State v. Smith

Gregory Smith (Defendant) was an inmate who had been diagnosed with the human immunodeficiency virus (HIV). Defendant often threatened to kill corrections officers by spitting on or biting the officers to infect them with HIV. On the day in question, Defendant bit Officer Waddington’s hand, puncturing Waddington’s skin. Defendant was charged with attempted murder pursuant to a New Jersey statute providing that a defendant is guilty of an attempted crime if, while acting with the requisite mental state, the defendant purposely does something that would constitute a crime if the circumstances were as a reasonable person would believe them to be. At trial, guards testified that Defendant was an extremely violent person who repeatedly voiced threats of infecting the guards with HIV. There was conflicting expert testimony on the issue of whether it was possible to transmit HIV by biting another person. Defendant testified that he actually believed HIV could only be transmitted sexually, by blood transfusion, or by needle use and that transmission by a bite was not possible. The trial judge instructed the jury that Defendant could be convicted of attempted murder as long as there was evidence that Defendant intended to kill Waddington by a bite, regardless of whether it was medically possible to transmit HIV in that way. The jury convicted Defendant. Defendant appealed, arguing that the judge had erroneously charged the jury with a subjective test and that a conviction could only be sustained if a reasonable person would have believed that a bite could infect another person with HIV and kill that person.