State v. Smith

Decision Date17 February 1993
Parties, 61 USLW 2642 STATE of New Jersey, Plaintiff-Respondent, v. Gregory Dean SMITH, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Ronald L. Kuby for defendant-appellant (William M. Kunstler, Center for Constitutional Rights, and Justin Loughry of the firm Tomar, Simonoff, Adourian & O'Brien, of the brief).

Roseann A. Finn, Asst. Prosecutor, for plaintiff-respondent (Edward F. Borden, Jr., Camden County Prosecutor, attorney; Ms. Finn, on the brief).

Robert J. Del Tufo, Atty. Gen. of N.J., filed a brief amicus curiae (Jeffrey L. Weinstein, Deputy Atty. Gen., of counsel and on the brief).

American Civil Liberties Union of New Jersey and American Civil Liberties Union Foundation filed a brief amicus curiae (Debora A. Ellis and Ruth E. Harlow, on the brief; William B. Rubenstein, American Civil Liberties Union Foundation, of counsel; Evan Wolfson, Lambda Legal Defense & Educ. Fund, of counsel).

Zulima V. Farber, Public Defender of N.J., filed a brief amicus curiae (Audrey Bomse, Asst. Deputy Public Defender, of counsel; Alice K. Dueker, on the brief).

Before Judges KING, LANDAU and THOMAS.

The opinion of the court was delivered by


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.

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