Maryland's highest court reversed yesterday the attempted-murder conviction of an HIV-positive man who was charged in three attempted rapes.
The decision led the state's attorney general to call for stiffer penalties for defendants who use the virus that causes AIDS as a weapon.
The Court of Appeals ruled unanimously that Dwight R. Smallwood could not be convicted of attempted murder for attempting to rape a woman when he knew he was HIV-positive in 1993.
Smallwood, 21, of Temple Hills was sentenced Oct. 11, 1994, by Prince George's County Circuit Judge C. Philip Nichols Jr. to life in prison and two concurrent 30-year terms after he pleaded guilty to three counts of attempted first-degree rape and robbery with a deadly weapon for a series of three gunpoint attacks in September 1993.
Nichols also convicted him of assault with intent to murder and attempted murder, based on the statement of facts read at the time. But the appeals court said that the mere chance he could have spread the virus was insufficient proof that he intended to kill the victim.
Smallwood's lawyers had argued that medical evidence showed only a one-in-500 chance of spreading the infection in a single sexual encounter.
Attorney General J. Joseph Curran Jr. said he may ask the General Assembly to reverse the effect of the ruling by stiffening penalties for rapists and other assailants who are HIV-infected and use the virus as a weapon.
"It's just a totally frustrating situation. We're very disappointed," Curran said.
He said the ruling conflicts with appellate court decisions in a half-dozen other states that upheld such convictions.
"If I knowingly inflict the deadly consequences of AIDS to someone, that to me is assault with intent to murder," Curran said.
But Smallwood's lawyer said that if the attempted-murder conviction had been affirmed, it unfairly would have penalized defendants for their medical condition.
Pub Date: 8/02/96