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Murder try verdict contested High court to rule on conviction of man who had HIV

Dwight R. Smallwood was convicted of attempted murder in 1994 for using an unusual weapon -- his body.

Smallwood, who knew he was HIV-positive, raped three women at gunpoint during a week of crime near his home in Temple Hills in September 1993. Today, the state's highest court will hear arguments over whether the attempted murder conviction, the first of its kind in Maryland, was justified.

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His lawyers are expected to argue that the conviction endangers an estimated 15,000 people in Maryland who have acquired immune deficiency syndrome (AIDS) or have tested positive for the human immunodeficiency virus (HIV), and could face the same charges for having unprotected sex.

Gary E. Bair, head of the attorney general's office criminal appeals division, says attempted murder is an appropriate charge if a prosecutor can prove that a rapist or sex offender knew he was HIV-positive and had an intent to kill. "It's really a matter of proving that intent," Bair said.

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Smallwood had been told he was HIV-positive and warned about the need for safe sex at least three times, prosecutors said.

He was sentenced to life in prison Oct. 11, 1994, by Prince George's County Judge C. Philip Nichols Jr. after he was convicted of rape and attempted murder. His convictions were affirmed by the Court of Special Appeals in a 2-1 decision that became Maryland law last year.

"The implications of this holding are this: Any HIV-positive person who has unprotected intercourse and is aware of the potential ramifications can be convicted of assault with intent to murder or attempted murder," Assistant Public Defender Julia Doyle Bernhardt said in a brief filed with the Court of Appeals.

Advocates for AIDS victims say increased criminal penalties for people who know they are HIV-positive will discourage those who might be infected from being tested. "The fact that someone may be HIV-positive is not evidence of a crime, it's a medical condition," said Catherine Hanssens, a spokeswoman for the Lambda Legal Defense and Education Fund in New York, a gay rights group.

Bair said whether attempted murder charges will be filed in similar cases in the future will depend on what prosecutors decide is best for their rape and child sexual abuse cases.

John Cox, head of the sex offense and child abuse unit in the Baltimore County state's attorney's office, said he is considering filing attempted murder charges against a defendant who knew he was HIV-positive when he allegedly had intercourse with children.

Cynthia Ferris, head of the Anne Arundel County state's attorney's sex offense unit, said police have been urging her office to file attempted murder charges in a similar case and that they likely will be filed one day against a rapist or sex offender. "When it comes up, it's going to be a tricky issue," she said.

Bernhardt, Smallwood's lawyer, said her client should have been charged under a 1989 Maryland law that made it a misdemeanor, punishable by three years in prison and a $2,500 fine, for anyone to knowingly transmit HIV, which is transferred from one person to another by the exchange of body fluids.

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She said chances of transmission from a single sexual encounter are one in 500 and that if Smallwood had an intent to kill, he would have used the gun he had.

But prosecutors say that murder charges may be justified because the victims' life is put at risk.

"If you have HIV defendants, who know they're HIV-positive when they rape someone, that should make it worse for them when they come into the criminal justice system," said Susan L. Dechovitz, a Dade County, Fla., prosecutor who will seek a felony attempted murder conviction next fall against an alleged rapist who is HIV-positive.

Ignacio A. Perea Jr., 34, was convicted of attempted murder by a Florida jury during a highly publicized trial in 1994 for raping three boys while he knew he was HIV-positive. But his conviction was reversed when the Florida Supreme Court ruled that one of the jurors was unfairly prejudiced. He is to be retried Sept. 24.

Scott C. Burris, a Temple University law professor who has written two books on AIDS and the law, said such attempted murder prosecutions began about four years ago, but are rare.

"I think it's the right thing to do if the evidence is there that there was really an intent to kill," he said. "I'm just always worried that someone will be punished for being HIV [positive], and not for having an intent to kill."

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Pub Date: 5/31/96



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