going to transfer to us.
After Officer Polk arrived with a patrol car, Waddington and Snow dragged defendant out of the hospital. He tried to break loose and hit Snow with the handcuffs. In the ensuing tussle, all three fell into the street. By that point in the struggle, the officers' rubber gloves had come off. Snow said that he "saw as Gregory pulled his teeth off Al's hands, Officer Waddington, there were several puncture wounds and I was very scared at that point because he had already threatened me." Snow saw "noticeable blood and puncture wounds right as he [defendant] came off" Waddington's hand.
The officer finally got defendant into the backseat of the cruiser. Snow sat next to defendant. Waddington rode in the front passenger seat, and Polk drove. When Snow got in the backseat, defendant began kicking him and attacking him with the handcuffs. At that point, the officers put the handcuffs behind defendant's back.
During the ride back to the jail, defendant continued his harangue; he spit in Waddington's face saying, "I hope you die, you pig, Waddington." According to Waddington, defendant "said something to Snow about if he gets a chance he's going to bite him, give him AIDS and he says you, Waddington, he goes and he spit on the back of my neck, he said now die, you pig, die from what I have." Defendant then leaned over and "tried to bite Snow on the side of the face."
Back at the jail, Waddington 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." The State introduced two photographs, taken two or three days after the incident, showing the bite wounds.
On June 14, 1989 Waddington was treated by Dr. Zimmerman, whose practice included treating job-related injuries of Camden County personnel. Waddington told the doctor that he had been bitten by a prisoner who was HIV positive. Dr. Zimmerman prescribed an oral antibiotic as a preventative measure against infection, and "administered hepatitis B immunoglobulin" as a precaution against hepatitis. In explaining his treatment, Dr. Zimmerman testified that human bites, even without involvement of HIV, can cause "very nasty;" and even fatal, infections. Since the incident, Waddington has undergone continued testing for HIV. As of the time of trial in April 1990, the tests had been negative.
The State presented testimony about two later incidents tending to demonstrate defendant's motives. On June 12, 1989 defendant refused to take a shower when told by Corrections Officer Cowgill. Defendant responded that he would bang on the door of his cell all day unless he were allowed to shower at a later time. To make him stop banging, Cowgill and other officers cuffed and shackled defendant. While the officers were restraining defendant, defendant said, according to Cowgill, "You know what I have and I'll give it to you if you . . . attempt to come in here and cuff and shackle me." Cowgill thought that defendant was referring to AIDS.
The other incident occurred on October 17, 1989 as defendant was being processed for transfer to Trenton State Prison. McIntyre was the corrections officer on duty. Defendant began verbally abusing and threatening him. He told him "that he had AIDS, that he would bite me, that I will die with him." As McIntyre let defendant out of his cell, he swung at McIntyre
and "made multiple attempts at biting" him as he tried to subdue defendant.
On the point of HIV transmission by a human bite, the State offered Dr. Porwancher, as an expert in infectious disease. He was Board-certified in internal medicine and infectious diseases and the Chief of Infectious Diseases at St. Francis Hospital, Trenton and had treated at least 1,000 AIDS patients. He testified that AIDS is usually fatal within two years and is caused by HIV. Upon acquiring HIV, a person develops AIDS within a period of years, the median period is about ten years. HIV can not 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.
Dr. Porwancher identified three sources of information concerning the role of saliva in spreading HIV. First, the doctor cited a case report to the editor of Lancet, a well-respected medical journal, describing an incident in which a nurse was bitten on the leg by an AIDS patient and later tested positive for HIV. Second, Dr. Porwancher cited a second case report to the editor of Lancet, reporting that a child had contracted HIV after he was bitten by his brother, who had contracted AIDS from a blood transfusion. The third source of Dr. Porwancher's information was a conversation he had with Dr. Osmenoff from the Soviet Union, who had published data in a prominent Soviet medical journal reporting an outbreak of AIDS in mothers from bites by year-old infants while breast feeding. The infants had been infected with HIV by dirty syringes.
Dr. Porwancher 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." After reviewing the medical records indicating
that defendant was infected with HIV, the doctor said that defendant 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.
Defendant offered his own infectious disease specialist, Dr. Condoluci who criticized the Lancet reports relied on by Dr. Porwancher, explaining in detail how neither warranted an inference that HIV was transmitted by a bite. According to Dr. Condoluci, there had been "two very well documented studies that concern bite wounds and the potential for transmission [of HIV]." In the two studies reported in recent medical journals (Journal of Aids and the Journal of the American Medical Association), no bite victim tested positive for HIV.
Based on a reasonable degree of medical certainty, Dr. Condoluci thought that there was "a very low probability of being infected following a bite wound of an adult as an isolated incident." He characterized the chances of such transmission as "extremely remote" and "very slim." Nonetheless, Dr. Condoluci conceded that if he treated a patient who had been bitten by an HIV carrier, he would test the patient for HIV. The doctor also acknowledged that the United States Department of Health and Human Services, in its published guidelines concerning the transmission of HIV, had indicated "that the role of the transmission of saliva vis-a-vis a bite is still unclear."
Defendant testified. He said that he was discontented at the Camden County 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. Defendant 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."
Defendant's account of the June 11 incident differed from the State's witnesses. Defendant said that on June 10 he had blacked out, striking his back and head. He attributed this fall to his weakness from the lack of AZT. A nurse examined defendant and decided that he should be taken to the hospital emergency room. Waddington and Snow handcuffed defendant, shackled him to a board, and escorted him to the hospital. A doctor examined defendant and refused his request for an X-ray. When defendant refused to leave without an X-ray, he said that Waddington pulled him off the examining table, threw him on the floor, and handcuffed him. Waddington then dragged him into another room and began beating and punching him, telling him "how much he hated niggers," according to defendant.
The officers then dragged defendant outside and pushed him into a patrol car. He denied spitting or biting Waddington, attributing Waddington's wounds to cuts sustained from defendant's handcuffs. Defendant also denied threatening any of the officers with his HIV condition. According to defendant, each of the witnesses who testified to such a threat or attack lied. Defendant filed simple assault charges against Waddington as a result of the June 11 incident.
According to the information known to defendant, AIDS could be contracted in only three ways -- "sexually, blood transfusion or using needles." He believed AIDS transmission by a bite "impossible." As sources of his knowledge, defendant cited his own readings, conversations with doctors, and a Discussion with Eugene Niblack, a mental health worker who had counselled him in the jail. At trial, Niblack confirmed that he had told defendant the following:
I specifically indicated, as with all inmates whom I counseled in this area, that it was a very difficult virus to transmit. And I specifically discussed with him the fact that it could not be gotten from shaking hands, it could not be gotten
through spitting, it was extremely difficult, if not impossible, to get through biting.
Defendant's sister-in-law, Donna Smith, a corrections officer on duty during the June 11 incident, also testified on his behalf. Donna Smith saw Waddington drag defendant back into his cell. Waddington then told Donna Smith that defendant had bit him on the hand. She saw two scratches on his hand; she said that they were not punctures and there was no blood. Donna Smith was also present when defendant was being examined by the nurse on return from the hospital; she saw black and blue marks on defendant's back, which had not been there when he left the jail to go to the hospital.
In August 1989 defendant was indicted for:
Count One: attempted murder of Officer Waddington, contrary to N.J.S.A. 2C:5-1 and 2C:11-3(a);
Count Two: attempted murder of Officer Snow;
Count Three: third-degree aggravated assault on Officer Snow, who was acting in the performance of his official duties, contrary to N.J.S.A. 2C:12-1(b)(5);
Count Four: third-degree aggravated assault on Officer Waddington, who was in the performance of his official duties;
Count Five: third-degree terroristic threats against Officers Snow and Waddington, contrary to N.J.S.A. 2C:12-3(b);
Count Six: second-degree aggravated assault on Officer Waddington, contrary to N.J.S.A. 2C:12-1(b)(1).
Count Two was dismissed before trial. In November 1989 defendant again was indicted, in a single count indictment, charging terroristic threats against Officer McIntyre, contrary to N.J.S.A. 2C:12-3(a) & (b). The indictments were consolidated for trial.
On April 11, 1990 the jury returned a verdict of not guilty on the single count in the second indictment charging threats against McIntyre. The jury found defendant guilty on each of the five remaining counts in the first indictment.
Judge Mariano sentenced defendant as follows:
Count One: 20 years in prison with a ten-year period of parole ineligibility;
Count Three: five years in prison with a two and one-half-year period of parole ineligibility, consecutive to the ...