HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BROCK-ST.ASC

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/* This case is reported in 555 So.2d 285 (Ala.Cr.App. 1989).
This case considers whether a human bite is sufficient to pass
the HIV virus for the purpose of a charge of murder. The Court
finds on the medical evidence that this is not possible and
reverses an attempted murder charge. The Court does approve an
assault charge, since biting is certainly illegal. */

Adam Brock

V.

State

Court of Criminal Appeals of Alabama

August 25, 1989

Rehearing denied September 29, 1989



BOWEN, Judge.



This is a case of first impression in Alabama involving a
criminal prosecution for the alleged attempted transmission of
the Acquired Immune Deficiency Syndrome (AIDS).

Adam Brock was charged in a three-count indictment with one count
of attempted murder, in violation of Ala.Code 1975,  13A-4-2 and
13A-62, and with two counts of assault in the second degree, in
violation of  13A-621. The jury found the defendant guilty of
first degree assault on count one, second degree assault on count
two, and third degree assault on count three. The trial judge
sentenced the defendant to 15 years' imprisonment for first
degree assault; to 10 years' for second degree assault, and, to a
concurrent sentence of one year in the county jail for third
degree assault.  Four issues are raised on this appeal from those
convictions.

The defendant was a prisoner confined to the "AIDS Unit" of the
Limestone Correctional Facility.  On October 6, 1987, the
prisoners confined in the general population were "locked down"
for purposes of exercising those inmates not members of the
general prison population. During this time the prisoners started
a commotion. Correctional officer Sam Mitchell was on duty and
went to the defendant's cell because the defendant was acting
belligerent, screaming and cursing.  Officer Mitchell testified
that after he entered the cell, the defendant attacked him and
struck him several times with a padlock.  The two men struggled.
Officer Bettina Carter came to officer Mitchell's assistance and
was struck by the padlock.  The defendant's actions against
officers Mitchell and Carter form the basis for counts two and
three of the indictment.

Three months later during a routine shakedown for contraband by
prison officials, officer Jim Gates and the defendant engaged in
a scuffle.  The altercation was a result of the seizure of two
prohibited ink pens from the defendant's cell.  After the
defendant was handcuffed, he bit the officer on the arm. The
injury was treated at the health care unit, where officer Gates
received antibiotics. After the injury, officer Gates had three
blood tests to detect the presence of the AIDS virus.  All three
tests were negative.  The defendant's biting of officer Gates
forms the basis of count one of the indictment.

Count one of the indictment charged that the defendant "did, with
the intent to commit the crime of murder . . ., attempt to commit
said offense by biting Correctional Officer Jim Gates and
breaking the skin, the said . . . [defendant] being infected with
A.I.D.S. virus and being aware that the A.I.D.S. virus is
transmittal through bodily fluids secreted through his mouth . .
. "  The jury found the defendant guilty of first degree assault
as a lesser included offense of attempted  murder. The defendant
alleges that the trial court erred in denying his motion for a
directed verdict or judgment of acquittal.  He con-tends that the
state failed to present a prima facie case of assault in the
first degree.  We agree.

The statute provides that "[a] person commits the crime of
assault in the first degree if: (1) with intent to cause serious
physical  injury  to  another  person,  he causes serious
physical injury to any person by means of a deadly weapon or a
dangerous instrument."  Ala.Code 1975,  13A~20(a)(1).  The state
argues that because the defendant had the AIDS virus, the
defendant's use of his mouth to bite officer Gates met the
requirements of use of a deadly weapon or a dangerous instrument
causing serious physical injury.

A "deadly weapon" is "[a] firearm or anything manifestly
designed, made or adapted for the purposes of inflicting death or
serious physical injury." Ala.Code 1975,  13A-1-2(11). A
"dangerous instrument" is "[a]ny instrument, article or substance
which, under the circumstances in which it is used, attempted to
be used or threatened to be used, is highly capable of causing
death or serious physical injury."  Section 13A-1-2(12).
"Serious physical injury  is "[p]hysical injury [impairment of
physical condition or substantial pain] which creates a
substantial risk of death, or which causes serious and protracted
disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ."  Section 13A-
1-2(9).

The general rule for the inclusion of body parts, other than
feet, as deadly or dangerous weapons is found in Annot. 8 A.L.R.
4th 1268,1269 (1981):

"The inclusion of human body parts, such as fists and teeth,
within the class of deadly weapons provokes several conceptual
problems.  Most obviously, unlike other kinds of weapons, fists
and teeth are not external instrumentalities.

However, like many other criminal instrumentalities. they may be
used to cause death or serious physical injury. This quality has
led some courts to classify their use. under some circumstances,
as use of a deadly weapon, although the main line of authority
discussed infra is to the effect that in no circumstances can
fists or teeth be dangerous weapons within the meaning of
applicable statutes."

[1]  Alabama follows the view that fists may constitute deadly
weapons or dangerous instruments, depending upon the cir
cumstances and manner of their use.  Hollis v. State, 417 So.2d
617, 619 (Ala.Cr.App. 1982) (fists); Stewart v. State, 405 So.2d
402, 405 (Ala.Cr.App.1981) (fists).  Here, the state failed to
prove that the defendant used his mouth and teeth under circum
stances "highly capable of causing death or serious physical
injury,"  13A-1-2(12).

Viewing the evidence in the light most favorable to the state, we
find that the prosecution's evidence shows that the defendant was
confined in the "H.I.V. unit" of the prison. The defendant was
told that he had "tested positive on the western block which
means they are infectious to other people."  Katherine Mullins, a
registered nurse at the Limestone Correctional Facility testified
that, to the best of her knowledge, the defendant was given the
standard orientation on his health care. She stated that that
included instructions "not to engage in sexual activity and not
to share shaving or oral hygiene utensils." The trial judge
sustained defense counsel's objection that nurse Mullins was not
qualified to state why these precautions were necessary or
required.

On cross-examination, nurse Mullins testified that all the
inmates at the Limestone Correctional Facility were told not to
share toothbrushes.  The state presented absolutely no evidence
as to the nature of AIDS or the manner in which it can be
transmitted.

[2-4]  This court can take judicial notice that AIDS is a life-
threatening disease and that contraction of the human
immunodeficiency virus (HIV) constitutes a serious physical
injury within the definition of  13A-1-2(9).  However, this court
can not take judicial notice that biting is a means capable of
spreading AIDS.  While AIDS may very well be transmitted through
a human bite, there was no evidence to that effect at trial and
we do not believe that is an established scientific fact.
Although biting is of "particular concern," "evidence for the
role of saliva in the transmission of virus is unclear."
Guidelines for Prevention of Transmission of Human
Immunodeficiency Virus and Hepatitis B Virus to Health-Care and
Public-Safety Workers, pp. 9, 15 (U.S. Department of Health and
Human Services, February 1989).

"Judicial notice will not be taken of matters of this kind which
are not matters of common knowledge."  Clark v. State, 257 Ala.
95, 96, 57 So.2d 384 (1952).  "[I]t is also fundamental that:
'In order that a matter may properly be a subject of judicial
notice it must be "known' '-that is, well established and
authoritatively settled. It is clear that uncertainty or
difference of belief in respect to the matter in question, will
operate to preclude judicial notice thereof." Nolen v. State, 35
Ala.App. 249, 252, 45 So.2d 786, cert. denied, 253 Ala. 565, 45
So.2d 792 (1950).

It is also important to observe that there was absolutely no
evidence that the bite caused serious physical injury or that the
biting in this case had the capacity to result in serious
physical injury. Additionally, we note that the state failed to
prove that the defendant intended to cause serious physical
injury when he bit officer Mitchell. See D. Robinson, Jr., AIDS
and the Criminal Law: Traditional Approaches and a New Statutory
Proposal, 14 Hofstra L.Rev. 91 (1985). The state simply failed to
produce any evidence that the defendant was aware, or had been
informed, that AIDS could be transmitted through a human bite.

This case should be compared with United States v. Moore.  669
F.Supp. 289 (D.Minn.1987), affirmed, 846 F.2d 1163 (8th
Cir.1988). In that case there was extensive expert medical
testimony that a human bite could cause "serious infection,"
which the court recognized as a form of "serious bodily harm."
846 F.2d at 1167. That expert testimony led the court to
conclude, "Since a human bite has the capacity to inflict serious
bodily harm, we hold that the human mouth and teeth are a deadly
and dangerous weapon in circumstances like those in the instant
case, even if the harm actually inflicted was not severe," and
"regardless of the presence or absence of AIDS."  Moore, 846 F.2d
at 1167, 1168.

In the case before this court, there was absolutely no evidence
of the capacity of a human bite to cause the type of serious
physical injury defined by  13A-1-2(9). In Moore, 846 F.2d at
1168, the court also held that "in a legal context the
possibility of AIDS transmission by means of a bite is too remote
to support a finding that the mouth and teeth may be considered a
deadly and dangerous weapon in this respect." In the case under
review, the prosecution simply failed to carry its burden of
proof of the elements of assault in the first degree. Even the
jury rejected the state's theory of attempted murder.
Consequently, the defendant's conviction for assault in the first
degree is hereby reversed.

[5]  However, the state did prove the elements of assault in the
third degree and the jury was instructed on those elements.
Therefore, with regard to count one of the indictment, this cause
is remanded to the circuit court with instructions that the
conviction for first degree assault be set aside, and that the
defendant be adjudged guilty of assault in the third degree and
sentenced accordingly.  See Ex parte Stork, 475 So.2d 623, 624
(Ala. 1985).



II

[6]  The defendant argues that the use of shackles to secure his
feet at trial was an inherently prejudicial practice that a trial
court may permit only where justified by an essential state
interest.  Bringing a prisoner before the bar of justice in hand
cuffs or shackles, where there is no pretense of necessity, is
inconsistent with our notion of a fair trial.  Taylor v. State,
372 So.2d 387, 389 (Ala.Cr.App.1979); Mc Coy v. State, 503 So.2d
371 (Fla.Dist.Ct.App.1987).

[7, 8]  Though the facts in the present case do not explicitly
indicate a fear by the court that the defendant would attempt to
escape. it is not reversible error for a trial court to allow a
defendant to be brought into the courtroom handcuffed.   Gulley
v. State. :342 So.2d 1362, 1367 (Ala.Cr.App. 1977); State v.
Vizena. 454 So.2d 1291. 1292 (La.App.1984).  It is in the sound
discretion of the trial court to restrain the defendant and such
discretion should not be disturbed, Martin v. State. 51 Ala.App.
405, 286 So.2d 80, 85 (1973).  "Ultimately, however, it is
incumbent upon the defendant to show that less drastic
alternatives were available and that the trial judge abused his
discretion by not implementing them," Wilson v. McCarthy, 770
F.2d 1482, 1486 (9th Cir.1985).

(9]  The trial judge in the instant case acknowledged defense
counsel's concern over the defendant's appearance and in response
invited suggestions to satisfy counsel's concern. The feasibility
of any other form of restraint was absent and the court exercised
its judicial discretion.  Martin, 286 So.2d at 85.

At the beginning of trial, the judge had every right to believe
that the state would be able to prove its case and show that the
defendant, a convicted felon, had intentionally tried to spread a
deadly and terrible virus by biting another person.  Under these
circumstances, the trial judge was justified  in  having  the
defendant  restrained.



III

Finally, the defendant contends that the state failed to present
a prima facie case of assault in the third degree.  Count three
charged the defendant with the second degree assault of officer
Bettina Carter, in violation of Ala.Code 1975,  13A-621. The
defendant was found guilty of the lesser included offense of
assault in the third degree, in violation of  13A-622, which
provides:

"(a) A person commits the crime of assault in the third degree
if:

"(1) With intent to cause physical injury to another person. he
causes physical injury to any person; or

"(2) He recklessly causes physical injury to another person; or

"(3) With criminal negligence he causes physical injury to
another person by means of a deadly weapon or a dangerous
instrument; or

"(4) With intent to prevent a peace officer from performing a
lawful duty, he causes physical injury to any person.



[10, 11]  The evidence presented at trial showed that the
defendant hit officer Carter with a combination lock during the
defendant's struggle with officer Mitchell. Officer Carter was
struck over her eye and on the top of her head and required
medical attention for the wounds received.  There was abundant
evidence that the defendant intended to strike officer Mitchell.
Under  13A-622, the defendant did not have to intend to cause
injury to officer Carter if he intended to cause injury to
officer Mitchell and officer Carter was injured as a result of
his actions.

It is well settled that the standard this court must apply in
determining a defendant's guilt is "whether the jury might
reasonably find that the evidence excluded every reasonable
hypothesis except that of guilt; not whether such evidence
excludes every reasonable hypothesis of guilt, but whether a jury
might reasonably so conclude."  Gumbo v. State, 368 So.2d 871,
875 (Ala. Cr.App.1978),  cert.  denied, Ex parte Gumbo, 368 So.2d
877 (Ala.1979). Legal evidence was presented at trial from which
the factfinder could, by fair inference, find that the defendant
intended to cause physical injury.  The defendant's conviction
for assault in the third degree is affirmed.

The defendant's conviction for assault in the first degree on
count one of the indictment involving officer Mitchell is
reversed. This cause is remanded with the instructions set forth
in Part I of this opinion. The convictions for second and third
degree assault are affirmed.



AFFIRMED IN PART; REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS.



TYSON, PATTERSON and McMILLAN, J.J., concur.

TAYLOR, P.J., concurs as to the affirmance in part; dissents as
to the reversal in part.