Brock v. StateBrock v. State
Adam Brock was charged in a three-count indictment with one count of attempted murder, in violation of
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 thе 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 аttacked 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 negativе. The defendant‘s biting of officer Gates forms the basis of count one of the indictment.
I
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
The statute provides that “[a] person commits the crime of assault in the first degree if: (1) with intent to causе serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument.”
A “deadly weapon” is “[a] firearm or anything manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury.”
The general rule for the inclusion of body parts, other thаn 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 disсussed infra is to the effect that in no circumstances can fists or teeth be dangerous weapons within the meaning of applicable statutes.”
Alabama follows the view that fists may constitute deadly weapons or dangerous instruments, depending upon the circumstances 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 circumstances “highly capable of causing death or serious physical injury,”
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 dеfense 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.
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
“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 unсertainty 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 teеth 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
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 cаuse 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
The defendant argues that the use of shackles to securе 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 handcuffs or shackles, where there is no pretense of necessity, is inconsistent with оur notion of a fair trial. Taylor v. State, 372 So.2d 387, 389 (Ala.Cr.App. 1979); McCoy v. State, 503 So.2d 371 (Fla.Dist.Ct.App. 1987).
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 thе 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 рerson. 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
“(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 рrevent a peace officer from performing a lawful duty, he causes physical injury to any person.”
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
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.” Cumbo v. State, 368 So.2d 871, 875 (Ala.Cr.App. 1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala. 1979). Legal evidence was presented at trial from which the factfinder could, by fair inference, find that thе 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.
TYSON, PATTERSON and McMILLAN, JJ., concur.
TAYLOR, P.J., concurs as to the affirmance in part; dissents as to the reversal